Labor Laws and Social Legislations 2024 Pre~Bar Notes Atty. Ceci D. Duka, LPT, Ed. University of Makati Labor Labor simply means physical tol especialy f done in exchange for wages. Labor may refer toa socal class comprising those who do manual work for wages. In classical economies and micro-economics, labor is ‘one ofthe four factors of production, the others bein land, capital, and enterprise. (Ouko, Labor Laws and ‘Socal Legislations: A Boristers' Companion, 2023) Labor Relations Law Labor relations Jaws are the laws, rules and regulations which govern the relationship between employees and their employers, promote the right of the employees to selF-organiztion and collective bargaining, penalize unfair labor practice, and provide modes for the settlement of labor disputes such as conciliation, mediation, grievance machinery, voluntary arbitration, and compulsory arbitration. They are covered by Books V ~ Vl ofthe Labor Code. ‘Composition of the NLRC based on R.A. 9347 The National Labor Relations Commission shall be composed of eight (8) divisions with thre members which shall be chosen only from among the nominees of the workers andyemployers, organizations, respectively. The Chairman and the seven (7] members shall come from the publi $ector, withthe latter to 'be chosen preferably from among the incumbent labor arbiters. The Commission mayen Banc oF in eight {8} divisions, each composed of three (3) members. The Commission shall sit enlbone only for purposes of promulgating rules and regulations governing the hearing and disposition of eases before’ any ofits divisions and regional branches and formulating policies affecting its adinistration, andhoperations. Of the eight (8) divisions, the first, second, third, fourth, fth ond sixth divisions Shall handle case&\goming from the National CCopital Region and other ports of Luzon, the seventh ond eighth dNigions, cages from Visayas and Mindanco, respectively. The dvsions ofthe Commission shall have exclusive appallate jurisdiction over cases within thelr reapective territorial jurisdiction, -Appointees to NLRC nat subject to confirmation afthe Commission on Appointments Deciding on what laws to pass [52 legislative prerogative. Determining theie constitutionalty is a judicial function. The Court respects the laudable intention of the legislature. Regretfully, however, the Constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor Code, insofar as it requires confirmation of the Commission on Appartments over appointments of the Chaieman and Member of the "National Labor Relations Commission (NLRQ)is, as we see it, beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, ArLvikthereof. (Calderon vs. Carale, 6. No, 91636, April 23,1992, USing Button vs. NLRC, G.R No, 94754, May 11, 1993) Jurisdletion ofthe Labor Arbiter, 1 Unfair lab@r’praetice \case®) 2. Termination slsputes; 3. If accompanied with a claim for reinstatement, thége-casts that Wotkers may file involving wages, ates of pay, hours of work and other terms and conditions of employment; 4. Cisims for actual, moral, exemplary and other forms of damages arising from the employetiemployee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions invaWing the\lgalty of Strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other caims arising from employer-employee relations, Including those of persons in domestic or household service, involving an amount exceeding five thousand ‘pesos (P5,000100) regardless of whether accompanied with a claim for reinstatement. Except those of the kkasombohay, Section 37, RA 10361. 7. Cases arising from the interpretation or implementation of collectve bargaining agreements and those arising from the interpretation or enforcement of company personnel policies Findings of the Labor Arbiters and the NLRC are conclusive Factual findings ofthe Labor Arbiter and the National Labor Relations Commission, if supportes by substantial evidence and when upheld by the Court of Appeals, are binding and conclusive upon this Court when there is no cogent reason to disturb the same. In the present case, due to lack of any palpable error, ‘mistake, or msappreciationo facts, this Court aiscerns no compelling reason to reverse the consistent findings fof the appellate court and the labor tribunals. (Rodriguez vs. Park Ride, March 20, 2017) Jurisdletion over Overseas Filipino Workers Moreover, 2 review of the respective jurisdictions of the POEA and the LA reveals that these administrative bodies donot have concurrent jurisdiction. On the one hand, the Migrant Workers and Overseas Filipinos Act of 1985, as amended by Republic Act (RA) No. 10022, provides thatthe LA shal have original and ‘exclusive jurisdiction to hear and decide the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, Aity. Cecilio D. Duka, Ed.D. 1‘moral, exemplary, and other forms of damages. (U R Employed int. Corp v. Pini, 6. No, 225263 March 116, 2022, MV Lopez) ‘Technical Rules are Not ining tsa basierulein evidence that each party must prove his affirmative allegation. While technical rules ‘are not strictly followed inthe NLRC, this does not mean that the rules on proving allegations are entirely lispensed wit. Bare allegations are not enough; these must be supported by substantial evidence at the very least. (Protective Maximum Sec. gency vs. Fuentes, Feb. 11, 2015) Juisdlction of the BLR 1. “Inter-union disputes” or “representation disputes” which refer to cases involving petition for certification election fed bya duly registered labor organization which i seeking to be cecognized.as the sole and exclusive bargaining agent of the rank-and-file employees inthe appropriate bargaining unit ofa company, firm or establishment. 2. “intra-union disputes” or “Internal union disputes” which refer to lsputes or grievances arising {rom any violation of or disagreement over any provision of the constitution and by-laws ofthe union, including any violation of he rights and conditions of union membership provides for in the Labor Code. ‘The National Conciliation Mediation Board ‘The Conelation, mediation, and voluntary arbitration Functions ofthe Bureau of abby Relations (BLR) shall be absorbed by NCMB. It isan attached agency under the administrative supervision ofthe Seeretary of Labor and Employment. Its headed by an Administrator and 2 Deputy Administrators, The NCMB has jurisdiction over conciiation, mediation and voluntary arbitration cases, Personality of Labor Union not subject to collateral attack ‘Themplementing Rules stipulate that alabororganizatioh shall BaeerReteWbtered and vested with legal personality on the date of isuance of Its cortifcae of regitration. Once aeertfiate of reglstration s issued toa union, its legal personality cannot be subject to collateral attack [40] It may be questioned only in an independent petition for cancellation in accordance with Section of Rule V, Book V ofthe Implementing Rules. San Miguel Corporation Employces Union v.Saf¥Miguel Packoging Products Employees Union, GR. No. 4171153, September 12, 2007) ‘Republic Act No. 10396 - Mandatory Coneiiation ‘Single Entry Approach (SEnA) - Dept. Order Non107s. 2010, Single Entry Approach is an administrative approach to provide a speedy, impartial, inexpensie and accessible settlement procedure for all issues/complaints arising from employetzemployee relations to prevent them from ripening into full blown lisputes. Under this approach, all labor and employment asputes shall undergo a 30-day mandatory conctlition-mediation process to effect setlementimong the contending parties Grounds for cancellation of union registration (a) Misrepresentation,flte statement, or fraud in connection withthe adoption or ratification ofthe constitution and by-lawsér amendinents thereto, the minutes of ratification, an thelist of memibers who took part inthe ratification (b] Misrebresentation, false statements or fraud in connection with the election of officers, minutes ofthe election of pficrs, and thelist of water; (c) Voluntary dissalution by the members (Republic AetNo. 948%), ‘Mixture of eploWes in one union is not a ground for cancellation of ts registration Clearly then forthe purpose of de-certfyng @ union, itis ot enough to establish that the rank-and: fileunion inciuges ineligible employees in ts membership. Pursuant to Article 239) and c) ofthe Labor Code, ‘it must be show that there was misrepresentation, false statement or fraud in connection with the adoption ‘or atifiation of the constitution and bylaws or amendments thereto, the minutes of ratification, or in connection wth the election of oficers, minutes ofthe election of offices, thelist of voters, or failure to submit ‘these documents together withthe lst of the newly elected-appointed officers and ther postal adresses to ‘the BLR. (ir Philippines Corporation vs. Bureau of Labor Relations, GR. No. 155395 une 22, 2006) check: off Check - off isa method of deducting from an employee's pay at prescribed period, the amounts due to the union for fees, fines or assessments forthe purpose of ralsing funds forthe union. Based on Article 250(0) (281) Other than for mandatory activites under the Code, no special assessments, attorneys fees, negotiation fees or any other extraordinary fees may be checked off fom any amount due to an employee ‘without an individual written authorization duy signed by the employee. The authorization should specifically state the amount, purpose and beneficiary of the deduction, (Peninsula Employees Union vs. Esquivel, Dec. 1, 2016) Requisites forthe validity of the special assessment 1) authorization by a writen resolution of the majority of athe members at the general membership -mecting calle forthe purpose; 2) secretary's record ofthe minutes ofthe meeting; and 3) individual written Atty, Cecilio D. Duka, EdD. 2authorization for check off duly signed by the employees concerned, (Gobriel vs. Secretary of Labor and Employment, GR. No. 115949 March 16, 2000). ‘Agency fee Employees of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed reasonable fees equvvalent tothe dues and ather fees paid by the recognized colectve bargaining agent i such non-union members accept the benefits under the collective bargaining agreement. Provided, That the individual autherization required under Article 241 (now Art 250), ‘paragraph 0) of thi Code shall not apply to the non-members of recognized collective bargaining agent. When so stipulated in a collective bargaining agreement or authorized in writing by the employees concerned, the Labor Code and its Implementing Rules recognize i tobe the duty ofthe employer to deduct ‘the sum equivalent to the amount of union dues, as agency fees, from the employees’ wages for direct remittance ta the union. The system is referred to as check of. No requirement of writen authorization from ‘the non-union employees is necessary the non-union employees accept the benefits resulting from the CBA (Del Pitar Academy v. Del Pilar Academy Employees Union, G.R. No. 170112, April 3, 2008) Employees who do not have the right to self-orgaization ‘The following are the groups of people whose right to self-organization is restricted bythe labor laws: h ranking government employees, employees of international organizations enjoying immhunityfror suits, ‘managerial employees, members of the AFP, PNP, firemen, all guards, confidentislemployees and amployees ‘of the cooperative who are memiers of that same cooperative Security Guards! Right to Self-Organization “The security guards and other personnel employed by the-secuity Bviceleontctor shall have the Fight to form, join or assist in the formation of a labor organization of therr ain choosing for purposes of callectve bargaining and to engage In concerted activities which are not contrary talaw including the right to strike, (Section 10, Department Order NO. 14 Series of 2001, December 