2023

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LABOR LAW
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 ARELLANO UNIVERSITY SCHOOL OF LAW

ATTY. DOMINGO M. NAVARRO

Dean, AUSL

ATTY. ERIK LAZO

Assistant Dean, AUSL

CENTER FOR LEGAL EDUCATION AND RESEARCH

ATTY. RODERICK M. VILLOSTAS

Director

ATTY. RICKSON M. BUENVIAJE

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MARICAR S. ASUNCION
Research Staff
 BAR OPERATIONS COMMISSION EXECUTIVE COMMITTEE

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LABOR LAW AND SOCIAL LEGISLATION

ELAINE GRACE GUAY

Commissioner

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Deputy Commissioner

MEMBERS

CYRIL ANN M. ABREA

MARLA ROMAYNE C. ALDEMITA
AR-AR D. BANACO
KRISTEL JANN G. CASTILLA
JOHN VINCE A. DELA CRUZ
ANTONIO T. DELGADO
BEVERLY M. EUGENIO
JOSHUA KENNETH R. LAZARO
HISSAH S. MACARAYA
ELENA ANGELA J. MANANGHAYA
MA. CLEO DEANNA C. NIÑO
KAREN JOY T. PAMITTAN
DIXIE AMOR R. PANES
SHEEN C. PARAS
APRIL ANNE G. ROMA
KRISTINE A. ROSALES
JESAH LYNE L. SABILLO
JAZZERIE JOY M. SALES
JONELLA MARIE B. SANTOSIDAD
GEORGE V. SIRIBAN III
JOHAINA MICAH G. VERGARA
AUREA FATIMA C. VICENCIO
NELSON CLYDE L. VILLANUEVA
 LABOR LAW

I. Fundamental Principles and Concepts

2. Civil Code

1. What are the New Civil Code provisions that are relevant to labor?

1. The relations between capital and labor are not merely contractual. They are
so impressed with public interest that labor contracts must yield to the common
good. Therefore, such contracts are subject to the special laws on labor unions,
collective bargaining, strikes and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects (Article 1700, NCC)
2. Neither capital nor labor shall act oppressively against the other or impair the
interest or convenience of the public (Article 1701, NCC).
3. In case of doubt, all labor legislation and all labor contracts shall be construed
in favor of the safety and decent living for the laborer (Article 1702, NCC)
4. No contract which practically amounts to involuntary servitude, under any guise
whatsoever, shall be valid (Article 1703, NCC).

3. Labor Code

2. What are the fundamental principles and concepts in the Labor Code?
a. The State shall afford protection to labor, promote full employment, ensure
equal work opportunities regardless of sex, race or creed, and regulate the
relations between workers and employers. The State shall assure the rights of workers
to self-organization, collective bargaining, security of tenure, and just and
humane conditions of work. (Article 3)

b. All doubts in the implementation and interpretation of the provisions of this Code,
including its implementing rules and regulations, shall be resolved in favor of labor.
(Article 4)

d. All rights and benefits granted to workers under this Code shall, except as may
otherwise be provided herein, apply alike to all workers, whether agricultural or non-
agricultural. (Article 6)

2. Social Justice

3. What is social justice?

Social Justice is neither communism, nor despotism, nor atomism, nor anarchy, but
the humanization of laws and the equalization of social and economic forces

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by the State so that justice in its rational and objectively secular conception may at
least be approximated. Social justice means the promotion of the welfare of all the
people, the adoption by the Government of measures calculated to insure economic
stability of all the competent elements of society, through the maintenance of a proper
economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally justifiable, or
extra-constitutionally, through the exercise of powers underlying the existence of all
governments on the time-honored principle of salus populi est suprema lex. (Calalang vs.
Willams, G.R. No. 47800, December 2, 1940)

When conflicting interests of labor and capital are to be weighed on the scales of social
justice, the law should accord more sympathy and compassion to the less privileged
workingman. This is only fair if the worker is to be given the opportunity and the right
to assert and defend his cause, not as a subordinate, but as part of management with
which he can negotiate on even plane, thus, labor is not a mere employee of capital
but it’s active as equal partner (Fuentes vs. NLRC, G.R. No. 110017, January 2, 1997).

3. Equal Work Opportunities

4. What is the right to Equal Work Opportunities?

The State shall afford protection to labor, promote full employment, ensure equal
work opportunities regardless of sex, race or creed and regulate the relation between
workers and employers. The State shall assure the rights of workers to self-
organization, collective bargaining, security of tenure, and just and humane
conditions of work. (Article 3, Labor Code)

4. Right to Self-Organization and Collective Bargaining

5. What is the worker’s right to self-organization and collective

bargaining?
It is the right of workers and employees to form, join or assist unions, organizations
for purposes of collective bargaining and negotiation and for mutual aid and
protection.

It also refers to the right to engage in peaceful concerted activities or to participate in

policy and decision-making processes affecting their rights and benefits. (Confederation
for Unity, Recognition and Advancement of Government Employees v. Abad, G.R. No. 200418, November 10, 2020)

The right to form a union or association or to self-organization comprehends two

notions, to wit:
a. the liberty or freedom, that is, the absence of restraint which guarantees that
the employee may act for himself without being prevented by law; and

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 b. the power, by virtue of which an employee may, as he pleases, join or refrain
from joining an association. (Samahan ng Manggagawa sa Hanjin Shipyard vs. Bureau of Labor
Relation, G.R. No. 211145, October 14, 2015)

5. Construction in Favor of Labor

6. When does liberal construction apply in labor cases?

All doubts in the implementation and interpretation of the provisions of this Code,
including its implementing rules and regulations, shall be resolved in favor of labor
(Article 4, Labor Code)

The rule remains that where the law speaks in clear and categorical language, there
is no room for interpretation; there is only room for application (Leoncio vs. MST Marine
Services, Inc., G.R. No. 230357, December 6, 2017).

It bears stressing that the policy of liberal approach only applies when there is doubt
on the evidence, but not when evidence is lacking. (Santos v. Bicol Apparel Corp., G.R. No.
226259, October 19, 2022)

Relaxed and liberal interpretation of labor procedures is mainly for the

benefit of the employee, and not the employer. The measures embedded in our
legal system which accord specific protection to labor stems from the reality that
normally, the laborer stands on unequal footing as opposed to an employer. Indeed,
the labor force is a special class that is constitutionally protected because of the
inequality between capital and labor. (Reyes vs. Rural Bank of San Rafael Bulacan, Inc., G.R. No.
230957, March 23, 2022, J. Hernando)

6. Burden of Proof and Quantum of Evidence

7. What is the quantum of evidence required in labor cases?

Substantial evidence is the quantum of proof required in labor cases. It is such

relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. (Tavera, Jr. v. Red Ribbon Bakeshops, Inc., G.R. No. 227817, June 13, 2022)

8. Who has the burden of proof in illegal dismissal cases?

Fact of Dismissal EmployEE

Legality/Validity of Dismissal EmployER

NOTE:
In cases of illegal dismissal, it is well-settled that the employees must first establish
by substantial evidence that indeed they were dismissed. If there is no dismissal,
then there can be no question as to the legality or illegality thereof. (Efren Santos, Jr. vs.
King Chef, G.R. No. 211073, November 25, 2020, J. Hernando)

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In illegal dismissal cases, the burden of proof is on the employer in proving the
validity of dismissal. However, the fact of dismissal, if disputed, must be duly proven
by the complainant. (Rubio v. Lucky Star Service Placement, G.R. No. 242556, June 13, 2022)

9. What is the equipoise rule?

The equipoise rule provides that when the evidence of the employer and the employee
are in equipoise or evenly balanced, doubts are resolved in favor of labor. This is in
line with the policy of the State to afford greater protection to labor. (Hubilla vs. HSY
Marketing Ltd., Co., G.R. No. 207354, January 10, 2018)

10. Why is the employer given the burden to prove payment of salaries and
other benefits in the normal course of business?

the burden rests on the defendant (employer) to prove payment rather than on the
plaintiff to prove non-payment because all pertinent personnel files, payrolls, records,
remittances and other similar documents which show that the salary differentials have
in fact been paid are not in the possession of the worker but are in the custody and
control of the employer. (JR Hauling Services vs. Solamo, G.R. No. 214294, September 30, 2020, J.
Hernando)

Example of Monetary Claims NOT incurred in normal course of business:

Overtime pay, premium pays for holidays and rest days, the burden is shifted on the
employee, as these monetary claims are not incurred in the normal course of business.
It is thus incumbent upon the employee to first prove that he actually rendered service
in excess of the regular eight working hours a day, and that he in fact worked on
holidays and rest days. (Minsola vs. New City Builders, Inc., G.R. No. 207613 January 31, 2018)

II. PRE-EMPLOYMENT
A. Recruitment and Placement of Local and Migrant Workers
1. Definition of Recruitment and Placement

11. What is recruitment and placement?

Recruitment And Placement Refers To Any Act Of: [CETCHUP]
1. Canvassing,
2. Enlisting,
3. Transporting,
4. Contracting,
5. Hiring
6. Utilizing, or
7. Procuring workers.

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 It Includes: [CRAP]
1. Contract services;
2. Referrals;
3. Advertising for; or
4. Promising employment, locally or abroad, whether for profit or not.

Provided that any person or entity which, in any manner, offers or promises for a
fee, employment to two or more persons shall be deemed engaged in recruitment
and placement (Article 13[b], Labor Code).

2. Regulation of Recruitment and Placement Activities

a) Regulatory Authorities
1. Philippine Overseas Employment Administration

12. What is the jurisdiction of POEA?

The POEA has the original and exclusive jurisdiction to hear and decide:
a. all cases which are administrative in character, involving or arising out of
violations of Rules and Regulations relating to licensing and registration,
including refund of fees collected from the workers and violation of the
conditions for issuance of license to recruit workers;
b. disciplinary action cases and other special cases, which are administrative in
character, involving employers, principals, contracting partners and OFWs
processed by the POEA. (Section 6, Rule X, IRR, R.A No. 10022)

2. Regulatory and Visitorial Powers of the Department of Labor and

Employment Secretary

13. What is the Regulatory and Visitorial Powers of the Department of

Labor and Employment Secretary?

The Secretary of Labor and Employment, or his or her authorized representative, has
the visitorial and enforcement powers to:
a. access the employer's records and premises at any time of the day or night, so
long as work is being undertaken;
b. issue compliance orders to give effect to the labor standards provisions of the
Labor Code; and
c. order work stoppage or suspend an establishment's operations when
noncompliance with labor standards poses grave and imminent danger to the
health and safety of workers.
d. inquire into the financial activities of legitimate labor organizations upon the
filing of a complaint under oath and duly supported by the written consent of

5
 at least twenty percent (20%) of the total membership of the labor organization
concerned and to examine their books of accounts and other records to
determine compliance or non-compliance with the law and to prosecute any
violations of the law and the union constitution and by-laws: Provided, That
such inquiry or examination shall not be conducted during the sixty (60)-day
freedom period nor within the thirty (30) days immediately preceding the date
of election of union officials. (Arts. 37,128 and 274, PD 442)

b) Ban on Direct Hiring

14. What is the rule on direct hiring?

General Rule: No employer may hire a Filipino worker for overseas employment.

15. What are the exceptions to the ban on direct hiring?

The ban on direct hiring does not apply to:
a. Members of the diplomatic corps.
b. International organizations.
c. Heads of state and government officials with the rank of at least deputy
minister.
d. Other employers as may be allowed by the DOLE Secretary, such as:
i. Those provided in (a), (b) and (c) who bear a lesser rank, if endorsed by the
Philippine Overseas Labor Office (POLO), or Head of Mission in the absence of
the POLO;
ii. Professionals and skilled workers with duly executed/authenticated contracts
containing terms and conditions over and above the standards set by the POEA.
The number of professional and skilled Overseas Filipino Workers hired for the
first time by the employer shall not exceed five (5). For the purpose of
determining the number, workers hired as a group shall be counted as one; or
iii. Workers hired by a relative/family member who is a permanent resident of
the host country. (Section 124, 2016 POEA Rules on Land-based Overseas Filipino Workers)
e. Name hire and missionaries actually engaged in missionary work (Poquiz, Labor
Standards and Social Legislation with Notes and Comments, Vol. 1, 2018, p. 89).

16. Who is a Name Hire?

A Name Hire pertains to individuals who are able to secure contracts for
overseas employment on their own efforts and representation without the
assistance or participation of any agency. Their hiring, nonetheless, should be
processed through the POEA. (Section 1(i), Rule II, Omnibus Rules and Regulations
Implementing The Migrant Workers and Overseas Filipinos Act of 1995 as amended by Republic
Act No. 10022)

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 c) Entities Prohibited from Recruiting

17. Who may participate in the recruitment and placement of workers,

locally or overseas? Indicate Citizenship Requirements.
Article 27 of the Labor Code provides that:
1. Only Filipino citizens or corporations, partnerships or entities at least 75% of
the authorized and voting capital stock of which is owned and
controlled by Filipino citizens shall be permitted to participate in the
recruitment and placement of workers, locally or overseas.

18. Who are disqualified from recruitment and placement for Overseas
Employment?
The following are disqualified from recruitment and placement for local
employment: [TOCIDO]
1. Travel agencies and sales agencies of airline companies;
2. Officers or Board members of any corporation or partners in a partnership
engaged in the business of a travel agency;
3. Corporations and partnerships, where any of its officers, Board members or
partners is also an officer or board member of any corporation or partnership
engaged in the business of a travel agency;
4. Individuals, partners, officers or directors of an Insurance company who make,
propose or provide an insurance contract under the compulsory insurance
coverage for agency-hired OFWs;
5. Sole proprietors, partners or officers and board members with Derogatory
records.
6. Any Official or employee of DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC,
TESDA, CFO, NBO, PNP, CAAP, international airport authorities, and other GAs
directly involved in the implementation of RA No 8042 and/or any of his
relatives within the 4th civil degree. (Part II, Rule I, Section 3, 2016 Revised POEA Rules and
Regulations).

d) Suspension or Cancellation of License or Authority

19. Distinguish License from Authority.

LICENSE AUTHORITY

Document issued by the DOLE Secretary

authorizing a person, partnership, or authorizing the officers, personnel,

corporation to operate a private agents or representatives of a licensed
recruitment/manning agency. recruitment/manning agency to conduct
recruitment and placement activities in
(Section 1 [w], Rule II, Omnibus Rules and Regulations
Implementing the Migrant Workers and Overseas

7
 Filipinos Act of 1995, as amended by Republic Act No. a place stated in the license or in a
10022)
specified place.

(Section 1 [b], Rule II, Omnibus Rules and

Regulations Implementing the Migrant Workers and
Overseas Filipinos Act of 1995, as amended by
Republic Act No. 10022)

granted to private employment agencies given to private recruitment agencies

20. Who has the power to suspend or cancel a license or authority to recruit
employees for overseas employment?

The POEA and the Secretary of Labor are concurrently vested the power to suspend
or cancel any license or authority to recruit employees for overseas employment (Article
35, Labor Code; Trans Action Overseas Corporation vs. Secretary of Labor, G. R. No. 109583, September 5, 1997).

e) Prohibited Practices [Article 34, Labor Code]

21. What are the prohibited practices under Article 34 of the Labor Code?

It shall be unlawful for any individual, entity, 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,
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
this Code;
d. To induce or attempt to induce a worker already employed to quit his
employment in order to offer him to another unless the transfer is designed to
liberate the worker from oppressive terms and conditions of employment;
e. To influence or to attempt to influence any person or entity not to employ any
worker who has not applied for employment through his agency;
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;
g. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by
his duly authorized representatives;
h. To fail to file 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;
i. To substitute or alter employment contracts approved and verified by the
Department of Labor from the time of actual signing thereof by the parties up

8
 to and including the periods of expiration of the same without the approval of
the Secretary of Labor;
j. 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 a
travel agency; and
k. To withhold or deny travel documents from applicant workers before departure
for monetary or financial considerations other than those authorized under this
Code and its implementing rules and regulations.

NOTE: These prohibited acts also constitute illegal recruitment as redefined by R.A.
No. 8042

3. Illegal Recruitment [Labor Code and the Migrant Workers and Overseas
Employment Act of 1995 (RA 8042), as amended by RA 10022]

a) Elements
b) Types

22. What are the types of illegal recruitment and its elements?

The types of illegal recruitment are as follows:

a. Simple – illegal recruitment committed by a person who has no valid license

or authority against one or two persons only.

Elements:
i. The offender has no valid license or authority required by law to enable one
to lawfully engage in recruitment and placement of workers; and
ii. He undertakes either any activity within the meaning of “recruitment and
placement” defined under Art. 13(b) or any prohibited practices under Art.
34 of the Labor Code (Section 5, RA No. 10022).

b. Illegal Recruitment as Economic Sabotage:

There are two types of illegal recruitment involving economic sabotage:

1. Syndicated – illegal recruitment committed by a syndicate if carried out

by a group of three (3) or more persons in conspiracy or confederation
with one another. (People vs. David, G.R. No. 233089, June 29, 2020)

Elements:
i. The accused have no valid license or authority required by law to enable
them to lawfully engage in the recruitment and placement of workers;
ii. The accused engaged in this activity of recruitment and placement by
actually recruiting, deploying and transporting; and

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 iii. Illegal recruitment was committed by three (3) persons conspiring and
confederating with one another. (People vs. David, G.R. No. 233089, June 29, 2020)

2. Large scale or qualified – offender commits any of the acts of

recruitment and placement against three or more persons, individually
or as a group. (People of the Philippines vs. Oliver Imperio y Antonio, G.R. No. 232623, October
05, 2020, J. Hernando)

Elements:
i. The offender has no valid license or authority required by law to enable
him to lawfully engage in recruitment and placement of workers;
ii. The offender undertakes any of the activities within the meaning of
“recruitment and placement” under Art. 13 (b) of Labor Code, or any of the
prohibited practices enumerated under Art. 34 of the said Code (now Section
6 of the R.A. No. 8042); and
iii. The offender commits any of the acts of recruitment and placement against
three or more persons, individually or as a group. (People of the Philippines vs.
Oliver Imperio y Antonio, G.R. No. 232623, October 05, 2020, J. Hernando)

To prove Illegal Recruitment, it must be shown that the accused gave the
complainants the distinct impression that he or she had the power or ability to deploy
the complainants abroad in such a manner that they were convinced to part with their
money for that end. (Ibid)

c) Illegal Recruitment vs. Estafa

23. Distinguish Illegal Recruitment from Estafa.

Illegal Recruitment Estafa

It is malum prohibitum. (Good faith not It is malum in se.
a defense)
The criminal intent is not necessary. The criminal intent is imperative.

It is penalized under the Labor Code. It is penalized under the Revised Penal
Code.
It is limited in scope. It is wider in scope and covers deceits
whether related or not related to
recruitment activities.
It is the lack of the necessary license Damage is essential.
or authority, and not the fact of
payment that renders the recruitment
activity as unlawful. (People of the Philippines
vs. Avelina Manalang, G.R. No. 198015, January 20,

10
 2021, J. Hernando)

24. May a complaint for illegal recruitment and estafa be simultaneously

filed?

Yes, a person who commits illegal recruitment may be charged and convicted
separately of illegal recruitment under the Labor Code and estafa under par. 2 (a) of
Art. 315 of the Revised Penal Code. The offense of illegal recruitment is malum
prohibitum where the criminal intent of the accused is not necessary for conviction,
while estafa is malum in se where the criminal intent of the accused is crucial for
conviction. Conviction for offenses under the Labor Code does not bar conviction for
offenses punishable by other laws. Conversely, conviction for estafa under par. 2 (a)
of Art. 315 of the Revised Penal Code does not bar a conviction for illegal recruitment
under the Labor Code. It follows that one's acquittal of the crime of estafa will not
necessarily result in his acquittal of the crime of illegal recruitment in large scale, and
vice versa. (People v. Rios y Catagbui, G.R. No. 226140, February 26, 2020)

25. May the Secretary of Labor issue warrants of arrest against alleged
illegal recruiters?

No. The Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that
extent, we declare Article 38, paragraph (c), of the Labor Code, unconstitutional
and of no force and effect. (Salazar vs. Achacoso, G.R. No. 81510, March 14, 1990)

4. Liability of Local Recruitment Agency and Foreign Employer

a) Solidary Liability

26. What is the nature of the liability of local recruitment agency and foreign
employer?

The liability of the principal/employer and the recruitment/placement agency for any
and all claims shall be joint and several. This provision shall be incorporated in the
contract for overseas employment and shall be a condition precedent for its approval.
If the recruitment/placement agency is a juridical being, the corporate officers and
directors and partners as the case may be, shall themselves be jointly and solidarily
liable with the corporation or partnership for the aforesaid claims and damages. (Section
7, RA 10022)

As provided under Section 10 of RA 8042, which mandates that the

principal/employer, recruitment/placement agency, and its corporate
officers and directors in case of corporations, shall be solidarily liable for
money claims arising out of employer-employee relationship with OFWs. (SRL International
Manpower Agency v. Yarza, Jr., G.R. No. 207828, February 14, 2022, Per J. Hernando)

11
27. Are corporate directors and officers automatically liable for illegal
recruitment?

No. To make them jointly and solidarily liable with their company, there must be a
finding that they were remiss in directing the affairs of that company, such as
sponsoring or tolerating the conduct of illegal activities. (Gagui v. Dejero, G.R. No. 196036,
October 23, 2013)

b) Theory of Imputed Knowledge

28. What is the Theory of Imputed Knowledge?

The theory of imputed knowledge ascribes the knowledge of the agent to the principal-
employer but not the other way around. The knowledge of the principal employer
cannot, therefore, be imputed to its agent. (Sunace vs. NLRC, G.R. No. 161757, January 25, 2006).

5. Termination of Contract of Migrant Worker

29. What are the reliefs to which OFWs are entitled to in the event of illegal
dismissal and unauthorized deductions?
The worker shall be entitled to full reimbursement of placement fee and any
deductions made, with interest, as well as salaries for the unexpired portion of the
employment contract:
1. In case of termination of overseas employment without just, valid or authorized
cause as defined by law or contract, or
2. In case of any unauthorized deductions from the migrant worker's salary. (Section
7, R.A. No. 10022)
The worker shall be entitled to full reimbursement of:
1. His placement fee and the deductions made with interest at twelve percent
(12%) per annum; and
2. His salaries for the unexpired portion of his employment contract.

30. What is “Serrano Doctrine”?

Under the 2009 Serrano doctrine, an illegally dismissed OFW is entitled to all the
salaries for the entire unexpired portion of their employment contracts, irrespective of
the stipulated term or duration thereof.

Note: Section 10, paragraph 5 of RA 8042 was declared unconstitutional in the case
of Serrano v. Gallant Maritime Services, Inc, G.R. No. 167614, dated March 24, 2009.

However, R.A. No. 10022 (March 8, 2010), which amended R.A. No. 8042 (Migrant
Workers and Overseas Filipinos Act of 1995), has replicated and re-enacted the same
unconstitutional provision exactly as above quoted.

12
The Court declared that an unconstitutional clause in the law, being inoperative at the
outset, confers no rights, imposes no duties and affords no protection. Withal, even if
Yarza's dismissal became effective on May 22, 2011, or when RA 10022 was already
in force, "the declaration of unconstitutionality found in the Serrano case promulgated
in March 2009 [and subsequently the Sameer case promulgated on August 5, 2014]
shall retroactively apply." (SRL International Manpower Agency v. Yarza, Jr., G.R. No. 207828, February
14, 2022, J. Hernando)

B. Employment of Non-Resident Aliens

31. Who are required to secure Alien Employment Permit (AEP) prior to
employment?
1. Any alien seeking admission to the Philippines for employment purposes, and
2. any domestic or foreign employer who desires to engage an alien for
employment in the Philippines (Article 40, Labor Code; WPP Marketing Communications, Inc.
v. Galera, G.R. Nos. 169207 & 169239, March 25, 2010).

