Labor Golden Notes

GENERAL PROVISIONS

Q. What is LABOR LAW? A. The law governing the rights and duties of the employer and employees: - with respect to the terms and conditions of employment and - with respect to labor disputes arising from collective bargaining respecting such terms and condictions SOURCES:

- Statutes passed by the State - Judicial decisions - Rules and regulations by administrative agencies

Q: What are the CLASSIFICATIONS of LABOR LAW?A: - Labor Standards - Labor Relations - Social Legislation

Q: What is LABOR STANDARDS?A: These are the minimum terms and conditions of employment prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance and other monetary and welfare benefits.

Ex: 13th month pay

Q: What is LABOR RELATIONS? A: Defines and regulates the status, rights and duties, and the institutional mechanisms, that govern the individual and collective interactions of employers, employees, or their representatives.

It is concerned with the stabilization of relations of employer and employees and seek to forestall and adjust the differences between them by the encouragement of collective bargaining and the settlement of labor disputes through conciliation, mediation and arbitration.

Ex: Additional Allowance pursuant to CBA.

Q: What is SOCIAL LEGISLATION A: It includes laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice

Ex: GSIS Law, SSS Law, Philhealth benefits.Q: What is the STATE POLICY on Labor? (Art. 3)A: 1. Afford full protection to labor 2. Promote full employment 3. Ensure equal work opportunities regardless of sex, race, or creed 4. Regulate the relations between workers and employers 5. Assure the rights of workers

a. to self organizationb. security of tenurec. just and humane conditions of work

- participate in policy and decision-making processes affecting their right and benefits

Q: What is “Compassionate Justice”? A: It is disregarding rigid rules and giving due weight to all equities of the case. Ex: Employee validly dismissed may still be given severance pay.

Q: What are the ELEMENTS to determine EMPLOYER-EMPLOYEE RELATIONSHIP? SC-DCA: - Selection and engagement of employee - Control

- Dismissal - Compensation Note: All elements must concur.

Q: How should DOUBTS in the implementation and interpretation of the Labor Code and its IRR be RESOLVED? (Art. 4)A: They should be resolved IN FAVOR OF LABOR.

Q: To WHOM shall ALL RIGHTS and BENEFITS under the Labor Code APPLY? (Art. 6)A: All rights and benefits apply alike to ALL WORKERS, whether agricultural or non-agricultural, UNLESS OTHERWISE PROVIDED

Q: Who is an AGRICULTURAL/FARM WORKER? A: - one employed in an agricultural or farm enterprise

- performs tasks which are directly related to agricultural activities of the employer - and any activities performed by a farmer as an incident to farming operations

BOOK ONEPRE-EMPLOYMENT

RECRUITMENT ANDPLACEMENT OF WORKERS

Q: Who is a WORKER? (Art. 13[a]) A: Any member of the labor force, whether employed or unemployed

Q: What is RECRUITMENT and PLACEMENT? (Art. 13[b])A: - any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers,

- includes referrals, contact services, promising or advertising for employment, locally or abroad, whether for profit or not

Q: Who is DEEMED ENGAGED in RECRUITMENT and PLACEMENT?A: - Any person or entity which, in any manner, offers or promises for a fee employment to 2 or more persons

Q: What if employment is offered to ONLY 1 PERSON?A: Immaterial. The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in Article 13(b) will constitute recruitment and placement even if only one prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption. (People v. Panis [1988])

Q: What is the ESSENTIAL ELEMENT in determining whether one is engaged in Recruitment/Placement?A: It must be shown that the accused gave the complainant the distinct impression that she had the power or ability to send the complainant for work, such that the latter was convinced to part with his money in order to be so employed. (People v. Goce [1995])

Q: What is a PRIVATE EMPLOYMENT AGENCY? A: Any person or entity engaged in the recruitment and placement of workers FOR A FEE WHICH IS CHARGED, directly or indirectly, from the workers or employers or both

Q: What is a LICENSE? A: It is issued by DOLE authorizing a person or entity TO OPERATE a private EMPLOYMENT agency

Q: What is a PRIVATE RECRUITMENT AGENCY? A: It is any person or association engaged in the recruitment and placement of workers WITHOUT CHARGING ANY FEE, directly or indirectly, from the workers or employers

Q: What is an AUTHORITY? A: It is issued by DOLE authorizing a person or association TO OPERATE as private RECRUITMENT entity

Q: Who is a SEAMAN? A: Any person employed in a VESSEL engaged in MARITIME NAVIGATION

Q: What is OVERSEAS EMPLOYMENT? A: It is employment of a worker outside the Philippines

Q: Who is an EMIGRANT? A: Any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or resident permit or its equivalent in the country of destination

Q: What is the BAN on DIRECT-HIRING? (Art. 18) A: It provides that an employer may only hire Filipino worker for overseas employment through POEA or entities authorized by DOLE.

xpn: Direct hiring by members of the diplomatic organizations, international organizations and such other employers as may be allowed by DOLE.

reason: To ensure the best possible terms and conditions of employment for the worker.

Q: Who may participate in RECRUITMENT in the PRIVATE SECTOR?A: - Public employment offices

- Private employment agencies- Private recruitment entities- Shipping or manning agents or representatives- The POEA- Construction contractors IF authorized by DOLE and the Construction Industry Authority- Members of the diplomatic corps through the POEA- Such other persons or entities as may be authorized by DOLE

Q: What are the MINIMUM CONDITIONS/PROVISIONS of OVERSEAS employment CONTRACTS?A: (i) GUARANTEED WAGES for regular hours and overtime, NOT LOWER than the minimum wage prescribed in all of the following:

- The HOST country- Bilateral agreements or international conventions RATIFIED by the host country and the Philippines- The Philippines

(ii) Free transportation to and from the worksite; or offsetting benefit(iii) Free food and accommodation; or offsetting benefit(iv) Just/authorized causes of termination of the contract or services of the worker

Note: An agreement that DIMINISHES the employee’s pay and benefits as contained in a POEA-approved contract is VOID, unless such subsequent agreement is APPROVED by the POEA.

Q: What is the Rule on REMMITANCE of FOREIGN EXCHANGE EARNINGS? (Art. 22)A: It shall be MANDATORY for all OFWs to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries

Q: What is the LIABILITY of the PRIVATE EMPLOYMENT AGENCY and the PRINCIPAL or FOREIGN-BASED EMPLOYER?

A: They are JOINTLY and SOLIDARILY LIABLE for any violation of the recruitment agreement and the contracts of employment.

JURISDICTION

Labor Arbiter POEA- original and exclusive jurisdiction over all claims arising out of employer-employee relationship or by virtue of any law or contract involving OFWs

- including claims for actual, moral, exemplary and other forms of damages

- original and exclusive jurisdiction over

a. all cases which are administrative in character relating to licensing and registration of recruitment and employment agencies

b. disciplinary action cases and other special cases, which are administrative in character, involving employees, principals, contracting partners and Filipino migrant workers

Q: What is the Rule on Recruitment of TRAVEL AGENCIES and SALES AGENCIES of AIRLINE COMPANIES? (Art. 26)

A: They are PROHIBITED from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not.

Q: Is the License or Authority transferable? (Art. 29)A: NO, they are NON-TRANSFERABLE

Q: Who are ELIGIBLE to Participate in Recruitment/ Placement (Local/Overseas)? Art. 27, 28, 30, 31

A: Those who COMPLY with the following REQUIREMENTS: - Citizenship:

a. Filipino citizensb. corporations, partnerships or entities at least 75% of authorized and voting capital stock are owned and controlled by Filipinos

- Substantial capitalization - Payment of registration fees - Posting of surety/cash bonds

Q: When can a person applying with a private fee-charging employment agency BE CHARGED ANY FEE?