18, 2001) Govemment employees may unionize but do not hafthe right to ste ‘The Court can concede hypothetically thal the protest rally and gathering in question didnot involve ‘some specific material demand. But then the absente of such @tonomic-related demand, even if tru, did not, under the premises, make such mass actioTess of a prohibited concerted activity. For, as articulated earlier, any collective activity undertaken by government employees/with the intent of effecting work stoppage oF ‘service disruption inorder to realize theif demands or fore concessions, economic or otherwise, isa prohibited concerted mass action and doubtless actionable admipisratvely. Inthe absence of statute, public employees {40 not have the right to engage in concerted work stéppages for ony purpose (Government Service Insurance System vs. Kapisanan ng mge Manggogawa S@G5IS/G.R. No, 170132, December 6, 2006) Unfair labor practice Unfair labor practice refets to acts that violate the workers’ right to organize. The prohibited act are related to the workers! right tagell organization and tothe observance ofa Collective Bargaining Agreement. ‘without that element theacts, ndmatter how unfair, are not unfair labor practices (Philcom Employees Union Philippine Global Communications, G.R. No. 144315, July 17, 2006) ‘ULP based on totality otcrcumstafces In determining Whether an act of unfair labor practice was committed, the totality of the ireumstances must Be considered, If the unfai treatment does not relate to of affect the workers ight to seltorganize, I cannot be deemed unfair labor practice. A dlmissal of a union oficer is not necessatily liscriminatory,€specially when that officer committed an act of misconduct. In Fact, union offices ae held to higher standards. While an act oc decision of an employer may be unfair, certainly not every unfair act or {decision constitutes unfair labor practice (ULP) as defined and enumerated under Art. 248 (258) of the Labor Code. (Adamson University Faculty Union vs. Adamson University, March 9, 2020) Runaway Shop ‘An Industral plant moved by its owners from one location to another to escape union, labor regulations or state laws, but the term is also used to describe a plant removed to a new location in order to liscriminate against employees atthe old plant because of thelr union activites. Its one wherein the employer ‘moves itsbusinesste anather location rit temperaly closes its business for anti-union purposes. A "runaway shop" inthis sense, isa relocation motivated by ant-union animus rather than for business reasons. (Complex tectronies Employees Association vs. NLRC July 19, 199) Bluesky Bargaining Blue-sky bargaining isthe act of making exaggerated or unreasonable proposal. (Standard Chortered Bonk vs. Confesor, GR. No. 114974 june16, 2004)4 of 23, ‘sss the nature of exaction, for services which are not performed or not to be performed, as when 3 union demands thatthe employer maintain personnel in excess ofthe latter's requirements. Its an unfak- labor practice of the union trough coercive means for exacting or attempting to exact from employers for services not rendered of not intended to be rendered. However, there is no featherbedding if the paid work is performed made no matter how unnecessary or useless it may be tothe employer ‘Sweethearts Contract To ask for oF accept negotiation or attorney’ Fes from employers as part ofthe settlement of any Issue in collective bargaining or any other dispute. (Ar. 260(e) The contract or the Collective Bargaining Agreement is considered as a “sweetheart contract” or sweethear’s deal if it done in secret and does not substantially improve the employees! wages and benefits, worst, the contract may even provide for benefits are far below those that are provided bylaw. Union Security Clause Union security is @ generic term whichis applied to and comprehends ‘closed shop’ ‘union shop,” ‘maintenance of membership’ or any other form of agreement which imposes upon employees the obligation tw acquire oretain union membership 35 a condition affecting employment. There is union shop when al new ‘egular employees are required to join the union within certain period for thei continued erpleyment. There {is maintenance of membership shop when employees, who are union members a of the etfectiveldate of the agreement, or who thereafter become members, must maintain union membership 35 = condition for continued employment untl they are promoted or transferred out of the bargaining unit, or theagreement is terminated. A closed shop, on the other hand, may be defined as an enterprise im\which) by agreement ‘betwen the employer and his employees or their representatives, no person May beemployed In any or certain agreed departments of the enterprise unless he or she ij"becomes and) for the duration of the agreement, remains a member in good standing ofa union ential comprged oer af which the employees in interest are apart. (SLORD Devt. Corp. v. Noya, G.R. No. 232687, February 4, 2019). Valid Termination of Employment due to Union Security Clause “Ta validly terminate the employment of anemiplayce throughthe éaforcement ofthe union security clause, the following requisites must concur: (a) the uniah security eause is applicable; (2) the union is requesting fr the enforcement ofthe union security provision inthe CBA; and (3) there is sufcient evidence to support the decision of the union to expel the employee fram the union. (SLORD Devt. Corp. v. Noya, GR. No, 232687, February 4, 2019) Dismissal due to union security clause thas been the jurisprudentil rulefor quite Some time that the employer isnot considered guy of "unfair labor practice ft merely complied in good faith with the request ofthe certiied union forthe dismissal ‘of employees expelled from the union pursuant to the union security clause in the CBA, (Soriano v. Atienza, GR. No, 68619, March 16, 1989) Jurisdictional preconditions ia bargaining (2) Possestion ofthe statuisot majority representation by the employees representative accordance with any ofthe means of selection and/or designation provided for by the Labor Code; (2) proof of majority repcesentatidn; and (3) 2 demand to bargain under Article 251, paragraph (a), of the New Laber Code. (Associated loBer Unions (ALU) vs. Ferrer ~Callej, 6.8. No.1-77282, May 5, 1989) Collective Bargaining/Agreement (CBA) 'A.CBA\s a contract negotiated and entered into by the employer anda legitimate labor organization with cogard to the termsand conditions of employment. Like any other contract, ithasthe force aflaw between the parties and, thus, should be complied with in good faith. Under Article 1370 of the Civil Code, "ifthe terms ‘ofa contract are clear and leave no doubt upon the intention ofthe contracting parties, the literal meaning of its stipulations shall control (Umcoma Labor Organization vs. Uncoma Muttipurpose Coop. GR No. 239746. November 29, 2021) Boulwarism In negotiation, Boulwarism isan offeror counteroffer that isnot meant to be negotiated, This is 9 "take itor leave it strategy named after Lemuel Boulware a former vie president of General Electric Contract Bar Rule ‘Thisprovision prohibits the Bureau of Labor Relations and/or the Regional Director ofthe Department ‘of Labor and Employment from entertaining any petition for certification election while a valid collectve bargaining agreement is existing in an industry. The law prohibits the holding of certification elections during the lifetime ofthe collective bargaining agreement. (Port Worker's Union v. Loguesmo, March 18, 1992) Atty, Cecilio D. Duka, EdD. 4Good Fath Bargaining ‘Tere is no per se test of good faith in bargaining. Good faith or bad faith isan inference tobe drawn, from the facts, to be precise, the crucial question of whether or not a party has met his statutory duty to Largan in good faith typically turns onthe facts of the individual case. (Union of Flipra Employees vs. Nestlé Philippines, Incorporoted, August 22, 2006) Freedom Period ‘The freedom period refers tothe sixty (60) days span prior to the expiration ofthe CBA. It isthe time when the parties may terminate or modify the terms and conditions ofthe CBA, Lifetime of the CBA The representation issue or the status of the union who entered into the Collective Bargaining [Agreement has aifetime of ive (5) years fromthe time ofits effectivity. While the other provisions (economic) shall be effective fora periad of three (3) years fram its execution, ‘Automatic Renewal Clause or Evergreen Clause The rules that despite the lapse of the formal effectivity ofthe CBA the law still considers the same 3 continuing in force and effect uni a new CBA shall have been validly executed ‘No pettion for cerefication election for any representation issue may be filed after th lapse of the sixty-day freedom period. The old CBA is extended until anew one is signed. The,pule is that despite the lapse ‘of the formal effectivity ofthe CBA the law still considers the same as continuing nforceand effect tn a new ‘CBA shallhave been validly executed. Hence, the contract bar rule sil applies. The purpose is to @nsicestbilty in the relationship of the workers and the company by preventing frequent modification@of any CBA earlier entered into by them in good faith and forthe stipulated original period, (Colegio de\san Wuon De Letran, September 18, 000) ‘Automatic Retroaction Clause ‘All other provisions of the Collective Bargaining Agreemontshall be negotiated not later than three (2) years after its execution. Any agreement on such other provisiong ofthe Collective Bargaining Agreement Centered into within six (6) months from the date of exif the term af.syeh other provisions 3s fixed in such Collective Bargaining Agreement, shall retroact(fo the dayjimmediately following such date. If any such ‘agreement is entered into beyond six months, the Parties shallagree on the duration of retroactivity thereo, {(wiedaneo Terminal and Brokerage vs. Confer, G.R.No. 111809 Moy 5, 1997) ‘The Exclusive Bargaining Status Cannot go Beyond Five Years In the event however, thatthe parties, by mutual agreement, enter into a renegotiated contract with 23 term of three (3) years or one which dags,not coinee with the said five-year term and said agreement is ‘atified by majority of the members n the barBainng unt, the subject contract valid and legal and therefore, binds the contracting parties The same will however not adversely affect the right of ancther union to challenge the majority status ofthe incumbent bargaining agent within sit (60) days before the lapse ofthe ‘original five (5) year term ofthe CBA. (FYC Labor Union-Philppine Transport and General Workers Organization vs, Sama-Samong Nagkakoisang\ Menagagawa So FYC-Solidarity Of Independent and General Labor Organizations, G Ata. 175249, November 27, 2008) Substtutionary Doctrine Stated Gtherwigethe "subftitutionary" doctrine only provides that the employees cannot revoke the vality executed elective bargaining contract with their employer by the simple expedient of changing their bargaining agent. And it sin the light ofthis thatthe phrase "sald new agent would have to respect sald contract” must be Understood. It only means that the employees, thru their new bargaining agent, cannot renoge on thal collective bargaining contract, except of course to negotiate with management for the shortening thereof. enguet Consolidated, nc, v. BC! Employees and Workers Union: PAFLU, G.R. NO. 1-24711, ‘April 30, 1968) ‘Bargaining Unit ‘Abargaining unit isa group of employees of agven employer, comprised of all or lss than allof the centre body of employees, consistent with equity tothe employer, indicate tobe the best suited to serve the reciprocal rights and duties ofthe parties under the collective bargaining provisions ofthe law.” (International School Aliance of Educators vs. Quisumbing, G.R