C. Discriminatory Practices
1. Age (RA 10911 or the Anti-Age Discrimination in Employment Act)

32. What are acts of unlawful age-based discrimination?

1. Print or publish, or cause to be printed or published, in any form of media,

including the internet, any notice of advertisement relating to employment
suggesting preferences, limitations, specifications, and discrimination based on
age;
2. Require the declaration of age or birth date during the application process;
3. Decline any employment application because of the individual’s age;
4. Discriminate against an individual in terms of compensation, terms and
conditions or privileges of employment on account of such individual’s age;
5. Deny any employee’s or worker’s promotion or opportunity for training because
of age;
6. Forcibly lay off an employee or worker because of old age; or
7. Impose early retirement on the basis of such employee’s or worker’s age.

b. It shall be unlawful for a labor contractor or subcontractor, if any, to refuse to

refer for employment or otherwise discriminate against any individual because of such
person’s age.

c. It shall be unlawful for a labor organization to:

1. Deny membership to any individual because of such individual’s age;
2. Exclude from its membership any individual because of such individual’s age;
or
3. Cause or attempt to cause an employer to discriminate against an individual in
violation of this Act.

13
d. It shall be unlawful for a publisher to print or publish any notice of advertisement
relating to employment suggesting preferences, limitations, specifications, and
discrimination based on age. (Section 5, RA 10911)

The prohibition on discrimination in employment on account of age shall apply to any

employer, labor contractors or subcontractors, if any, and labor organizations. (Section
4, RA 10911)

33. What are the lawful ways for an employer to set age limitations in
employment?
The employer may lawfully set age limitations in employment if:
a. Age is a bona fide occupational qualification reasonably necessary in the
normal operation of a particular business or where the differentiation is based
on reasonable factors other than age;
b. The intent is to observe the terms of a bona fide seniority system that is
not intended to evade the purpose of this Act;
c. The intent is to observe the terms of a bona fide employee retirement or
a voluntary early retirement plan consistent with the purpose of this Act:
Provided, That such retirement or voluntary retirement plan is in accordance
with the Labor Code, as amended, and other related laws; or
d. The action is duly certified by the Secretary of Labor and Employment
in accordance with the purpose of this Act. (Section 6, RA 10911)

14
 2. Gender and/or Marital Status (RA 9710 or the Magna Carta of Women)

34. What is Discrimination against Women?

"Discrimination Against Women" refers to any gender-based distinction, exclusion, or
restriction which has the effect or purpose of impairing or nullifying the recognition,
enjoyment, or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil, or any other field.

It includes any act or omission, including by law; policy, administrative measure, or

practice, that directly or indirectly excludes or restricts women in the recognition and
promotion of their rights and their access to and enjoyment of opportunities, benefits,
or privileges.

A measure or practice of general application is discrimination against women if it fails

to provide for mechanisms to offset or address sex or gender-based disadvantages or
limitations of women, as a result of which women are denied or restricted in the
recognition and protection of their rights and in their access to and enjoyment of
opportunities, benefits, or privileges; or women, more than men, are shown to have
suffered the greater adverse effects of those measures or practices. (Section 4(b), RA 9710)

3. Health Condition (RA 7277 or the Magna Carta for Disabled Persons)

35. What is the Magna Carta for Disabled Persons?

The Magna Carta for Disabled Persons ensures equal opportunities for persons
with disability (PWDs) and prohibits discrimination against them.
*The law uses the term “disabled persons” but the politically correct term is “Person
with Disability” (PWD)

Equal Opportunity for Employment

No disabled persons shall be denied access to opportunities for suitable
employment. A qualified disabled employee shall be subject to the same terms
and conditions of employment and the same compensation, privileges,
benefits, fringe benefits, incentives or allowances as a qualified able-bodied
person. Five percent (5%) of all casual, emergency and contractual positions in the
Department of Social Welfare and Development; Health; Education, Culture and
Sports; and other government agencies, offices or corporations engaged in social
development shall be reserved for disabled persons. (Title II, Chapter 1, Section 5, RA 7277)

Discrimination on Employment
No entity, whether public or private, shall discriminate against a qualified disabled
person by reason of disability in regard to job application procedures, the hiring,

15
promotion, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.

4. Solo Parents (Sec. 7, RA 8972, as amended by RA 11861)

36. What are the duties of employers to Solo Parent employees under the
Solo Parents Act?

No employer shall discriminate against any solo parent employee with respect to terms
and conditions of employment on account of his or her status.

Employers may enter into agreements with their solo parent employees for a
telecommuting program, as provided in Republic Act No. 11165, otherwise known as
the 'Telecommuting Act: Provided, that said solo parent employees shall be given
priority by their employer." (Section 7, RA 8972 as amended by RA 11861)

III. EMPLOYMENT PROPER

A. Management Prerogative

37. What is the concept of management prerogative?

Under the doctrine of management prerogative, an employer possesses the
inherent right to regulate, according to its own discretion and judgment, all
aspects of employment, including:
1. hiring;
2. work assignments;
3. working methods
4. time
5. place and manner of work
6. work supervision
7. transfer of employees
8. lay-off of workers, and
9. discipline, dismissal, recall of employees.

This wide sphere of authority to regulate its own business may only be curbed by the
limitations imposed by labor laws and the principles of equity and substantial justice.
The importance of discouraging interference is necessary to ensure that the employer
may in turn expect good performance, satisfactory work, diligence, good conduct and
loyalty from its employees. (Magante v. Wellcare Clinics and Lab, Inc., G.R. No. 242498 (Notice), October
6, 2021)

1. Discipline

16
38. What are the general rule and limitations in exercising the right to
discipline employees?
GENERAL RULE: Management has the prerogative to discipline its employees and to
impose appropriate penalties on erring workers pursuant to company rules and
regulations." (Empas v. Mariwasa Siam Ceramics, Inc., G.R. No. 246176 (Notice), December 7, 2021)

NOTE: Specific provision on the application of company rules in disciplinary actions is

paramount over the general provision on grievance procedures. (Visayan Electric Co.
Employees Union [VECEU] v. Visayan Electric Co., Inc., G.R. No. 234556 (Notice), April 28, 2021)

39. Is the employer’s right to discipline unlimited?

No. This right to discipline employees is subject to reasonable regulation by the State
in the exercise of its police power. Accordingly, the finding that an employee violated
company rules and regulations is subject to scrutiny by the Court to determine if the
dismissal is justified and, if so, whether the penalty imposed is commensurate to the
gravity of his offense. (Holcim Philippines, Inc. v. Obra, G.R. No. 220998, August 8, 2016)

2. Transfer of employees

40. What is the prerogative of management to transfer employees?

The prerogative of management to transfer employees refers to the transfer or
assignment of employees in good faith that is one of the acknowledged valid exercises
of management prerogative "and will not, in and of itself, sustain a charge of
constructive dismissal." (Asian Marine Transport Corp. v. Caseres, G.R. No. 212082, November 24, 2021)

It is the employer’s prerogative, based on its assessment and perception of its

employee’s qualifications, aptitudes, and competence, to move them around in the
various areas of its business operations in order to ascertain where they will function
with maximum benefit to the company. (Pharmacia and Upjohn, Inc. vs. Albayda, Jr., G.R. No.
172724, August 23, 2010)

41. May an employee’s transfer be considered constructive dismissal?

A transfer is tantamount to constructive dismissal when it is "unreasonable, unlikely,
inconvenient, impossible, or prejudicial to the employee." The employer has the
burden of proving that the transfer was for just and valid grounds, and that it was
compelled by a genuine business necessity. Failure to overcome this burden of proof
taints the transfer, making it constructive dismissal. (Asian Marine Transport Corp. v. Caseres,
G.R. No. 212082, November 24, 2021)

42. What are the kinds of transfer?

1. Transfer from one position to another of equivalent rank, level, salary, without a
break in the service (Coca-Cola Bottlers Philippines, Inc. vs. Del Villar, G.R. No. 163091, October 06,
2010); or

17
 2. Transfer from one office to another within the same business establishment (Blue
Dairy Corporation vs. NLRC, G.R. No. 129843, September 14, 1999)

43. What are the limitations in exercising the right to transfer?

There must be no demotion in rank or diminution of salary, benefits and other
privileges and not motivated by discrimination or made in bad faith or
effected as a form of punishment or demotion without sufficient cause (Pharmacia and
Upjohn, Inc. vs. Albayda, Jr., G.R. No. 172724, August 23, 2010).

44. Distinguish promotion from demotion.

PROMOTION DEMOTION
Advancement from one position to another Involves a situation where an employee is
with an increase in duties and relegated to a subordinate or less important
responsibilities as authorized by law, and position constituting reduction to a lower
usually accompanied by an increase in grade or rank, with a corresponding
salary. decrease in duties and responsibilities, and
usually accompanied by a decrease in salary.
(Poquiz, Labor Relations and Law on Dismissal with Notes and Comments, 2018, p.439).

45. Is demotion a valid management prerogative?

Yes. The employer has the right to demote and transfer an employee who has failed
to observe proper diligence in his work and incurred habitual tardiness and absences
and indolence in his assigned work. Also, demotion may be validly imposed due to
failure to comply with productivity standards and quota (Petrophil Corp. vs. NLRC, G.R. No. L-
64048, August 29, 1986).

46. When does refusal to obey a valid transfer order constitute willful
disobedience?

GENERAL RULE: Refusal to obey a valid transfer order constitutes willful

disobedience of a lawful order of an employer. Refusal to comply with such orders on
the ground of parental obligations, additional expenses, and the anguish he would
suffer is away from his family is invalid (Allied Banking Corporation vs. CA, G.R. No. 144412, November
18, 2003)

EXCEPTIONS:
a. When the transfer is consequential to a promotion. No law compels an
employee to accept a promotion (Dosch vs. NLRC, G.R. No. L-51182, July 5, 1983).
b. Transfer may also be validly refused if the transfer is an overseas assignment.
Such cannot be likened to a transfer from one city to another within the
Philippines (Allied Banking Corporation vs. CA, G.R. No. 144412, November 18, 2003).

3. Productivity standards

18
47. Explain the schemes used by employers to prescribe the standards of
productivity.

1. Incentive scheme - Employees who surpass the productivity standards or quota

are usually given additional benefits; and
2. Disciplinary scheme - Employees may be sanctioned or dismissed for failure to
meet the productivity standards or quota. (Chan, Bar Reviewer on Labor Law, 2019, p. 807)

48. How are standard output rates or piece rates determined?

The standard output rates or piece rates shall be determined through:
- time and motion studies (preferred method)
- individual/collective agreement between employer and the workers as
approved by the DOLE Secretary or his authorized representative or
consultation with representatives of employers’ and workers’ organization in a
tripartite conference called by the DOLE Secretary (Chan, Bar Reviewer on Labor Law,
2019, p. 809; Section 5(b), Rule VII-A, Book III, Rules to Implement the Labor Code).

4. Bonus

49. What is a Bonus? When is it granted?

Bonus is a gratuity or act of liberality of the giver. It is something given in addition to
what is ordinarily received by or strictly due the recipient (Protado vs. Laya Mananghaya & Co.,
G.R. No. 16854, March 25, 2009).

The grant of a bonus is basically a management prerogative which cannot be forced

upon the employer who may not be obliged to assume the onerous burden of granting
bonuses or other benefits aside from the employee's basic salaries or wages. (Manila
Electric Co. v. Argentera, G.R. Nos. 224729 & 225049, February 8, 2021)

50. When does a bonus become a demandable obligation?

a. When it emanates from a contract or stipulated in the CBA (Manila Electric
Co. v. Argentera, G.R. Nos. 224729 & 225049, February 8, 2021)
b. When it is given on account of company policy or practice (Manila Electric Company
vs. Secretary of Labor, G.R. No. 127598, January 27, 1999)
c. When it is made part of the wages; if given without any condition, whether
or not profits are realized (Metro Transit Organizations, Inc. vs. NLRC, G.R. No. 116008, July 11,
1995)
d. When the grant is mandated by law (Ungos III, Labor Law 3: The Fundamentals of Labor
Law Review, 2021, p. 175-176)

51. When may an employer be exempt from paying a bonus?

19
An employer cannot be forced to distribute bonuses which it can no longer afford to
pay. To hold otherwise would be to penalize the employer for his past generosity.
(Producer’s Bank of the Philippines vs. NLRC, G.R. No. 100701, March 28, 2001)

5. Change of working hours

52. What is the management prerogative of changing working hours?

It refers to the freedom and prerogative of employers, according to their discretion
and best judgment, to regulate and control the time when workers should report for
work and perform their respective functions. (Philippine Airlines, Inc. vs. NLRC, G.R. No. 115785,
August 4, 2000)

6. Bona Fide Occupational Qualifications

53. What is the Bona Fide Occupational Qualifications (BFOQ) rule?

BFOQ refers to the rule that employment may be limited to a particular class if the
employer can show that sex, religion or national origin is an actual qualification for
performing the job (Yrasuegui vs. Philippine Airlines, Inc., G.R. No. 168081, October 17, 2008).

54. Explain the Reasonable Business Necessity Rule.

In order to justify a BFOQ, the employer must comply with the Reasonable Business
Necessity Rule by showing that:
1. The employment qualification is reasonably related to the essential operation of
the job involved; and
2. There is factual basis for believing that all or substantially all persons meeting
the qualification would be unable to properly perform the duties of the job (Star
Paper Corporation, et. al. vs. Simbol, et. al., G.R. No. 164774, 2006).

55. What are the determining factors in assessing whether a particular

occupational requirement is a bona fide occupational requirement?

The following conditions must be complied with to justify a BFOQ:

1. The employer must show that it adopted the standard for a purpose
rationally connected to the performance of the job;
2. The employer must establish that the standard is reasonably necessary to
the accomplishment of that work-related purpose; and
3. The employer must establish that the standard is reasonably necessary in
order to accomplish the legitimate work-related purpose (Yrasuegui vs. Philippine
Airlines, Inc., G.R. No. 168081, October 17, 2008).

7. Marriage Between Employees of Competitor-Employers

20
56. May an employer validly prohibit relationships with employees of a competitor?
Yes. The prohibition against personal or marital relationships with employees of competitor companies
may be reasonable if under the circumstances relationships of that nature might compromise the
interests of the company.
(Association of Detailman-PTGWO vs. Glaxo Wellcome Philippines, Inc., G.R. No. 162994, September 17, 2004) .
Such prohibition is compliant with the Reasonable Business Necessity Rule because the policy seeks to
avoid conflict of interest on the employee’s part.

8. Post-Employment Restrictions

57. What is a post-employment restriction?

It refers to certain restrictions imposed by the employer on an agreement with the
employee, for certain restrictions to take effect after the termination of the employer-
employee relationship.

The following stipulations in an employment contract are illustrative of the prohibitions

normally agreed upon by the employer and the employee:
1. Non-Compete Clause;
2. Confidentiality and Non-Disclosure Clause;
3. Non-Solicitation Clause;
4. Non-Recruitment or Anti-Piracy Clause; and
5. Inventions Assignment Clause (Intellectual Property Clause) (Chan, Bar Reviewer on
Labor Law, 2019, p. 822)

B. Labor Standards
1. Conditions of Employment

a) Coverage

58. Who are exempt from coverage of Book III of the Labor Code?
a. Government employees;
b. Managerial employees;
c. Field Personnel
d. Members of the family of the employer who are dependent on him for support
e. Workers paid by results;
f. Persons in the personal service of another (Article 82, PD 442 as amended)
g. Domestic Helpers (Kasambahay Law)
h. Family drivers (Atienza v. Saluta, G.R. No. 233413, June 17, 2019)

b) Hours of work

59. What constitutes compensable hours worked?

The normal hours of work of any employee shall not exceed eight (8) hours a day.
(Article 83, Labor Code)

21
Compensable work hours shall include:
a. All time during which an employee is required to be:
i. in duty or
ii. to be at the employer’s premise or
iii. to be at a prescribed workplace; and
b. All time during which an employee is suffered or permitted to work.

Rest periods of short duration during working hours shall be counted as hours worked.
(Article 84, Labor Code).

NOTE: All hours are hours worked which the employee is required to give his
employer, regardless of whether or not such hours are spent in productive labor or
involve physical or mental exertion. (Section 4, Rule I, Book III, Rules Implementing the Labor Code.)

(2) Compressed Work Week

60. What is Compressed Workweek?

“Compressed Workweek” or “CWW” is an alternative arrangement whereby the normal
workweek is reduced to less than six days but the total number of normal work hours
per week shall remain at 48 hours. The normal workday is increased to more than
eight hours without corresponding overtime premium. This concept can be adjusted
accordingly in cases where the normal workweek of the firm is five days. (Department
Advisory Order No. 2, Series of 2004).

61. What are the requisites for a valid CWW scheme?

1. CWW is undertaken as a result of express and voluntary agreement of majority

of covered employees or authorized representative;
2. In hazardous workplaces, there must be a certification from an accredited
health and safety organization or practitioner or from the firm's safety
committee that work beyond eight hours is within threshold limits or tolerable
levels of exposure
3. There is no diminution in benefits;
4. The employer shall notify DOLE through the Regional Office via the CWW
Report Form;
5. It must be for a temporary duration (DOLE Advisory No. 02-04, December 2, 2004; Chan,
Law on Labor Standards and Social Legislation, 2019 p. 388)

62. What is flexible working hours?

It refers to alternative arrangements or schedules other than the traditional or

standard work hours, workdays, and workweek (Department Advisory No. 4, Guidelines on the
Implementation of Flexible Work Arrangement, Series of 2010).

NOTE: Under R.A. No. 8972, otherwise known as “The Solo Parents’ Welfare Act
of 2000”, solo parents are allowed to work on a flexible schedule: Provided, that

22
 the same shall not affect individual and company productivity: Provided, further,
That any employer may request exemption from the above requirements from the
DOLE on certain meritorious grounds (Section 6, RA 8972, Solo Parents Welfare Act).

63. What is Telecommuting?

Telecommuting refers to a work arrangement that allows an employee in the

private sector to work from an alternative workplace with the use of
telecommunication and/or computer technologies. (DOLE DO No. 202 s. 2019 or the IRR of
R.A. No. 11165, and R.A. No. 11165 or the Telecommuting Act)

(3) Meal Periods

64. What is the rule on Meal Periods?

General Rule: 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 (Article 85, Labor Code)

65. When may an employer prescribe a shortened meal period?

An employer may prescribe a shorter meal period of at least 20 minutes in the

following instances:
a. Where the work is non-manual in nature or does not involve strenuous physical
exertion;
b. Where the establishment regularly operates not less than 16 hours a day;
c. In cases of actual or impending emergencies or there is urgent work to be
performed on machineries, equipment or installation to avoid serious loss which
the employer would otherwise suffer; and
d. Where the work is necessary to prevent serious loss of perishable goods (Section
7, Rule III, Rules Implementing the Labor Code).

66. May a meal break be shortened to less than twenty (20) minutes?
No, the law does not allow the mealtime to be shortened to less than twenty (20)
minutes. If so reduced, the same shall no longer be considered as mealtime but merely
as rest period or coffee break and therefore becomes compensable working time.
(Section 7, Rule 1, Book III, Rules to Implement the Labor Code)

67. May the employees go out of the company premises during meal
periods?
Yes, as a general rule, employees are entitled to at least one hour time-off for regular
meals which can be taken inside or outside company premises. Nowhere in the law
may it be inferred that employees must take their meals within the company premises.

23
Employees are not prohibited from going out of the premises as long as they return
to their post on time. (PAL vs. NLRC, GR No. 138205, February 2, 1999)

(4) Night-Shift Differential

68. What is Night-Shift Differential?

Night Shift Differential is the additional compensation of 10% of an employee’s regular
wage for each hour of work performed between ten o’clock in the evening and six
o’clock in the morning. (Section 2, Rule II, Book III, Rules Implementing the Labor Code)

69. How is night-shift differential computed?

Ordinary Rest Day, Special Day, or

Regular Holiday

Where night shift Plus 10% of the basic Plus 10% of basic hourly
(10pm to 6am) work hourly rate or total of rate on a rest day, special
is regular work 110% of the basic hourly day or regular holiday or
rate total of 110% of the basic
hourly rate

Where night shift Plus 10% of the overtime Plus 10% of the overtime
(10pm to 6am) work hourly rate on an hourly rate on a rest day or
is overtime ordinary day or a total of special day or regular
110% of the overtime holiday
hourly rate on an
ordinary day

For overtime work in Plus 10% of 125% of Plus 10% of 130% of regular
the night shift basic hourly rate or a hourly rate on said days or a
total of 110% of 125% of total of 110% of 130% of
Note: Since overtime basic the applicable regular hourly
work is not usually hourly rate. rate. (2019 Handbook on Workers
eight (8) hours, the Statutory Monetary Benefits by DOLE)
compensation for
overtime night shift
work is also computed
on the basic of the
hourly rate.

Where the night-time work of an employee overlaps with overtime work, the receipt
of overtime pay does not preclude the receipt of night differential pay. The latter is
night pay; the former is payment beyond eight-hour work. (Poquiz, Labor Standards and Social
Legislation, 2018, page 234)

24
 (5) Overtime Work

70. Distinguish Premium Pay from Overtime Pay.

Premium Pay Overtime Pay

Pertains to additional compensation Pertains to additional compensation for

required by law for work performed the overtime work in an amount
within 8 hours on non-working days, equivalent to his regular wage plus at
such as rest days and holidays. (2022 least 25% thereof. It is the amount
Handbook on Workers Statutory Monetary obtained by multiplying the overtime
Benefits by DOLE)
hourly rate by the number of hours
worked in excess of eight (8) hours.
(Chan, Law on Labor Standards and Social Legislation,
2019 p. 411)

71. What is the distinction between Night Shift Differential Pay and
Overtime Pay?
Night Shift Differential Pay Overtime Pay

It refers to the additional It refers to an additional compensation

compensation of ten percent (10%) for work performed beyond eight (8)
of an employee’s regular wage for hours a day.
each hour of work performed
between 10 p.m and 6 a.m.

Applicable only for employees Applicable to employees working on a

regularly assigned to night work. day shift or night shift.

Night differential is 10% of such Overtime pay is 25% additional to the

hourly wage without overtime pay. employee's hourly regular wage.
(Article 86, Labor Code)

72. When may overtime pay be "built into" an employee's salary?

1. When there is a clear written agreement knowingly and freely entered by the
employee; and
2. The mathematical result shows that the agreed legal wage rate and the
overtime pay, computed separately, are equal to or higher than the separate
amounts legally due (Damasco vs. NLRC, G.R. 115755, December 4, 2000).