A: When the applicant:- has obtained employment through its efforts/facilities, or - has actually commenced employment.

Note: A landbased agency may charge and collect from its hired workers a PLACEMENT FEE in an amount EQUIVALENT to 1 MONTH SALARY, exclusive of documentation costs.

Q: What are PROHIBITED PRACTICES in Recruitment/Placement? (Art. 34)A: - Charge or accept any amount greater than (that specified) by DOLE OR make a worker pay any amount greater than actually received by him

- Furnish or publish any false notice/information/document related to recruitment/employment- Commit any act of misrepresentation to secure a license or authority- Induce or attempt to induce a worker already employed to quit his employment in order to offer him

another UNLESS the transfer is designed to liberate a worker from oppressive terms and conditions- Influence or attempt to influence any person/entity NOT to employ any worker who has not applied of

employment through his agency- Recruitment/placement of workers in jobs harmful to public health or morality or to the dignity of the

country- Obstruct or attempt to obstruct inspection by SLE or by his representatives- Fail to file reports required by SLE- Substitute or alter employment contracts without approval of DOLE- To be engaged directly or indirectly in the management of a travel agency- Withhold or deny travel documents from applicant workers before departure for monetary/financial

considerations other than authorized by law

Q: What are the REGULATORY POWERS of the Sec. of Labor and Employment (SLE)? (Art.36)A: - Restrict and regulate the recruitment and placement activities of all agencies

- Issue orders and promulgate rules and regulations

Q: What are the VISITORIAL POWERS of SLE: (Art. 37)A: SLE or his duly authorized representatives may, at any time:

- inspect the premises, books of account and records of any person or entity engaged in recruitment/placement

- require it to submit reports regularly on prescribed forms- act on violations of any provisions

Q: What are the ELEMENTS of ILLEGAL RECRUITMENT? (Art. 38)A: (i) Offender is a non-licensee or non-holder of authority to lawfully engage in the recruitment/placement of workers

(ii)Offender undertakes: - Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and

includes referrals, contact services, promising or advertising for employment, locally or abroad, whether for profit or not (Art. 13(b)) or

- Any of prohibited practices under Art. 34

Q: May a LICENSEE or HOLDER of AUTHORITY be held LIABLE for Illegal Recruitment?A: Yes, under RA 8042 (Migrant Workers and Overseas Filipinos Act of 1995), which EXPANDED the list of prohibited acts on Recruitment/Placement. Under said law, ANY PERSON (whether non-licensee, non-holder of authority, licensee or holder of authority) who COMMITS any of the PROHIBITED ACTS, shall be liable for Illegal recruitment.

Q: When is ILLEGAL RECRUITMENT considered as ECONOMIC SABOTAGE? (Art. 38(b))A: It is considered economic sabotage when committed:

a. by a syndicate – carried out by 3 or more persons conspiring/confederating with one anotherb. in large scale – committed against 3 or more persons individually or as a group

Q: What is the PENALTY for illegal recruitment considered as ECONOMIC SABOTAGE?A: It is penalized with LIFE IMPRISONMENT

Note: SLE CANNOT issue search warrant or warrants of arrest.

PENALTIESIllegal Recruitment as economic sabotage

Life imprisonment + fine of P500,000-P1M

Licensee/holder of authority violates provisions

2-5 yrs imprisonment or fine of P10,000-P50,000 or both

Non-licensee/non-holder of authority violates provisions

4-8 yrs imprisonment or fine of P20,000-P100,000 or both

Offender is a corporation, partnership, association, or entity

Penalty imposed upon officer/s responsible for violation

If officer is an alien, he will be deported without further proceedings

In every case Automatic revocation of license or authority and all permits and privileges

EMPLOYMENT OFNON-RESIDENT ALIENS

Q: Who are required to obtain an EMPLOYMENT PERMIT?A: Only NON-RESIDENT aliens; For IMMIGRANTS and RESIDENT ALIENS what is required is an Alien Employment Registration Certificate (AERC)

Q: When can an Employment permit be ISSUED? (Art. 41) A: It is issued ONLY after determination of the non-availability of a person in the Philippines who is competent and willing at the time of application to perform the services for which the alien is desired. Note: After issuance of permit, alien CANNOT transfer to another job or change his employer without prior approval of SLE.

Q: What is the DURATION of the Employment Permit? A: Minimum of 1 year unless revoked and subject to renewal

Note: Aliens CANNOT be employed in entities engaged in NATIONALIZED activities.XPNS:

1. Sec. of Justice specifically authorizes the employment of technical personnel OR2. aliens are elected members of the board of directors or governing body of corporations or

associations

Q: Who are EXEMPTED from obtaining an Employment Permit?A: - diplomatic services and foreign government officials

- officers and staff of international organizations and their legitimate spouses- members of governing board who has voting rights only- those exempted by special laws - owners and representatives of foreign principals who interview Filipino applicants for employment

abroad- aliens whose purpose is to teach, present and/or conduct research studies - resident aliens

BOOK TWOHUMAN RESOURCES DEVELOPMENT PROGRAM

TRAINING AND EMPLOYMENTOF SPECIAL WORKERS

Q: Who are SPECIAL WORKERS?A: - Apprentices

- Learners- Handicapped Workers

Q: What are their CONDITIONS of EMPLOYMENT?A: - work shall not exceed 8 hours per day

- allowed overtime but with pay

APPRENTICES

Q: Who is an APPRENTICE? (Art. 58)A: Any worker who is covered by a WRITTEN APPRENTICESHIP AGREEMENT with an individual employer or any of the entities recognized under the LC

Q: What is APPRENTICESHIP? A: It is practical training on the job supplemented by related THEORETICAL INSTRUCTION.

Q: What is an APPRENTICEABLE OCCUPATION? A: That which requires MORE THAN 3 MONTHS of practical training with theoretical instruction

Q: What is the STATUS of APPRENTICES?A: They are CONTRACTUAL workers; employer is not obliged to employ them as regular workers.

Q: What is ON THE JOB TRAINING?A: It is practical work experience through ACTUAL PARTICIPATION in productive activities given to or acquired by an apprentice

Q: What are HIGHLY TECHNICAL INDUSTRIES? A: Those which are engaged in the application of ADVANCED TECHNOLOGY

Q: What are RELATED THEORETICAL INSTRUCTIONS?A: Technical information BASED on APPRENTICESHIP STANDARDS approved by the Bureau

Note: Prior approval by TESDA (formerly DOLE) of the proposed apprenticeship program is a condition sine qua non. Otherwise, apprentice becomes a regular employee. (Nitto Enterprises vs. NLRC [1995]).

Q: What are the QUALIFICATIONS of an Apprentice?A: - at least 15 years of age

(note: below 18 years of age shall not work in hazardous occupations)- Physically fit for the occupation- Possess vocational aptitude and capacity- Possess:

a. the ability to comprehend, and b. follow oral and written instructions

Q: When is an occupation deemed HAZARDOUS?A: - nature of work exposes worker to dangerous environmental elemental contaminants, or work conditions

- workers are engaged in construction work, logging, firefighting, mining, quarrying, blasting, stevedoring, deep-sea fishing, and mechanized farming

- workers are engaged in the manufacture or handling of explosives and other pyrotechnic products- workers use, or are exposed to heavy or power-driven machinery or equipment

Q: Who may EMPLOY Apprentices? A: Only employers in the:

- highly technical industries and - only in apprenticeable occupations approved by SLE (Art. 60)

Q: What is the PERIOD of Apprenticeship?A: Must NOT EXCEED 6 months:

- 2 months/400 hours: trades or occupations which normally require 1 year or more for proficiency- 1 month/200 hours: occupations and jobs which require more than 3 months but less than 1 year for

proficiency

Q: What is the STATUS of an apprentice hired after such term? A: He is deemed a REGULAR EMPLOYEE; He cannot be hired as a probationary employee since the

apprenticeship is deemed the probationary period.