No. 128848, une 1, 2000) Test in determining the appropriate bargaining unit Inarder to determine the appropriate bargaining unit the Supreme Court has time and again applied ‘the four tests to wit: (1) wil ofthe employees (Globe Doctrine; 2) affinity and unt of employees” interest, uch as substantial smilanty of work and duties or similarity of compensation and working conditions; (3) prior collective bargaining history; and (4) employment status, such as temporary, seasonal and probationary ‘employees. (University ofthe Philippines vs. Hon. Pura Ferrer Calleia, GR. No, 96189, July 14, 1992) Alty. Cecilio D. Duka, Ed.D. 5Certification election Certfication election refers to the process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or hegotiation. A certification election is ordered by the Department of Labor and Employment (Department (Order 40 ~ 03, Rule | Section 2 (hi) Consent election vs. Certification election Consent and certification election under Rules X!and Xllof Department Order No.9 is amode whereby the members ofthe bargaining unit decide whether they want a bargaining representative and ifso, who they want it tobe. The difference between a consent election and a certification election Is thatthe conduct of Consent election is agreed upon by the partes to the petition while the conduct af a cetfication election Is lrdered by the Med-Arbiter. In this case, the appellant withdrew its consent and opposed the conduct ofthe election. Therefore, the petition necessarily becomes one of a petition for certification election and the Med: Arbiter was correct in granting the same. (Lepanto Consolidated Mining Company v. The Lepanto Capataz Union, G.R. No. 157086, February 18, 2013) Double Majority Rule It wellsettied that under the so-alled “double majority rule," for there to be a valid certifieation election, majority ofthe bargaining unit must have voted, and the winnifg union must have Rarmered majority ofthe valid votes cas. (National Union of Workers in Hotels - Manila Pavilion vs, SOLE, uly 33, 2005) Fallure of Election Where the number of votes cast in a certification or consent election is Jess Uhaithe majority ofthe number of eligible voters and there are no materially challenged votes, the Fletion Officer shall declare a failure of election in the minutes of the election proceedings. (Setionay, RUBY, 0.0, 40-03) {A fallure of election shall not bar the fling of a Motion for the\immaglate holding of another certification or consent election within si (6) months from date ofeclaration of falure of election. (Section 17, Rule %, 0.0. 40-03), ‘Members of religious groups who do not want tain unions may vote na certification election ‘That iglesia Ni Cristo employees, In the game bargaining unit voted that the employees in their bargaining unit should be represented by""NO UNION," they were simply exercising that right of set ‘organization, albeit in its negative aspect No law, administrative rue or precedent prescribes forfeiture ofthe Fight tovote by reason of neglect to exerese the right n Past Certification elections. n denying the petitioners right to vote upon these egregiously fallacious grounds, the public respondents exercised their discretion Whimsical, capriiously and oppressively nd gravely abused the same. (Reyes vs. Trajano, GR. No, 84433, June 2, 1992) Run Off Election un-ff Election refers tolgn election between the labor unions receiving the two (2) highest number cof votes ina certification r consent election with three (3) oF more choles, where such a certified or consent results in none ofthe three (3) or more choices receiving the majority of the valid votes cas; provided thatthe total number of vates forall contending unions is atleast fity percent (SO% of the number of votes cast. (Section (ss)ifule |, Department Order 0 ~03, SONEDCO Free Workers Union vs. Universal Robina Corp, Oct. 5,2016) Re-run Election When a certification, consent, run-off election resuits toa tiebetween the two choices the election office shall immediately ntiy the parties af a re-run election. The election officer shall cause the posting of notice of are-run election within five days rom the certification, consent or runoff election, shall be conducted Within ten days after the posting of otic. (Section 16, 0.0. 401-25), Voluntary Recognition (REPEALED by D.0. 40-1-15) Voluntary Recognition refers to the process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent ina bargaining unit, reported withthe Regional Office Sole and Exclusive Bargaining Agent (SEBA) ‘Any legitimate labor organization may fl a request for SEBA Certification inthe Regional Ofice which Issued ts certificate of registration or certificate of creation of chartered local. Statement of the lexistence/nonexistence of ther labor organizations/CBA (Section 1, Rule V0.0. 40-1-15) Bystander Rule Employers ace strangers to these proceedings. They are forbidden from influencing or hampering the employees’ rights under the lw. They shouldnot in any way affect, much ess stay, the holdingof a certification Auy. Cecilio D. Duka,lection by the mere convenience of fling an appeal with the labor secretary. (Notre Dome of Greater Manila vs Laguesme, June 29, 2004) In petition for certification election, the employer sa mere bystander and cannot oppose the petition ‘or appeal the Med-Arbite’s decison, (Sta, Lucia East Comm. Corp vs. Sec of Labor, August 14, 2009) Deadlock Bar Rule ‘The Deadlock Bar Rule simply provides that a petition for certification election can only be entertained if there i no pending bargaining deadlock submitted to conciliation or arbitration or had become the subject (of a valid notice of strike or lockout. The principal purpose is to ensure stablity In the relationship of the ‘workers andthe management. (National Congress of Unions inthe Sugar Industry ofthe Philpines (NACUSIP) = TUCP vs Tajano, GR. No, \67485, April 10, 1992) one y bar rule/Election year bar ‘Acertification election cannot be held within one (1) year from the date of issuance of decaration of 2 final certification election resuit. The one year bar rule also applies in cases of consent election, run - off lection and voluntary recognition. (R. Transport Corporation vs. Laguesma, GR. No. 106830, November 16, 1993) [Negotiation Bar Rule ‘Once the negotiation for a new CBA has been commenced pursuant to Article 26%)a petition for Certification election may no longer be validly entertained by the Department of laborantdiémployment. ‘Appeal bar rule ‘The filing of the memorandum of appeal from the ordér or dation Bf thalMed-Arbiter stays the !holding of any certification election Department Order No, 4003, Rule Vil Section 21) Grievance Grievance refers to any question by either SH€™mpoyer or the\unién cesording the interpretation oF implementation of any provision of the collective bargaining agreement or interpretation or enforcement of ‘company personnel policies. (Department Order NO}40~ 03, Rule |, Section 3{u)) Voluntary Arbitration Voluntary arbitration refers tothe mode of setting abor-management disputes by which the parties select a competent, trained and impartalthird perso who shall decide on the merits ofthe case and whose {decision i final and executory. (NCMB Revised Procedural Guidelines in the Conduct of Voluntary rtitration Proceedings, Section 1 [Rule I [Oct. 15, 2008) compu ry Arbitration tis "the process ofisetiémentof labor disputes by @ government agency which has the authority to Investigate and to make.sh award Which is binding on al the parties, and as a mode of arbitration where the parties are compelled tolaccept the resolution oftheir dispute through arbitration by a third party." (Ludo & Luym Corplyys. Soornic, January 20,2003) {Gross Violationé of Collactive Bargaining Agreement is ULP ‘Gros yoltions of Collective Bargaining Agreement under Article 261 means flagrant and/or malicious refusal to comply with the economic provisions of uch agreement. Such gras violations do nat fall within the jurisdiction ofthe Voluntary Arbitrator or pane of Voluntary Arbitrators because they ae considered 2: unfait labor practice (ULP) under Article 248 thus, cognizable by the Labor Arbiter and the NLRC. Isalama Machine Works Corporation vs. National Labor Relations Commission, G.A. No. 100167, March 2, 1995) Jurisdiction over other labor disputes ‘AVoluntary Arbitrator ora pane! of Voluntary Arbitrators has the exclusive original jurisdiction over srievances arising from the interpretation or implementation of collective bargaining agreements. Should the parties agree, a Voluntary Arbitrator or a panel of Voluntary Arbitrators shall also resolve the parties’ other labor disputes, Including unfair labor practices and bargaining deadlocks. (Phifppine Electric Corporation v. Court of Anpeals,G.R, No. 168612, December 10,2014) ‘Appeals from the Decisions of Voluntary Arbitrator or Panel of Voluntary Arbitrators ‘The 10-day period stated in Article 276 should be understood as the period within which the party adversely affected by the ruling of the Voluntary Arbitrators or Panel of Arbitrators may fle a motion for reconsideration. Only after the resolution ofthe motion for reconsideration may the aggrieved party appeal to ‘the CA.by ling the petition for review under Rule 43 ofthe Rules of Court within 15 days from natice pursuant to Section 4 of Rule 43. (Guogua National College vs. Court of Appeals, August 28, 2018) Atty. Cecilio D. Duka, Ed.D. 7«ed under Article 219 (formerly Article 212) (0) ofthe Labor Code, a strike means any temporary stoppage of work by the concerted action of employees as 2 result of an industrial or labor dispute. (Biggs, Inc v Boncocas, 6.8. No. 200487. Morch 06,2019) Pleketing Picketng isthe marching to and fro atthe employer's premises, usually accompanied by the display of placards and other signs making known the facts invalved ina labor dispute, law at Buklod ng Monggagawa (UB4A) vs. NLRC, June 27, 1991) Lockout Lockout is the temporary refusal to furnish work on account ofa labor dispute. (law at Buklod ng ‘Manggogawa (IBM) vs. NLRC, June 27, 1991) Wildcat strike ‘An employer may lawfully discharge employees for participating in an unjustifiable wildcat strike and ‘especially 0 n this case, Because said wildeat strike was an attempt to undermine the Union's position as the ‘exclusive bargaining representative and was, therefore, an unprotected activity, (National Union of Workers in Hotels v. NLRC, G.R. No. 125561, March 6, 1998) ‘The requisites of a valid strike are mandatory “The requisites for a valid strike ae as follows: (a) a notice of strike fled With the DOLE thirty days before the intended date thereof or fifteen days in case of unfair labor practice; (b) stikBwote approved by a ‘majority of the total union membership in the bargaining unit concerned obtained by secret ballot in a meeting ‘aed for that purpose; (notice given tothe DOLE ofthe results oFtheyotingat least seven days before the intended strike. These requirements are mandatary and failure ofa uniohto éomplvtherewith renders the sti legal Piero vs, National Labor Relations Commission, August 20, 2004) Cooling-of period Ina atrke due to bargaining deadlocks, theUAlon must field noice of strike oF lockout with the regional branch of the NCMB atleast 30 days before the intended dateot the strike and serve a copy of the notice on the employer. Tiss the so-called "coolingoff period’ when the parties may enter into compromise ‘agreements to prevent the strike. In case oFtnfair labor practge, the period of notice is shortened to 15 days; Jn case of union busting, the "cooling-off period" does hot apply and the union may immediately conduct the strike after the strike vote and after subrtting the results thereof to the regional arbitration branch ofthe INCMB at least seven days before the intended strike. (8gg's Inc, vs. Boncacas, March 