73. When may an employee be required to render overtime work?

25
 a. 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;
b. When overtime work is necessary to prevent loss of life or property or in case
of imminent danger to public safety due to actual or impending emergency in
the locality caused by serious accident, fire, floods, typhoons, earthquake,
epidemic or other disasters or calamities;
c. When there is urgent work to be performed on machines, installations, or
equipment, or in order to avoid serious loss or damage to the employer or some
other causes of similar nature;
d. When the work is necessary to prevent loss or damage to perishable goods;
e. When the completion or continuation of work started before the 8th hour is
necessary to prevent serious obstruction or prejudice to the business or
operations of the employer; and
f. When overtime work is necessary to avail of favorable weather or
environmental conditions where performance or quality of work is dependent
thereon. (Article 89, Labor Code)

74. May an employee validly refuse to render emergency overtime work?

No. When an employee refuses to render emergency overtime work under any of the
conditions stated in Article 89 of Labor Code, he may be dismissed on the ground of
insubordination or willful disobedience of the lawful order of the employer. (Realda vs.
New Age Graphics, G.R. No. 192190, April 25, 2012)

(6) Computation of Additional Compensation (Rates only)

75. What are the various overtime rates?

OVERTIME during RATE

Regular Workdays Regular basic wage + 25% of the basic hourly rate
(Article 87, Labor Code).

Regular/Legal Holiday Holiday wage rate (200%) + 30% of hourly regularly

or legal holiday rate (Article 94 (b), Labor Code).

Rest day or Special Rest Days/Special Holiday wage rate (130%) + 30%
Holidays of hourly rest day or special holiday rate (Article 93 (a).

Scheduled Rest Day Holiday wage rate (150%) + 30% holiday hourly rate
which is also Special (Article 93 (c), Labor Code).
Holiday

26
 Scheduled Rest Day Holiday wage rate (260%) + 30% of holiday hourly
which is also Regular rate
Holiday

c) Rest Periods

76. What is the right of the workers to rest periods?

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 workdays. (Section 3,
Rule III, Book III, IRR)

77. When may an employer require an employee to work on a rest day?

a. 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;
b. In case of urgent work to be performed on the machinery, equipment, or
installation, to avoid serious loss which the employer would otherwise suffer;
c. In the event of abnormal pressure of work due to special circumstances, where
the employer cannot ordinarily be expected to resort to other measure;
d. To prevent loss or damage to perishable goods;
e. Where the nature of the work requires continuous operation and the stoppage
of work may result in irreparable injury or loss to the employer; and
f. Under other circumstances analogous or similar to the foregoing as determined
by the Secretary of Labor and Employment (Article 92, Labor Code)

d) Holidays
78. What are the Regular and Special Holidays?
Regular Holidays Nationwide Special Holidays
(Holiday Pay/200% DWR) (Premium Pay/130%DWR)

EDSA People Power February 25

New Year’s Day January 1
Anniversary

Araw ng Kagitingan April 9 Ninoy Aquino Day August 21

Maundy Thursday Movable Date All Saints’ Day November 1

Feast of December 8
Good Friday Movable Date Immaculate
Conception of Mary

27
 Labor Day May 1 Last Day of the Year December 31

EDSA People Power February 25

Independence Day June 12
Anniversary

National Heroes Day August 31 Ninoy Aquino Day August 21

Bonifacio Day November 30

Christmas Day December 25

Rizal Day December 30

Eidul Fitr Movable Date

Eidul Adha Movable Date

Additional Special Non-working days

● January 2, 2023 (Monday)
● November 2, 2023 (Thursday)

79. What are the effects of absences on holiday pay?

a. If an employee is on leave of absence with pay, he is entitled to holiday pay.
b. If an employee is on leave of absence without pay on the day immediately
preceding a regular holiday, he is not entitled to holiday pay.
c. If the day immediately preceding the holiday is a non-working day or the
scheduled rest day of an employee, he is not considered to be on leave of
absence on that day, in which case he shall be entitled to holiday pay if the
employee should work on the day immediately preceding the non-working day
or rest day.
d. If there are two (2) successive regular holidays like Holy Thursday and Good
Friday, an employee is not entitled to holiday pay for both holidays if he absents
himself from work without pay on the day immediately preceding the first
regular holiday. But if he works on the first holiday, he is entitled to holiday pay
on the second holiday (Section 6 and 10, Rule IV, Book III, Rules to Implement the Labor Code).

NOTE: These rules only apply for daily wage rate paid employees and not to monthly
paid employees.

28
 e) Service Charge [Article 96 of the Labor Code, as amended by RA 11360]

80. What is Service Charge?

Service Charge is the amount that is added to a bill for any work or services rendered
in all hotel, restaurant, or similar establishments, which shall be distributed completely
and equally among the covered workers, except managerial employees. (Section 2(e), DO
206-19)

81. How are service charges distributed?

All service charges collected by hotels, restaurants, and similar establishments

shall be distributed completely and equally among the covered workers
except managerial employees. (Section 1, R.A. No. 11360)

82. Is Service Charge included in determining minimum wage?

No. In the event that the minimum wage is increased by law or wage order, service
charges paid to the covered employees shall not be considered in determining the
covered establishment’s compliance with the increased minimum wage. (Section 1, R.A.
No. 11360)

f) Occupational Safety and Health Standards Law (RA 11058)

83. What is Occupational Safety and Health Standards Law?

Occupational Safety and Health (OSH) standards refers to a set of rules issued by
DOLE which mandates the adoption and use of appropriate practices, means,
methods, operations or processes, and working conditions reasonably necessary to
ensure safe and healthful employment. (Section 3 (p), Chapter II, IRR, RA 11058)

(1) Covered Workplaces Sec. 3[c)]

84. What are the covered workplaces?

Covered workplaces refer to establishments, projects, sites and all other places where
work is being undertaken wherein the number of employees, nature of operations,
and risks or hazards involved in the business, as determined by the Secretary of
Labor and Employment, require compliance with the provisions of this Rules. (Section
3 (c), Chapter II, IRR, RA 11058)

The covered establishments are:

a. Establishments located inside special economic zones and other investment
promotion agencies (e.g., Philippine Economic Zone Authority [PEZA], Clark
Development Corporation [CDC]);
b. Utilities engaged in air, sea, and land transportation;
c. Industries such as mining, fishing, construction, agriculture, and maritime;

29
 d. Contractors and subcontractors including those engaged in the projects of the
public sector (Section 2, Chapter II, IRR, RA 11058)

85. What establishments are not covered by OSH?

This Rules does not apply to:
a. Public sector such as national government agencies, government-owned and
controlled corporations with original charters, government financial
institutions, state universities and colleges; and
b. Local government units which shall be governed by appropriate rules and
regulations issued by the Civil Service Commission and other government
agencies. (Section 2, Chapter II, IRR, RA 11058)

(2) Duties of Employers Workers and Other Persons [Sec. 4]

86. What are the duties of Employers workers and other persons?

a. Every employer, contractor or subcontractor, if any, and any person who

manages, controls or supervises the work being undertaken shall:
1. Furnish the workers a place of employment free from hazardous conditions
that are causing or are likely to cause death, illness or physical harm to the
workers;
2. Give complete job safety instructions or orientation to all the workers
especially to those entering the job for the first time, including those
relating to familiarization with their work environment;
3. Inform the workers of the hazards associated with their work health risks
involved or to which they are exposed to, preventive measures to eliminate
or minimize the risks, and steps to be taken in cases of emergency;
4. Use only approved devices and equipment for the workplace;
5. Comply with OSH standards including training medical examination and
where necessary, provision of protective and safety devices such as
personal protective equipment (PPE) and machine guards;
6. Allow workers and their safety and health representatives to participate
actively in the process of organizing, planning, implementing and evaluating
the safety and health program to improve safety and health in the
workplace; and
7. Provide, where necessary, for measures to deal with emergencies and
accidents including first-aid arrangements.

b. Every worker shall participate in ensuring compliance with OSH standards in the
workplace. The worker shall make proper use of all safeguards and safety devices
furnished for the worker's protection and that of others, and shall observe instructions
to prevent accidents or imminent danger situation in workplace. The worker shall
observe the prescribed steps to be taken in cases of emergency.

30
 The worker shall report to the supervisor any work hazard that may be discovered in
the workplace.

c. It shall be the duty of any person, including the builder or contractor who visits, builds,
renovates or installs devices or conducts business in any establishment or workplace,
to comply with the provisions of this Act and all other regulations issued by the
Secretary of Labor and Employment.

d. Whenever two (2) or more undertakings are engaged in activities simultaneously in one
(1) workplace, it shall be the duty of all engaged to collaborate in the application of
OSH standards and regulations.

(3) Workers' Right to Know [Sec. 5]

87. What is meant by the workers’ right to know?

It refers to the guaranteed right to safety and health at work. All workers shall be
appropriately informed by the employer about all types of hazards in the workplace,
provided access to training and education on chemical safety, electrical safety
mechanical safety, and ergonomical safety.

(4) Workers' Right to Refuse Unsafe Work [Sec. 6]

88. What is meant by the workers’ right to refuse unsafe work?

It refers to the right of the worker to refuse to work without threat or reprisal from the
employer if, as determined by the DOLE, an imminent danger situation exists in the
workplace that may result in illness, injury or death, and corrective actions to eliminate
the danger have not been undertaken by the employer.

(5) Workers' Right to Personal Protective Equipment (PPE) [Sec. 8]

89. What is the workers’ right to PPE?

It refers to the right of workers, free of charge, to be provided with protective equipment for
their eyes, face, hands and feet, and free, and lifeline, safety belt or harness, gas or dust
respirators or masks, protective shields whenever necessary by reason of the hazardous work
process or environment, chemical, radiological, mechanical and other irritants or hazards
capable of causing injury or impairment in the function of any part of the body through
absorption, inhalation or physical contact. The cost of the PPE shall be part of the safety and
health program which is a separate pay item pursuant to Section 20 of this Act.

All PPE shall be of the appropriate type as tested and approved by the DOLE based on its
standards. The usage of PPE in all establishments, projects, sites and all other places where
work is being undertaken shall be based on the evaluation and recommendation of the safety
officer.

2. Wages

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 a) Definitions
(1) Wage vs. Salary

(2) Facilities vs. Supplements

90. What are the distinctions between facilities and supplements?

FACILITIES SUPPLEMENTS

Definition

Items of expense necessary for the Extra remuneration or special benefits

laborer's and his family's existence and or articles or services or tools of the
subsistence. It includes articles or trade given to or received by laborers
services for the benefit of the employee over and above their ordinary earning
or his family; EXCLUDES tools of the or wages (Id).
trade or articles or service primarily for
the benefit of the Employer (Section 5, Rule
7-A, Book III, IRR).

Rule on Deductibility

May be charged to or deducted from May not be deducted from wages

wages, if:
a. it is shown that such are customarily
furnished by the trade
b. provision is voluntarily accepted in
writing by employee; and
c. charged at reasonable value

Whether it is part of the basic wage of the employee

Yes. No.

b) Principles
(1) No Work, No Pay

(2) Equal Pay for Equal Work

91. What is meant by “Equal Pay for Equal Work”?

It states that employees working in the Philippines, if they are performing similar
functions and responsibilities under similar working conditions, should be paid equally.
If an employer accords employees the same position and rank, the presumption is
that these employees perform equal work. (International School Alliance of Educators v. Quisumbing,
G.R. No. 128845, June 1, 2000)

32
 (3) Fair Wage for Fair Work

92. What is the principle of “Fair Wage for Fair Work”?

General Rule: With respect to back wages, the principle of a "fair day's wage for a
fair day's labor" remains as the basic factor in determining the award thereof. If there
is no work performed by the employee there can be no wage or pay. (Ergonomic
Systems Philippines, Inc. v. Enaje, G.R. No. 195163, December 13, 2017)

Exception: Unless the laborer was able, willing and ready to work but was illegally
locked out, suspended or dismissed or otherwise illegally prevented from working. (Ibid)

(4) Non-Diminution of Benefits

93. When is there Diminution of Benefits?

There is diminution of benefits when the following are present:

1. the grant or benefit is founded on a policy or has ripened into a practice over
a long period of time;
2. the practice is consistent and deliberate;
3. the practice is not due to error in the construction or application of a doubtful
or difficult question of law; and
4. the diminution or discontinuance is done unilaterally by the employer.
5. In addition to policy or company practice, the grant or benefit may also be
founded on a written contract.

Consistent with the constitutional mandate of protecting the rights of workers and
promoting their welfare, benefits enjoyed by employees cannot be reduced,
diminished, discontinued or eliminated. (Colegio San Agustin – Bacolod vs. Montaño, G.R. No. 212333,
March 28, 2022, J. Hernando)

94. May an employer validly discontinue payment of a benefit?

Yes. An employer may validly discontinue payment of a benefit, and consequently

does not violate the rule on non-diminution of benefits if it discontinues a benefit that
has been paid by mistake. (Poquiz, Labor Standards and Social Legislation, 2018, p.296).

95. As a general rule, an employer is prohibited from making deductions

from wages of his employees without consent. What are the
exceptions?

a. The Deduction is to recompense the employer for the amount paid by him as
insurance premium in favor of the employee;

33
 b. For union dues, in cases where the right of the worker or his union to check-
off has been recognized by the employer or authorized in writing by the
individual worker concerned;
c. Where the employer is authorized by law or regulations issued by the Secretary
of Labor (Article 113, Labor Code).

NOTE: The Civil Code allows deductions to be made for debts to the employer that
are due and demandable (Article 1706, Civil Code).

c) Payment of Wages

d) Prohibitions Regarding Wages

96. What are the prohibitions regarding wages?

The following are the prohibitions regarding wages:
a. Interference by the employer with the freedom of any employee to dispose of
his wages (Article 112, Labor Code);
b. Requiring deposits from workers from which deductions shall be made for the
reimbursement of loss or damage to tools, materials or equipment supplied by
the employer except for trades or businesses where such deposits are
necessary (Article 114, Labor Code).
c. Withholding of wages and kickbacks (Article 116, Labor Code).
d. General Rule: The laborer’s wages shall not be subject to execution or
attachment.
Exceptions: for debts incurred for food, shelter, clothing, and medical
attendance (Article 1706 & 1708, Civil Code).
e. Deduction of wages as consideration of a promise of employment or retention
in employment (Article 117, Labor Code).
f. Refusal to pay or reduction of wages and benefits, discharge, or discrimination
against any employee as retaliatory measure against any employee who has
filed any complaint or instituted any proceedings against his employer (Article
118, Labor Code).
g. It shall be unlawful for any person to make any statement, report, or record
filed or kept pursuant to the provisions of this Code knowing such statement,
report or record to be false in any material respect (Article 119, Labor Code).

97. What is the management prerogative to impose clearance procedures?

The requirement of a clearance refers to the procedures that are instituted to ensure
that the properties, real or personal, belonging to the employer but are in the
possession of the separated employee, are returned to the employer before the
employee’s departure. (Milan vs. NLRC, G.R. No. 202961, February 4, 2015)

34
 e) Wage Distortion
(1) Concept

98. What is wage distortion?

Wage distortion refers to a situation where an increase in the prescribed wage rates
results in the elimination or severe contraction of intentional quantitative differences
in wage or salary rates between and among employee groups in an establishment as
to effectively obliterate the distinctions embodied in such wage structure based on
skills, length of service and other logical bases of differentiation. (Article 124, Labor Code)

f) Minimum Wage Law

99. Who are exempt from minimum wage coverage?

The following are not subject to the minimum wage law:

a. Persons employed in the personal service of another, including family drivers
(Section 4[c], R.A. No. 6727) EXCEPT kasambahays;
b. Retail/service establishments regularly employing not more than ten (10)
workers; (Ibid).
c. Employees of Barangay Micro Business Enterprises (Section 8, R.A. No. 9178).

g) Holiday Pay

100. What is Holiday Pay?

Holiday pay is a form of premium accorded to an employee who does not work on
regular holidays. If he works on said regular holidays, he is entitled to an additional
compensation over his regular or basic remuneration known as premium pay. (Poquiz,
Labor Standards and Social Legislation, 2018, p. 248)

General Rule: Every worker shall be paid his regular daily wage during regular holidays
(Article 94, Labor Code).

h) 13th Month Pay

101. Who are entitled to the 13th month pay?

All rank-and-file employees who have worked for at least one (1) month during
the calendar year are entitled to receive 13th month pay regardless of the nature
of their employment and irrespective of the methods by which their wages are paid
(Presidential Decree No. 851; Memorandum Order No. 28, Revised Guidelines on the Implementation of the 13 th
Month Pay Law).

102. Are domestic workers entitled to receive 13 th month pay?

35
Yes. A Kasambahay who has rendered at least one (1) month of service is entitled to
a thirteenth-month pay which shall not be less than one-twelfth (1/12) of his/her total
basic salary earned in a calendar year (Section 8, Rule IV, Implementing Rules and Regulations of
Republic Act No. 10361).

3. Leaves
a) Service Incentive Leave

103. What is Service Incentive Leave?

Service Incentive Leave is a five (5)-day leave with pay for every employee who has
rendered at least one (1) year of service whether continuous or broken. (Article 95, Labor
Code)

104. Explain the applicability of SIL to Kasambahay, as compared to a

Regular Employee.
As to kasambahay, SIL of five days is applicable provided the kasambahay has
rendered one year of service. It is not cumulative and unused SIL is not convertible
to cash at the end of the year (Sec. 29, RA10361). For regular employee, SIL of
five days is applicable provided the employee has rendered one year of service. If
unused, the employee has the option to commute (convert) remaining SILs to its
monetary equivalent. If the employee does not commute, he/she is entitled to
commute the same upon resignation or retirement. (DOLE Statutory Monetary
Benefits Handbook)

105. What is the Curious Animal Doctrine?

Service incentive leave is similar to a curious animal in relation to other benefits

granted by the law to every employee. In the case of service incentive leave, the
employee may choose to either use his leave credits or commute it to its
monetary equivalent if not exhausted at the end of the year.

Furthermore, if the employee entitled to service incentive leave does not use
or commute the same, he is entitled upon his resignation or separation from
work to the commutation of his accrued service incentive leave. (Auto Bus
Transport System, Inc. vs. Bautista, G.R. No. 156367, May 16, 2005)

b) Maternity Leave

106. What is the duration of expanded maternity leave?

The expanded maternity leave grants one hundred five (105) days maternity
leave with full pay and an option to extend for an additional thirty (30) days
without pay.

In case the worker qualifies as a solo parent under R.A. No. 8972 or the "Solo

36
Parents’ Welfare Act” the worker shall be granted an additional fifteen (15) days
maternity leave with full pay.

In cases of miscarriage or emergency termination of pregnancy:

- The worker shall be granted sixty (60) days maternity leave with full pay. (Section
3, Rule IV; Section 1, Rule V, Implementing Rules and Regulations of R.A. No. 11210)

107. Who are covered by Expanded Maternity Leave?

All covered females, regardless of civil status (married/unmarried), employment
status, and the legitimacy of her child.

This is applicable to both live childbirth, regardless of the mode of delivery,

miscarriage, and emergency termination of pregnancy. (Section 3, R.A. No. 11210)

c) Paternity Leave

108. Who may avail of paternity leave benefit?

Every married male employee in the private and public sectors shall be entitled to a
paternity leave of seven (7) days with full pay for the first four (4) deliveries of the
legitimate spouse with whom he is cohabiting.

NOTE: The male employee applying for paternity leave shall notify his employer of
the pregnancy of his legitimate spouse and the expected date of such delivery (Section
2, R.A. No. 8187).

d) Solo Parent Leave (RA 8972, as amended by RA 11861)

109. What is the duration of Solo Parent Leave?

The parental leave shall not be more than seven (7) working days every year to a solo
parent who has rendered service of at least one (1) year, to enable him/her to perform
parental duties and responsibilities where his/her physical presence is required. This
leave shall be non-cumulative (Section 8, R.A. No. 8972, Parental Leave for Solo Parents).

110. Who are considered as Solo Parents under RA 11861?

Parental leave for solo parents is granted to any solo parent or individual who is left
alone with the responsibility of parenthood due to:
1. Giving birth as a result of rape or, as used by the law, other crimes against
chastity;
2. Death of spouse;
3. Spouse is detained or is serving sentence for a criminal conviction for at least
one (1) year;
4. Physical and/or mental incapacity of spouse as certified by a public medical
practitioner;
5. Legal separation or de facto separation from spouse for at least one (1) year:
Provided that he/she is entrusted with the custody of the children;

37
 6. Declaration of nullity or annulment of marriage as decreed by a court or by a
church: Provided, that he/she is entrusted with the custody of the children;
7. Abandonment of spouse for at least one (1) year;
8. Unmarried father/mother who has preferred to keep and rear his/her
child/children, instead of having others care for them or give them up to a
welfare institution;
9. Any other person who solely provides parental care and support to a child or
children: Provided, that he/she is duly licensed as a foster parent by the
Department of Social Welfare and Development (DSWD) or duly appointed legal
guardian by the court; and
10. Any family member who assumes the responsibility of head of family as a result
of the death, abandonment, disappearance, or prolonged absence of the
parents or solo parent: Provided, that such abandonment, disappearance, or
prolonged absence lasts for at least one (1) year.

111. Are Kasambahays entitled to Solo Parent Leave?

Yes. A solo parent kasambahay shall also be entitled to the seven-day parental leave
benefits, provided that they have rendered service of at least six (6) months to the
same employer. (Section 22, Article V, Revised Implementing Rules and Regulations of R.A. No. 8972 as
amended by R.A. No. 11861)

e) Leave Benefits for Women Workers Under Magna Carta of Women (RA
9710) and Anti-Violence Against Women and their Children of 2004 (RA
9262)

112. Who are entitled to leave benefits under RA 9710?

a. She has rendered at least six (6) months continuous aggregate employment
service for the last twelve (12) months prior to surgery;
b. She has filed an application for special leave in accordance with [Section 3,
D.O. No. 112] hereof;
c. She has undergone surgery due to gynecological disorder as certified by a
competent physician (Section 2, D.O. No. 112).

38
113. How may the VAWC leave of up to ten (10) days be availed of?
The victim-employee has to submit a certification from the Punong Barangay or
Kagawad or prosecutor or the clerk of court that an action under R.A. 9262
has been filed and is pending (Section 42, IRR of R.A. No. 9262).

f) Compassionate Leaves

114. What is a compassionate leave?

Bereavement leave (compassionate leave) and other death benefits are granted to an
employee to give aid to, and if possible, lessen the grief of, the said employee and his
family who suffered the loss of a loved one.

Being for the benefit of the employee, CBA provisions on bereavement leave and
other death benefits should be interpreted liberally to give life to the
intentions thereof. Time and again, the Labor Code is specific in enunciating that
in case of doubt in the interpretation of any law or provision affecting labor, such
should be interpreted in favor of labor. In the same way, the CBA and CBA provisions
should be interpreted in favor of labor. (Continental Steel vs. Montano, G.R. No. 182836, October 13,
2009)

4. Special Groups of Employees

a) Women
(1) Discrimination

115. What are considered acts of discrimination against women

employees?

The following are acts of discrimination against women employees:

a. Payment of a lesser compensation, including wage, salary or other form of
remuneration and fringe benefits, to a female employee as against a male
employee, for work of equal value; and
b. Favoring a male employee over a female employee with respect to promotion,
training opportunities, study and scholarship grants solely on account of their
sexes (Article 133, Labor Code).

(3) Prohibited Acts

116. What are the prohibited acts of discrimination against women that
may be committed by employers?
It shall be unlawful for any employer to:
1. Deny any woman employee benefits provided by law.