Q: What is the WAGE RATE of an Apprentice? A: Start at NOT LESS THAN 75% of the statutory minimum wage for the first 6 months (except on the job training); thereafter, shall be paid in full minimum wage, including the full COLA.

NOTE: Apprentices are contractual workers whose length of service depends on the term provided for in the apprenticeship agreement. Thus, the employer is not obliged to employ the apprentice after the completion of his training.

NOTE: An apprenticeship agreement with a MINOR shall be signed in his behalf by his parent or guardian, or if the latter is not available, by an authorized representative of the DOLE.

GR: Apprenticeship programs shall be primarily VOLUNTARYXPN: Compulsory Apprenticeship:

- national security or economic development so demand, the President may require compulsory training - Services of foreign technicians are utilized by private companies in apprenticeable trades.

Q: May Apprentices be hired without compensation? (Art. 72) A: Yes, IF training on the job is:

- required by school; or - required by the Training Program Curriculum; or- requisite for graduation; or - requisite for Board Examination

Note: There is no employer-employee relationship between students on one hand, and schools, where there is written agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge.

Q: What is the procedure for the Termination of Apprenticeship?A: - party terminating

- shall serve a written notice on the other - at least 5 days before actual termination, - stating the reason for such decision - and a copy of said notice shall be furnished the Apprenticeship Division concerned.

Q: What are the Causes of Termination of ApprenticeshipA:

1. By the employer

a. habitual absenteeism of apprenticeb.c. willful disobedience of company rules OR insubordination to lawful order of superior

d. poor physical conditions, permanent disability or prolonged illness which incapacitates the apprentice

e. theft/malicious destruction of company property/equipment

f. engaging in violence or other form of gross misconduct inside employer’s premises

2. By the apprentice

a. substandard or deleterious working conditions within employer’s premises

b. repeated violations by employer of the apprenticeship agreement

c. cruel or inhuman treatment by the employer or his subordinates

d. personal problems which prevent employee from a satisfactory performance of his job

e. bad health or continuing illness

Q: Who may file a complaint for any Violation of the Apprenticeship Agreement? A: Any interested person or upon its own initiative, the appropriate agency of the DOLE or its authorized representative (Art. 65)

Q: Who is authorized to investigate any Violation of the Apprenticeship Agreement?A: DOLE or its authorized representative

Q: May the Decision of the DOLE or its authorized representative be appealed? A: Yes, by any aggrieved person to the SLE within five (5) days from receipt of the decision. The decision of the SLE shall be final and executory.

LEARNERS

Q: Who are LEARNERS? A: They are persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed 3 months, whether or not such practical training is supplemented by theoretical instructions. (Art. 73)

Q: When may learners be EMPLOYED? A: - When no experienced worker is available

- employment of learners is necessary to prevent curtailment of employment opportunities AND- employment does not create unfair competition in terms of labor costs or impair or lower working standards. (Art. 74)

Q: What is the DURATION of the LEARNERSHIP period? A: It shall NOT exceed 3 months

Q: What is the WAGE RATE of Learners?A: It shall NOT be less than 75% of the minimum wage

Q: What is the QUALIFICATION of a learner?A: Must be at least 15 years of age

Note: Those below 18 years of age shall not work in hazardous occupations

Q: Who May Employ Learners? A: Only employers in semi-skilled and other industrial occupations which are non-apprenticeable.

Q: What is the STATUS of learners who have been allowed or suffered work during the first 2 months, if training is terminated by the employer before the end of the stipulated period though no fault of the learner? (Art. 75)A: They are deemed REGULAR employees

Q: What is the compensation for Learners in piecework? A: Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. (Art. 76)

Learnership ApprenticeshipNature Training on the

job in semi-skilled and other industrial occupation or trades which are non-apprenticeable and which may be learned thru practical training on the job in a relatively short period of time.

Training in trades which are apprentice-able, that is, practical training on the job supplemented by related theoretical instruction for more than 3 months.

Duration of training

Maximum: 3 months

Min: 3 months

Max: 6 monthsCommit-ment to employ

With commitment to employ the learner as a regular employee if he desires upon completion of learnership

No commitment to hire

In case of pretermi-nation of contract

Considered a regular employee if pretermination occurs after 2 months of training and the dismissal is without fault of the learner.

Worker not considered as regular employee.

Cover-age

Semi-skilled/Indus-trial occupations

Highly technical industries and only in industrial occupation

There is a list of learnable trades by TESDA

No list

Written agree-ment

Requires Learnership Agreement

Requires Apprentice-ship Agreement

HANDICAPPED WORKERS

Q: Who are HANDICAPPED workers? (Art. 78)A: Those whose earning capacity is impaired by:

- age or - physical deficiency or - mental deficiency - injury.

Q: What is the DURATION of their EMPLOYMENT period? A: There is no minimum or maximum duration; it depends on the agreement but it is necessary that there is specific duration stated. (Art. 80)

Q: What is the WAGE RATE of handicapped workers?A: It must be at least 75% of the applicable minimum wage.

Q: May Handicapped workers be hired as apprentices or learners?A: Yes, IF their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired. (Art. 81)

Q: Can a handicapped worker acquire the status of a REGULAR EMPLOYEE?A: Yes, IF work is usually or necessary or desirable to the business (Bernardo v. NLRC 3 [1999])

Q: Who may EMPLOY Handicapped Workers?A: Employers in ALL INDUSTRIES, provided: the handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired

Q: When can handicapped workers be EMPLOYED?A: - When their employment is necessary to prevent curtailment of employment opportunities; and - When it will not create unfair competition in labor costs or lower working standards. (Art. 79)

Note: Qualified disabled employees shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person.

Q: Does the mere fact that a worker has a disability, make him a handicapped worker?A: No, because his disability may not impair his efficiency or the quality of his work. If despite his disability he

can still efficiently perform his work, he cannot be classified as handicapped; he would be considered a qualified disabled worker entitled to the same treatment as qualified able-bodied workers. (Atty. Alcantara)

Handicapped Disabled(Differently Abled)

Earning capacity is impaired by age, or physical or mental deficiency or injury

Refers to all suffering from restriction of different abilities as a result of mental, physical or sensory impairment to perform an activity in the manner or within range considered normal for a human being.

Covers only workers Covers all activities or endeavors.

Basis: loss/impairment of earning capacity

Basis: range of activity which is normal for a human being

Loss due to injury or physical or mental defect or AGE

Restriction due to impairment of mental/physical/ sensory defect

If hired, entitled to If qualified, entitled to

75% of minimum wage

all terms and conditions as qualified able-bodied person

Subject to definite periods of employment

Handicapped worker gets all terms & conditions as qualified able-bodied person

Employable only when necessary to prevent curtailment of employment opportunity

No restrictions on employment.

Must get equal opportunity and no unfair competition

BOOK THREECONDITIONS OF EMPLOYMENT

Q: Who determines working conditions?A: Generally, they are determined by the employer, as he is usually free to regulate, according to his discretion, all aspects of employment.

Q: What is the limitation on the employer’s power to regulate working conditions?A: It must be done in GOOD FAITH and not for the purpose of defeating or circumventing the rights of the employees.

Bona Fide Occupational Qualification (BFOQ)

Q: When does Book III of the LC apply? A: Only if an EMPLOYER-EMPLOYEE RELATIONSHIP exists.