6, 2019) \Notity the NCMB 24 hours before holding théstrike vote balloting ‘A.union intending to stage a strike is mandated to notify the NCME of the meeting for the conduct of sirike vote, a east twenty-four(24) hours prior to such meeting, Uniess the NCMB is notified ofthe date, place {and time ofthe meeting ofthe unlon members for the conduct of a strke vote, the NCMB would be unable to “supervise the holding dite s8me, W and when it decides to exercise is power of supervision, (Capitol Medical ‘Center nc, v. NLRG, 6 RENO. 147080, April 26, 2005) Reckoning point of Stiike Ban Inthe event the fesult of the strike/lockout ballot is filed within the cooling-off period, the 7-day requirement shall counted from the day folowing the expiration of the cooling-off period, (NFSW vs. ‘Ovejera, May 31, 1982) Consequences legal strike ‘Act. 279 ofthe Code presents. substantial distinction of the consequences ofan ilegal strike between ‘union officers and mere members ofthe union. For union officers, knowingly participating in an legal strike I 2 valid ground fo termination af their employment. But for union members who participated ina strike, thei ‘employment may be terminated onl if they committed prohibited and illegal acts during the stike and there is substantial evidence or proof oftheir participation, Le, that they are clearly identified to have committed ‘uch prohibited and llega ats. (Biga’s Inc, vs. Boncacas, March 6, 2019) ‘Assumption of jurisdiction is discretionary The effects of an assumption order issued by the Secretary of Labor are two-fold: (a) it enjoins an {impending strike on the pat ofthe employees, and (b) it orders the employer to maintain the status quo. In ‘eases where a strike has already taken place, as in this case, the assumption order shal have the effect of: (2) directing all striking workers to immediately return to work (return-to-work order), and (b) mandating the ‘employer to immeciately resume operations and readmit all workers under the same terms and conditions prevailing before the strike. The status quo to be maintained under Article 278 ofthe Labor Code refers to that ‘which was prevailing the day before the strike. (Albay Electric Cooperative, Inc. v. ALECO Labor Employees Organization, 6:8. No. 241437, September 14, 2020) Atty. Cecilio D. Duka, EdD, 8Strive in violation of arbitration ~ illegal This Court has held that strikes staged in violation of agreements providing for arbitration ace ile since these agreements must be strictly adhered to and respectedif ther ends ae tobe achieved. The rationale Of the prohibition under Article 264 (278) that once jurisdiction over the labor dispute has been propery acquired by competent authority, that jurction should not be interfered with by the application of the Coerdive processes ofa strike, (Sukhothai Cuisine and Restaurant vs. Cour of Appeals, 6.8. No, 150437, July 417, 2006) Elements of employer— employee relationship To determine whether an employment relationship ets, the folowing elements are considered: (1) the Selection and engagement of the employee; [2] the payment of wages; (3) the power of csmissal; and (4) the ‘employer’ power to contro the employee's conduct. The mast important element i the employe’ contral ofthe employee's conduxt, not ony as tothe result of the work to be done, but also as to the means and methods to accomplish it. However, the power of contro refers merely tothe existence ofthe power, and not to the actual ‘vores theceot. No particular form of evidence Is requied to prove the existence of an employer-employee relationship. Any competent and relevant evidence to prove te relationship may be admitted. However, a finding that such relationship exists must stil est on some substantial evidence. (Dus. Lazo, G.R. No. 200555, Janvery 20, 2021 (MV oped!] Security of tenure The law and jurisprudence guarantee to every employee security oftemute, Thi is the right every employee not to be dismissed without just or authorized cause and in the absenc@of due ptacass /Imasen Phils ws Alcon, Oct. 22,2014) Probationary employees are entitled to security of tenure [Aprobationary employee enjoys securty of tenure, althbugh it Whot dh the tame plane as that of 2 permanent employee. Other than being terminated for a jst oF authorized eauseya probationary employee ‘may also be dismissed due to his or her failure to qualify in accordance with the standards of the employer ‘made known to him or her at the time of his or her engagement)Henca, the services of a probationary ‘employee may be tarminated for any ofthe following) ajurteaue0} 2) an authorized eau; and (3) when he or she falls to qualify ae a regular employee inaccordancewith the réssanable standards prescribed by the ‘employer. (Moral v. Momentum Properties Monagement Corporation, GR. No. 226240, Merch 06, 2019) Probationary employees are entitled to backwages illegally ismissed ‘Wegally dismissed probattonary employees, ke fegblar employees, are entitled to backwages Up to thei actual einstatement and not only until the end f their probationary period. Incase reinstatement isnot feasible, backwages shall be computed from the tmle compensation was withheld up to the finality of the Decision inthe illegal dismissal cae. Both th@.Constitution and the Labor Code di nat distinguish between regular and probationary employees in guaranteeing the right to security of tenure. The mere lapse of the probationary period without réfularzaton does not by itself sever the employment relationship, Without any valid grounds to dismiss 2 probatlonary.employee, there is no bass to terminate the employment. Thus, the ‘employee is entitled t8wark dyer beyond the probationary period. (CP. Reyes Hospital v. Barbose, G.R. No. 228357, April 15, 2024) Full backwages 'an aa of ullbckoageds inclusive of allowances and other benefits or their monetary equivalent, fom the time theltactual compensation was withheld up tothe time of thetr actual reinstatement, Backwvages, consideredas actual damages, requires proa of thelss suffered, (Paes. Northern Tobacco Ca, Feb. 18, 2015) Salary increase Rot included in the computation of backwages Tere was no lawful decree or order supporting his claim, such that his salary increases can be made ‘component in the computation of backwages. What is evident is that salary increases are a mere expectancy Inshore, there no vested right to salary increases, From the foregoing, the plain conclusion i that respondent Ssadacs computation of his ull backwages which inludes his prospectwve salary increases cannot be permitted (Equitable Banking Corporation vs. Sadac, GR. No. 164772, une 8, 2006) Separation pay in lieu of reinstatement ‘Under the la, an illegally dsmissed employee Is entiied to restatement and backwages, and if reinstatement is no longer possible, he may be given separation pay in leu of reinstatement. (Bunagan vs Sentine! Watchman & Protective Agency, Inc, G.R. No. 144376, September 13, 2006) Performing tasks which are necessary and desirable Employees who perform activities which are necessary or desiable in the usual business of the employer may be regular, project, or seasonal employees, Of the three, project and seasonal employees are ‘peneally engaged to perform tasks which only ast for 2 speci period and duration. casual employees are those who perform work which are not usually necessary or desirable for Auty. Cecilio D, Duka, E4,D, 910 of 23 .ng of project employee Repeated rehirng of project employees to diferent projects does not ipso facto make them regular ‘employees. Case law states that length of service through rehiring isnot the controling determinant of the ‘employment tenure of project-based employees but, a earlier mentioned (Herma Shipyard vs. Oliveros, Apri 47,2017) ‘Seasonal employees ‘Seasonal employment involves work or service that is seasonal in nature or lasting for the duration of the season, Seasonal employees siffer from those dassified as regular employees, in that: 1) the employee must be performing workor services that are seasonal in nature; and 2) he had been employed forthe duration ‘of the season. (Ampeloguiav.Jaka Distribution, July 2, 2014) ‘Only casual employees are required to render 1 year of service ‘Only casual employees performing work thats neither necessary nor desirable tothe usual business ‘and trade of the employer are required to render at least ane (1) year of service to attain regular status Employees who perform functions which ate necessary and desirable tothe usual busines and trade ofthe ‘employer attain regular status from the time of engagement. (Paragele vs. GMA Network, July 13, 2020) Fixed term employment Contracts of employment fora fed termare not unlawful unless its apparent from the ftumstances ‘that the periods have been imposed to cicumwent the laws on security of tenure. Article 280 (295) ofthe Labor Code does nat proscribe or prohibit an employment contact witha fixed Period provided the same is entered into by the parties, without any force, duress. impraperpressure being brought to bear upon the employee and absent any other circumstance vititing eonsent. It does not ‘necessarily follow that where the duties ofthe employee consist of activities Usuallynecessary or desirable in ‘the usual business of the employer, the parties are forbidden rom ageeeing on a period of time for the performance of such activites. There is thus nothing essentially contradictory between a definite period of ‘employment and the nature ofthe employee's duties. (Tuppilv LAR Service Corp, G.R. No. 228407, June 10, 2020, . Lopez) ‘Double probationary period - illegal ‘The Hotel's system of double probation a tansparent scheme to circurnvent the pain mandate ofthe law and make it easier for it to dismiss eiplayees even after they shall have already passed probation. The policy of the Constitution is to give the utmost protection fo the working class when subjected to such ‘maneuvers as the one attempted by the petitioners. This Cou is fully committed to that policy and has always ‘been quick to rise in defense of the rights of labor, as Jn this case. (Holiday Inn Manila vs. Notional Labor Relations Commission, GR. No. 109114, September 14, 1993) Probationary Period of Private School Teachers Section 93 ofthe 1982%Manual of Regulations for Private Schools provides that fulltime teachers who have satisfactorily completed their probationary period shall be considered regular or permanent. Furthermore the probatonaryipelod shal nt be move than sx consecutive egular semesters of satisfactory service for those ithe tetary level, Thus, the following requisites must concur before a private schoolteacher ‘acquires plrmanentstatus(1) the teacher is 2 fulltime teacher; (2) the teacher must have rendered three ‘consecutive years of sevice; and (3) such service must have been satisfactory. (Palgan v. Holy Name University, GR. Mo, 219916) Februan 10,2021) Distinction between dismissal just cause and a dismissal for authorized cause The cleay-cut distinction between a dismissal for just cause under Article 282 and a dismissal for ‘authorized cause under Article 285 is further reinforced bythe fact that inthe fist, payment of separation pay, {35 a rue, is not required, while in the second, the law requires payment of separation pay. aka Food ‘Processing Corporation vs. Pacot, et a, GR. No, 151378, March 28, 2005) Serious Misconduct [Misconduct is defined as improper or wrong conduct. The misconduct to be serious within the meaning ofthe act must be of such a grave and aggravated character and not merely trial or unimportant. ‘Such misconduct, however serious, must nevertheless be in connection with the work ofthe employee to ‘constitute just eause from hie separation. (Adamson University Faculty Union vs. Adamson University, March, 2020) ‘Willful Disobedience However, wilful disobedience of the employers