39
 2. Discharge any woman for the purpose of preventing her from enjoying any of
the benefits provided by law.
3. Discharge such woman on account of her pregnancy, or while on leave or in
confinement due to her pregnancy.
4. Discharge or refuse the admission of such woman upon returning to her work
for fear that she may again be pregnant (Article 135, Labor Code)

b) Minors

117. Who is a “working child”?

A “working child” refers to any person less than eighteen (18) years of age engaged
as follows:
a. When the child is below eighteen (18) years of age, in work or economic
activity that is not “child labor;”
b. When the child is below fifteen (15) years of age:
i. In work where s/he is directly under the responsibility of his/her parents
or legal guardian and where only members of the child’s family are
employed; or
ii. In “public entertainment or information” which refers to artistic, literary,
and cultural performances for television show, radio program, cinema or
film, theatre, commercial advertisement, public relations activities or
campaigns, print materials, internet, and other media (Section 2, R.A. No.
9231).

118. How many hours is allowed as hours of work of a working child?

The following hours of work shall be observed for any child allowed to work under RA
9231:
a. For a child 15 years of age, but below 18, the hours of work shall not be
more than eight (8) hours a day, and in no case beyond 40 hours a week;
and
b. No child 15 years of age but below 18 shall be allowed to work between ten
o’clock in the evening and six o’clock in the morning of the following day
(D.O 65-04 implementing R.A. No. 9231).

c) Kasambahays

119. Who is a domestic worker or kasambahay?

A domestic worker or kasambahay refers to any person engaged in domestic work
within an employment relationship, whether on a live-in or live-out arrangement, such
as, but not limited to, general househelp, “yaya,” cook, gardener, or laundry person,
but shall exclude service providers, family drivers, children who are under foster family
arrangement or any person who performs domestic work only occasionally or
sporadically and not on an occupational basis (Section 4 [d], R.A. No. 10361).

40
120. Are domestic workers entitled to receive Social Security, PhilHealth,
Pag-IBIG and ECC benefits?
Yes. A Kasambahay who has rendered at least one (1) month of service shall be
covered by the Social Security System (SSS), Employees Compensation Commission
(ECC), Philippine Health Insurance Corporation (PhilHealth), and Home Development
Mutual Fund or Pag-IBIG, and shall be entitled to all the benefits in accordance with
their respective laws, rules and regulations (Section 9, Rule IV, Ibid.).

d) Homeworkers

121. Who are homeworkers?

Homeworkers are those who perform in or about his own home any processing or
fabrication of goods or materials, in whole or in part, which have been furnished directly
or indirectly, by an employer and sold thereafter to the latter. (D.O. No. 05 (1992), Rule XIV
of the Rules Implementing Book III of the Labor Code on Employment of Homeworkers)

122. How is Industrial Homework different from Regular Factory

Production?
An “Industrial Homework” differs from Regular Factory Production principally in that, it
is a decentralized form of production where there is ordinarily very little supervision or
regulation methods of work (Section 2 [a], Rule XIV of the Rules Implementing Book III of the Labor Code
on Employment of Homeworkers).

123. What are the prohibitions for homework?

No homework shall be performed on the following:
a. Explosives, fireworks and articles of like character;
b. Drugs and poison; and
c. Other articles, the process of which requires exposure to toxic substances
(Section 13, Rule XIV of the Rules Implementing Book III of the Labor Code on Employment of
Homeworkers).

e) Night Workers

124. Who is a night worker?

A night worker pertains to any employed person whose work covers the period from
10 o’clock in the evening to 6 o’clock the following morning provided that the worker
performs not less than seven (7) consecutive hours of work (R.A. 10151; Article 154, Labor
Code).

125. How are night workers compensated?

The nightworkers’ compensation shall include but not be limited to working time pay
and benefits under the Labor Code, as amended and under existing laws, such as
service incentive leave, rest day, night differential pay, 13th month pay, and other

41
benefits as provided for by law, company policy or CBA (Poquiz, Labor Standards and Social
Legislations with Notes and Comments, 2018 Ed., p468).

The compensation for night workers in the form of working time, pay or similar
benefits shall recognize the exceptional nature of night work (Article 159, R.A. 10151).

f) Apprentices and Learners

126. Distinguish apprentices and learners.

APPRENTICES LEARNERS

Both involves on-the-job practical training

Training Agreement

Governed by apprenticeship agreement Governed by learnership agreement

Occupation

Only employers in the highly technical Learnable occupations consisting of

industries may employ apprentices and semi-skilled and other industrial
only in apprenticeable occupations occupations which are non-
approved by the DOLE Secretary apprenticeable

Theoretical Instructions

Should always be supplemented by May or may not be supplemented by

related theoretical instructions related theoretical instructions

Competency-based System

No requirement Must implemented based on the

TESDA-approved competency-based
system

Duration of Training

Apprenticeship requires proficiency, more Learnership involves practical training

than three (3) months but not over six on the job for a period not exceeding
(6) months of practical training on the three (3) months
job.

Qualifications

a. Be at least fifteen (15) years of age; No requirement

42
 b. Possess vocational aptitude and
capacity for appropriate tests; and
c. Possess the ability to comprehend and
follow oral and written instructions.

Limitation on the Number

No limitation An enterprise is allowed to take in

learners only up to a maximum of
twenty percent (20%) of its total
regular workforce

Option to Employ

Only an “option” to hire the apprentice as Enterprise is obliged to hire the

an employee. learner after the lapse of the
learnership period

Wage Rate

The wage rate of a learner or an apprentice is set at seventy-five percent (75%)

of the statutory minimum wage.

Circumstances Justifying Hiring of Trainees

The prerequisites before learners may

be validly employed, to wit:
a. When no experienced workers are
available;
b. The employment of learners is
necessary to prevent curtailment of
employment opportunities; and
c. The employment does not create
unfair competition in terms of labor
costs or impair or lower working
standards.

g) Persons With Disabilities

(1) Discrimination

127. What is the policy against discrimination of PWDs?

No entity, whether public or private, shall discriminate against a qualified PWD by
reason of disability in regard to job application procedures, the hiring, promotion, or

43
discharge of employees, employee compensation, job training, and other terms,
conditions and privileges of employment. (Title III, R.A. No. 7277).

(b) Mental Health Act (RA 11036)

128. What is the obligation of employers under the Mental Health Act?
Employers shall develop appropriate policies and programs on mental health issues,
correct the stigma and discrimination associated with mental conditions, identify and
provide support for individuals with mental health conditions to treatment and
psychosocial support. (Section 25, R.A. No. 11036)

(2) Incentives for Employers

129.What are the financial incentives given to an employer in relation to

employment of persons with disabilities?

Employers are entitled to financial incentives, such as:

- Entitled to an additional deduction, from their gross income, equivalent to 25%
of the total amount paid as salaries and wages to disabled persons. Provided,
however, that such entities present proof as certified by the DOLE that disabled
persons are under their employ; Provided further, that the disabled EE is
accredited with the DOLE and the Department of Health as to his disability,
skills and qualifications.

- Private entities that improve or modify their physical facilities in order to provide
reasonable accommodation for disabled persons shall also be entitled to an
additional deduction from their net taxable income, equivalent to 50% of the
direct costs of the improvements or modifications (Section 8, R.A. No. 7277)

5. Sexual Harassment in the Work Environment

a) Sexual Harassment Act (RA 7877)

130. Are seafarers covered by the law on sexual harassment?

Yes. A unique circumstance in this case is that the alleged illness is not caused by the
duties and responsibilities of a Messman, but is due to the seafarer's work
environment. Messman was harassed twice in one night. Though he managed to
escape in both instances, there was no way for him to avoid CO Oleksiy. The only way
he could protect himself from further sexual advances or unwanted sexual contact
was to request for repatriation.
In cases like these, it is possible that the seafarer's fear is heightened because there
is no way to escape from the environment where sexual harassment occurred. Being
out at sea, the seafarer has to wait for the ship to dock at the nearest port before the
seafarer can disembark and be repatriated. Thus, from the time the incident of sexual

44
harassment occurred until the time the seafarer is able to disembark, it is probable
that the seafarer is cowered by fear. In addition, the sexual predator, knowing there
is no room for the victim to escape, is capable of continuously committing such acts
of sexual harassment. The unique condition of working on board a ship empowers the
harassment. The unique condition of working on board a ship empowers the sexual
predator and leaves the victim feeling helpless because they are in the same enclosed
space. (Toliongco vs. CA, G.R. No. 231748, July 8, 2020)

131. Is sexual harassment limited to women?

No. Sexual harassment can happen to anyone and everyone. Our society has often
depicted women as being the weaker sex, and the only victims of sexual harassment.
It is high-time that this notion is corrected. To consider women as the weaker sex is
discriminatory. To think that only women can be victims of sexual harassment is
discriminatory against men who have suffered the same plight; men who have been
victimized by sexual predators. (Toliongco v. Court of Appeals, G.R. No. 231748, July 8, 2020)

b) Safe Spaces Act (Article IV of RA 11313 only. Exclude: Liability of Employers)

132. What is the Safe Spaces Act?

Safe Spaces Act is a law which expanded the definition of gender-based sexual
harassment in the workplace and has added to the duties of an employer as to its
prevention, deterrence, and punishment. It explicitly requires that complaints be
investigated and resolved within 10 days or less upon its reporting. It likewise
expressly provides for the liability of employers and duties of co-workers as to sexual
harassment. The law likewise specifies the confidentiality of proceedings, and the
issuance of a restraining order for the offended person. Moreover, it allows local
government units to impose heavier penalties on perpetrators. (LBC Express-Vis, Inc. v. Palco,
G.R. No. 217101, February 12, 2020)

133. What are the distinctions between Sexual Harassment under RA

7877 or the Anti-Sexual Harassment Act of 1995 and under RA 11313 or
Safe Spaces Act of 2019?
R.A. No. 7877 or Anti-Sexual R.A. No. 11313 or Safe Spaces Act of
Harassment 2019
Act of 1995

As to gravamen of the offenses punished

The abuse of one’s authority, The act of sexually harassing a person

influence, or moral ascendancy so as on the basis of his/her sexual
to enable the sexual harassment of a orientation, gender identity and/or
subordinate (Escandor vs. People, G.R. No. expression (Escandor vs. People, G.R. No.
211962, July 6, 2020). 211962, July 6, 2020).

Acts penalized in general

45
 R.A. No. 7877 or Anti-Sexual R.A. No. 11313 or Safe Spaces Act of
Harassment 2019
Act of 1995

There is demand, request or The gender-based sexual harassment,

otherwise requires any sexual favor and is found on, among others, the
from the other in a work-related or recognition that “both men and women
employment environment (Section 3). must have equality, security and safety
not only in private, but also on the
workplaces (Escandor vs. People, G.R. No.
211962, July 6, 2020).

How committed

The offender demands, requests or The crime of gender-based sexual

otherwise requires any sexual favor: harassment in the workplace includes
the following:
1) As a condition in the hiring or
in the employment, re- a) An act or series of acts involving
employment or continued any unwelcome sexual
employment of said advances, requests or demand
individual, or in granting said for sexual favors or any act of
individual favorable sexual nature, whether done
compensation, terms of verbally, physically or through
conditions, promotions, or the use of technology such as
privileges; or the refusal to text messaging or electronic
grant the sexual favor results mail or through any other forms
in limiting, segregating or of information and
classifying the employee communication systems, that
which in any way would has or could have detrimental
discriminate, deprive or effect on the conditions of an
diminish employment individual’s employment or
opportunities or otherwise education, job performance or
adversely affect said opportunities;
employee; b) A conduct of sexual nature and
2) The above acts would impair other conduct-based on sex
the employee’s rights or affecting the dignity of a person,
privileges under existing labor which is unwelcome,
laws; or unreasonable, and offensive to
3) The above acts would result the recipient, whether done
in an intimidating, hostile, or verbally, physically or through
offensive environment for the the use technology such as text
employee (Section 3[a]). messaging or electronic mail or
through any other forms of
information and communication

46
 R.A. No. 7877 or Anti-Sexual R.A. No. 11313 or Safe Spaces Act of
Harassment 2019
Act of 1995

systems;
c) A conduct that is unwelcome
and pervasive and creates an
intimidating, hostile or
humiliating environment for the
recipient (Section 16).

Committed by whom

The employer, employee, manager, Can be committed between peers and

supervisor, agent of the employer, those committed to a superior officer
teacher, instructor, professor, coach, by a subordinate, or to a teacher by a
trainor, or any other person who has student, or to a trainer by a trainee
the authority, influence, or moral (Section 16 [c]).
ascendancy over another (Section 3).

As to setting

The offense may only be committed The crime is committed in a workplace

in a work-related

Liability of employers

The employer or head of office, In addition to liabilities for committing

educational or training institution acts of gender-based sexual
shall be solidarily liable for damages harassment, employers may also be
arising from the acts of sexual held responsible for:
harassment committed in the
employment, education or training a) Non-implementation of their
environment if the employer or head duties under Sec. 17; or
of office, educational or training b) Not taking action on reported
institution is informed of such acts by acts of gender-based sexual
the offended party and no harassment committed in the
immediate action is taken (Section 5). workplace (Section 19)

Prescriptive period

3 years (Section 7). 5 years (Section 36 [d]).

47
 C. Social Welfare Legislation
1. SSS Law (RA 8282, as amended by RA 11199)

a) Coverage

134. Who are compulsorily covered by SSS?

FORMAL SECTOR SELF-EMPLOYED SECTOR
a. A private employee, whether a. All Self-employed professionals who
permanent, temporary, or have their own business offices;
provisional, who is not over 60 b. Partners, single proprietors of
years of age (Chan, Bar Reviewer on business and Directors or Trustees of
Labor Law, 2017, p. 407); corporations duly registered with
b. A domestic helper or appropriate government agencies;
kasambahay who is not over 60 c. Actors, actresses, directors,
years of age, with a monthly scriptwriters and news
income of not less than correspondents who do not fall within
P1,000.00 and who has the definition of the term ―employee‖
rendered at least one month of in Sec. 8(d) of the SSS Law;
service [R.A. 8282 (Section 9), in d. Professional athletes, coaches,
relation to R.A. 10361(Sec. 30)]; trainers and jockeys;
c. An employee of a foreign e. Individual farmers and fishermen;
government, international f. Workers in the informal sector such as
organization or their wholly- market and ambulant vendors,
owned instrumentality based in watch-your-car-boys, transport
the Philippines, which entered workers and those similarly situated;
into an administrative g. Contractual and job order personnel
agreement with the SSS for the engaged by the government through
coverage of its Filipino workers a Contract of Service and who are not
[R.A. 8282, Section 8(j)(4)];
coverable under the GSIS Law; and
d. The parent, spouse or child h. Any other Self-employed person as
below 21 years old of the owner determined by the Social Security
of a single proprietorship Commission (SSC) under such rules
business (Chan, Bar Reviewer on and regulations that it may prescribe
Labor Law, 2017, p. 407); and (2017 SSS Guidebook, p. 5)
e. A Filipino seafarer, upon signing
of the standard employment
contract and actual deployment
by the manning agency and the
foreign principal, who are
considered as the employers
(2017 SSS Guidebook, p.4).
f. OFWs

135. Who may be covered by SSS on a voluntary basis?

The following may be covered by the SSS on a voluntary basis:

48
 a. A spouse of a member who devotes full time to managing the household and
family affairs, but does not engage in other vocation or employment which
is subject to compulsory or mandatory coverage (Section 9 [b], R.A. No. 11199);
b. An OFW upon the termination of his/her employment overseas (Section 9-B (f),
R.A. No. 11199);
c. A covered employee who has separated from employment who continues to
pay his/her contributions (Section 11, R.A. No. 11199);
d. A self-employed member who realizes no income in any given month who
continues to pay his/her contributions (Section 11-A, R.A. No. 11199); and
e. Filipino permanent migrants, including Filipino immigrants, permanent
residents and naturalized citizens of their host countries may be covered by
the SSS on a voluntary basis [Section 9-B(g)]

b) Dependents and Beneficiaries

136. Who are considered as dependents under the SSS Law?

The dependents shall be the following:
1. The legal spouse entitled by law to receive support from the member; [Section 8,
(e), (1)];
2. The legitimate, legitimated or legally adopted and illegitimate child who is:
a. Unmarried,
b. Not gainfully employed, and
c. Has not reached twenty-one (21) years of age, or if over 21 years of
age, he/she is congenitally or while still a minor has been permanently
incapacitated and incapable of self-support, physically or mentally.
[Section 8, (e), (2)]

A child who has entered in a common-law relationship and has not reached the
age of eighteen (18) is still a dependent. However, upon reaching the age of
18, the child is no longer qualified as a dependent.

3. The parent who is receiving regular support from the member. [Section 8, (e), (3)]

137. Who are considered primary beneficiaries under the SSS Law?
1. The dependent spouse who has not re-married, cohabited or entered in a “live-
in” relationship before or after the death of the member, and
2. The dependent legitimate, legitimated or legally adopted and illegitimate
children. Where there are legitimate or illegitimate children, the former shall be
preferred.

NOTE: The dependent illegitimate children shall be entitled to fifty percent (50%) of
the share of the legitimate, legitimated or legally adopted children. In the absence of
the dependent legitimate, legitimated or legally adopted children of the member,
his/her dependent illegitimate children shall be entitled to one hundred percent
(100%) of the benefits (Section 8 [k], R.A 11199).

49
138. Who are secondary beneficiaries under the SSS Law?

1. The dependent parents of the deceased member; and

2. In the absence of dependent parents, any other person/s designated and
reported by the member to the SSS [Sec 8, (k)].

NOTE: The person designated by the member shall be someone who has a right to
claim for support from the deceased member under the Family Code of the Philippines,
including dependent children who have reached the age of majority (Rule 12, Section 13,
IRR RA 11199).

c) Benefits

139. What are the benefits under the SSS Act?

The following are the benefits under the SSS Act:

a. Monthly Pension (Sec. 12)

b. Dependent’s Pension (Sec.12-A)
c. Retirement (Sec.12-B)
d. Death (Sec.13)
e. Permanent Disability (Sec. 13-A)
f. Funeral (Sec. 13-B)
g. Sickness (Sec. 14)
h. Maternity Leave (Sec. 14-A)
i. Unemployment Insurance or Involuntary Separation Benefits (Section 14-B)

140. Who is eligible for retirement benefits under the SSS Law?

A member who has paid at least 120 monthly contributions prior to the semester of
retirement is eligible for retirement benefits under the SSS Law.

Provided that the member is already:

a. 60 years old and already separated from employment or has ceased to be self-
employed; or
b. 65 years old.

NOTE: The member shall be entitled to the monthly pension for as long as he lives.

Provided, That he shall have the option to receive his first eighteen (18) monthly
pensions in lump sum discounted at a preferential rate of interest to be determined
by the SSS. The monthly pension shall be suspended upon the reemployment or
resumption of self-employment of a retired member who is less than sixty-five (65)
years old (Section 12-B, RA 8282).

50
141. Is a member who has reached the age of sixty but has not yet paid
at least 120 monthly contributions entitled to any benefit?

Yes, a covered member who is sixty (60) years old at retirement and who does not
qualify for pension benefits shall be entitled to a lump sum benefit equal to the total
contributions paid by him and on his behalf. Provided, That he is separated from
employment and is not continuing payment of contributions to the SSS on his own
(Section 12-B, RA 8282).

142. When may death benefits be availed of?

Upon the death of a member who has paid at least thirty-six (36) monthly
contributions prior to the semester of death, his primary beneficiaries shall be
entitled to the monthly pension: Provided, that if he has no primary beneficiaries,
his secondary beneficiaries shall be entitled to a lump sum benefit
equivalent to thirty-six (36) times the monthly pension (Section 13, RA 8282).

NOTE: If he has NOT paid the required thirty-six (36) monthly contributions,
his primary or secondary beneficiaries shall be entitled to a lump sum benefit
equivalent to the monthly pension times the number of monthly contributions paid to
the SSS or twelve (12) times the monthly pension, whichever is higher (Ibid.).

143. Who is eligible to receive partial or permanent disability benefits?

A member who suffers partial or total permanent disability, with at least one (1)
monthly contribution paid to the SSS prior to the semester of contingency, is qualified
(2017 SSS Guidebook, p.62).

2. GSIS Law (RA 8291)

a) Coverage

144. Who are covered by the GSIS Law?

1. All government personnel, whether elective or appointive, irrespective of status

of appointment, provided they are receiving fixed monthly compensation and
have not reached the mandatory retirement age of 65 years;
2. Those who have reached the retirement age of 65 years or more:
a. An elective official who at the time of election to public office is below
65 years of age and will be 65 years or more at the end of his term of
office, including the period/s of his re-election to public office thereafter
without interruption;
b. Appointive officials who, before reaching the mandatory age of 65, are
appointed to government position by the President and shall remain in
government service at age beyond 65;

51
 c. Contractual employees including casuals and other employees with an
employee-government agency relationship, who are receiving fixed
monthly compensation and are rendering the required number of
working hours for the month (Section 2, Rule II, Rules Implementing R.A. No. 8291).

NOTE: Those who have not reached the age of 65 are required to pay their
contributions. While those who have reached the retirement age of 65 years or more
are required to pay both the life and retirement premiums (Ibid).

145. Who are the special members of GSIS?

The special members of GSIS are the constitutional commissioners and members of
the judiciary, including those with equivalent ranks, who are required by law to remit
regular monthly contributions for life insurance policies to the GSIS in order to answer
for their life insurance benefits defined under RA 8291 (Section 2, Rule II, RIRR, R.A. 8291).

NOTE: Membership is for life insurance purposes only (Ibid).

146. Who are excluded from the compulsory coverage of the GSIS Law?

a. Uniformed personnel of the:

a. Philippine National Police (PNP) (Section 3.1, Rule II, RIRR, R.A. 8291);
b. Bureau of Fire Protection (BFP) (Ibid);
c. Armed Forces of the Philippines (AFP) (Ibid);
d. Bureau of Jail Management and Penology (BJMP) (Ibid);
b. Barangay and Sanggunian Officials who are not receiving fixed monthly
compensation (Section 3.2, Rule II, RIRR, R.A. 8291);
c. Contractual Employees who are not receiving fixed monthly compensation
(Section 3.3, Rule II, RIRR, R.A. 8291); and
d. Employees who do not have monthly regular hours of work and are not
receiving fixed monthly compensation (Section 3.4, Rule II, RIRR, R.A. 8291);

b) Dependents and Beneficiaries

147. Who are the dependents under the GSIS Law?

The following are dependents under the GSIS Law:

a. the legitimate spouse dependent for support upon the member or pensioner;
b. the legitimate, legitimated, legally adopted child, including the illegitimate child,
who is unmarried, not gainfully employed, not over the age of majority, or is
over the age of majority but incapacitated and incapable of self-support due to
a mental or physical defect acquired prior to age of majority; and
c. the parents dependent upon the member for support; (Section 2[f], R.A. No. 8291)

52
148. Who are the beneficiaries under the GSIS Law?

The following are beneficiaries under the GSIS Law:

a. Primary - The legal dependent spouse until he/she remarries and the dependent
children;
b. Secondary - The dependent parents and, subject to the restrictions on
dependent children, the legitimate descendants (Section 2 [g][h] R.A. No. 8291).

c) Benefits

149. What are the benefits under the GSIS Law?

The following are the kinds of benefits under the GSIS Law
a. Compulsory Life Insurance Benefits under the Life Endowment Policy (LEP);
b. Compulsory Life Insurance Benefits under the Enhanced Life Policy (ELP);
c. Retirement Benefits;
d. Separation Benefit;
e. Unemployment Benefit;
f. Disability Benefits;
g. Survivorship Benefits; and
h. Funeral Benefits (Rule IV, Rules Implementing R.A. No. 8291).