Chapter I - HOURS OF WORK

Q: Who is an EMPLOYER?A: - One who employs the services of others - One for whom employees work and who pays their wages and salaries

Q: Who is an EMPLOYEE?A: - One who works for an employer - A person working for salary or wages - Any person in the service of another under a contract for hire, express or implied, oral or written

Q: What are the ELEMENTS of an Employer-Employee Relationship?A: - Selection and engagement of the employee

- Payment of wages- Power of dismissal- Employer’s power to control the employee’s conduct (Note: Most important element)

Q: What is the CONTROL TEST? A: Whether the employer controls or has reserved the right to control the employee:

- as to the RESULT of the work to be done, AND- as to the MEANS and METHODS by which the same is to be accomplished. (“Brotherhood” Labor Unity

Movement of the Philippines, et al. vs. Zamora, [1987])

Note: No employer-employee relationship between Agent and Principal.

Q: What is the ECONOMIC TEST, which is also considered in addition to the right of control test?A: These are the existing economic conditions prevailing between the parties, like the inclusion of the employee in the payrolls, in determining the existence of an employer-employee relationship. (Sevilla v. CA [1988])

Q: The employment contract stipulates that there is NO employer-employee relationship between the parties. Is that valid?A: - The existence of an employer-employees relation is a question of law and being such, it cannot be made the subject of agreement. (Tabas v. California Manufacturing Co. [1990])

- The employment status of a person is defined and prescribed by law and not by what the parties say it should be. In determining the status of the management contract, the "four-fold test" on employment earlier mentioned has to be applied. (Insular Life Assurance Co. Ltd. v. NLRC [1998])

Q: Who is an INDEPENDENT CONTRACTOR?A: One who exercises independent employment and contracts to do a piece of work according to his own methods and without being subject to control of his employer except as to the result of the work.

Q: What is the LIMITATION on Management Prerogatives?A: Such are not always absolute and must be exercised in GOOD FAITH and with due regard to the RIGHTS

OF LABOR.

Note: One’s employment, profession, trade or calling is a PROPERTY RIGHT and the wrongful interference therewith is an actionable wrong.

Q: What is the NATURE of an Employment contract?A: It is a contract in personam and binding only between parties.

Q: What determines the EXISTENCE of an employment relationship?A: - It is determined by LAW and not by contract.

- Whether or not an employer-employee relationship exists between the parties is a question of FACT. The findings of the NLRC are accorded not only respect but finality if supported by evidence.

Note: Taxi or jeepney DRIVERS under the “boundary” system are EMPLOYEES of the taxi or jeepney OWNERS/OPERATORS; so also the passenger bus drivers and conductors. (Jardin vs. NLRC and Goodman Taxi, February 23, 2000)

Q: Who are NOT covered by Book III? A: - Government employees

- Managerial Employees and - Other members of managerial staff- Non-agricultural Field personnel- Workers paid by Results- Members of the family of employer dependent on him for support- Domestic helpers AND persons in the personal service of another

Q: Who are GOVERNMENT EMPLOYEES?A: - National Government or

- Any of its political subdivisions, - including those employed in GOCC’s with original charters.

Q: What law GOVERNS government employees?A: The Civil Service Law, rules and regulations.

Q: Who are MANAGERIAL EMPLOYEES? (Art. 82, 2nd paragraph)

A: Those whose primary duty consists os the management of the establishment in which they are employed or a department or subdivision thereof, and other officers or members of the managerial staff.

They must meet all of the following conditions, namely:- Primary duty: MANAGEMENT of the establishment in which they are employed or of a department or

sub-division thereof;- Customarily or regularly direct the work of 2 or more employees- Has the authority to hire or fire other employees of lower rank; OR their suggestions and recommendations as to the hiring and firing and as to the promotion or any change of status of other employees are given particular weight.

Q: Why are Managerial Employees NOT covered?A: They are employed by reason of their special training, expertise or knowledge and for positions requiring the exercise of discretion and independent judgment. Value of work cannot be measured in terms of hours.

Q: An employee is designated as “chief”, is he a managerial employee?A: It depends. The functions of a managerial employee require the use of discretion and independent judgment. Despite your title, it is the functions that are controlling. The fact that you are designated "chief" only means you are number one in that category if you exercise no managerial functions (Namerco v CIR).

- Mere designation to a position with a high-sounding title does not make an employee a managerial employee where the exercise of the independent judgment is not present. (Sierra vs. NLRC)

- Managerial employees as defined in Art. 82 should be distinguished from Art. 212 (m). Art. 82 covers managerial employees and supervisory employees as part of the managerial staff. (Nasurefco vs. NLRC)

Q: Who are officers or members of the MANAGERIAL STAFF?A: Those who perform the following:

- Primary duty: performance of work directly related to management policies of the employer;

- Customarily and regularly exercise discretion and independent judgment;

- (i) Regularly and directly assist a proprietor or managerial employee OR (ii) Execute under general supervision work along specialized or technical lines requiring special training, experience or knowledge; OR (iii) Execute under general supervision special assignment and tasks; and

- Do not devote more than 20% of their hours worked to activities which are not directly and closely related to the performance of the work described above.

Q: Who are FIELD PERSONNEL?A: - Non-agricultural employees

- Who regularly perform their duties - Away from the principal place of business or branch office of the employer and - Whose actual hours of work in the field cannot be determined with reasonable certainty.

Q: Who are workers PAID by RESULTS?A: - Paid based on the work completed and

- Not on the time spent in working- Including those who are paid on piece-work, “takay”, “pakiao”, or task basis if their output rates are in accordance with the standards prescribed

Q: Who are DOMESTIC HELPERS and persons in the PERSONAL SERVICE of another?A: - Those who perform services in the employer’s home

(i) which are usually necessary or (ii) desirable for the maintenance or enjoyment thereof; OR

- Minister to the personal comfort, convenience or safety (i) of the employer (ii) as well as the members of his employer’s household.

Q: A house personnel was hired by a ranking company official to maintain a staff house provided for the official. The personnel was paid by the company itself. Is the house personnel a domestic servant of the company official?A: NO, the personnel is not a domestic helpers but a REGULAR EMPLOYEE of the company. (Cadiz vs.

Philippine Sinter)

Q: Who are members of the FAMILY of the EMPLOYER?A: Those who are dependent on him for support

Q: Why are members of the family of the employer not covered?A: Because amounts given by way of support may far exceed the benefits to which the employees are entitled under the laws on overtime.

Q: What are the 3 GROUPS of EMPLOYEES under the LC?A: (i) Managerial employee:

- One who is vested with the powers or prerogatives - to lay down and execute management policies

a. and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.

(ii) Supervisory employees : - those who in the interest of the employer, - effectively recommend such managerial actions- if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment.

(iii) Rank-and-File employee : all employees not falling within any of the above definitions.

Q: What are the NORMAL HOURS of WORK? (Art. 83)A: - Should NOT exceed eight (8) hours in a general working day.

- Only the maximum is prescribed, not the minimum. Part-time work is therefore not prohibited.

Q: Is an employer obliged to pay an employee, who rendered less than 8 hours of work, the wages due for 8 hours-work?A: No, following the principle of “a fair day’s wage for a fair day’s labor”

XPN: If by voluntary practice or policy, the employer, for a considerable period of time, has been paying his employees wages due for 8 hours although their work shift is less than 8 hours.

Q: What are REGULAR WORKING DAYS?A: - Should NOT be more than five days in a workweek.

- May begin at any hour and on any day, including Saturday or Sunday, designated by the employer

Q: What is the RATIONALE behind the 8-HOUR LABOR LAW?A: It was designed not only to safeguard the health and welfare of the laborer but in a way to minimize unemployment by forcing employers in cases where more than an 8-hour operations is necessary, to utilize different shifts of laborers working only for 8 hours each. (Manila Terminal vs. CIR)

Q: Who are Health Personnel?A: Includes resident physicians, nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.