lawful orders, as a just cause for dismissal of an ‘employee, envisages the concurrence of at least two requisites: (1) the employee's assailed conduct must have been wilful, that is, characterized by 2 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. (Bascon vs. Court of Appeals, G.R. No. 144899, February 5, 2004) Atty. Cecilio D, Duka, E4,D. 10Positions based on trust and confidence There are two classes of positions of trust: managerial employees and fiduciary rank-and-file ‘employees. Managerial employees are defined as those vested with the powets or prerogatives to lay down, ‘management policies and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or ‘effectively recommend such managerial actions. The second cass or fiduclary rank-and-file employees consist ‘of cashiers, auditors, property custodians, et. or those who, n the normal exercise oftheir functions, regularly handle significant amounts of money or property. These employees, though rank-and-file, ae routinely ‘charged with the care and custody ofthe employers money or property and are thus classified as occupying positions of trust and confidence. (Pacific Royal Basic Foods Inc. v. Noche, October 4, 2021) ‘Abandonment ‘Abandonment of work has been construed a5 "a clear and deliberate intent to discontinue one's ‘employment without any intention of returning back.” To justify the dismissal of an employee on this ground, ‘two (2) elements must concur, namely: (a) the failure to report for work or absence without valid or justifiable reason; and (b) a clear intention to sever the employer-empioyee relationship." Mere failure to report to work ‘is Insufficient to support 2 charge of abandonment. The employer must adduce clear evidence of the ‘employee's "deliberate, unjustified refusal... to resume his or her employment,” whichis manifested through ‘the employee's overt acts (Demex Rattancraft vs. Leron, Nov. 8, 2017) ‘Twin notice requirement Procedtraly ifthe dismissals based on a just cause under Article 282, (282) th¢ emloyernust give the employee two written notices and a hearing or opportunity to be heard If requested byithe employee ‘before terminating the employment: a notice specifying the grounds for which diss Bsquht a hearing oF ‘an opportunity to be heard and after hearing or opportunity to be heard, a\potiee of the decision to dismiss. (Protective Moximum Sec. Agency vs, Fuentes, Feb. 11, 2015) Period to explain ‘The employees must be given a reasonable opportunity Which means every kind of asistance that ‘management must accord to the employees to enable them to prapare adequately for their defense. This should be construed os a period of atleast five calend3ays from receipt ofthe natice to give the employees ‘an opportunity to study the accusation againstthem, congult a unio offal or lawyer, gather data and. ‘evidence, and decide on the defenses they wil ais@against the complaint. (Distribution & Control Products v. Santos, uly 10, 2017) ‘Suspension beyond 30 days ~ constructive dismissal Cleary, constructive dismissal Had already st i when the suspension went beyond the maximum period allowed by law. Section 4, Rule XN, Book V of the Omnibus Rules provides that preventive suspension ‘eannat be more than the maximum period @fa0days. Hence, after the 30-day period of suspension, the ‘employee must be reinstated to his former postion because suspension beyond thismaximum period amounts to.constructive dismissal. (HyafP Tox! Services in. vs. Cotiny, GR, No. 143204, June 26, 2001) {dismissals too harsh stispéision can be imposed ‘We cannot but)2gree that the extreme penalty of dismissal was too harsh and manifestly ‘disproportionate tothe infraction committed, which appears to have been full explained, and, in fat, to be ‘not inexcusable undetithe citcumstances. Perhaps, individual petitioner should fist have been given a mere ‘warning, then alfepriniand or even 2 suspension, but certainly not outright dismissal from employment. One ‘must keep in\pand,that a worker's employment is property in the constitutional sense, and he cannot be deprived theteot witKout due process and unles it was commensurate to his acts and degree of moral depravity. (Coeg-Cola Bottlers, Phi, Inc. vs. Kapsanan ng Malayang Manggagawe sa Coco- Cola - FFW, Gi ‘No, 148205, February 28, 2005) Constructive Dismissal ‘An employee is considered constructively dismissed ithe or she was sexually harassed by her superior ‘and her employer failed to act on his or her complain with prompt and sensitivity. In recogniang the need to ‘address these concerns the State's polcy against sexual harassment has been strengthened through Republic ‘Act No. 11313, otherwise known asthe Safe Spaces Act. Tis law has 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 expity requites that complaints be Investigated and resolved within 10 days ‘or ess upon its reporting. (LBC Express v. Paleo, Feb. 12, 2020) Redundancy Redundancy exists when "the services of an employee are in excess of what is reasonably demanded bby the actual requirements of the enterprise.” While a declaration of redundancy is ultimately a management decision in exercising its business judgment, and the employer is not obligated to Keep in its payroll more ‘employees than are needed for its day to-day operations, management must not violate the law nor declare redundancy without suficient basis. (Manggagawa ng Komunikasyon sa Pilipinas vs. PLOT, April 19,2017) Atty. Cecilio D. Duka, EdD. uAmount of separation pay Article 298 ofthe Labor Code considers closure of business as an authorized cause for the dismissal of ‘employees, whether or not the closure is due to serious business losses. However, Ifthe closure isnot due to serious business losses, the employer is required to pay its employees separation pay equivalent to one (2) ‘month pay or atleast one-half (1/2) month pay for every year of service, whichever is higher. {Duso v. Laz, GR. No, 200555, January 20, 2023 i. Lope} Disease as a ground for dismissal For a dismissal on the ground of disease tobe 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 s prohibited bylaw 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. (Omanfl Manpower v. Mesine, November 04, 2020) HIV Positive, not a ground for dismissal Termination on the ground ofa postive HIV test result is not legal under Philippine law. Sec. 49(a} RA 111166 makes it unlawl for an employee to be terminated from work on the sole basis oftheir HIV status (Bison Mgt. Corp. v. AAA ond Perit, Feb. 14, 2024) "No separation pay upon resignation AAs a general rule, the law does not require employers to pay employees thét hale cesighed any separation pay, unless there is a contract that provides otherwise or there exsts a company practice of giving Separation pay to resignees. We have ruled that a company's practice of paying)sepatation pay to resignees ‘must be proven to exist as this is an exception to the general rule that employees who voluntary resign are ot entitled to separation pay.(talkarat 18, nc. v. Gerasmio, September 28, 2020) Floating Status The practice of placing security guards on "floating status" Gr "temporary of-detal" isa valid exercise ‘of management prerogative. Jurisprudence has settled that the peviodof temporary off detailmust not exceed sx (6) months. Beyond this, 2 security guoed's HleadmifStatue shall betankSmount to constructive demisal (Padila vs. Airborne Security Service, Nov. 22, 2019) Retirement Inthe absence of a retirement plan or agreement plan providing for retirement benefits of employees: Inthe establishment, an employee upon teaching the 2g@of sixty (60) years or more, but not beyond sixty five (65) years which s hereby declared as the compulsory retirement age, who has served at least five (5) years in ‘the said establishment, may retire and shallbe entitled to retirement pay equivalent to atleast one-half (1/2) ‘month salary for every year of service, a fraction oft least six (6) months being considered as one whole yea. Uniess the parties provide for broader inclusions, the term one-half (1/2) month salary shall mean fifteen (15) ays, plus one-tweltth (1/12) ofthe 13th month pay and the cash equivalent of not more than five (5) days of setvice incentive leaves. (Palong v, Super Mg. nc, GR. No. 247849, October 14, 2019) Compulsory Retirément Anjemployer s fe to impose a retirement age less than 65 for as long as it has the employees! consent, Stated conversely, employees are free to accept the employer's offer to lower the retirement age if they feel they Gan getia better deal with the retirement plan presented by the employer. Thus, having ‘terminated petitioner solely on the bass of a provision ofa retirement plan which was not freely assented to by her, resporident was guilty of illegal dismissal. (Jaculbe vs. Silliman University, G.R. No. 156934, Morch 16, 2007, Cercado ys. Uniprom, Inc. October 13, 2010) Employee's contribution must be deducted first Retirement benefits, on the other hand, are intended to help the employee enjoy the remaining years of his life, releasing him from the burden of worrying for his Financial support, and are a form of reward for his loyalty to the employer. Since the computed amount of her retirement pay i much lower than that provided Under the law, she is entitled to receive the ifference between the actual amount of her retirement benefits as required by law and that provided for under the PERAA. (St. Catalina College vs. National Labor Relations Commission, G. R. No. 144483, November 19, 2003) Part time employees are entitled to retirement pay Indeed, a perusal of the retirement law does not exclude a part time employee from enjoying Fetirement benefits. On this score, Republic Act No. 7641 explicitly provides as within its coverage “all temployees in the private sector, regardless of their position, designation, or status, and irrespective of the ‘method by which their wages are paid" (Section 2, Rules Implementing the New Retirement Law) (De Lasalle ‘Araneta Univ. vs. Bernardo, Feb 3, 2017) Atty. Cecilio D. Duka, Ed.D. 213 of 23 aderground miners ‘un reoruary 26,1998, Republic Act No. 8558 was signed into law and amended Article 287 ofthe Labor Code and provided forthe retirement benefits of underground miners. Based on RA. 8558, n underground ‘mining employee upon reaching the age of fifty (50) years or more, but not beyond sity (60) years which is hereby declared the compulsory retirement age for underground mine workers, who has served at least five (5) years as underground mine worker, may retire and shall be entitled to al the retirement benefits provided forin this Article Prescription period forall money claims ‘Actile 291 (now Art. 306) covers claims for overtime pay, holiday pay, service incentive leave pay, bonuses, salary eifferentials, and ilegal deductions by an employer: I also covers money claims arising from seafarer contracts. The provision, however, does not cover "money claims” consequent to an illegal dismissal such a backwages. It also does not cover claims for damages due to ilegal dismissal. Protective Maximum See. Agency vs. Fuentes, Feb. 11,2015) scription period for service incentive leave pay ‘Applying Article 291 (now Art. 306) ofthe Labor Cade in ight of this pcullarty ofthe service incentive leave, we can conclude that the three (3}-year prescriptive period commences, nota the end ofthe year when the employee becomes entitled to the commutation of his service incentive leave, but from thetne when the employer refuses to pay its monetary equivalent after demand of commutationior upon termination of the employee's services, asthe case may be. (Rodriguez v. Park and Re, March 20, 2017) Prescription period for egal dismissal “The prescriptive period to file a complaint forilegal dismissal is four yearSifrom the Une the cause of action accrued, An action for ilegal dismissal or