150. What are the requirements to be eligible for GSIS Retirement

Benefits?

a. The member must have rendered at least fifteen (15) years of service;
b. He/She is at least sixty (60) years of age; and
c. He/She is not receiving a monthly pension benefit from permanent total
disability (Section 20.1, Ibid).

151. What are the three (3) kinds of disability benefits under the GSIS
Law?
Total and Permanent Partial and Permanent Temporary and
Total

● Complete loss of Complete and permanent Impaired physical

sight of both eyes loss of the use of: and/or mental
● Loss of 2 limbs at or ● Any finger faculties can be
above the ankle or ● Any toe rehabilitated and/or
wrist ● One arm restored to their

53
 ● Permanent complete ● One hand normal functions, but
paralysis of 2 limbs ● One foot such disability shall
● Brain injury resulting ● One leg result in temporary
in incurable ● One/both ears incapacity to work or
imbecility or insanity ● Hearing of to engage in any
● Other cases as one/both gainful occupation
determined by GSIS ● Ears (Section 23.2.3, Ibid.).
(Section 16, Rule IV, IRR of ● Sight of one eye
R.A. No. 8291)
● Other cases as
determined by
GSIS (Section 17, Ibid.)

3. Disability and Death Benefits

a) Labor Code

152. When may disability and death benefits under the Labor Code be
availed of?
Employees' compensation (EC) benefits are granted to employees or their dependents
for work-connected disability or death, or those resulting from accidents arising out
of and in the course of employment (Article 166, Labor Code).

153. What are the types of disabilities compensated under the Labor
Code?

a. Temporary Total Disability

- if as a result of the injury or sickness, the employee is unable to perform
any gainful occupation for a continuous period not exceeding 120
days (Art. 197 in rel. to Sec. 2(a), Rule VII, Amended Rules on Employees’ Compensation).
b. Permanent Total Disability
- if as a result of the injury or sickness the employee is unable to perform
any gainful occupation for a continuous period exceeding 120 days
(Art. 198 in rel. to Sec. 2(b), Rule VII, Amended Rules on Employees’ Compensation).
c. Permanent Partial Disability
- if as a result of the injury or sickness the employee suffers a permanent
partial loss of the use of any part of his body (Art. 199 in rel. to Sec. 2(c),
Rule VII, Amended Rules on Employees’ Compensation).

154. What is Employees’ Compensation Program (ECP)?

The ECP is a government program or mechanism designed to provide public and

private sector employees and their dependents with income and other benefits in the
event of a work-connected injury, sickness, disability or death (An Employer’s Guide on the
Employees’ Compensation Program, p.1).

54
155. When is the effective date of the coverage?

Coverage of employers shall take effect on the first day of operation but not
earlier than January 1, 1975. Meanwhile, coverage of employees shall take
effect on the first day of employment (Section 6, Ibid.).

156. What are the conditions for compensability of injuries?

Disability benefits are granted an employee who sustains an injury or contracts a

sickness resulting in temporary total, permanent total, or permanent partial, disability.
For the injury and the resulting disability to be compensable, they must have
necessarily resulted from an accident arising out of and in the course of employment
(Valeriano vs.ECC and GSIS, G.R. No. 136200, June 8, 2000).

157. What is the Personal Comfort Doctrine?

The Personal Comfort Doctrine states that the injury of an employee who
heeded the “call of nature” and sustained injuries in the performance of such
act is deemed compensable. Likewise, acts necessary to the health and
personal comfort of an employee while at work such as satisfaction of thirst,
hunger, etc. are incidental to employment and injuries sustained therefrom are
held to be compensable as they arose out of or in the course of employment
(Poquiz, Labor Standards with Notes and Comments, 2018, p. 524).

158. When is compensation for injury, sickness, disability or death not

allowed under the ECP?
Compensation shall not be allowed to the employee or his dependents when the injury,
sickness, disability or death was occasioned by any of the following:
a. Employee’s intoxication;
b. His willful intent to injure or kill himself or another; or
c. His notorious negligence (Rule IV, Section 1, 2014 Amended Rules on Employees’
Compensation).

159. Explain the Hinoguin Doctrine.

The Hinoguin Doctrine or the 24-hour doctrine states that for purposes of coverage
under the ECP, a soldier on active duty is really on duty 24 hours a day since he can
be called upon anytime by his superiors, except when he is on vacation leave status.
(Hinoguin vs. ECC, G.R. No. 8430, April 17, 1989).

b) POEA-Standard Employment Contract

160. Who may be considered as a seaman or seafarer?

55
In order to be considered a seaman or seafarer, one would have to be, at the very
least, employed in a vessel engaged in maritime navigation. Thus, it is clear
that those employed in non-mobile vessels or fixed structures, even if the said
vessels/structures are located offshore or in the middle of the sea, cannot be
considered as seafarers under the law.

An overseas employee, in order to be considered as a "seafarer," must not only

perform tasks concerning manning marine vessels or marine navigation, but they must
also perform such functions onboard a vessel engaged in maritime navigation or a
mobile offshore rig or drilling unit in the high seas. (V People Manpower Phils., Inc. Vs. Dominador
C. Buquid G.R. No. 222311, February 10, 2021, J. Hernando)

161. What are the elements for compensability of Injury or Illness under
POEA-SEC?

POEA-SEC provides that for an illness to be compensable:

a. the injury or illness must be work-related; and,
b. the work-related injury or illness must have existed during the term of the
seafarer's employment contract. (Paglinawan vs. Dohle Philman Agency, G.R. No. 230735,
April 4, 2022, J. Hernando)

162. What is a work-related illness?

The POEA-SEC defines a work-related illness as "any sickness as a result of an
occupational disease, and illnesses not listed in the POEA-SEC may still be
compensable as they are treated as disputably presumed to be work-related. There is
no automatic compensation, however, as the seafarer has to prove the correlation of
his illness to the nature of his work and the conditions for compensability should be
satisfied.

163. What are the mandatory reporting requirements in order for a

seafarer to claim disability benefits?

Under POEA-SEC, a seafarer is obliged to submit himself to a post-employment

medical examination by a company-designated physician within three
working days upon his return, except when he is physically incapacitated to
do so, in which case, a written notice to the agency within the same period is
deemed as compliance. (Armando H. De Jesus vs. Inter-Orient Maritime Enterprises, Inc. G.R. No. 203478,
June 23, 2021, J. Hernando)

NOTE: Non-compliance with the post-employment medical examination

requirement is tantamount to a waiver or forfeiture of any right to claim disability
benefits. (Gerardo U. Ville vs. Maersk-Filipinas Crewing, Inc. G.R. No. 217879, February 01, 2021, J. Hernando)

56
164. When does a seafarer contract cease?

A "contract between an employer and a seafarer ceases upon its completion, when
the seafarer signs off from the vessel and arrives at the point of hire." (Gerardo U. Ville vs.
Maersk-Filipinas Crewing, Inc. G.R. No. 217879, February 01, 2021, J. Hernando)

165. What are the rules governing the seafarer claims permanent and
total disability benefits?

1. The company-designated physician must issue a final medical assessment on

the seafarer's disability grading within a period of 120 days from the time they
reported to him.
2. If the company-designated physician fails to give his assessment within the
period of 120 days, without justifiable reason, then the seafarer's disability
becomes permanent and total;
3. If the company-designated physician fails to give his assessment within the
period of 120 days with a sufficient justification (e.g., seafarer required further
medical treatment or seafarer was uncooperative), then the period of diagnosis
and treatment shall be extended to 240 days. The employer has the burden to
prove that the company-designated physician has sufficient justification to
extend the period; and
4. If the company-designated physician still fails to give his assessment within the
extended period of 240 days, then the seafarer's disability becomes permanent
and total, regardless of any justification. (Edgardo I. Mabalot vs. Maersk-Filipinas Crewing,
Inc., G.R. No. 224344 September 13, 2021, J. Hernando)

166. What is the significance of the 120-day or 240-day period on

seafarer disability benefits?

When a certain sickness or injury causes a temporary and total disability which lasts
continuously for more than 120 days, then such total disability is considered to
be permanent.

EXCEPTION: If the said sickness or injury that caused the temporary total disability
requires medical treatment beyond the 120-day period but not to exceed
240 days, then the employee is only entitled to temporary total disability
benefits until he is declared as either: 1) "fit to work," which stops his entitlement to
disability benefits; or 2) "permanently and totally disabled," which then entitles him to
permanent total disability benefits. In any event, if the 240 days had lapsed without
any certification issued by the company-designated doctor, then the employee may
pursue an action for permanent total disability benefits. (Ronnie L. Singson vs. Arktis Maritime

57
Corp. G.R. No. 214542, January 13, 2021, J. Hernando)

D. Labor Relations
1. Right to Self-Organization
a) Coverage

167. Who is eligible to join, form, or assist labor organizations?

A. In the private sector:
1. All persons employed in commercial, industrial and agricultural
enterprises;
2. Employees of government-owned and/or controlled corporations
without original charters established under the Corporation Code;
3. Employees of religious, charitable, medical or educational institutions,
whether operating for profit or not;
4. Front-line managers, commonly known as supervisory employees
5. Alien employees
6. Working children
7. Homeworkers
8. Employees of cooperatives and
9. Employees of legitimate contractors not with the principals but with the
contractors

B. In the public sector

All rank-and-file employees of all branches, subdivisions,
instrumentalities, and agencies of government, including government-
owned and/or controlled corporations with original charters, can form,
join or assist employees’ organizations of their own choosing (Chan, Bar
Reviewer on Labor Law 2019, p. 379-380)

119. Who are prohibited to join, form, or assist labor organizations or

workers’ associations?

The following are prohibited to join, form, or assist labor organizations:

a. In the private sector
1. Managerial employees; and
2. Confidential employees.
b. In the public sector
1. High-level employees whose functions are normally considered as policy-
making or managerial or whose duties are of a highly confidential
Nature;
2. Members of the Armed Forces of the Philippines;
3. Police officers;
4. Firemen; and
5. Jail guards (Chan, Bar Reviewer on Labor Law 2019, p. 383)

58
168. May supervisory employees join labor organizations?

Yes, supervisory employees may join, assist, or form their own collective bargaining
unit or labor organization. However, they shall not be eligible for membership in the
collective bargaining unit of the rank-and-file employees. (Article 255, Labor Code).

169. Are all rank-and-file employees eligible to join a union?

No. As an exception, rank-and-file employees who have access to confidential

information related to labor relations are not eligible to join a union because said
employees are considered as confidential employees. The Labor Code does not directly
prohibit confidential employees from engaging in union activities. However, under the
doctrine of necessary implication, the disqualification of managerial employees equally
applies to confidential employees. This confidential-employee rule justified exclusion
of confidential employees because in the normal course of their duties, they become
aware of management policies relating to labor relations (Sugbuanon Rural Bank, Inc. vs.
Laguesma, G. R. No. 116194, February 2, 2000).

c) Doctrine of Necessary Implication

170. What is the Doctrine of Necessary Implication?

Under the doctrine of necessary implication, the disqualification of managerial
employees equally applies to confidential employees. The confidential-employee rule
justifies exclusion of confidential employees because in the normal course of their
duties they become aware of management policies relating to labor relations. It must
be stressed, however, that when the employee does not have access to confidential
labor relations information, there is no legal prohibition against confidential employees
from forming, assisting, or joining a union. (Sugbuanon Rural Bank, Inc. v. Laguesma, G.R. No.
116194, February 2, 2000)

d) Commingling or Mixed Membership

171. What is the effect of commingling on the membership of a union?

Commingling or mixed membership is the inclusion of workers who are not part of the
collective bargaining unit (CBU). In case of commingling, the said employees are
automatically deemed removed from the list of membership of said union. (Article 256,
Labor Code)

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172. Is the inclusion of disqualified employees a ground for cancellation
of registration of the union?

No. The inclusion in a union of disqualified employees is not among the grounds for
cancellation, unless such inclusion is due to misrepresentation, false statement or
fraud under the circumstances enumerated in Sections (a) and (c) of Article 239 of
the Labor Code. (Holy Child Catholic School v. Sto. Tomas, G.R. No. 179146, July 23, 2013)

2. Bargaining Unit

173. What is a bargaining unit?

“Bargaining Unit” refers to a group of employees sharing mutual interests within a

given employer unit. It is comprised of all or less than all of the entire body of
employees in the employer unit or any specific occupational or geographical grouping
within such employer unit (Section 1[e], Rule I, D.O. No. 40-03 as amended).

174. What are the four tests to determine the appropriate bargaining
unit?

a. Community or mutuality of interest doctrine — This standard requires

that the employees in an asserted bargaining unit be similarly situated in their
terms and conditions of employment relations. This commonality or mutuality
may be appreciated with greater certainty if their areas of differences with other
groups of employees are considered. (Holy Child Catholic School v. Sto. Tomas, G.R. No.
179146, July 23, 2013)

b. Globe Doctrine — This principle is based on the will of the employees that
should be respected as they had manifested their desire to be represented by
only one bargaining unit. (Holy Child Catholic School v. Sto. Tomas, G.R. No. 179146, July 23,
2013)

c. Collective bargaining history doctrine — This principle puts a premium to

the prior collective bargaining history and affinity of the employees in
determining the appropriate bargaining unit.

Collective bargaining history of a company is not decisive of what should

comprise the collective bargaining unit. (San Miguel Corp. v. Laguesma, G.R. No. 100485,
September 21, 1994)

d. Employment status doctrine — The determination of the appropriate

bargaining unit based on the employment status of the employees is considered

60
 an acceptable mode. For instance, casual employees and those employed on a
day-to-day basis do not have the mutuality or community of interest with
regular and permanent employees (Land-Air-Sea Labor Union vs. CIR, G.R. No. L-14656,
November 29, 1960).

3. Bargaining Representative

4. Rights of Labor Organizations

175. What are the rights of legitimate labor organizations?

a. To act as the Representative of its members for the purpose of collective

bargaining;
b. To be certified as the Exclusive representative of all the employees in an
appropriate bargaining unit for purposes of collective bargaining;
c. To be furnished by the employer, upon written request, with its annual audited
Financial statements, including the balance sheet and the profit and loss
statement, within thirty (30) calendar days from the date of receipt of the
request, after the union has been duly recognized by the employer or certified
as the sole and exclusive bargaining representative of the employees in the
bargaining unit, or within sixty (60) calendar days before the expiration of the
existing collective bargaining agreement, or during the collective bargaining
negotiation;
d. To own property, real or personal, for the use and benefit of the labor
organization and its members;
e. To sue and be sued in its registered name; and
f. To undertake all other activities designed to benefit the organization and its
members, including cooperative, housing, welfare and other projects not
contrary to law (Article 251, Labor Code)

a) Check Off, Assessment, and Agency Fees

176. What is check-off?

A check-off is a process or device whereby the employer, on agreement with the Union,
recognized as the proper bargaining representative, or on prior authorization from its
employees, deducts union dues or agency fees from the latter's wages and remits them
directly to the union.

177. What are agency fees?

It refers to the reasonable fee collected from non-union members who are
employees of the appropriate bargaining unit subject to the right to collect of a
recognized collective bargaining union which successfully negotiated the CBA with the

61
employer. It is in an amount equivalent to the dues and other fees paid by union
members, in case they accept the benefits under the CBA.

It is called “agency fees” because by availing of the benefits of the CBA, they, in effect,
recognize and accept the bargaining union as their “agent” as well. (Chan, Labor Law
Reviewer, Chapter 7, p.24)

178. Are non-union members mandated to pay for union dues and fees?
Yes. The collection of agency fees in an amount equivalent to union dues and fees,
from employees who are not union members, is recognized by Article 248 (e) of the
Labor Code. No requirement of written authorization from the non-union employee is
imposed. The employee's acceptance of benefits resulting from a collective
bargaining agreement justifies the deduction of agency fees from his pay
and the union's entitlement thereto. In this aspect, the legal basis of the union's
right to agency fees is neither contractual nor statutory, but quasi-contractual, deriving
from the established principle that non-union employees may not unjustly
enrich themselves by benefiting from employment conditions negotiated by
the bargaining union. (Holy Cross of Davao College, Inc. v. Joaquin, G.R. No. 110007, October 18,
1996)

179. Explain the requirements for validity of the two kinds of check-off.

1. Collection of union dues, special assessments, and fees (such as attorney’s fees,
negotiation fees or any other extraordinary fees) by the SEBA from its members,
which require individual written authorization specifying the details
thereof; and
2. Collection of agency fees from non-members of the SEBA but covered by and
included in the Collective Bargaining Unit who accept the benefits provided in
the CBA, which do not require written authorization since it is implied through
the acceptance of benefits resulting from the CBA ("agency fee") (Holy Cross of Davao
College, Inc. vs. Joaquin, G.R. No. 110007, October 18, 1996 ).

180. What are the requisites for a valid levy of union dues and special
assessments?
1. It must be authorized by a written resolution of a majority of all the
members in a general membership meeting duly called for the purpose;
2. The secretary of the organization shall record the minutes of the meeting
including:
a. the list of all members present,
b. the votes cast,
c. the purpose of the special assessment or fees and
d. the recipient of such assessment or fees.
3. The record shall be attested to by the president. (Article 250[n], Labor Code)

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181. When is an individual written authorization not required?
a. Assessment from non-members of the bargaining agent of “agency fees”
which should be equivalent to the dues and other fees paid by members of
the recognized bargaining agent, if such non-members accept the benefits
under the CBA (Article 259(e), Labor Code).
b. Deductions for fees for mandatory activities such as labor relations seminars
and labor education activities.
c. Deductions for withholding tax mandated under the NIRC.
d. Deductions for withholding of wages because of employee’s debt to the
employer which is already due.
e. Deductions made pursuant to a judgment against the worker under
circumstances where the wages may be the subject of attachment or
execution but only for debts incurred for food, clothing, shelter and medical
attendance.
f. Deductions from wages ordered by the court.
g. Deductions authorized by law such as for premiums for PhilHealth, SSS,
PAG-IBIG, employees’ compensation and the like (Id., p. 455-456).

b) Collective Bargaining

(1) Economic Terms and Conditions

182. What are economic terms and conditions?

Economic provisions refer to those that have direct and measurable monetary cost
consequences such as wage rates, paid vacations, pensions, health and welfare plans,
and other fringe benefits. (No. 9, NCMB Primer on Grievance Settlement and Voluntary Arbitration)

(2) Non-Economic Terms and Conditions

183. What are non-economic terms and conditions?

Non-economic provisions refer to those whose monetary cost cannot be directly
computed such as the no-strike no-lockout, union security and check-off clauses,
grievance procedures, etc. (No. 9, NCMB Primer on Grievance Settlement and Voluntary Arbitration)

(3) Duty to Bargain Collectively

184. What is meant by “Duty to Bargain Collectively”?

The duty to bargain collectively means the performance of a mutual obligation to meet
and convene promptly and expeditiously in good faith for the purpose of negotiating
an agreement with respect to wages, hours of work and all other terms and conditions
of employment including proposals for adjusting any grievances or questions arising
under such agreement and executing a contract incorporating such agreements if

63
requested by either party but such duty does not compel any party to agree to a
proposal or to make any concession. (Article 263, Labor Code)

(4) Mandatory Provisions in the Collective Bargain Agreement (CBA)

185. What are the mandatory provisions of a CBA?

1. Grievance Procedure;
2. Voluntary Arbitration;
3. No Strike-No Lockout Clause;
4. Labor-Management Council.

Absent any mandatory provisions stated above, the CBA shall be denied by the
BLR. (Chan, Pre-week Notes on Labor Law, 2019, p. 61)

1. Grievance Procedure - The grievance procedure is the series of formal

steps that parties to a CBA agreed to take for the adjustment of grievances
or questions arising out of the interpretation or implementation of the CBA
or company personnel policies including voluntary arbitration as the
terminal step.

2. Voluntary Arbitration - refers to the mode of settling labor-management

disputes by which the parties select a competent, trained, and impartial
third person who shall decide on the merits of the case and whose decision
is final AND executory. (Section 1d, Rule II, 2004 NCMB Revised Procedural Guidelines in the
Conduct of Voluntary Arbitration Proceedings)

3. No Strike-No Lockout Clause - is an expression of the firm commitment

of the parties thereto that, on the part of the union, it will not conduct a
strike during the effectivity of the CBA, and on the part of the employer, it
will not a stage a lockout during the lifetime thereof. (Chan, Bar Reviewer on Labor
Law, 3rd Revised edition, Chan Robles Publishing Company, 2017, p.557)

4. Labor-Management Council - serve as a forum where management and

employees may air their concerns, short of collective bargaining. It is
largely a communication mechanism for myriad purposes including
prevention or resolution of disputes. It can even act as a grievance
machinery. (Azucena, Everyone’s Labor Code, 2021, p.333)

5. Unfair Labor Practices

a) Nature and Aspect

186. Explain the concept of Unfair Labor Practice.

Unfair labor practice refers to acts that violate the workers' right to organize. To
hold an employer liable for the same, the alleging party has the burden to prove that

64
the acts of the former negatively affects in whatever manner the right of his or her
employees to self-organize. (Ilaw at Buklod ng Manggagawa sa General Milling Corp. v. General Milling
Corp., G.R. No. 216787 (Notice), February 15, 2022)

ULP is an act of an employer or union – or their agents, which violates the right of
workers to self-organization, which includes the right:
a. To form a union;
b. To take part in its formation;
c. To join or assist a union of their own choosing for purpose of Collective
bargaining and negotiating; and
d. To engage in concerted activities for mutual help and protection

187. What are the elements of ULP?

1. There must be an employer-employee relationship between the offender and

offended party;
2. The act complained of must be expressly mentioned and defined in the Labor
Code as ULP;
3. The act complained of as ULP must have a proximate and casual connection
with any of the following 3 rights:
a. Exercise of the right to self-organization;
b. Exercise of the right to collective bargaining; or
c. Compliance with the CBA.

EXCEPTION: The only ULP that may or may not be related to the exercise of the
right to self-organization and collective bargaining is the act described under Art. 259
(248(f)) i.e. to dismiss, discharge, or otherwise prejudice or discriminate against an
employee for having given or being about to give testimony under the Labor Code.

188. What are the two aspects of ULP?

Under Art. 258 of the Labor Code, as amended, ULP has two (2) aspects:

1. Civil aspect - includes claims for actual, moral and exemplary damages,
attorney’s fees and other affirmative reliefs (Article 258, Labor Code). Generally, these
civil claims should be asserted in the labor case before the Labor Arbiters who
have original and exclusive jurisdiction over ULP cases (Article 224, Labor Code).

2. Criminal aspect - falls within the jurisdiction of the regular trial courts. The
criminal proceeding is suspended once the civil or administrative aspect is filed.
The criminal proceeding will only continue once the administrative case has
attained finality. (Duka, Labor Laws and Social Legislation, 2019, pp. 524-525).