Q: What are the Hours of work of health personnel?A: 8 hours/5 days (40-hour work week), exclusive of time for meals XPN: Where the exigencies of the service require that such personnel work for 6 days or 48 hours, they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the 6th day

Note: 40-hour work week does NOT apply if there is a training agreement between the resident physician and the hospital and the training program is duly accredited or approved by appropriate government agency. (Azucena)

Q: Who are COVERED by the 40-hour work week?A: - Health personnel in cities and municipalities with a population of at least 1 million; or - Hospitals and clinics with a bed capacity of at least 100

Note: Art. 83(2) does NOT require hospital to pay the employees a full weekly salary with paid 2 days off. (San Juan de Dios Employees Assoc.-AFW et al. vs. NLRC)

Q: What are the Hours of Work of a WORKING CHILD? A: (i) Child below 15 years of age (14 and below):

- Up to 20 hours a week, provided that the work shall not be more than 4 hours at any given day.- No child below 15 years of age shall be allowed to work between 8pm and 6am of the following day;

(ii)Child 15 years of age but below 18 (15-17):- Up to 40 hours a week, provided that the work shall not be more than 8 hours at any given day.- No child 15-17 years of age shall be allowed to work between 10pm and 6am of the following day.

HOURS WORKED (Art. 84)

Q: What are considered HOURS WORKED? A: (i) All time during which an employee is required

- to be on duty - to be at a prescribed workplace and

(ii) All time during which an employee is suffered or permitted to work.

Note: Rest periods of short duration during working hours shall be counted as hours worked.

Q: What are the PRINCIPLES in Determining HOURS WORKED?A: (i) All hours which the employee is required to give to his employer

- Regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion;

(ii) Rest period is EXCLUDED from hours worked, even if employee does not leave his workplace, it being enough that:

- he stops working,- may rest completely and- may leave his workplace, to go elsewhere, whether within or outside the premises of the workplace;

(iii) All time spent for work are considered hours work- If the work performed was necessary- If it benefited the employer

- Or the employee could not abandon his work at the end of his normal working hours because he had no replacement

Provided, the work was with the knowledge of his employer or immediate supervisor

(iv)The time during which an employee is inactive by reasons of interruptions in his work beyond his control shall be considered working time

- either if the imminence of the resumption of the work requires the employee’s presence at the place of work or

- if the interval is too brief to be utilized effectively and gainfully in the employee’s own interest.

Q: When is WAITING TIME Considered WORKING TIME?A: - If waiting is an integral part of his work or

- The employee is required or engaged by the employer to wait (ENGAGED TO WAIT)

Q: When is an employee considered WORKING WHILE ON CALL? A: - When employee is required - to remain on call in the employer’s premises or so close thereto - that he cannot use the time effectively and gainfully for his own purpose

Q: When is waiting time NOT CONSIDERED working time?A: When the employee is WAITING TO BE ENGAGED: idle time is NOT working time; it is not compensable.

Q: Are PRELIMINARY activities CONSIDERED as hours worked? A: Yes, IF controlled or required by employer and are pursued necessarily and primarily for the employer’s benefit. Note: The controlling factor is whether waiting time spent in idleness is so spent predominantly for the employer’s benefit or for the employee. (Azucena)

Q: When is time spent by the employee considered IDLE TIME?A: - A laborer need NOT leave the premises of the factory, shop or boat in order that his period of rest shall not be counted, it being enough that

(i) He “cease to work”, (ii) May rest completely and leave or

(iii) May leave at his will the spot where he actually stays while working, or (iv) Go somewhere else, whether within or without the factory, shop or boat. (Luzon Stevedoring vs. Luzon Marine Dept. Union)

Q: When is working WHILE SLEEPING considered WORKING TIME?A: - If SLEEPING:

(i) Is subject to serious interruption, OR (ii) Takes place under conditions substantially less desirable than would be likely to exist at the

employee’s home i.e. firemen permitted to sleep a portion of the time they are so on duty at the fire station. (Azucena)

Q: An employee is kept within reach through a cellular phone. Is he on call? A: No. (Azucena)

Q: When is TRAVEL TIME considered WORKING TIME?A: It depends. Normal travel from home to work is NOT working time. XPNs: - Emergency call outside his regular working hours where he is required to travel to his regular place of business or some other work site.

- Travel that is all in a day’s work: time spent in travel as part of the employee’s principal activity, i.e. travel from job site to job site during the work day, must be counted as working hours.

- Travel away from home:GR: Travel that required an overnight on the part of the employee when it cuts across the

employee’s workday is clearly working time. The time is not only hours worked on regular workdays but also during corresponding working hours

on non-working days. Outside of these regular working hours, travel away from home is not considered working time. (Azucena)

XPN: during meal period or when employee is permitted to sleep in adequate facilities furnished by the employer.

Q: When are Lectures, Meetings and Training Programs considered WORKING TIME?A: Shall NOT BE COUNTED as working time if ALL of the following conditions are met:

(i) Attendance is OUTSIDE of the employer’s regular working hours;(ii) Attendance is in fact VOLUNTARY; and(iii) The employee DOES NOT PERFORM any productive work during such attendance.

Q: Are REGULAR FULL-TIME teachers entitled to salary and COLA during SEMESTRAL BREAKS?A: Yes. (University of Pangasinan Faculty Union vs. University of Pangasinan)

Art. 85MEAL PERIODS

Q: What is the DURATION of the MEAL PERIOD?A: Every employer shall give his employees, regardless of sex, not less than 60 minutes or 1 hour time-off

for regular meals.

Q: Is the meal period COMPENSABLE?A: Being time-off, it is NOT COMPENSABLE. Employee must be completely relieved from duty.

Q: When is the Meal Period considered COMPENSABLEA: It is Compensable where the lunch period or mealtime:

- Is predominantly spent for the employer’s benefit or - Where it is less than 60 minutes. Note: Where during meal period, the laborers are REQUIRED to stand by for emergency work, or where

the meal hour is not one of complete rest, such is considered OVERTIME. (Pan Am vs. Pan Am Employees Association)

Q: Are Meal Periods provided DURING OVERTIME WORK compensable?A: Yes, the 1 hour meal period (non-compensable) is NOT given during overtime work because the latter is usually for a short period and to deduct from the same would reduce to nothing the employees’ overtime work. Thus the 1 hour break for meals during overtime should be treated as COMPENSABLE.

Q: What if meal period is less than 20 minutes?A: It becomes only a REST PERIOD and is thus considered as work time - COMPENSABLE.

Note: Rest periods or coffee breaks running from 5 to 20 minutes shall be considered as COMPENSABLE working time.

Q: When may the Meal Period BE SHORTENED to NOT LESS than 20 minutes?A: (i) At the instance of EMPLOYER: (still COMPENSABLE)

- work is Non-manual in nature or does not involve strenuous physical exertion;

- establishment regularly Operates less than 16 hours a day;

- work is necessary to Prevent serious loss of perishable goods.

- actual or impending Emergency or there is urgent work to be performed on machineries and equipment to avoid serious loss which the employer would otherwise suffer

(ii) At the instance of EMPLOYEE: Employee requested for the shorter meal time so that he can leave work earlier than the previously established schedule, then such shortened meal period is NOT COMPENSABLE.

XPN: Shortened meal period upon request of employee is STILL COMPENSABLE provided:- employees voluntarily agree in writing and are willing to waive overtime pay for the shortened meal period;

- no diminution in the salary and other fringe benefits of the employees which are existing before the effectivity of the shortened meal period;

- work of the employees does not involve strenuous physical exertion and they are provided with adequate coffee breaks in the morning and afternoon;

- value of the benefits derived by the employees from the proposed work arrangements is equal to or commensurate with the compensation due them for the shortened meal period as well as the overtime pay for 30 minutes as determined by the employees concerned;

- overtime pay will become due and demandable after the new time schedule

- arrangement is of temporary duration.