when one is arbltrany and unjutly deprived of his job or ‘means of Iielihood is essentially a complaint for "injury to right,” which fas under Article 1246 ofthe Cia Code ofthe Philippines. (Gallego v. Wallem Maritime Services, ey 6.R. No. 216840, February 19,2020) Indeed, there is, merit in the contention of petitioner thatthe our (4}-year prescriptive period under Article 1146 of the New Ciil Code, applies by way oF Uppiement, int inétant care, to wit: Art. 1146. Thus, the four-year prescriptive period shal be countedland computed from the date ofthe employee's dismissal up to the date of the fling of complaint for unlawful tetmination gf employment. (Victary Liner, Inc. vs. Race, GR. ‘No, 164820, Morch 28, 2007) Labor Standards Laws, Labor standards refers to the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost of ning allowance and other monetary and welfae benefits, including ‘occupational, safety and health standards (Batong’Buhay Gold Mines, Inc, vs. Dela Serna, et.al, G.R. No £86963, August 6, 199). They are covered by Books I to W ofthe Labor Code. Fiduciary Rank and File Employees are Entitled to Labor Standards Benefits Fiduciary rank-ard-leemployees are entitled to labor standards benefits under the Labor Code of the Philippines. (Ramily,Stoneface ity 6:R. No. 222416, lune 17, 2020) Social Legislations Socio egjslotidhgare laws, ules, and regulations that promote welfare of all sectors of society. Sociol Legislation wilydes jaws that provide particular kinds of protection or benefits to the society, in furtherance cof social justi. Notal social legislations are labor laws, Labor laws directly affect employment they directly govern effects f employment. lllabor laws ae socal legislations. But not al social legislations are labor laws. Diflecenty stated the fact that a socal leislation affords special protection toa particular sector does ‘ot automatically suggest that its members are excluded from violating such aw. (Knutson v.Sarmiento- Flores, G.R No, 239215, July 12, 2022, MV Lopez) Police Power as Basis of Labor Laws ‘The relations between capital and labor are not merely contractual as provided in Article 1700 of the Coil Code. By statutory declaration, labor contracts are impressed with public interest and, therefore, must Yield to the common goad. Labor contracts are subject to special laws on wages, working conditions, hours of labor, and similar subjects. n other words, labor contracts are subject to the police power ofthe State. PBOAP vs. OLE, July 17, 2018) Social Justice as Bass of Labor Laws nour view, with these special circumstances, we can call upon the same “social and compassionate Justice” cited in several cases allowing financial assistance. These circumstances indubitably merit equitable concessions, via the principle of “compassionate justice” for the working class. (Par vs. Northern Tobacco Co, Feb. 18, 2015) Atty. Cecilio D. Duka, ED. B14 of 23 favor of labor ‘Therudimentary principle that in the implementation and interpretation of the provisions ofthe Labor Code and its implementing regulations the workingman's welfare should be the primordial and paramount consideration, The policy sto extend the applicability of the decree toa greater number of employees who can avail ofthe benefits under the aw, which isin consonance with the avowed policy of the State to give maximum aid and protection to labor. (Rodriquez vs. Park W ide, March 20, 2017) A Local Water Districts a GOCC with an original charter {LWO's exist by virtue of PO 198, which constitutes ther special charter, Since under the Constitution coniy government-owned or controlled corporations may have special charters, LWOs can validly exist only if ‘they are government-owned or controlled. Feliciano v. Commission on Audt Jan. 13, 2008) Corporate officers are not covered by the Labor Code ‘The president, vice-president, secretary and treasurer are commonly regarded as the principal of ‘executive oficers of a corporation, and modern corporation statutes usually designate them as the officers of the corporation. However, other offices are sometimes created by the charter or by-laws ofa corporation, or the board of directors may be empowered under the bylaws of a corporation to create additional offices as ‘may be necessary. The mere designation as a high-ranking employee, however, isnot enough to consider one _38.a corporate officer. The jurisdiction over itra-corporate disputes involving the legal dismissal corporate officers wae with the Regional Trial Court, nat with the Labor Arbiter. (Maleaba vs. Prahealth Pharma Phitipines, June 6, 2018) Republic Act No. 11681, December 30,2021 ‘Created the Department of Migrant Workers The Department shall abs al the PBivers, functions ‘and mandate of the POEA, andall the entities enumeratedin SectionaShereaf, and shalibsthe primary agency Under the Executive Branch of the government tasked to protectthe rights and Promote the welfare of OFWs, regardless of status and ofthe means of entry into the country of destination, (Se€:$) ‘Money Claims of OFW ‘We reiterate our finding in Serrano v.Gallgnt™iantime that limiting woges tht should be recovered by an ilegally dismissed overseas worker to three months i both a violation of due process and the equal protection clauses ofthe Constitution. The money dlaims of OFW whose contract is prematurely terminated is reimbursement of placement fees plus 123#nterest per annumiand the salary forthe unexpired portion ofthe contrat. (Sameer Overseas Placement vé Cables, August 5, 204) 12% Interest on Placement Fee ‘The Court upheld the imposition interest sete of 12% per annum on the placement fe specifically setby law nay, unaffected by Bangko Sentral gpilifinas Circular No. 799 setting the rate of interest at 6% per ‘annum."{SRL international Manpower Agency v.Yorza, February 14, 2022) (OFWs Enjoy Security of Tenure Securit often remains eve if employees, particularly the Overseas Filipino Workers (OFWs), work in 2 different juritsiction, Since the employment contracts of OFWs are perfected in the Philippines and following the principle of lx loci cantractus (the law ofthe place where the contrat is made), theze contracts ‘are governedhby ouflawe primary the Labor Code of the Philipines and its implementing cules and regulations. (SAbinternatignal Manpower Agency v. Yarza, February 14, 2022) Injury sustained fronplaying basketball compensable. ‘Since tis undisputed that petitioner's injury happened during the term of his employment, the burden rests upon resfiondents to prove by substantial evidence that such injury was drecty attributable to his deliberate or wilful act. Here, petitioner was merely playing basketball, an employer-sanctioned activity ‘onboard the vss. t cannot be considered asa reckless or deliberate activity that isunmindful of one's safety. ‘The records are bereft of any evidence, much less the slightest nication, that the injury sufered by petitioner \was intentionally or negligently incurred, Thus, his injury is worthy of compensation, Arguilesv. Wilhelmsen Smith Bel Manning, Ine, .R. No. 254586, July 10,2023) Rates of OFW Remittance ‘Seamen and mariners ~ 80% of the basic salary, Construction companies and their workers ~ 70% of the basic salary, Professional workers (e.. doctors, nurses, engineers, teachers} whose employment contracts provide for free board and lodging ~ 70% of the basc salary, Professionals without free board and lodging ~ ‘50% of the basic salary, Domestic and ther service workers ~ SO% of the basic salary, all ather workers ~ 50% lof the basic salary (Section 2, of Executive Order 857) Ucense ‘license is a document issued by the Secretary ofthe Department authoring a natural or juridical, person or entity to operate 3 private racritmant or manning agency. (Sec. 3d), R.A. 11641) Aty. Cecilio D. Duka, Ed.D. 4Recruitment agency Refers toa natural or juridical person duly licensed by the Secretary of the Department to engage in the recruitment and placement of land based OFWs; (Sec. 3(h), RA. 11644) ‘Manning agency ‘Manning agency ~ refers to a natural or juridical person duly licensed by the Secretary of the Department to engage inthe recruitment and placement of seafarers. (Sec. 3(e), RA 11641) Name Hie ‘Name hire shall refer to a worker who is able to secure an overseas employment opportunity without the assistance or participation of a recruitment agency. (POEA Memorandum Circular No.1. s. 2004, Fb. 4 2004) legal Recruitment Under Section 6 of R.A. No. 8042, illegal recruitment, when undertaken by a non-licensee or non: holder of authority as contemplated under Article 13(f of the Labor Cade, shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers, and including referring, contract services, promising or advertising for employment abroad, whether for profit or not. (People us, Estrada, Feb, 28, 2018) egal recruitment shall mean any act of canvassing, enlisting, contSaing, ansRortinghdtierg, hiring, or procuring workers and includes referring, contract services, promising or advertising fonemployment abroad, wteather for prfitor ne, when undertaken bya non-icenses or non holig cag Sernpated Linde Atle 13( of Presidential Decree No, 442, s amended, atheranse known, 98 theLaBor Code ofthe Philippines: Provided, That any such non-icensee or norrholder whorinan Manne offs or promises fora fee employment sbroad to two or more persone shall be deemed so engaged tl ieee include the following acts, whether commited by any person, whether a nondicensee, qn-hoier, icensse, o holder of authority. (People v.Coching, GR No 232245, March 02 2022) Economic sabotage ‘legal recruitment is deemed committed a syndiéate if carri@d out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed _against three (3} oF more persons individually 6c asa group. The persons liable forthe above offenses are the principals, accomplices, and accessories. incase of juridical persons, the officers having contol, managementordirection of their business shall be liable. (People of the Philippines v. Monalang, G:R. No. 198015, Januery 20, 2021) ‘Syndicated legal Recruitment ‘legal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more ‘persons conspiring or confedefating with one another. It is deemed committed in large scale if committed _against three (3) or more persons individually or as a group. (People v. Coching, GR. No. 232245, March 02, 202) Large Scalailegal Recruitment ‘The fssentialyelements fop legal Recruitment in Large Scale are that: (1) the person charged ‘undertook any recruitment activity as defined under Section 6 of R& 8042; 2) accused did not have the license ‘or the authority lawfully engage inthe recruitment of workers; and (3) accused committed the same against three or more'persons individually or as a group. (People v. Caching, G.R. No, 232245, March 02, 2022) Penalties for legal Recruitment The penalties for illegal recruitment today are the ones provided by Section 6, Republic Act No. 10022 Which amended Republic Act No, 8042 which provided fr higher penalties on illegal recruitment than what are ‘provided by Article 39 of the Labor Code. Thus: ‘Simple iegol recruitment - imprisonment of 12 years and 1 day to 20 years and a fine of 1 milion to 2 milion pesos. legal recruitment deemed as economic sabotage- life mprisonment anda fine of 2 milion to§ milion pesos. ‘The maximum penalty shall be imposed if the person illegally recruitedis less than eighteen (18) years ‘of age or committed by 3 non-licensee or non-hokder of authority. legal Recruitment, Estafa and Double Jeopardy Itis settled that a person for the same acts, may be convicted separately of llegal Recruitment under RA 8042 or the Labor Code, and Estafa under Article 315 (2) a) of the RPC. Case aw holds thatthe same pieces Atty. Cecilio D. Duka, F,D. 15of evidence that establish lability for Ilegal Recruitment in Large Scale confiem