65
 b) By Employers

189. What are the kinds of ULP committed by the employer?

a. Interfere, restrain or coerce employees in their right to self-organization;

b. Require a person not to join a union;
c. Discourage Unionism;
d. Contract out services or functions being performed by union members;
e. Initiate, dominate, assist or otherwise interfere with formation or
administration of any union;
f. Discriminate in terms and conditions of employment to encourage or
discourage membership in any labor organization;
g. Dismiss, discharge or discriminate an employee for having given or being
about to give testimony under this code;
h. Violate the duty to bargain collectively;
i. Pay negotiation or attorney‘s fees to the union or its officers or agents as
part of the settlement of any issue in collective bargaining or any other
disputes; or
j. Flagrant or gross refusal to comply with the economic terms of CBA. (Article
259, Labor Code as amended)

190. Explain the Totality of Evidence Doctrine/Totality of Conduct Rule.

The innocent expression of an employer when taken individually, will not be

considered as ULP. But if taken together, the same constitutes ULP. As such,
expressions of opinion by an Employer, though innocent in themselves, frequently
were held to be ULP because of:
1. The circumstances under which they were uttered;
2. The history of the particular Employer‘s labor relations or anti-union bias;
3. Their connection with an established collateral plan of coercion or
interference (The Insular Life Assurance NATU vs. The Insular Life Co. Ltd, G.R. No. L‐25291,
January 30, 1971).

191. What is a Yellow Dog Contract?

A Yellow Dog Contract, in relation to Article 259 (b) of the Labor Code, is committed
when an employer requires 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.

192. What is Blue Sky Bargaining and why is it ULP?

Blue sky bargaining refers to unrealistic and unreasonable demands in negotiations

by either or both labor and management, where neither concedes anything and

66
demands the impossible. It is a ULP because it is not collective bargaining at all.
(Standard Chartered Bank Employee Union vs. Confesor, G.R. No. 114974
June 16, 2004)

193. What is Boulwarism?

Boulwarism refers to a “take it or leave it” bargaining

194. What constitutes ULP in collective bargaining?

ULP exists in this form when the complaint shows prima facie the concurrence of two
things:
a. There is a gross violation of the CBA; and
b. The violation pertains to the economic provisions of the CBA (Silva vs. NLRC,
G.R. No. 110226, June 19, 1997).

c) By Organizations

195. What are the kinds of ULP committed by Labor Organizations?

Under Article 260 of the Labor Code, as amended, it shall be unfair labor practice for
a labor organization, its officers, agents or representatives to:
a. Restrain or coerce employees in the exercise of their right to self-
organization;
b. Cause or attempt to cause an employer to discriminate an employee;
c. Violate the duty or refuse to bargain collectively with the employer;
d. An employer to pay or deliver any money or other things of value, in the
nature of an exaction, for services which are not performed or not to be
performed;
e. Ask for negotiation or attorney‘s fees from employers as part of the
settlement of any issue in collective bargaining or any other dispute; or
f. Violation of the CBA.

196. What is featherbedding?

It is in nature of exaction, for services which are not performed or not to be performed,
as when a union demands that the employer maintain personnel in excess of the
latter’s requirements. It is an unfair labor practice of the union through
coercive means for exacting or attempting to exact the employers for
services not rendered or not intended to be rendered. However, there is no
featherbedding if the paid work is performed n matter how unnecessary or useless it
may be to the employer (Duka, Labor Laws and Social Legislation, 2019, p.535).

67
197. What is a Sweetheart Contract?

It is where a labor organization asks for or accepts a negotiation or attorney‘s fee from
the employer in settling a bargaining issue or dispute. The obligation to pay attorney’s
fees belongs to the union and cannot be shunted to the individual workers as their
direct responsibility. The law has made clear that any agreement to the contrary shall
be null and void ab initio (EMCO Plywood Corporation, et al. vs. Abelgas, G.R No. 148532 April 14, 2004).

6. Peaceful Concerted Activities

a) Strikes (Valid vs. Illegal)

198. Distinguish valid strike from illegal strike.

VALID STRIKE ILLEGAL STRIKE

It is a strike that is staged for a valid A strike staged for a purpose not
purpose and conducted through means recognized by law, or, if for a valid
allowed by law. purpose, conducted violative of the
law.

To be legitimate, a strike should not be antithetical to public welfare, and must be

pursued within legal bounds.

The right to strike as a means of attaining social justice is never meant to oppress or
destroy anyone, least of all, the employer. Since strikes affect not only the relationship
between labor and management, but also the general peace and progress of the
community, the law has provided limitations on the right to strike. (Ilagan v. Manila Electric
Co., G.R. Nos. 211746 & 212077 (Notice), January 22, 2020)

199. What are the grounds for a valid strike?

a. Collective bargaining deadlock (Economic Strike); and/or

b. Unfair labor practice (Political Strike).
Only a certified or duly recognized bargaining representative may declare a strike in
case of a bargaining deadlock. However, in cases of unfair labor practices, the strike
may be declared by any legitimate labor organization. (Bigg's, Inc. v. Boncacas, G.R. Nos.
200487 & 200636, March 6, 2019)

200. What are the prohibited activities during strikes and lockouts?

1. By anyone. No person shall obstruct, impede, or interfere with, by force,

violence, coercion, threats, or intimidation, any peaceful picketing by employees
[Article 279(b), Labor Code];
a. Blocking the free ingress to/egress from work premises for lawful

68
 purposes
b. Obstruction of public thoroughfares
c. Threatening, coercing and intimidating non-striking employees, officers,
suppliers and customers
d. Resistance and defiance of assumption of jurisdiction by the Labor
Secretary or an injunction
e. Acts of violence (Association of Independent Unions in the Philippines (AIUP), et. al. v.
NLRC, G.R. No. 120505, March 25, 1999).
2. By employer. No employer shall use or employ any strike-breaker, nor shall any
person be employed as a strike-breaker. (Article 279(c), Labor Code).
3. By public official or police force. No public official or employee, including
officers and personnel of the New Armed Forces of the Philippines or the
Integrated National Police, or armed person, shall bring in, introduce or escort
in any manner, any individual who seeks to replace strikers in entering or leaving
the premises of a strike area, or work in place of the strikers. (Article 279(d), Labor
Code).

201. How does the law distinguish, as to effects of illegal strikes,

between a participating worker and a union officer?
ORDINARY WORKER UNION OFFICER
An ordinary worker merely participating A union officer may be terminated from
in an illegal strike may not be terminated employment for knowingly participating
from employment. It is only when he in an illegal strike or participating in the
commits illegal acts during a strike that commission of illegal acts during a strike.
he may be declared to have lost The law grants the employer the option
employment status. of declaring a union officer who
participated in an illegal strike as having
lost his employment. (Visayas Community
Medical Center vs. Yballe, G. R. No. 196156,
January 15, 2014).

b) Picketing

202. What is picketing?

A picket simply means to march to and from the employer's premises, usually
accompanied by the display of placards and other signs making known the facts
involved in a labor dispute. (Phimco Industries, Inc. v. Phimco Industries Labor Association, G.R. No.
170830, August 11, 2010)

203. What are the requisites for lawful picketing?

a. The picket should be peacefully carried out;

b. There should be no act of violence, coercion or intimidation attendant thereto;
c. The ingress to or egress from the company premises should not be obstructed;

69
 and
d. Public thoroughfares should not be impeded. (Chan, Bar Review in Labor Law, 2019, p. 592)

204. What is the Innocent Bystander Rule?

Under the Innocent Bystander Rule, the no-injunction rule does not apply in cases
where the interests of an innocent bystander are concerned. Thus, the right may be
regulated at the instance of third parties or "innocent bystanders" if it appears that
the inevitable result of its exercise is to create an impression that a labor dispute with
which they have no connection or interest exists between them and the picketing
union or constitute an invasion of their rights (Liwayway Publications vs. Permanent, G.R. No. L-
25003, October 23, 1981).

An "innocent bystander," who seeks to enjoin a labor strike, must satisfy it is entirely
different from, without any connection whatsoever to, either party to the dispute and,
therefore, its interests are totally foreign to the context thereof. (MSF Tire and Rubber v.
Court of Appeals G.R. No. 128632, 5 August 1999)

c) Lockouts

205. What is lockout?

Lockout is the temporary refusal of an employer to furnish work as a result of an

industrial or labor dispute. (Article 219, Labor Code)

206. What happens when the parties are both in pari delicto?

If both parties are in pari delicto, in that the employer is guilty of illegal lockout and
the union is culpable for illegal strike, such situation warrants the restoration of the
status quo ante and bringing the parties back to the respective positions before the
illegal strike and illegal lockout. (Chan, Bar Reviewer on Labor Law, 2019, p. 598-599).

207. What are the grounds for lockout?

A lockout must be based on any or both of the following two (2) exclusive grounds:
a. Unfair Labor Practice (political);
b. Collective bargaining deadlock (economic). (Section 5, Rule XXII, D.O. No. 40-03, as
amended)

d) Assumption of Jurisdiction by the DOLE Secretary

208. What are the legal effects of an assumption order issued by the
President/ Secretary of Labor and Employment?

The assumption order shall have the effect of automatically enjoining an impending

70
strike or lockout. If a strike/lockout has already taken place at the time of assumption,
all striking or locked out employees and other employees subject of the notice or strike
shall immediately return to work and the employer shall immediately resume
operations and re-admit all employees under the same terms and conditions prevailing
before the strike or lockout. Notwithstanding the foregoing, parties to the case may
agree at any time to submit the dispute to the Secretary of Labor or his duly authorized
representative as Voluntary Arbitrator or to a panel of Voluntary Arbitrators. (Section 15,
Rule XXII, DO No. 40-03 as amended).

209. What are the industries/services deemed as indispensable to

national interest?

a. Hospital Sector;
b. Electric Power Industry;
c. Water Supply Services, to exclude small water supply services such as
Bottling and Refilling Stations;
d. Air Traffic Control; and
e. Such other industries may be recommended by the National Tripartite
Industrial Peace Council (NTIPC). (Section 16, Rule XXII, D.O. No. 40-03 as amended)

210. Are employees engaged in a strike entitled to reinstatement?

YES, they are generally entitled to reinstatement.

1. In Economic Strike - employees engaged in economic strike are entitled to
reinstatement provided the employer has not yet hired permanent
replacements. (Consolidated Labor Association vs. Marsman, GR No. L-17038, July 31, 1964).
2. In ULP strike - employees engaged in ULP Strike are entitled to
reinstatement even if the employer may have already hired replacements.
(Cromwell Employees Union vs. CIR, GR No. L-19778, September 30, 1964).

E. Telecommuting Act (RA 11165)

1. Definition [Sec. 3]

211. What is Telecommuting?

Telecommuting refers to a work arrangement that allows an employee to work from
an alternative workplace, in whole or in part, with the use of telecommunication and/or
computer technologies. (Section 3, Revised Implementing Rules and Regulations of RA No. 11165)

2. Telecommuting Program [Sec. 4]

212. What is Telecommuting Program?

Telecommuting program is offered by an employer in the private sector to its
employees on a voluntary basis, and upon such terms and conditions as they may
mutually agree upon: Provided, That such terms and conditions shall not be less than
the minimum labor standards set by law, and shall include compensable work hours,

71
minimum number of work hours, overtime, rest days, and entitlement to leave
benefits. In all cases, the employer shall provide the telecommuting employee with
relevant written information in order to adequately apprise the individual of the terms
and conditions of the telecommuting program, and the responsibilities of the
employee. (Section 4, Ibid.)

3. Fair Treatment [Sec. 5]

213. What is Fair Treatment?

It states that the employer shall ensure that the telecommuting employees are given
the same treatment as that of comparable employees working at the employer's
premises. All telecommuting employees shall:

a. Receive a rate of pay, including overtime and night shift differential, and other
similar monetary benefits not lower than those provided in applicable laws, and
collective bargaining agreements.
b. Have the right to rest periods, regular holidays, and special nonworking days.
c. Have the same or equivalent workload and performance standards as those of
comparable workers at the employer's premises.
d. Have the same access to training and career development opportunities as
those of comparable workers at the employer's premises, and be subject to the
same appraisal policies covering these workers.
e. Receive appropriate training on the technical equipment at their disposal, and
the characteristics and conditions of telecommuting.
f. Have the same collective rights as the workers at the employer's premises, and
shall not be barred from communicating with workers' representatives.

The employers shall also ensure that measures are taken to prevent the
telecommuting employee from being isolated from the rest of the working community
in the company by giving the telecommuting employee the opportunity to meet with
colleagues on a regular basis, and allowing access to company information. (Section 5,
Ibid.)

IV. POST-EMPLOYMENT

A. Employer-Employee Relationship
1. Tests to Determine Employer Employee Relationship

214. What are the accepted tests to determine the existence of an

employer-employee relationship?
The accepted tests to determine the existence of an employer-employee relationship
are the:
1. four-fold test,
2. whole economic activity test; and

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 3. two-tiered test.

1. The "four-fold test" in determining the existence of an employer-employee

relationship has the following requisites:
a. the selection and engagement of the employee;
b. the payment of wages;
c. the power of dismissal; and
d. the power to control the employee's conduct. (Gerome B. Ginta-Sison vs. J.T.A.
Packaging Corporation, G.R. No. 244206, March 16, 2022, J. Hernando)

The Most Important Test is the Control Test:

Under the "control test," the employer is the person who has the power to control
both the end achieved by his or her employees, and the manner and means they use
to achieve that end. (Wyeth Philippines, Inc. v. Estabaya, G.R. Nos. 231082 & 231102 (Notice), October 6,
2021)

2. The determination of the relationship between employer and employee

depends upon the circumstances of the whole economic activity.

The proper standard of economic dependence is whether the worker is

dependent on the alleged employer for his continued employment in that line
of business. The benchmark of economic reality in analyzing possible
employment relationships for purposes of the Labor Code ought to be the
economic dependence of the worker on his employer. (Wahing v. Spouses Daguio, G.R.
No. 219755, April 18, 2022)

3. The two-tiered test involves:

a. the putative employer's power to control the employee with respect to
the means and methods by which the work is to be accomplished; and
b. the underlying economic realities of the activity or relationship. (Ibid)

2. Kinds of Employment
a) Regular

215. What is the test to determine regular employment?

Article 295 of the Labor Code provides for two (2) types of regular employees, namely:
1. those who are engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer
(by nature of work); and
2. those who have rendered at least one year of service, whether continuous
or broken, with respect to the activity in which they are employed (by years of
service).

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However, it is to be noted that regular employment status of a person is defined
and prescribed by law and not by what the parties say it should be. (Perdito R.
Parayday vs. Shogun Shipping Co., Inc., G.R. No. 204555, July 6, 2020, J. Hernando)

b) Casual

216. What is casual employment?

Casual employment refers to any other employment arrangement that is not regular
or not project/seasonal. (Universal Robina Sugar Milling Corp vs. Acibo, G.R. No. 186439, January 15,
2019)

c) Probationary

217. What is probationary employment?

Probationary employment exists where the employee, upon his engagement, is made
to undergo a trial period during which the employer determines his fitness to qualify
for regular employment based on reasonable standards made known to him at the
time of his engagement. (Article 296, Labor Code)

218. May the probationary period of an employee be extended?

The probationary period may be extended but only when the employee agrees to such
extension. Absent such agreement would make the extension invalid, hence, the
employee would be considered as having become a regular employee after the lapse
of the original probationary period. (Dusit Hotel Nikko vs. Gatbonton, G.R. 161654, May 5, 2006)

219. What are the requisites of acquisition of permanent employment for

private school teachers?
The requisites to acquire permanent employment, or security of tenure, are:
1. the teacher is a full-time teacher;
2. the teacher must have rendered three consecutive years of service; and
3. such service must have been satisfactory. (Palgan v. Holy Name University, G.R. No.
219916, February 10, 2021, J. Hernando)

A part-time teacher cannot acquire permanent status. Only when one has
served as a full-time teacher can he acquire permanent or regular status. The
petitioner was a part-time lecturer before she was appointed as a full-time instructor
on probation. As a part-time lecturer, her employment as such had ended when her
contract expired. Thus, the three semesters she served as part-time lecturer could not
be credited to her in computing the number of years she has served to qualify her for
permanent status. (Ibid)

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 d) Project

220. What is the principal test in determining project employment?

The principal test in determining whether an employee is a project employee is
whether:
1. he/she is assigned to carry out a "specific project or undertaking,"
2. the duration and scope of which are specified at the time the employee is
engaged in the project, or
3. where the work or service to be performed is seasonal in nature and the
employment is for the duration of the season.

A true project employee should be assigned to a project which begins and ends at
determined or determinable times and be informed thereof at the time of hiring.
(Eduardo G. Jovero vs. Rogelio Cerio, GR No. 202466, June 23, 2021, J. Hernando)

221. Diosdado, a carpenter, was hired by Building Industries Corporation

(BIC), and assigned to build a small house in Alabang. His contract of
employment specifically referred to him as a “project employee,”
although it did not provide any particular date of completion of the
project. Is the completion of the house a valid cause for the termination
of Diosdado’s employment? If so, what are the due process requirements
that the BIC must satisfy? If not, why not? (2009 BAR)
The completion of the house should be a valid cause for termination of
Diosdado’s employment. Although the employment contract may not state a particular
date, but if it did specify that the termination of the parties employment relationship
was to be on a “day certain” – the day when the phase of work would be completed
– the employee cannot be considered to have been a regular employee. (Filipinos Pre-
Fabricated Building Systems vs. Puente, G.R. No. 153832, March 18, 2005)

To satisfy due process requirement, under DOLE Department Order No. 19, series of
1993, the employer is required to report to the relevant DOLE Regional Office the fact
of termination of project employees as a result of the completion of the project or any
phase thereof in which one is employed.

222. Are project-based employees coterminous employees?

Yes. The "services of project-based employees are coterminous with the project and
may be terminated upon the end or completion of the project or a phase thereof for
which they were hired." A project employee's work may or may not be usually
necessary or desirable in the usual business or trade of the employer. Thus, the fact
that a project employee's work is usually necessary and desirable in the business
operation of his/her employer does not necessarily impair the validity of the project
employment contract which specifically stipulates a fixed duration of employment.
(Engineering & Construction Corporation of Asia vs. Segundino Palle, G.R. No. 201247, July 13, 2020, J. Hernando)

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 e) Seasonal

223. Define, explain or distinguish Seasonal employee from project

employees (2019 BAR)

SEASONAL EMPLOYEE PROJECT EMPLOYEE

called to work from time to time assigned to carry out a specific project or
according to the occurrence of varying undertaking, the duration and scope of
needs during a season. which were specified at the time the
employees were engaged for the project.
employment is only for the duration of services of the project employees are
said season. coterminous with the project for which
they were hired.

224. May a seasonal employee be considered a regular employee?

Yes. Regular seasonal employees are those called to work from time to time. The
nature of their relationship with the employer is such that during the off season, they
are temporarily laid off; but re-employed during the summer season or when their
services may be needed. They are in regular employment because of the nature of
their job, and not because of the length of time they have worked (Gapayao vs. Fulo, et al.
G.R. No. 193493, June 13, 2013).

225. What is the employment Relationship During Off-Season?

During off-season, the ER-EE is not severed; the seasonal employee is merely
considered on leave of absence without pay. Workers who have performed the
same tasks every season for several years are considered regular employees for their
respective tasks. (Hacienda Fatima vs. National Federation of Sugarcane Workers-Food and General Trade,
G.R. No. 149440, 2003)

226. When are Seasonal Employees NOT Considered as Regular

Employees?

1. Seasonal workers who have worked for one season only (Hacienda Fatima vs. National
Federation of Sugarcane Workers-Food and General Trade, G.R. No. 149440, 2003);
2. When seasonal employees are free to contract their services with other owners
(Mercado, Sr. v. NLRC, G.R. No. 79869, September 5, 1991).

f) Fixed-Term

227. What is fixed-term employment?

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A type of employment "embodied in a contract specifying that the services of the
employee shall be engaged only for a definite period, the termination of which occurs
upon the expiration of said period irrespective of the existence of just cause and
regardless of the activity the employee is called upon to perform." (Regala vs. Manila Hotel
Corporation, G.R. No. 204684, Oct. 5, 2020, J. Hernando)

228. What are the elements of valid fixed-term employment?

1. The employee must have willfully and voluntarily entered into the fixed-term
employment contract without any duress, force, intimidation, or undue
influence from the employer; and
2. The employer and the employee must have bargained on equal footing on the
terms and conditions of employment. (Samonte vs. La Salle Greenhills, Inc. and Oca, G.R.
No.199683, February 10, 2016)

229. What are some rules pertaining to fixed-term employment?

a. Notice of termination is not necessary in fixed-term employment (Pangilinan

vs. General Milling Corporation, supra)
b. Employee is deemed regular if the contract failed to state the specific period
of employment (Poseidon Fishing vs. NLRC, G.R. No. 168052, February 20, 2006);
c. Termination prior to lapse of fixed-term contract should be for a just or
authorized cause (Anderson vs. NLRC, G.R. No. 111212, January 22, 1996);
d. Liability for illegal dismissal of fixed-term employees is only for the salary
for unexpired portion (New Sunrise Metal vs. Pia, G.R. No. 171131, July 10, 2007)

g) Floating Status

230. What is a floating status?

Temporary "off-detail" or "floating status" is the period of time when:
1. An employee, such as security guards, are in between assignments or
2. when they are made to wait after being relieved from a previous post until they
are transferred to a new one.

During such time, the security guard does not receive any salary or any financial
assistance provided by law. It does not constitute a dismissal, as the assignments
primarily depend on the contracts entered into by the security agencies with third
parties, so long as such status does not continue beyond a reasonable time. (Samillano
v. Valdez Security and Investigation Agency, Inc., G.R. No. 239396, June 23, 2020)

A security guard may be placed on "floating status" or "temporary off-detail" based

on a valid exercise of management prerogative for a period of no more than six
months. When the floating status lasts for more than six months, the employee may
be considered to have been constructively dismissed . (Salvador v. Saint Nicolas Security &
Investigation Agency, Inc., G.R. No. 229384 (Notice), July 28, 2021)

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If the floating status of an employee lasted for more than six (6) months she
is, in effect, constructively dismissed. (Racho v. Lapuz, G.R. No. 254682 (Notice), March 24,
2021)

3. Legitimate Subcontracting vs. Labor-Only Contracting

a) Elements

231. What are the elements of Legitimate contracting or subcontracting?

a. The contractor is engaged in a distinct and independent business and

undertakes to perform the job or work on its own responsibility according
to its own method;
b. The contractor or subcontractor has substantial capital and/or investment;
c. The contractor undertakes to perform the job, work or service on its own
responsibility, according to its own manner and method, and free from
control and direction of the principal in all matters connected with the
performance of the work except as to the results thereof; and
d. The Service Agreement ensures compliance with all the rights and benefits
for all of the employees of the contractor or subcontractor under Labor laws.
(D.O. No. 174-17, Section 8)

232. What are the elements of a Labor-Only Contracting?

Labor only contracting shall refer to an arrangement where the contractor or

subcontractor recruits, supplies, or places workers to perform a job or work for a
principal, and the elements hereunder:
a. The contractor does not have substantial capital; or
b. The contractor or subcontractor does not have investments in the form of
tools, equipment, machineries; and
c. the contractor’s or subcontractor’s employees recruited and placed are
performing activities which are directly related to the main business
operation of the principal; or
d. The contractor or subcontractor does not exercise the right of control over
the work of the employee (D.O. No. 174-17, Section 5)

233. Distinguish legitimate subcontracting vs. labor-only contracting

LEGITIMATE SUBCONTRACTING LABOR-ONLY CONTRACTING
(JOB CONTRACTING)
STATUS
Allowed in the Philippines Prohibited in the Philippines

REASON
It is an attempt to evade the obligations
of an employer. The employer is using

78
 a front, a person who poses as
employer although he is not. The
scheme evades the employer's
obligations to respect the employees'
right to unionize, the right to
employment standards, including SSS-
EC membership, and the right to
security of tenure.
DEFINITION
An arrangement whereby a principal An arrangement where the contractor
agrees to farm out to a contractor the or subcontractor merely recruits,
performance or completion of a specific supplies or places workers to perform
job or work within a definite or a job or work for a principal.
predetermined period, regardless of
whether such job or work is to be
performed or completed within or
outside the premises of the principal.
ELEMENTS
The contractor or subcontractor: 1. No substantial capital, or
1. Is engaged in a distinct and 2. No investments in the form of
independent business and tools, equipment, machineries,
undertakes to perform the job or supervision, work premises, and
work on its own responsibility, 3. The workers recruited and
according to its own manner and placed are performing activities
method; which are directly related to the
2. Has substantial capital or carry out principal business or operations
the job farmed out by the principal of the employer in which workers
on his account, manner and are habitually employed, or
method, investment in the form of 4. Does not exercise the right to
tools, equipment, machinery and control over the performance of
supervision; the work of
3. Is free from the control and/or the contractual employee.
direction of the principal in all
matters connected with the
performance of the work except
as to the result;
4. The Service Agreement ensures
compliance with all the rights and
benefits for all the employees of
the contractor or subcontractor
under the labor laws;
5. Is verified by and registered with
the DOLE.
EMPLOYER-EMPLOYEE RELATIONSHIPS

79
 Exists between the job contractor and Between the workers and the
the people he hires. enterprise to which they are supplied
(principal).

b) Trilateral Relationship

234. What is Trilateral Relationship?

In legitimate contracting, there exists a trilateral relationship under which there is a

contract for a specific job, work or service between the principal and the contractor or
subcontractor, and a contract of employment between the contractor or subcontractor
and its workers,

235. Who are the parties involved in trilateral relationship?

1. Principal who decides to farm out a job, work or service to a contractor.
2. Contractor who has the capacity to independently undertake the performance of
the job, work or service.
3. Contractual workers engaged by the contractor to accomplish the job, work or
service. (Department Circular No. 01 s. 2017)

c) Solidary Liability

236. Who is liable if the contractor or subcontractor fails to pay the

wages of his employees?