NIGHT SHIFT DIFFERENTIAL (Art. 86)

Q: What is NIGHT SHIFT DIFFERENTIAL (NSD)?A: - It is additional compensation - of NOT LESS THAN 10% of an employee’s regular wage - for every hour work - done between 10:00 pm to 6:00 am, - whether or not such period is part of the worker’s regular shift.

Q: Who are entitled to NSD?

A: NSD applies to all employees, EXCEPT:1. Employees of the Government and any of its political subdivisions, including GOCC’s.2. Retail and service establishments regularly employing not more than 5 workers.3. Includes task and contract basis 4. Domestic helpers and persons in the personal service of another.5. Field personnel and other employees whose time and performance is unsupervised by the employer6. Managerial employees

Q: What if work done between 10 PM and 6 AM is overtime work?A: Then the 10% NSD should be based on the overtime rate.

Note: When the employee’s shift falls at nighttime, the receipt for overtime pay SHALL NOT preclude the right to receive NSD.

NSD OVERTIME PAY

Payment forwork done during the night (10:00pm-6am)

Payment for the excess of the regular 8-hr work

10 % of basic wage 25% or 30% of basic wage

Q: What is the FORMULA for computing NSD?A: (10% x regular wage per hour) x no. of hours of work performed between 10pm-6am

SAMPLE ILLUSTRATION NO. 1 :

Daily Wage : P800

Work Schedule: 7:00pm – 3:00 am

Step 1: Compute for the hourly wage rate

Divide the Daily Wage by number of hours workede.g. P800 / 8 hrs. = P100

Step 2: compute wage between7:00pm -3:00 ame.g. 8hrs x P100 = P800

Step 3: compute NSD- (10% of regular wage per hour x no. of hours of work performed between 10pm-6am) e.g. (10% x P100) x 5 hours =P50

COMPUTATION:7pm-10pm 3hrs x P100 P30010pm-3am 5hrs x P100 500NSD Pay 5hrs x P 10 50 ------------Total wage earned for the day P850

SAMPLE ILLUSTRATION NO. 2 :

Daily Wage : P800Work Schedule: 8:00am – 5:00 pmOT : 5:00pm – 12:00 mn

Step 1: get hourly wage rate- Daily Wage divided by number of hours workede.g. P800 / 8 hrs. = P100

Step 2: compute wage between 8:00pm -5:00 am

e.g. 8hrs x P100 = P800

Step 3: compute OT Premium Pay between 5:00pm - 12mn

- [(25% x Wage per hour) + Wage per hour] x no.of OT hours

e.g. (25% x P100)+100 = P125

x no.of OT hours (5pm-12mn)x 7hrs -------- P875Step 4: compute NSD- (10% of OT wage per hour x no. of hours of work performed between 10pm-6am)

e.g. (10% x P125) x 2 hours= P24

COMPUTATION:8am-5pm 8hrs x P100.00 P8005pm-12mn 7hrs x P125.00 875NSD Pay 2hrs x P 12.50 24 ------------Total wage earned P1699

Q: May an employee waive the right to NSD?A: No, such waiver is against public policy. (Mercury Drug Co.,Inc. vs. Dayao, et al.)

OVERTIME WORK (Art. 87)

Q: What is OVERTIME WORK? A: Work performed BEYOND 8 HOURS within the worker’s 24 hour workday. Note: - Express instruction from the employer to the employee to render overtime work is NOT required for the employee to be entitled to overtime pay; it is sufficient that the employee is permitted or suffered to work. - However, written authority after office hours during rest days and holidays are required for entitlement to compensation.

Q: What is a WORK DAY?A: The 24-hour period which commences from the time the employee regularly starts to work (e.g. if the worker starts to work 8 am today, the workday is from 8am today up to 8am tomorrow) Note: Minimum normal working hours fixed by law need not be continuous to constitute the legal working day.

OVERTIME PAY PREMIUM PAYAdditional compensation for work performed BEYOND 8 hours on ordinary days (within the worker’s 24-hour workday)

Additional compensation for work performed WITHIN 8 hours on days when normally he should not be working (on non-working days, such as rest days and special days.)

But additional compensation for work rendered in excess of 8 hours during these days is also considered overtime pay.

PAY RATESOvertime during a regular working day

Additional compensation of 25% of the regular wage

Overtime during a holiday or rest

Rate of the first 8 hours worked on plus at least 30%

of the regular wage (RW):

30% of 130% of RW if done on a special holiday OR rest day

30% of 150% of RW done on a special holiday AND rest day.

30% of 200% of RW if done on a regular holiday.

Q: What is the RATIONALE behind OVERTIME PAY?A: (i) Employee made to work longer than what is commensurate with his agreed compensation for the statutory fixed or voluntarily agreed hours of labor he is supposed to do. (PNB vs. PEMA and CIR) (ii) Discourages the employer from requiring such work

- thus protecting the health and well-being of the worker, and- also tend to remedy unemployment by encouraging employers to employ others workers to do what

cannot be accomplished during the normal hours of work. (Atty. Alcantara)

Q: Is right to OT PAY WAIVABLE? A: The right to OTP cannot be waived as it is governed by law and not merely by the agreement of the parties. (Cruz vs. Yes Sing) XPN: If the waiver is done in exchange for certain valuable benefits and privileges, which may even exceed the OTP, waiver may be permitted. (MERALCO Workers Union vs. MERALCO)

ILLUSTRATION :

REGULAR WORKDAYSRegular basic wage + 25% of regular basic wageDaily Wage : P 800Work Schedule: 8:00am – 5:00 pm

(inclusive of 1 hour meal break)

OT 5:00pm – 10:00 pm

Step 1. Get hourly wage rate- Daily Basic Wage divided by number of hours workede.g. P800 / 8 hrs. = P100

Step 2: compute wage between 8:00am -5:00 pme.g. 8hrs x P100 = P800

Step 3: compute OT Premium Pay between 5:00 pm– 10pm- [(25% x Wage per hour) + Wage per hour] x no.of OT hours e.g. (25% x P100)+100 = P125 x no.of OT hours (5pm-10pm)= 5hrs ------------

P625COMPUTATION:

8am-5pm 8hrs x P100.00 P8005pm-10pm 5hrs x P125.00 625 ------------Total Take Home Pay P1,425

Daily Wage : P 800

Work Schedule: 8:00am – 5:00 pm(inclusive of 1 hour meal break)

OT : June 12 (Independence day)5:00pm – 10:00 pm

LEGAL OR REGULAR HOLIDAYSHoliday wage rate + 30% of holiday rate (200%)

Step 1: get hourly wage rate- Daily Basic Wage divided by number of hours worked multiplied by regular holiday wage ratee.g. (P800 / 8 hrs.) x 200% = P200

Step 2: compute wage between 8:00pm -5:00 pm using holiday wage ratee.g. 8hrs x P200 = P1600

Step 3: compute OT Premium Pay between 5:00 pm– 10pm- [(30% x Wage per hour) + Wage per hour] x no.of OT hours e.g. (30 % x P200)+200 = P 260 x no.of OT hours (5pm-10pm) = 5hrs ------------

P1300COMPUTATION:

8am-5pm 8hrs x P200.00 P 16005pm-10pm 5hrs x P260.00 1300 ------------Total Take Home Pay P2,900

REST DAYS OR SPECIAL HOLIDAYSRest day or special holiday wage rate + 30% of rest day or special holiday wage rate (130%)