culpability fr Estafa. (People . Coching, 6.8, No, 232245, March 02, 2022) ‘A conviction for illegal recruitment whether simple or committed in large scale would not preclude punishment for estafa under Article 315(2a) ofthe RP. This is because no double jeopardy could attach from the prosecution and coavietion of the accused for both crimes considering that they are penalized under clfferent laws and involved elements distinc from ane anther. Conviction under Article 325(2)a) requires the concurtence ofthe following elements: (1) the accused defrauded anather by abuse of confidence or by means (of deceit; and (2) the offended party, ora thd party, suffered damage or prejudice capable of pecuniary estimation. These are elements completely different from those required fo llega recruitment, (People vs. Estrada, Feb. 28, 2018) Prescription of action for ilegal recruitment legal recruitment cases under this Act shall prescribe in five (5) years Provided, however, tat illegal recruitment cases involving economic sabotage as defined herein shall prescribe in twenty (20) years. (Section 12, Republic Act 8042) Doctrine of imputed Knowledge ‘The theory of imputed knowledge ascribes the knowledge ofthe agent, to the principal, employer not the other way around. The knowledge ofthe principal-foreign employer cannot, therefore, be imputed to its ‘agent. (Sunace Intemational Monagement inc. vs. NLRC, G.. No, 181757, January 25, 2006) ‘Apprentice ‘An apprentice is @ worker who is undergoing training for an approved pprenticdlble occupation covered by a written apprenticeship agreement wth an individual employ. flqvolues 3- Bmonths of trainin eductibilty of training cost. Compensation of not less thin75% ofthe minimum wage, possibilty apprenticeship without compensation and there iso commitment to hire the apprentice. Learners Learner rfors to persons hired ¢ traineos ¥en skilled andlethet inductrial occupations which are ‘or-apprenticeable. Leamership programs must be apRfoved by the Technical Education and Skil Development Authority based on the provisions of public AGENo. 7796. The features are: Semi skilled, non- apprenticeable occupation, Not to exceed + manths, No experienced workers available, Compensation of not less than75% of the minimum wage, Coxfmitment tore the learner and if dismissed illegally the learner is treated asa regular employee. Disabled persons Disabled persons are those sufferiN@iftomt restriction or dtferent abilities, as result of a mental physical or sensory impairment, to perform an activity in the manner or within the range considered normal fora human being (See. fo), RA 7277) Managers Employecharé considerélbccupying managerial postions they meet all of the following conditions, rramely: 1) Their primary duty consists of management of the establishment in which they are employed or of a departmantor subdivision thereof; 2) They customarily and regularly direct the work of two or more temployees thetein; 3) "They have the authority to hire or fire other employees of lower rank; or their suggestions and r@eommendations as to the hiring and firing and as to the promotion or any other change of status of othet employees are given particular weight. (Cientlogic Phils. vs. Castro, April 11, 2011) Supervisors ‘Supervisory employees are those who, in the interest of the employer, effectively recommend such ‘managerial ations ifthe exercise of such authorty isnot merely routinary or clricalin nature but requires the Use of independent judgment. Asion Inst. of Management vs. lM Faculty Association, January 23, 2017) Bus Drivers and Conductors are not Field Personnel “The driver is under constant supervision while in the performance of this work. He cannot be considered field personnel. (Auto Bus Transport Systems, Inc. vs. Bautista, .R, No, 156367, May 26, 2005) Working while sleeping ‘Sleeping while on duty is compensable i the nature ofthe employee's work allows sleeping without Interrupting or prejudicing work or when there isan agreement between the employee and his employer to that effect. For example, a truck helper may sleep after performing hs task and while is trucks traveling on Its way to ks assignment. But of cours, the same may not be done by the drwver. Working white on cals compensable i the employee is required to remain on callin the employers premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose, Atty. Cecilio D. Duka, Ed.D. 16“ihcorfmivlng Ret (RA 12165) Jelecoramuting refers to a wark from an alternative workplace with the use of telecommunications and/or computer technologie. (Sec3). An employer in private sector may offer a telecommuting program to its employees on 2 voluntary bases, the terms and conditions shall not be less than the minimum labor standards set by law, and shall include compensable work hours, minimum number of work hours, overtime, rest days, and entitlement to leave benefits. In all cases, the emplayer shall provide the telecommuting employee with relevant written information in order to adequately apprise the individual of the terms and conditions ofthe telecommuting program, andthe responsiblities of employee (Sec. 4) Power interruptions ‘The employees should also be compensated fo the time they were prevented fram working due to the brownout. Iti therefore reasonable to conciide that brownout or power outage is cansdered an "emergency" situation. (Supreme Steel vs. Nagkakaisang Monggawa, Morch 28, 2011) No work~No pay policy ‘The age-old rule governing the relation between labor and capital oF management and employee, of| 2 “fae day's wage fra fair days labor” remains the basic factor in determining emplayecs' wages. If there ie ‘ho work performed by the employee, there can be no wage. (Coco Coa vs, ICCPELU, Dec. 5, 2018) Rules on meal period Rest periods or coffee breaks running from five (5) to twenty (20) minites fall Be condered as compensable working time. Thus, the eight-hour work period does nat include the mal break Newherein the law may it be inferred that employees must take their meas within the company premise®Empioyees are not prohibited from going ut of the premises as long as they return to their posts ontime Private respondents act, therefore, of going home to take his dinner does not consttuteabandenient.(Pilppine AirLines Inc. vs. ‘National Labor Relations Commission, GR. No. 132805, February2, 1999) Night shite differential ‘Nightshift differential i the amount which every employees entitle to receive which is equivalent to ton percent (10%! of hie regular wage for every hou hha: worked between 10 pm to Gam. (Section 2 Rule 1 implementing Rules and Regulation, 800% I) Overtime pay ‘Overtime pay means the additiohal compensation for work performed beyond § hours. Premium pay means the addtional compensation required by law for work performed within hours lon non-working ays, such as rest days and special days Entitlement to overtime pay must be proven! For overtime pay, premium pays for holidays and rest days, the burden i shifted on the employee, as these monetary claims are nabincurred in the normal course of business. It is thus incumbent upon the ‘employee to first prove that he atually rendered service in excess of the regular eight working hours a day, and that hein fact worked on Roidays an rest days. (Zona v. 1st Quantum Leap Security Agency, May 5, 2021) Overtime fay of seamen The Gorrect cterioAi detetmining whether er not sailors are entitled to overtime pay is not whether they were of Beard an@ cannot leave ship beyond the regular eight working hours a day, but whether they actually rendered service In excess of said numberof hours. (Loadsto nt. Shipping inc. Espe, Feb. 19,2020) Undertime Not Offet by Overtime (Art. 88, Labor Code) The pricple that overtime cannot be offset by undertime, to allow off setting would prejudice the worker. He would be deprived ofthe additonal pay forthe rest day work he has rendered and which isutlized to offset his equivalent time off on regular workdays. (Logatic vs. Notional Labor Relations Commission, GR. No, 121004, Januery 28, 1998) Working on a Regular Holiday that Falls ona Rest Day ‘On the other hand, an employee who is required to work on a regular holiday shall be paid at least 200% of his/her regular daly wage with the qualification thatthe holiday work fll onthe scheduled eest ay of the employee, he/she shall be entitled toll addtional premium of atleast 30% of his/her regularholday rate of 200% based on his/her regular wage rate. The employee is alo entitled to addtional pay for work performed in excess of eight hours on a regular holiday (Nippon Paints Phil. . Nippon Pints Phils. Employees ‘Ass0¢, GR Na, 229396, une 30, 2021) Two Regular Holidays Falling onthe Same Day When Araw ng Kagitingan falls on the same day as Maundy Thursday or Good Friday, 2 covered employee is entitled teat east two hundred percent (200%) of his/her basic wage even ifsid day is unworked. Where the employee is required to work on that day, he/She is entitled to an additional 100% of the basic Auy. Cecilio D. Duka, EdD. 1"‘nds lateehah December 24 of every year. The 13° Month Pay is computed by dividing the total base salary armed or the year exclusive of overtime, holiday, and night shift differential pay divided by 12. Job contracting Verily, not all forms of contracting are prohibited. The law allows contracting and subcontracting of services, but closely regulates these activites forthe protection of workers. An employer can contract out part ofits operations, provided, it complies with the limits and standards provided in the Labor Code and in its implementing rules. Contracting or subcontracting shal be legitimate if all the following circumstances concur {a1:The contractor must be registered in accordance with the rule and carries a distinct and independent business and undertakes to perform the job, work or service on its own responsibilty, according to its own manner and method, and free from control and diection of the principal in all matters connected with the performance of the work except as to the results thereof; (b) The contractor has substantial capital and/or investment; and [e]he Service Agreement ensure compliance with all the rights and benefits under Labor Laws. {Ortiz v. Forever Richsons Trading Corporation, G.R. No. 238289, January 20, 2021, Lopez) Department Order No. 174, Merch 16, 2017 Substantial capital refers to paid — up capital stocks/shares of at least five millon pesos (Php '5,000,000.00) inthe case of corporations, partnerships and cooperatives; n the case of single proprietorship, 22 net worth of at least five millon pesos (Php 5,000,000.00) - Section 3(), 0.0. 