If the contractor or sub-contractor fails to pay the wages of his employees in

accordance with this Code, the employer shall be jointly and severally liable
with his contractor or sub-contractor to such employees to the extent of the
work performed under the contract, in the same manner and extent that he is liable
to employees directly employed by him (Article 106, Labor Code).

237. Who is the principal in cases where there are violations of rights of
employees or required contracts?

The direct employer.

A finding of violation of either Sections 10 (Rights of Contractor's Employees) or 11

(Required Contracts) shall render the principal the direct employer of the employees
of the contractor or subcontractor, pursuant to Art. 109 of the Labor Code (D.O. No. 147-
17, Section 12).

238. Who has solidary liability in legitimate contracting where there are
violations of the Labor Code and Social Legislation?

80
In the event of violation of any provision of the Labor Code, including the failure to
pay wages, there exists a solidary liability on the part of the principal and the
contractor for purposes of enforcing the provisions of the Labor Code and other
social legislations, to the extent of the work performed under the employment
contract. (D.O. No. 174-17, Section 9)

Every employer or indirect employer shall be held responsible with his contractor or
subcontractor for any violation of any provision of this Code. For purposes of
determining the extent of their civil liability under this Chapter, they shall be
considered as direct employers. (Article 109, Labor Code)

NOTE:
On the Principal’s Liability under Article 109 - If the liability is for failure to pay the
minimum wage, or the service incentive leave or other benefits derived from or
provided for by law, the principal is equally liable with the contractor.

If the liability is invested with punitive character, such as an award for backwages and
separation pay because of an illegal dismissal, the liability should be solely with the
contractor in the absence of proof that the principal conspired with the contractor in
the commission of the illegal dismissal (Meralco vs. NLRC, G.R. No. 145402, March 14, 2008)

239. Who has solidary liability for wages and money claims for services
performed under a contract?

If the contractor or subcontractor fails to pay the wages of his employees in

accordance with this Code, the employer shall be jointly and severally liable with his
contractor or subcontractor to such employees to the extent of the work performed
under the contract, in the same manner and extent that he is liable to employees
directly employed by him (Article 106, Labor Code).

240. Distinguish labor-only contracting from legitimate job contracting,

and give the effects of a finding of labor-only contracting.

LABOR-ONLY CONTRACTING LEGITIMATE JOB CONTRACTING

Prohibited in the Philippines Allowed in the Philippines
An arrangement where the contractor or An arrangement whereby a principal
subcontractor merely recruits, supplies agrees to farm out to a contractor the
or places workers to perform a job or performance or completion of a specific
work for a principal. job or work within a definite or
predetermined period, regardless of
whether such job or work is to be
performed or completed within or outside
the premises of the principal.

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 ER-EE relationship exists between the ER-EE relationship exists between the
workers and the enterprise to which job contractor and the people he hires.
they are supplied (principal).

A finding that there is labor-only contracting makes the principal the direct
employer of the contracted employees and is solidarily liable with the contractor
for the wages and other benefits of the contracted employees. (Polyfoam-RGC International
Corp. vs. Conception, G.R. No. 172349, June 13, 2012)

B. Termination of Employment by Employer

241. What is the principle of totality of infractions?

The principle provides that all circumstances must be considered, and the penalty
must be commensurate to the violation committed by an employee. Termination of
the services of an employee should be the employer's last resort especially when other
disciplinary actions may be imposed, considering the employee's long years of service
in the company, devoting time, effort and invaluable service in line with the employer's
goals and mission.

To impose a penalty as grave as dismissal for a first offense and considering the value
of the property allegedly taken would be too harsh under the circumstances . (Salvacion
A. Lamadrid vs. Cathay Pacific Airways Limited G.R. No. 200658, June 23, 2021, J. Hernando)

242. Distinguish between just cause and authorize cause for termination
of employment by employer.

JUST CAUSES AUTHORIZED CAUSES

Provisions under the Labor Code
Article 297 Article 298 and 299
Removal of the Employee is Called
Dismissal or discharge Separation
Refer to
Faults and misdeed of the employee Business or economic reasons
Employer’s Liability
Not liable for employee’s separation pay. Required by law to provide separation
pay to the employee.

EXCEPTION: If there is a company policy EXCEPTION: closure or cessation of

or applicable contract that provides for operation due to serious business
separation pay in the event of termination losses duly proven.
of employment
Procedural Due Process

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 Twin-Notice Rule Written notice to DOLE and the
employee at least 30 days before the
employee’s separation.
Effectivity Date
Determined by the employer after At least 30 days after the employee
compliance with due process AND DOLE is notified.

1. Just Causes

243. What are the just causes of termination of employment by

employer?
A. Serious Misconduct or Willful Disobedience (Insubordination)
B. Gross & Habitual Neglect of Duties
C. Fraud/Willful Breach of Trust
D. Commission of A Crime
E. Analogous cases

244. What is Serious Misconduct or Willful Disobedience

(Insubordination)?

1. The employee's conduct must be serious — of such grave and aggravated

character and not merely trivial or unimportant.
2. The misconduct must be related to the performance of the employee's duties
showing him to be unfit to continue working for the employer.
3. The act or conduct must have been performed with wrongful intent. (Colegio San
Agustin-Bacolod v. Montaño, G.R. No. 212333, March 28, 2022, J. Hernando)

245. Open and Willful Disobedience:

For willful disobedience to be a valid cause for dismissal, these two elements must
concur:
1. the employee's assailed conduct must have been willful or intentional, the
willfulness being characterized by "a wrongful and perverse attitude"; and
2. the order violated must have been reasonable, lawful, made known to the
employee, and must pertain to the duties which he had been engaged to
discharge. (Systems and Plan Integrator and Development Corp. v. Ballesteros, G.R. No. 217119, April
25, 2022, J. Hernando)

246. What is Gross & Habitual Neglect of Duties as a ground for

termination of employment?

Gross Negligence:
Gross negligence has been defined as the want or absence of even slight care or
diligence as to amount to a reckless disregard of the safety of the person or property.
It evinces a thoughtless disregard of consequences without exerting any effort to avoid
them. Put differently, gross negligence is characterized by want of even slight care,

83
acting or omitting to act in a situation where there is a duty to act, not inadvertently,
but willfully and intentionally with a conscious indifference to consequences insofar as
other persons may be affected. (Systems and Plan Integrator and Development Corp. v. Ballesteros,
G.R. No. 217119, April 25, 2022, J. Hernando)

Habitual Neglect of Duties:

Habitual neglect implies repeated failure to perform one's duties for a period of time,
depending upon the circumstance. (Matis v. Manila Electric Co., G.R. No. 206629, September 14, 2016)

247. Explain the requisites for Fraud/Willful Breach of Trust as a ground

for termination of employment.
The requisites for dismissal on the ground of loss of trust and confidence are:
1. the employee concerned must be holding a position of trust and confidence;
2. there must be an act that would justify the loss of trust and confidence; and
3. such loss of trust relates to the employee's performance of duties.” (San Miguel
Corporation vs. Rosario A. Gomez G.R. No. 200815, August 24, 2020, Per J. Hernando)

248. May mere suspicion of serious misconduct be sufficient cause to fire

an employee?
No. Bare suspicion is not a just cause to fire any employee. Bare suspicion that the
employee is doing something detrimental to the interests of the employer is just a
hunch, a mere gut feeling that cannot amount to substantial evidence. A reasonable
mind requires reason. Mere allegations are not legally compelling unless proved. (Pacific
Royal Basic Foods, Inc. vs. Violeta Noche, G.R. No. 202392, October 04, 2021, J. Hernando)

249. Explain the requisites of Commission of a Crime as a ground for

termination of employment.

Elements:
1. There must be an act or omission punishable/prohibited by law;
2. The act or omission was committed by the employee against the person of his
employer, against any immediate member of the employer’s family, against the
employer's duly authorized representative. (DOLE No. 147 s. 2015)

The commission of the crime of homicide was outside the perimeter of the IRRI
complex, having been committed in a restaurant after office hours and against a non-
IRRI employee. Thus, the conviction of Micosa for homicide was not work-related, his
misdeed having no relation to his position as laborer and was not directed or
committed against IRRI or its authorized agent. (International Rice Research Institute v. National
Labor Relations Commission, G.R. No. 97239, May 12, 1993)

250. What are the grounds to establish abandonment as a ground to

terminate an employee?
To establish abandonment, the employer must prove that:

84
 1. the employee must have failed to report for work or must have been absent
without valid or justifiable reason; and
2. that there must have been a clear intention on the part of the employee to
sever the employer-employee relationship manifested by some overt act.
(Philippine National Bank vs. Manuel C. Bulatao G.R. No. 200972, December 11, 2019, J. Hernando)

251. Explain Analogous cases as a ground for termination of employment.

For analogous cause to be a just cause for termination of employment, there must be
an act or omission similar to those specified just causes, and the act/omission must
be voluntary or willful on the part of the employee. (DOLE DO 147-15)

2. Authorized Causes

252. What are the authorized causes for termination of employment by

employer?

The Employer May Terminate the Employment Of Any Employee Due To:
i. Installation of Labor-Saving Devices
ii. Redundancy
iii. Retrenchment or Downsizing to prevent losses or the closing or cessation of
operation of the establishment
iv. Closures or Cessation of Operations of establishment or undertaking not due to
serious business losses or financial reverses (Article 298, Labor Code)
v. Disease and whose continued employment is prohibited by law or is prejudicial to
his health as well as to the health of his co-employee (Article 299, Labor Code)

253. What are the requisites of redundancy as a ground for dismissal?

Redundancy exists when an employee's services are in excess of what is reasonably
demanded by the actual requirements of the business.

To successfully invoke a valid dismissal due to redundancy, there must be:

1. a written notice served on both the employees and the DOLE at least one month
prior to the intended date of termination of employment;
2. payment of separation pay equivalent to at least one month pay for every year
of service;
3. good faith in abolishing the redundant positions; and
4. fair and reasonable criteria in ascertaining what positions are to be declared
redundant and accordingly abolished. Moreover, the company must provide
substantial proof that the services of the employees are in excess of what is
required of the company. (TELETECH Customer Care Management Philippines, Inc. vs. Mario
Gerona, Jr., G.R. No. 219166, November 10, 2021, J. Hernando)

85
254. What are the requisites for a dismissal on the ground of disease?
For a dismissal on the ground of disease to be considered valid, two requisites must
concur:
a. the employee suffers from a disease which cannot be cured within six months
and his/her continued employment is prohibited by law or prejudicial to his/her
health or to the health of his/her co-employees, and
b. a certification to that effect must be issued by a competent public health
authority.

It was held that it is not required that the employment be the sole factor in the growth,
development or acceleration of the illness to entitle the claimant to the benefits
provided therefor. It is enough that the employment had contributed, even to a small
degree, to the development of the disease. (Omanfil International Manpower Development
Corporation vs. Rolando B. Mesina, G.R. No. 217169, November 04, 2020, J. Hernando)

3. Due Process

255. What is Due Process?

Due process has been described as a "malleable concept anchored on fairness and
equity." Indeed, at its core is simply the reasonable opportunity for every party to
be heard. (Reyes v. Rural Bank of San Rafael (Bulacan), Inc., G.R. No. 230597, March 23, 2022, J. Hernando)

The heart of procedural due process is the need for notice and an opportunity to be
heard. Moreover, what is required is not actual hearing but a real opportunity to be
heard. Thus, one who refuses to appear at a hearing is not thereby denied due process
if a decision is reached without waiting for him. Likewise, the requirement of due
process can be satisfied by subsequent due hearing. (Reyes v. Rural Bank of San Rafael (Bulacan),
Inc., G.R. No. 230597, March 23, 2022, J. Hernando)

256. What are the guidelines in terminating the services of employees?

The following should be considered in terminating the services of employees:

1. The first written notice to be served on the employees should contain

the specific causes or grounds for termination against them, and a
directive that the employees are given the opportunity to submit their
written explanation within a reasonable period.
a. "Reasonable opportunity" under the Omnibus Rules means every kind of
assistance that management must accord to the employees to enable
them to prepare adequately for their defense. This should be construed
as a period of at least five (5) calendar days from receipt of the notice

86
 to give the employees an opportunity to study the accusation against
them, consult a union official or lawyer, gather data and evidence, and
decide on the defenses they will raise against the complaint. Moreover,
in order to enable the employees to intelligently prepare their
explanation and defenses, the notice should contain a detailed
narration of the facts and circumstances that will serve as basis
for the charge against the employees. A general description of the
charge will not suffice. Lastly, the notice should specifically mention
which company rules, if any, are violated and/or which among the
grounds under Art. 282 is being charged against the employees.

2. After serving the first notice, the employers should schedule and conduct
a hearing or conference wherein the employees will be given the
opportunity to: (1) explain and clarify their defenses to the charge
against them; (2) present evidence in support of their defenses; and
(3) rebut the evidence presented against them by the management.
During the hearing or conference, the employees are given the chance to
defend themselves personally, with the assistance of a representative or
counsel of their choice. Moreover, this conference or hearing could be used by
the parties as an opportunity to come to an amicable settlement.

3. After determining that termination of employment is justified, the employers

shall serve the employees a written notice of termination indicating that:
a. all circumstances involving the charge against the employees have been
considered; and
b. grounds have been established to justify the severance of their
employment. (Pacific Royal Basic Foods, Inc. vs. Violeta Noche, G.R. No. 202392, October
04, 2021, J. Hernando)

a) Twin Notice Requirement

257. What is “Twin Notice Requirement”?

To comply with procedural due process and validly dismiss an employee, the employer
is required to follow the two-notice rule.

In general:
1. An initial notice must be given to the employee, stating the specific
grounds or causes for the dismissal. It must direct the submission of a
written explanation answering the charges.
2. After considering the employee's answer, an employer must give another
notice providing the findings and reason for termination." (University Of
The Cordilleras vs. Benedicto F. Lacanaria, G.R. No. 223665, September 27, 2021, J. Hernando)

87
 b) Hearing

258. What is meant by “Hearing”?

The requirement of a hearing is complied with as long as there was an opportunity to be heard,
and not necessarily that an actual hearing was conducted. (PHILAM Homeowners Association, Inc.
vs. Sylvia De Luna G.R. No. 209437 March 17, 2021, J. Hernando)

4. Termination of Contract of Migrant Workers Under RA 8042 as amended

by RA 10022

259. What are the reliefs to which OFWs are entitled in case of
termination without just or valid cause?

The worker shall be entitled to full reimbursement:

1. In case of termination of overseas employment without just, valid or authorized
cause as defined by law or contract, or
2. In case of any unauthorized deductions from the migrant worker's salary. (Section
7, R.A. No. 10022)

The worker shall be entitled to full reimbursement of:

1. His placement fee and the deductions made with interest at twelve percent
(12%) per annum; and
2. His salaries for the unexpired portion of his employment contract.

Exemplary, Moral and other forms of damages may be awarded if the acts or
omissions of the employer is tainted with bad faith, malice, or fraud. (R.A. No. 8042 as
amended)

In computing the award due to an illegally dismissed employee, salary includes all
other benefits guaranteed in the employment contract which were not made
contingent upon the performance of any task or the fulfilment of any condition. The
Court included in the computation of salary the amount of seafarer's vacation leave
pay and tonnage bonus as the same were guaranteed and fixed benefits as provided
in the contract. Hence, the total compensation salary of Montealto, inclusive of
guaranteed benefits should be included in the computation of his award. (International
Skill Development, Inc. v. Montealto, Jr., G.R. No. 237455 (Notice), October 7, 2020)

C. Termination of Employment by Employee

260. What are the grounds for an employee to sever his/her

employment?
An employee may sever without just cause the ER-EE relationship:

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 a. by serving a written notice on the employer at least one (1) month in advance
(voluntary resignation). The employer upon whom no such notice was served
may hold the employee liable for damages.
b. An employee may put an end to the relationship without serving any notice on
the employer for any of the following just causes:
i. Serious insult by the employer or his representative on the honor and
person of the employee;
ii. Inhuman and unbearable treatment accorded the employee by the
employer or his representative;
iii. Commission of a crime or offense by the employer or his representative
against the person of the employee or any of the immediate members
of his family; and
iv. Other causes analogous to any of the foregoing. (Article 300, Labor Code)

1. Resignation vs. Constructive Dismissal

261. Distinguish resignation and constructive dismissal.

Resignation Constructive Dismissal

Resignation is the voluntary act of an Constructive dismissal exists where

employee who is in a situation where one there is cessation of work, because
believes that personal reasons cannot be "continued employment is rendered
sacrificed in favor of the exigency of the impossible, unreasonable or
service, and one has no other choice but to unlikely, as an offer involving a
dissociate oneself from employment. demotion in rank or a diminution in
pay" and other benefits. (Bance v.
It is a formal pronouncement or University of St. Anthony, G.R. No. 202724,
February 3, 2021, J. Hernando)
relinquishment of an office, with the intention
of relinquishing the office accompanied by
Aptly called a dismissal in disguise
the act of relinquishment. (Alenaje v. C.F. Sharp
Crew Management, Inc., G.R. No. 249195, February 14, or an act amounting to dismissal but
2022) made to appear as if it were not,
constructive dismissal may,
likewise, exist if an act of clear
discrimination, insensibility, or
disdain by an employer becomes so
unbearable on the part of the
employee that it could foreclose any
choice by him except to forego his
continued employment."
(Allan Regala vs. Manila Hotel Corporation,
G.R. No. 204684, October 05, 2020, J.
Hernando)

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262. Explain “intent to relinquish” in cases of employee resignation.
The intent to relinquish refers to the acts of the employee before and after the alleged
resignation which must be considered in determining whether the employee
concerned, in fact, intended to terminate his employment.” (University of the Cordilleras v.
Lacanaria, G.R. No. 223665, September 27, 2021, J. Hernando)

Petitioners' voluntary resignation coupled by their execution of quitclaims and the

processing of the documents required from resigning employees such as the exit
interview, company clearance and information sheets indubitably show their intent to
relinquish voluntarily their employment with the Company. (Tacis v. Shields Security Services,
Inc., G.R. No. 234575, July 7, 2021, J. Hernando)

D. Preventive Suspension

263. What is preventive suspension?

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. (Gatbonton v. National Labor Relations
Commission, G.R. No. 146779, January 23, 2006)

264. Is preventive suspension a penalty?

No. While preventive suspension is not a penalty but a measure to protect the
life or property of the employer or the co-workers pending investigation of any alleged
infraction committed by the employee, it should be imposed with caution as employees
are deprived of their salaries and benefits during the period of the suspension. As
such, it should only be meted out when the employee's continued employment poses
a serious and imminent threat to the life or property of the employer or of his co-
workers. (Celis v. Bank of Makati (A Savings Bank), Inc., G.R. No. 250776, June 15, 2022)

265. Is preventive suspension allowed by law?

Yes. The implementing rules of the Labor Code allows an employer to preventively
suspend an employee if continued employment poses a serious and imminent threat
to the life or property of the employer or co-workers. In preventive suspension, the
employer safeguards itself from further harm or loss that may further be caused by
the erring employee. (Colegio San Agustin-Bacolod vs. Melinda M. Montaño, G.R. No. 212333, March 28,
2022, J. Hernando)

266. Explain the rules on preventive suspension.

No preventive suspension shall last longer than thirty (30) days. When 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

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preventive suspension (Gatbonton v. National Labor Relations Commission, G.R. No. 146779, January 23,
2006)

E. Reliefs from Illegal Dismissal

267. What are the reliefs available for an illegally dismissed employee?
An illegally dismissed employee is entitled to the following reliefs:
a. Reinstatement
i. Pending appeal
ii. Separation pay in lieu of reinstatement
b. Backwages
c. Damages, Interest and Attorney’s Fees

268. What is Reinstatement?

Reinstatement is a restoration to a state from which one has been removed or
separated. The person reinstated assumes the position he had occupied prior to his
dismissal. Reinstatement presupposes that the previous position from which one had
been removed still exists, or that there is an unfilled position which is substantially
equivalent or of similar nature as the one previously occupied by the employee .
(Traveloka Philippines, Inc. v. Ceballos, Jr., G.R. No. 254697, February 14, 2022)

269. What is Reinstatement pending appeal?

The employee shall either be admitted back to work under the same terms and
conditions prevailing prior to his dismissal or separation, or at the option of the
employer, merely reinstated in the payroll. The posting of a bond by the employer
shall not stay the execution for reinstatement." (Wenphil Corporation vs. Tuazon, G.R. No. 207983,
April 7, 2014)

270. When is separation pay in lieu of reinstatement applicable?

a. when reinstatement can no longer be effected in view of the passage of a long
period of time or because of the realities of the situation;
b. reinstatement is inimical to the employer's interest;
c. reinstatement is no longer feasible;
d. reinstatement does not serve the best interests of the parties involved;
e. the employer is prejudiced by the workers' continued employment;
f. facts that make execution unjust or inequitable have supervened; or
g. strained relations between the employer and employee." (Philippine National Bank vs.
Manuel C. Bulatao G.R. No. 200972, December 11, 2019, J. Hernando)

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271. What will happen if the employee fails to prove the fact of dismissal
and the employer has not demonstrated that the employee abandoned
his or her work?
Where the employee fails to prove the fact of his or her illegal dismissal, and the
employer has also not demonstrated that the employee abandoned his or her work,
the case usually ends with the employee's reinstatement without the payment of
backwages.