Daily Wage : P 800Work Schedule: 8:00am – 5:00 pm


OT : June 24 ( Q.C. day - special holiday)5:00pm – 10:00 pm

Step 1: get hourly wage rate- Daily Basic Wage divided by number of hours worked multiplied by special holiday wage ratee.g. (P800 / 8 hrs) x 130% = P130Step 2: compute wage between 8:00am -5:00 pm using special holiday wage ratee.g. 8hrs x P130 = P1040

Step 3: compute OT Premium Pay between 5:00 pm– 10pm- [(30% x HWage per hour) + HWage per hour] x no.of OT hours e.g. (30 % x P130)+130 = P 169 x no.of OT hours (5pm-10pm) = 5hrs ------------

P 845COMPUTATION:

8am-5pm 8hrs x P130.00 P 10405pm-10pm 5hrs x P169.00 845 ------------Total Take Home Pay P1,885

SCHEDULED REST DAY WHICH IS ALSO A SPECIAL HOLIDAY

Rest day & special holiday wage rate + 30% of rest day & special holiday wage rate (150%)



OT June 6 ( Araw ng Caloocan - special holiday coinciding w/ employee’s scheduled rest day)5:00pm – 10:00 pm

Step 1: get hourly wage rate- Daily Basic Wage divided by number of hours worked multiplied by rest day & special holiday wage ratee.g. (P800 / 8 hrs) x 150% = P150

Step 2: compute wage between 8:00am -5:00 pm using special holiday wage ratee.g. 8hrs x P150 = P1200Step 3: compute OT Premium Pay between 5:00 pm– 10pm- [(30% x HWage per hour) + HWage per hour] x no. of OT hours e.g. (30 % x P150)+150 = P 195 x no. of OT hours (5pm-10pm)= 5hrs ------------

P 975COMPUTATION:8am-5pm 8hrs x P150.00 P 12005pm-10pm 5hrs x P195.00 975 ------------Total Take Home Pay P2,175

DOUBLE HOLIDAYDouble holiday wage rate + 30% of Double holiday wage rate (300%)



OT : April 9 (Araw ng Kagitingan & at the same time Good Friday)5:00pm – 10:00 pm

Step 1: get hourly wage rate- Daily Basic Wage divided by number of hours worked multiplied by rest day & special holiday wage ratee.g. (P800 / 8 hrs) x 300% = P300

Step 2: compute wage between 8:00am -5:00 pm using special holiday wage ratee.g. 8 hrs x P300 = P2400

Step 3: compute OT Premium Pay between 5:00 pm– 10pm- [(30% x HWage per hour) + HWage per hour] x no. of OT hours e.g. (30 % x P300)+300 = P 390 x no. of OT hours (5pm-10pm) = 5hrs ------------ P 1950

COMPUTATION:8am-5pm 8hrs x P300.00 P 24005pm-10pm 5hrs x P390.00 1950 ------------Total Take Home Pay P4,350

Note: Undertime work in any particular day shall NOT be offset by overtime work on ANOTHER day and on the SAME day (Art.88)

Q: In lieu of overtime pay, the employee was given permission to go on leave on some other day, is that valid?A: No. Permission given to the employee to go on leave on some other day of the week shall NOT exempt the employer from paying the additional compensation required.

Rationale: It would prejudice the employee, for he will be deprived of the additional pay for the overtime work he has rendered and which is utilized to offset the undertime he may have incurred. Undertime could be charged against the employee’s accrued leave.

EMERGENCY OVERTIME WORK

Q: May an employee be COMPELLED to render overtime work?A: General rule: No. Overtime work is VOLUNTARY. XPN: Compulsory Overtime Work in ANY of the following situations:

(i) - Country is at war, OR - any other national or local emergency has been declared

(ii) - Necessary to prevent loss of life or property or - In case of imminent danger to the public safety due to an actual or impending emergency in the

locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity.

(iii) Urgent work to be performed on machines and installations in order to avoid serious loss or damage to the employer or some other cause of similar nature.

(iv)Work is necessary to prevent loss or damage to perishable goods.

(v) Completion or continuation of the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business operations of the employer.

Note: - There should be payment of additional compensation. - Employee’s refusal to obey the order of the employee constitutes insubordination for which he

may be subjected to disciplinary action. (Atty. Alcantara)

Q: The employment contract requires work for more than 8 hours a day with a fixed wage inclusive of overtime pay. Is that valid?A: It depends. - When the contract of employment requires work for more than 8 hours at specific wages per day, without providing for a fixed hourly rate or that the daily wages include overtime pay, said wages cannot be considered as including overtime compensation. (Manila Terminal vs. CIR) - However, the employment contract may provide for a “built-in” overtime pay. Because of this, non-payment of overtime pay by the employer is valid. (Engineering Equipment vs. Minister of Labor)

Q: What is the BASIS of computing the overtime pay and additional remuneration? (Art.90)A: REGULAR WAGE: includes the cash wage only, WITHOUT deduction on account of facilities provided by the employer

Chapter II - WEEKLY REST PERIODS (WRD)

Q: Discuss the right to WEEKLY REST DAY (WRD)? A: - It shall be for the duty of every employer, whether or not operating for profit, to provide employee a rest period of NOT LESS THAN 24 consecutive hours after EVERY 6 CONSECUTIVE normal working days.

Q: Who shall DETERMINE the WRD?A: Employer shall determine and schedule the weekly rest day of his employees. XPN: Employer shall respect the preference of employees when such is BASED ON RELIGION GROUNDS. XPN to the XPN: When such preference will PREJUDICE OPERATIONS of undertaking and the employer cannot normally result to other remedial measures, employer may schedule the WRD of their choice for at least 2 days in a month. Note: Employee cannot be compelled to work on his rest day. UNA-EPA

Q: May an employee be COMPELLED to work during his WRD?A: Yes, on ANY of the following situations:

(i) Urgent work, to avoid serious loss which the employer would otherwise suffer;

(ii) Nature of work requires continuous operations and stoppage of the work may result in irreparable injury or loss to the employer; and

(iii) Abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures;

(iv) actual or impending Emergency (serious accident, fire, flood, typhoon, earthquake, etc)

(v)prevent or damage to Perishable goods;

(vi) Analogous (avail of favorable weather) or similar circumstances.

Q: May an employee VOLUNTEER to work on his rest day under OTHER CIRCUMSTANCES?A: Yes, provided he shall express such desire in writing, subject to additional compensation.

COMPENSATION FOR REST DAY, SUNDAY OR HOLIDAY WORK (Art.93)

INSTANCE RATES OFADDITIONAL COMPENSATION

work on a scheduled rest day

30% of regular wage (regular wage plus 30% of it)

no regular workdays and rest days

30% of his regular wage for the work performed on Sundays and holidays

work performed on any special holiday

30% of the regular wage

The holiday work falls on the employee’s scheduled rest day

50% of his regular wage

Note: This article does not prohibit a stipulation in the CBA for higher benefits.

Scheduled rest day which is a regular holiday: entitled to additional compensation of at least 30% of his regular holiday rate of 200% based on his regular wage rate. –CONFUSING (Grace)

HOLIDAYS, SERVICE INCENTIVE LEAVES AND SERVICE CHARGES

RIGHT TO HOLIDAY PAY (Art. 94)

Q: Who are entitled to holiday pay?A: Generally, all employees are covered by holiday pay except the following:

1. Government and any of its political subdivisions, including GOCCs (with original charter)2. Retail and service establishments regularly employing less than 10 workers3. Managerial employees and other member of the managerial staff4. Domestic helpers and persons in the Personal service of another5. Employees Engaged on task or contract basis or purely commission basis6. Field personnel and other employees whose time and performance are unsupervised by the

employer7. Employees paid Fixed amount for performing work irrespective of the time consumed in the

performance thereof8. Members of the Family of the employer who are dependent on him for support

Q: Are Hourly Paid Faculty Members included within the coverage of employees entitled to holiday pay?A: No, They are not entitled.