174, s. 2017 Independent contractor Independent contractor as one who carries ona distinct and independent business andlundertakes to perform the job, wark, or service on its own account and under its own responsibilty According to its own manner and method, free from the control and direction of the principal in all maters.confected with the performance, ofthe work except as tothe results thereof. An independent €dntractor 'enjoys independence {and freedom from the control and supervision of his principal’ af opposed to aneriploVee who is "subject to the employer's power to control the means and methods by whieh the employees work isto be performed and accomplished." Paragele vs. GMA Network, July 13, 2020) Elements of labor only contracting Ina labor-only contracting situation, theGontractoRsimoly becpfnes an agent ofthe principal either directly of through the agent, the principal then eontrols the results as well as the means and manner of ‘2chieving the desired result. In other word, the party who would have been the principal na legitimate job Contracting relationship, and who has nolirect relationship with the contractor's employees, simply becomes the employer in the labor-only contracting situation with girect supervision and control over the contracted ‘employees Strictly speaking, inlabor-contracting, there sno contracting, and no contractor; there is only the employer's representative who gathers ang supplies people for the employer. (Ort v. Forever Richsons Trading Corporation, G.R. No. 238289, JanuaA¥20;2021, Lopez) resumption of Labor Only Contracting [AS a general ruleya contractor. is presumed to be a labor-only contractor, unless such contractor ‘overcomes the burden of proving that it has the substantial capital, investment, tools andthe lke. (Allied Bonk vs Calumpang, Joh, 37, 2018) [Newspaper Columnists are independent contractors The|ruirer as ro control over petitioner as to the means or method used by her inthe preparation of er articles, helarticles are done by petitioner herself without any intervention from the Inquirer. Petitioner hhas nat shown that PD), acting through its editors, dtated how she was to write ar produce her articles each week. (Orozco vs. CA and PDI, August 13, 2008) Wage Distortion Upon the enactment of Republic Act (RA) No. 6727 (Wage Rationalization Act, amending amor ‘others, Article 124 ofthe Labor Code) on June 8, 1888, the term "Wage Distortion" was explicitly defined as" situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rate between and among employee groups an establishment as to effectively obliterate the distinctions embodied in such wage structure based on sks, length of service or other logical bases of differentiation." (Philpine Geothermol, Inc. Employees Union v. Chevron Geothermal Phils, .R. No. 207252, Jonuary 24, 2018) Wage Distortion is a non -strikable issue The solution tothe problem of wage distortions shall be sought by voluntary negotiation or arbitration, ‘and not by strikes, lockouts, or other concerted activities of the employees or management. "Any issue Involving wage distortion shall not be a ground foro strike/lockout. (Naw at Buklod ng Monggogawa (I8M) vs. ‘National Labor Relations Commission, G.R. No. 91980, June 27, 1991) Atty. Cecilio D. Duka, Ed.D, 19Wake. 2024 Handbook on Workers’ Statutory Monetary Benefits Dole Bureau of Working Conditions; Asian Transmission vs. Court of Appeals, March 35, 2004) Holiday pay of faculty members Faculty and personnel who are pa their salaries monthly, are uniformly paid throughout the schoo! year regardless of working days, hence ther holiday pay ae included therein. Regular holidays specified as such by law are known to both school and faculty members as no class days" certainly the later do not expect payment for said unworked days, and this was cleary in thei minds ‘hen they entered nto the teaching contracts. Jose Rizal College v. NLRC, G.R. No. l-65482, December 1,1987) Requisite forthe Enjoyment of Service Incentive Leave 1. A total of 5 days leave in one year with pay, 2. The employee must have been in the service for at least 1 year whether broken or continuous 3. f unused the 5 days are paid their cash equivalent atthe end lof the year, 4, It covers all employees except the general exceptions and establishments already giving sick leaves/vacation leaves with pay for at least 5 days Itis essential at this point, however, to recognize that the service incentive leave sa 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 a its monetary equivalentiflgt exhausted at the end of the year. Furthermore, if the employee entitled to service incentive leave doesnot use oF commute the same, he Is entitled upon his resignation or separation from work to th¢ commutation of his accrued service incentive leave. (Rodrigues vs. Park N Ride, March 20, 2017) Service charge as amended by R.A. 11360 If the establishments lke hotel, motels, restaurants, and thelikes cilect srviceleharges andor the customers give tips for their services the following rules ust be Bbsetyed; Services-charges or ‘compensation for service rendered, 2, Tips are forthe recognition for saisfactonyr efficient service 3. The service charges must be pooled, 4. The total amount collected shale divide to all the covered employees, 5. It shall be given twice a month with intervals of not more than 15 days, 6. If discontinued, removed, oF stopped, the average, share of the employees of thairs6tvice charge oF tips thal be Intrated with ther base ware Facilities are deductible from wages Facilties are tems of expense nécessay forthe laborers and his familys existence and subsistence 50 that by express provision of law they form part of thevage and when furnished by the employer are deductible therefrom, since i they are net so furnished, the laborer would spend and pay for them just the same (SLL Cables vs. NLRC, March 2, 2011) Supplements are not deductible from wages "Supplements," therefore, constitute extra remuneration or special privileges or benefits given to or received by the laborers over and ebove.their ordinary earnings or wages. Not to be deducted from wages (SLL Cables vs. NLRC, Merch 22011) Company Practice Jurlprudenct)hs Ret laid lown any rule specifying a minimum number of years within which a company practiée musthe exercised in order to constitute voluntary company practice. Thus, it ean be six (6) years, three (3) years, or even as short as two (2} years. (Phil Journalist Inc. v. De Guzman, April, 2019) ‘A company practice favoring employees cannot be withheld unilaterally by the employer Generally, employees have a vested right over existing benefts thatthe employer voluntarily granted them. These benefits cannot be reduced, diminished, discontinued or eliminated consistent with the constitutional mandate to protect the rights of workers and promote their welfare, Clealy, the non-diminutlon rule applies only if the benefits based on an express policy, a writen contract, of has ripened into a practice, (Home Credit v. Prudente, G.R. No. 200010, August 27,2020, Lopez) Clearance requirements for release of salary is valid ‘As ageneral rule, employers are prohibited from withholding wages from employees based on Articles 1113 and 116 of the Labor Code. And Article 100 prohibits the elimination or diminution of benefits. However, four law supports the employers’ institution of clearance procedures before the release of wages. As an ‘exception to the general rue that wages may not be withheld, and benefits may not be diminished. (Milan vs. ‘National Labor Relations Commision, February 4, 2015) 213th month pay Presidential Decree No. 851 mandating all employers to pay their rank and file employees regardless ‘ofthe nature of thelr employment and irrespective ofthe method by which their wages are pad provided they worked fo at least one (1) month during a calendar year. The 13th Month Pay must be given to the employees Atty. Cecilio D. Duka, EdD, 1820 of 23 ‘Aayy dispute arising from the wage distortions shal be resolved through the grievance procedure under their collective bargaining agreement and, iit remains unresolved, through voluntary arbitration. (Philippine Geothermal, nc. Employees Union v. Chevron Geothermal Pils, G.R. No. 207252, January 24, 2018) In cases where there are no collective agreements or recognized labor unions, the employers and workers shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled through the National Conciliation and Mediation Board and, if t remains unresoWed after ten (20) calendar days of conciliation, shall be referred to the appropriate branch of the National Labor Relations Commission (NLRC (Art. 124, Labor Code) ‘Appeal from the orders of DOLE Regional Director under Art 128, ‘The order of the Regional Director shall be final and executory unless appealed to the Secretary of Labor and Employment within ten (10) calendar days from receipt thereof. (Section 1, Rule IV, Rules on the Disposition of Labor Standards Cases in the Regional Offices). Appeals under Art. 128 must be filed within 10 calendar days to the SOLE. Jurisdiction ofthe DOLE Regional Director under Art. 129. Under Art. 129 ofthe Labor Code, the power ofthe DOLE andits duly authorized heading officers to hear and decide any matter involving the recovery of wages and other monetary claims and Benefits was {qualified by the proviso thatthe complaint not include a claim for reinstatement, otthatthe aggregate money claims not exceed PhPS,000. RA'7730, or an Act Further Strengthening the Vsitorial nd Enforeement Powers ofthe Secretary of Labor, did away with the PhPS,000 limitation, allowing the DOLE Seéretary to exercise hs Visitorial and enforcement power for claims beyond PhPS,000. The only qualification to this expanded power lof the DOLE was only that there still be an existing employer-employee relationship, (People’s Broadcasting ‘Service v Se. of Labor, G.R, No. 179652, March 06, 2012) Under Article 129, the Regional Director or any of the duly authorited hearing officers of DOLE has |urisdietion over claims for recovery of wages, simple money claims ahd other benefits, provided that thecaim isfled by an employee or person employed in domest€Sehouschold service or house helper and the following ‘must concur: 1. the claim must arise from employer-employee relatlanship; 2. the claimant is no longer employed and does not seek reinstatement; 3, the agaregate Money claim of each employee does not exceed 5,000.0. In the absence of any ofthe three (3) cequisite the Labor Acblters have exclusive original jurisdiction Cover al claims arising from employer-employee relatiotis, other than caims for employee's compensation, social security, medicare and maternity Benefits. (Brokenshize Memorial Hospital Inc, vs. Minster of Labor ‘and Employment, et.al, G:R. No. 74821, February 7, 4990) “Appeals from the decisions of the RDO under Art. 129 must be filed within 5 calendar days tothe NLRC. Jurisdiction of DOLE Regional Diréctor ifthe amount exceeds P5000 But even if theidiount of the claim exceeds 5,000.00, the claim is not on that account necessary removed from the\Regionl Direétr's competence. In respect thereof, he may stil exercise the isitorial and enforcement powers vested in him by Article 128 ofthe Labor Code, as amended, supra; that isto say, he may still direct MiBlabor regulations officers or industrial safety engineers to inspect the employer's premises and examine his reeds. (Brokenshire Memorial Hospital, Inc, vs. Minster of Labor and Employment, et.al, GR. (No, 74621, Feb 7, 2990) Jursdition of DOLE Regional Director f the employer contests the order ‘The adjdicatory power provided by Article 129 to the DOLE Regional Director may not be exercised by him where the employer contests the labor regulation officers! findings and raises issues which cannot be resolved without considering evidentiary matters not verifiable inthe normal course of inspection n such an event, the case will have tobe referred to the corresponding Labor Arbiter for adjudication, since i falls within the laters exclusive original jurisdiction. (Brokenshire Memoria! Hospital, Inc, vs. Minister of Labor ond Employment, et. ol, G.R. No. 74621, February 7, 1990) Contested cases The so-called "exception clause” of Article 128 of the Labor Code has the following elements, all of hich must concur: (a) that the employer contests the findings ofthe labor regulations officer and raises issues thereon; (b that in order to resolve such issues, there is a need to examine evidentiary matters; and (c) that such matters are not verifiable in the normal course of inspection. To dlvest the DOLE of jurisdiction under the “exception clause," (Monggagawa sa Kemunikasyon ng Pilipinas v. PLDT, nc, G.R. Nos. 244695, 244752 & 245294, Februory 14, 2024) Republic Act No. 7877 The Anti Sexual Harassment Law Prohibits al forms of sexual harassment in the Workplace Education or Training environment. Sexual harassment in the workplace is committed when the sexual favor is made as a condition for employment, Atty. Cecilio D. Duka, Ed,D. 20