Should reinstatement be rendered impossible by strained relations of the parties,

become unreasonable with the passage of time since the legal controversy, or
otherwise attained impossibility or impracticability due to the present prevailing
circumstances, equity impels the Court to award the petitioner separation pay
equivalent to one-month salary for every year of service, computed up to the time he
stopped working for respondents. (Fernando C. Gososo vs. Leyte Lumber Yard, G.R. No. 205257,
January 13, 2021, J. Hernando)

272. Explain the concept of Backwages.

An employee who is unjustly dismissed from work shall be entitled to his full
backwages, inclusive of allowances, and to his other benefits or their
monetary equivalent computed from the time his compensation was withheld from
him up to the time of his actual reinstatement. (Article 294, Labor Code)

273. May the illegally dismissed employee be awarded moral, exemplary

and nominal damages?

Yes. Moral damages may be awarded when the employer acted:

a. in bad faith or fraud;
b. in a manner oppressive to labor; or
c. in a manner contrary to morals, good customs, or public policy. Finally, the
Court may impose exemplary damages by way of example or correction for the
public good. (Aguilera v. Coca-Cola FEMSA Philippines, Inc., G.R. No. 238941, September 29, 2021)

Exemplary damages may be awarded if the dismissal was effected:

a. in a wanton, oppressive or malevolent manner;
b. If moral damages was awarded, exemplary damages may be awarded as well
(Ganancial vs. Cubagao, G.R. No. 203348, July 06, 2020).

In labor cases, nominal damages are awarded when an employer removes an

employee for a just or authorized cause but without complying with the requirements
of due process. (LBP Service Corp. v. Tuppil, G.R. No. 249747, March 15, 2022)

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Failure to observe or to prove compliance of the two-notice rule would still make the
dismissal valid, as long as a just or authorized cause for dismissal exists, with the
employer, however, being held liable for nominal damages. (Systems and Plan Integrator and
Development Corp. v. Ballesteros, G.R. No. 217119, April 25, 2022, J. Hernando)

274. When may an illegally dismissed employee be entitled to attorney’s

fees?
1. in cases when the employee's wages have been unlawfully withheld or there is
a showing that lawful wages were not paid accordingly. (Salvador v. Saint Nicolas
Security & Investigation Agency, Inc., G.R. No. 229384 , July 28, 2021)
2. where the defendant's act or omission has compelled the plaintiff to litigate
with third persons or the plaintiff incurred expenses to protect his interest;
3. in actions for the recovery of wages of household helpers, laborers and skilled
workers;
4. in actions for indemnity under workmen's compensation and employer's liability
laws; and
5. in cases where the court deems it just and equitable that attorney's fees and
expenses of litigation should be recovered. (Ibid)

275. When is interest payable by the employer?

All monetary awards shall earn interest at the rate of six percent (6%) per annum
computed from the finality of the Court’s resolution until fully paid. (Salvador v. Saint Nicolas
Security & Investigation Agency, Inc., G.R. No. 229384, July 28, 2021)

276. What is the Doctrine of Strained Relations?

Under the doctrine of strained relations, such payment of separation pay is
considered an acceptable alternative to reinstatement when the latter
option is no longer desirable or viable.

On the one hand, it liberates the employee from what could be a highly oppressive
work environment. On the other hand, it releases the employer from the grossly
unpalatable obligation of maintaining in its employ a worker it could no longer trust.
(Guinto v. Sto. Niño Long-Zeny Consignee, G.R. No. 250987, March 29, 2022)

F. Retirement

277. What is retirement?

Retirement is "the result of a bilateral act of the parties, a voluntary agreement
between the employer and the employee whereby the latter, after reaching a certain
age, agrees to sever their employment with the former.” (Youngbros Parts Centre, Inc. v.
Taduran, G.R. No. 232527, July 7, 2021)

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278. What are the Types of Retirement?
OPTIONAL COMPULSORY

Age Qualification upon reaching the age of Upon reaching sixty-five

sixty (60) years or such (65) years.
other age established as
optional retirement in the
CBA or company policy.

Option exercised Employee Employer

by

Minimum period at least five (5) years in the said establishment.

of service

Entitlement If there is no retirement plan established, retirement pay

of a minimum of at least one-half (1/2) month salary for
every year of service, a fraction of at least six (6) months
being considered as one whole year, including the
equivalent of five days' service incentive leave (22.5
days of pay for every year of service)
(Article 302, Labor Code; Statutory Monetary Benefits Handbook)

V. Jurisdiction and Remedies

A. Labor Arbiter

279. What cases are beyond the Jurisdiction of the Labor Arbiter?

A. Assumed Cases
When the DOLE Secretary or the President exercises his power to assume
jurisdiction over cases involving national interest and decides upon such. (Article
278[g], Labor Code)
B. Certified Cases
When the NLRC exercises its power of Compulsory Arbitration over cases
involving national interest, certified to it by the DOLE Secretary. (Article 278[g], Labor
Code)
C. Cases arising from the Collective Bargaining Agreement (CBA)
When cases arise from the interpretation or implementation of CBAs, and from
the interpretation or enforcement of company personnel policies, these shall be
disposed of by the LA by referring the same to the grievance machinery and
voluntary arbitration, as provided. (Par. C, Article 224; Section 1, Rule V, 2011 NLRC Rules of
Procedure)
D. Cases submitted for Voluntary Arbitration
When the parties agree to submit the case to voluntary arbitration, before a
Voluntary Arbitrator or a panel of Voluntary Arbitrators, such are possessed of

94
 original and exclusive jurisdiction to hear and decide cases mutually submitted
by the parties. (UST Faculty Union vs. UST, G.R. No. 203957, July 30, 2014)

280. May non-lawyers appear before the Labor Arbiter?

Yes. Non-lawyers can appear before the Labor Arbiter when:

1. they represent themselves, or
2. if they represent their organization or members thereof. (Article 227,
Labor Code; Rule III, Section 6, 2011 NLRC Rules of Procedures)

1. Jurisdiction of Labor Arbiter vs. Jurisdiction of Regional Director

281. The Department of Labor and Employment (DOLE) issued Department

Order No. 118-12 (DO 118-12) providing for a fixed and performance
compensation scheme in the computation of public utility bus driver or
conductor's wages. On July 28, 2014, a complaint for underpayment of
wages, non-payment of holiday pay, holiday premium, rest day premium,
service incentive leave, 13th month pay, and attorney's fees was filed
before the labor arbiter against Del Monte Land Transport Bus, Co., Inc.
(DLTB). DLTB raised the issue of jurisdiction claiming that the LA does
not have jurisdiction to render judgment or award since it is the DOLE
which has jurisdiction over their money claims pursuant to Article 128 of
the Labor Code. Is DLTB correct?

Yes, the DOLE Regional office has jurisdiction over the issue.
The rules governing jurisdiction on labor standards claims may be summed up as
follows:

1. If the claim involves labor standards benefits mandated by the Labor Code or other
labor legislation regardless of the amount prayed for and provided that there is an
existing employer-employee relationship, jurisdiction is with the DOLE
regardless of whether the action was brought about by the filing of a complaint or not.

2. If the claim involves labor standards benefits mandated by the Labor Code or other
labor legislation regardless of the amount prayed for and there is no existing
employer-employee relationship or the claim is coupled with a prayer for
reinstatement, jurisdiction is with the LA/NLRC. (DEL MONTE LAND TRANSPORT BUS
CO. vs. Renante Armenta G.R. No. 240144, February 3, 2021, J. Hernando)

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 2. Requisites to Perfect an Appeal with the National Labor Relations Commission

282. What are the grounds for an appeal to the NLRC?

Grounds:
a. If there is prima facie evidence of abuse of discretion on the part of the Labor
Arbiter or Regional Director;
b. If the Decision, Resolution, or Order was secured through fraud or coercion,
including graft and corruption;
c. If made purely on questions of law; or
d. If serious errors in the findings of fact are raised, which if not corrected, would
cause grave or irreparable injury to the appellant. (Art. 229, Labor Code)

283. Is the decision of the Labor Arbiter reinstating the employee

immediately executory?

Yes. In any event, the decision of the Labor Arbiter reinstating a dismissed or separated
employee, insofar as the reinstatement aspect is concerned, shall immediately be executory,
even pending appeal. The employee shall either be admitted back to work under the same
terms and conditions prevailing prior to his dismissal or separation or, at the option of the
employer, merely reinstated in the payroll. The posting of a bond by the employer shall not
stay the execution for reinstatement provided herein. (Pioneer Texturizing Corp. vs. NLRC, G.R. No.
18651, October 16, 1997)

Unless there is a restraining order, it is ministerial upon the LA to implement the Order
of Reinstatement, and mandatory on the part of the employer to comply therewith.
(Garcia vs. PAL, G.R. No. 164856, January 20, 2009)

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 B. National Labor Relations Commission

284. In cases where the appellant moves for the reduction of the bond
amount for the perfection of its appeal, may the NLRC dispense of the
ruling on the motion and instead, immediately rule on the merits of the
case? Explain.

No. An appeal from the decision of the Labor Arbiter may be perfected by the appellant-
employer only by the posting of a bond in the equivalent amount of the full monetary
award granted to the appellee-employee. The perfection of an appeal in the manner
and within the period set by law is not only mandatory but jurisdictional. Consequently,
there should be no implied approval of a jurisdictional requirement that has not been
complied with. Otherwise, the ground of lack of jurisdiction becomes a waivable defect
in procedure. Whether the NLRC accepts or rejects the appellant's motion to
reduce bond, the ruling must be unequivocal, and such ruling must be issued
before or at the time the NLRC resolves the appeal by final judgment. Failure
to do so shall render the NLRC liable for grave abuse of discretion for having ruled on
an appeal without acquiring jurisdiction over the same, and the judgment it had issued
shall be vacated as null and void. (Pacific Royal Basic Foods, Inc. vs. Violeta Noche, G.R. No. 202392,
October 04, 2021, Per J. Hernando)

285. May the NLRC admit evidence for the first-time during appeal?

Yes. The LA and the NLRC are mandated to use every and all reasonable means to
ascertain the facts in each case speedily and objectively, without regard to
technicalities of law and procedure all in the interest of substantial justice. In this
connection, the NLRC is not precluded from receiving evidence on appeal as
technical rules of evidence are not binding in labor cases.

The rules of procedure in labor cases may be relaxed in certain instances as they are
intended to facilitate the attainment of justice and not to frustrate it. Technicalities
should not be permitted to stand in the way of equitably and completely resolving the
rights and obligations of the parties. Where the ends of substantial justice shall be
better served, the application of technical rules of procedure may be relaxed. (Jose R.
Dela Torre vs. Twinstar Professional Protective Services, G.R. No. 222992, June 23, 2021, J. Hernando)

C. Court of Appeals

286. Explain the mode by which an adverse decision of the NLRC may be
appealed to the Court of Appeals.

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In labor cases, the proper recourse from the adverse decision or final order of the
NLRC is via a special civil action for certiorari under Rule 65 of the Rules of
Court to the CA on the ground that the labor tribunal acted with grave abuse
of discretion amounting to excess or lack of jurisdiction. This judicial review
presupposes that the NLRC's disposition of the case has already attained finality, and
the appellate court is to ascertain whether it should reverse or modify the NLRC
decision on the aforesaid exclusive ground. (PHILAM Homeowners Association, Inc. vs. Sylvia De
Luna, G.R. No. 209437, March 17, 2021, J. Hernando)

D. Supreme Court

287. What is the mode of appeal from CA to SC?

From the CA, the labor suit is elevated to the Supreme Court via a petition for
review on certiorari pursuant to Rule 45 of the Rules of Court on pure
questions of law; questions of fact may be entertained and reviewed only in
exceptional circumstances. (PHILAM Homeowners Association, Inc. vs. Sylvia De Luna, G.R. No. 209437,
March 17, 2021, J. Hernando)

The appeal from a final disposition of the Court of Appeals is a petition for review under
Rule 45 and not a special civil action under Rule 65 of the Rules of Court. Rule 45 is clear
that the decisions, final orders or resolutions of the Court of Appeals in any case , i.e.,
regardless of the nature of the action or proceeding involved, may be appealed to this Court
by filing a petition for review, which would be but a continuation of the appellate process over
the original case. Under Rule 45 the reglementary period to appeal is fifteen (15) days from
notice of judgment or denial of motion for reconsideration.

Since the Court of Appeals had jurisdiction over the petition under Rule 65, any alleged errors
committed by it in the exercise of its jurisdiction would be errors of judgment which are
reviewable by timely appeal and not by a special civil action of certiorari. If the aggrieved
party fails to do so within the reglementary period, and the decision accordingly becomes final
and executory, he cannot avail himself of the writ of certiorari, his predicament being the
effect of his deliberate inaction. (Charles P. Idul vs. Alster Int'l Shipping Services, Inc. G.R. No. 209907,
June 23, 2021, J. Hernando)

E. Bureau of Labor Relations

288. Distinguish Conciliation vs. Mediation

Conciliation Mediation

Nature

Both are mild forms of intervention by a neutral third party

Role of Conciliator-Mediator “Con-Med”

98
 The Con-Med, takes an active role in The Con-Med advises the parties or
assisting parties by: offers solutions or alternatives to the
● trying to keep disputants talking, problems with the end in view of
● facilitating other procedural niceties, assisting them towards voluntarily
● carrying messages back and forth reaching their own mutually acceptable
between the parties, and settlement of the dispute.
● keeping things calm and forward-
looking in a tense situation.
(Rule III (4 and 22), 2017 Revised National Conciliation and Mediation Board Manual of Procedures for
Conciliation and Preventive Mediation Cases)

G. DOLE Regional Directors

H. DOLE Secretary
1. Jurisdiction

2. Visitorial and Enforcement Powers

289. What are the 3 kinds of powers of the DOLE Secretary under Article
128 of the NLRC?

a. Visitorial and Inspection Power

i. Access to employer‘s records and premises at any time of the day or
night, whenever work is being undertaken;
ii. To copy from said records
iii. Question any employee and investigate any fact, condition, or matter
which may be necessary to determine violations or which may aid in
the enforcement of the Labor Code and of any wage order, rules,
and regulations issued pursuant thereto.

b. Enforcement Power
i. Issue compliance orders
ii. Issue writs of execution for the enforcement of their orders, except
in cases where the Employer contests the findings of the labor officer
and raise issues supported by documentary proof which were not
considered in the course of inspection
iii. Order stoppage of work or suspension of operation when non-
compliance with the law or implementing rules and regulations poses
grave and imminent danger to health and safety of workers in the
workplace.
iv. Require Employers to keep and maintain such employment records
as may be necessary in aid to the visitorial and enforcement powers.
v. Conduct hearings within 24 hours to determine whether:
1. An order for stoppage of work or suspension of operations
shall be lifted or not; and

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 2. Employer shall pay the concerned Employees their salaries in
case the violation is attributable to his fault (As amended by
RA 7730); (Guico vs. Secretary, G.R. No. 131750, November 16, 1998).

c. Appellate power or power to review - exercised by the DOLE Secretary

in respect to any decision, order, or award issued by the DOLE Regional
Directors

3. Power to Suspend Effects of Termination

290. May the DOLE Secretary suspend the effects of termination?

Yes. The DOLE Secretary may suspend the effects of termination pending resolution
of the dispute in the event of a prima facie finding by the appropriate official of the
DOLE before whom the dispute is pending that:
a. The termination may cause a serious labor dispute; and/or
b. The termination is in implementation of a mass lay-off.

291. What is the flow of Voluntary Arbitration?

J. Prescription of Actions
1. Money Claims
2. Illegal Dismissal
3. Unfair Labor Practices
4. Offenses Under the Labor Code
5. Illegal Recruitment

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340. What are the prescriptive periods of different Causes of Action under
labor laws?

Cause of Action Prescriptive Period

Money claims arising from ER-EE 3 years from accrual of cause of

relationship action

Illegal Dismissal/ Illegal Termination 4 years from accrual of cause of

action

Unfair Labor Practice 1 year from the time the acts

complained of were committed

Other Offenses in the Labor Code 3 years from the time of commission

Simple Illegal Recruitment 5 years

Illegal Recruitment involving economic

sabotage 20 years

JURISDICTION TABLE SUMMARY

LABOR ARBITER DOLE REGIONAL NLRC

DIRECTORS

a. ULP 1. Visitorial power. (Article ORIGINAL

b. Termination disputes 128, Labor Code) JURISDICTION
c. Claims for wages, rates of 2. Simple Money Claims 1. Injunction in
pay, hours of work and not exceeding P 5,000. ordinary labor
(Article 129, Labor Code)
other terms and conditions disputes to enjoin or
3. Violation of the
of employment – if restrain any actual or
constitution & by–laws
accompanied with a claim threatened
and rights & conditions
for reinstatement commission of any or
membership. (Sec 1, Rule
d. Claims for actual, moral, VIII, Book V, Rules to all prohibited or
exemplary and other forms Implement the Labor Code). unlawful acts or to
of damages arising from 4. Inter-union and intra- require the
employer-employee (ER- union disputes and all performance of a
EE) relationship disputes arising from or particular act in any
e. Cases arising from affecting labor- labor dispute which, if
prohibited activities during management relations not restrained or
strikes, including questions in all workplaces, except performed forthwith,
involving the legality of those arising from the may cause grave or

101
 strikes and lockouts implementation or irreparable damage
f. All other claims arising interpretation of CBAs. to any party
from ER-EE relationship (Poquiz, Labor Relations and 2. Injunctions in
involving an amount Law on Dismissal, p. 96, 2018). strikes or lockouts
exceeding P5000 under Art. 279
regardless of whether 3. Certified labor
accompanied by a claim for dispute casing or
reinstatement except likely to cause a strike
claims for ECC, SSS, or lockout in an
Medicare, & maternity industry
benefits indispensable to the
g. Wage distortion cases in national interest,
unorganized certified to it by the
establishments DOLE Secretary for
h. All monetary claims of compulsory
OFWs arising from EER or arbitration
by virtue of any law or
contract involving Filipino EXCLUSIVE
workers for overseas APPELLATE
deployment, including JURISDICTION
claims for actual, moral, 1. All cases decided
exemplary and other forms by the LAs, including
of damages (RA 8042) contempt cases
i. Enforcement of 2. Cases decided by
compromise agreements the DOLE Regional
when there is non- Directors or his duly
compliance by any of the authorized hearing
parties pursuant to Art. officers involving
233 of the Code (Section 1, recovery of wages,
Rule V, 2011 NLRC Rules) simple money claims
and other benefits
not exceeding P
5,000 and not
accompanied by a
claim for
reinstatement.

NCMB BUREAU OF LABOR VOLUNTARY

RELATIONS ARBITRATORS

1. Conciliation 1. Inter-union and intra- 1. Grievances arising

2. Mediation union conflicts; from the
3. Voluntary arbitration 2. All disputes, grievances implementation or
or problems arising from interpretation of

102
 or affecting labor- CBAs
management relations Note: Grievances
in all workplaces must be processed
EXCEPT those arising through grievance
from the machinery; only
implementation or unresolved
interpretation of the grievances go to the
CBA which shall be the VA.
subject of grievance 2. Arising from
procedure and/or interpretation or
voluntary arbitration; enforcement of
3. Complaint involving company
federations, national personnel policies.
unions, industry unions, 3. Wage distortion
its officers or member issues arising from
organizations the application of
4. Appellate jurisdiction any wage orders
over inter/intra union in organized
disputes involving establishments.
company level unions, 4. Arising from
originally decided by interpretation and
Regional Office. implementation of
the productivity
incentive
programs under
RA 6971.
5. Any other labor
disputes upon
agreement by the
parties.

DOLE SECRETARY COURT OF APPEALS SUPREME COURT

Art. 128. Visitorial and Via Rule 65 - the only Via Rule 45 –
Enforcement Power. mode by which a labor case Petition for Review on
Power of the Sec. of Labor decided by any of the Certiorari
or his duly authorized following labor
representative, including authorities/tribunals may
labor regulation officers to: reach the Court of Appeals
1. Have access to employer’s is through a Rule 65
records and premises at petition for certiorari.
any time of the day or night 1. DOLE Secretary
whenever work is being 2. NLRC; and
undertaken therein. 3. Director of the Bureau of

103
2. Right to copy records. Labor Relations (BLR) in
3. To question any employee. cases decided by him in
4. Investigate any fact, his appellate
condition, or matter which jurisdiction.
may be necessary to
determine violations or EXCEPTION: RULE 43
which may be necessary to Decisions, orders or awards
aid in enforcement of the issued by the Voluntary
Labor Code or any labor Arbitrator or panel of
law or order. Voluntary Arbitrators
5. Issue compliance orders to
give effect to labor
legislation based on the
findings of employment
and enforcement officers or
industrial safety engineers
made in the course of
inspection.
6. Issue writs of execution to
the appropriate authority
for the enforcement of their
orders, EXCEPT in cases
where the employer
contests the findings of the
labor employment and
enforcement officer and
raises issues supported by
documentary proofs which
were not considered in the
course of inspection – in
the latter case, the case will
have to be forwarded to a
Labor Arbiter.

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Labor Arbiter Regional Director Bureau of Med-Arbiter Voluntary
Labor Arbitrators
Relations
Director
Original Labor Cases decided Union Intra- Inter-union
Jurisdiction standards by the Regional registration union disputes;
cases Offices of the or disputes certification
DOLE in the cancellation election
exercise of its cases orders
adjudicatory
function (original
pursuant to jurisdiction)
Art. 129
NLRC Bureau of DOLE NLRC DOLE Bureau DOLE
Labor Secretary (appellate) Secretary of Labor Secretary
Relations (appellate) Relations
(appellate)

(within 10 (within 10 (within 10 (within 10 (within 10 (within 10

calendar days calendar calendar days calendar calendar calendar
from receipt of days from from receipt of days from days from days from
the decision) receipt of the decision) receipt of receipt of receipt of
the the decision) the the decision)
decision) decision) (Art. 272,
(Sec. 1[1], Labor Code)
Rule III,
NCMB
Motion for Manual of
Reconsideration Motion for Procedures
Reconsideration for
Conciliation
and
Preventive
Mediation
Cases)
CA CA CA CA CA CA CA CA

(R65 – Special (R65 – (R65 – (R65 – Special (R65 – (R65 – (R65 – (R43 –
Civil Action for Special Civil Special Civil Action for Special Civil Special Special Civil Petition for
Certiorari) Action for Civil Action Certiorari) Action for Civil Action Action for Review
Certiorari) for Certiorari) for Certiorari)
Certiorari) Certiorari)

SC SC SC SC SC SC SC SC

(R45 – Petition (R45 – (R45 – (R45 – Petition (R45 – (R45 – (R45 – (R45 –
for Review on Petition for Petition for for Review on Petition for Petition for Petition for Petition for
Certiorari) Review on Review on Certiorari) Review on Review on Review on Review on
Certiorari) Certiorari) Certiorari) Certiorari) Certiorari) Certiorari)

105
APPEAL in LABOR CASES:

Rules on appeal from denial of application for registration and

cancellation of registration of the labor organizations

On denial of Denial is made by Regional Denial is made by BLR

application for Director in cases involving Director in case involving
union application for registration of federations, national
registration independent unions, local unions, industry unions
chapters and worker’s and trade union centers
associations.

BLR Director DOLE Secretary

On revocation Decision is rendered by
or cancellation Regional Director BLR Director
of union (original jurisdiction) (original jurisdiction)
registration

BLR Director DOLE Secretary

ON CBA REGISTRATION
Single-enterprise CBAs Multi-employer CBAs
Denial by Regional Director Denial by BLR Director
Appeal to

BLR Director DOLE Secretary

106