Q: What are retail establishments?A: They are engaged in the sale of goods to end-users for personal or household use (ex. Grocery).

Q: What are Service Establishments?A: They are engaged in the sale of services to individuals to individuals for their own or household use (ex. T.V. repair shop).

Q: Is an exercise of profession retail or service?A: Exercise of a profession is neither both.

Q: What are regular holidays?A: They are compensable whether worked or unworked. The following are considered regular holidays:

New Year’s Day January 1

Maundy Thursday Movable Date

Good Friday Movable Date

Eidul Fitr (Muslim Holiday) Movable Date

Araw ng Kagitingan April 9

Labor Day May 1

Independence Day June 12

National Heroes Day Last Sunday of August

Bonifacio Day November 30

Christmas Day December 25

Rizal Day December 30

On the other hand, the following are considered the nationwide special holidays:

All Saints Day November 1

Last Day of the Year December 31

Ninoy Aquino Day August 21 (RA 9256)

All other days declared by law or ordinance as special holidays or non-working days

Eidul Adha shall be celebrated as a regional holiday in the ARMMQ: What are the classes of SPECIAL PUBLIC HOLIDAYS?A: According to LOI814 as amended by LOI 1087, there are two classes of special public holidays and they are:

1.nationwide special public holidays – treated as non working days except when otherwise declared by the President

2. local special public holidays – treated as regular working days

Q: What is the difference between regular holiday and special holiday?A: The following are the differences between regular and special holiday:

Q: What is HOLIDAY PAY?A: It is a premium given to employees pursuant to law even if he has not been suffered to work on a regular holiday.

Q: May an employer require an employee to work on a holiday? A: Yes, but such employee shall be paid a compensation equivalent to twice his regular rate.

Q: What is an important condition that should be met in order to avail/receive the holiday pay?A: The employee should NOT have been absent without pay on the working day preceding the regular holiday. (Azucena)

Q: How is holiday pay rates computed?A: The following are the means to compute holiday pay rates:

Unworked - 100%Worked - 200%If also Rest day - 260%

Q: What is the difference between monthly paid and daily paid employees?A: The difference between the two is the following:

MONTHLY PAID EMPLOYEE

DAILY PAID EMPLOYEE

REGULAR HOLIDAY SPECIAL HOLIDAY

If unworked, regular pay (subject to certain conditions for daily-paid employees)

If unworked, no pay

If worked: 2x regular pay (twice the regular rate)

If worked: + 30% premium (130% of the regular wage)

Set by law Generally set by proclamation

Limited to those cited under Art. 94 of the Labor Code

Not exclusive

one who is paid his wage or salary for EVERY DAY OF THE MONTH, including rest days, Sundays, regular or special days, although he does not regularly work on those days.

one who is paid his wage or salary ONLY on those days he actually worked, except in cases of regular or special days, although he does not regularly work on these days.

Q: Are monthly paid employees excluded from the benefits of holiday pay?A: They are NOT excluded from the benefits of holiday pay. (Mantrade vs. Bacungan)

Q: What is the effect if a legal holiday falls on a Sunday?A: A legal holiday falling on a Sunday creates no legal obligation for the employer to pay extra to the employee who does not work on that day, aside from the usual holiday pay, to its monthly-paid employees. (Wellington vs. Trajano)

Q: What is the concept of DOUBLE HOLIDAY PAY?Ar: The concept of double holiday pay is shown under the following circumstances:

1. 200% of the basic wage: that the employee was PRESENT ON THE DAY IMMEDIATELY PRECEDING the holiday or was on leave with pay

2. 300% of the basic wage: if the employee WORKED ON 2 REGULAR HOLIDAYS falling on the same day provided that he worked or was on leave with pay or was on authorized absence on the day prior to the regular holiday

3. If there are 2 succeeding regular holidays: the employee must be PRESENT ON THE DAY IMMEDIATELY PRECEDING THE FIRST REGULAR HOLIDAY entitled to compensation to both; otherwise, he must work on the first holiday to be entitled to holiday pay on the 2nd regular holiday

RIGHT TO SERVICE INCENTIVE LEAVE (SIL) (Art. 95)

Q: What is Service Incentive LeaveA: It is 5 days leave with pay for every employee who has rendered at least 1 year of service.

Q: Who are entitled to Service Incentive Leave?A:

GR: Applies to every employee who has rendered at least 1 year of service.XPNS: Employee in:

1. Government and any of its political subdivisions including GOCC’s2. Those already enjoying the benefit3. Domestic helpers and persons in the personal services of another4. Those already enjoying vacation leave with pay of at least 5 days5. Managerial employees6. Field personnel and other employees whose performance is unsupervised by the employer7. Employed in establishments regularly employing less than 10 workers8. Exempt establishments9. Engaged on task or contract basis, purely commission basis, or those who are paid in a fixed

amount of performing work irrespective of the time consumed in the performance thereof

Q: Are teachers of private schools on contract basis entitled to service incentive leave?A: Yes, they are entitled to service incentive leave. (Cebu Institute of Technology vs. Ople)

Q: Is SIL commutable to its monetary equivalent if not used or exhausted at the end of the year?A: Yes. Cash equivalent is aimed primarily at encouraging workers to work continuously and with dedication to the company.

Q: What does One year of service mean? A: One year of service is:

1. service within 12 months2. whether continuous or broken3. reckoned from the date the employees started working4. including authorized absences and paid regular holidays 5. unless the number of working days in establishment, as a matter of practice or policy or as provided in the employment contract, is less than 12 months.

VACATION AND SICK LEAVE

Q: What is the nature of vacation and sick leave?A: It is voluntary.

Q: What is the basis of vacation and sick leave?A: It is a result of

1) collective bargaining negotiations or 2) established employer practice or policy, not granted by law

Q: How does an employee enjoy v acation and sick leave benefits? A: It is enjoyed by the employee thru established practice or policy of the employer and cannot be unilaterally withdrawn by the latter.

- It must be claimed, otherwise, waived- cannot be converted into cash unless allowed by employer

Q: What is the reason/rationale for vacation and sick leave?A: It is intended to give the employees a rest from the monotony and rigors of his daily work, on the other hand, sick leave is meant to be enjoyed only during actual illness.

Q: What is PATERNITY LEAVE? A: Paternity leave is:

1. granted to a married male employee (in private and public sectors) 2. allowing him NOT to report for work for seven days 3. but continues to earn the compensation, 4. provided his spouse has delivered OR suffered a miscarriage 5. for purposes of enabling him to actively lend support to his wife in her period of recovery and/or in the nursing of the newly-born child.

NOTE: Avail only for the first 4 deliveries of his legitimate spouse with whom he is cohabiting.

Q: What is the SOLO PARENT LEAVE (RA 8972)? A: It is a leave of not more than 7 working days granted every year to any solo parent employee who has rendered service of at least 1 year

Q: Is the Solo Parent Leave convertible to cash?A: No, It is not convertible to cash UNLESS specifically agreed upon otherwise, and is non-cumulative.

SERVICE CHARGES (Art. 96)

Q: What are service charges?A: These are charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of:

85% for all covered employees to be equally distributed among them. 15% for management (may answer for losses and breakages)

Q: When does the SHARE OF EMPLOYEE be distributed and paid to them?

A: It shall be distributed and paid to the employees not less than once every 2 weeks or twice a month intervals not exceeding 16 days.

Q: What happens if the Service Charge is abolished? A: The share of the covered employees shall be considered integrated in their wages on the basis of the average monthly share of each employees for the past 12 months immediately preceding the abolition.

Service charges part of award in illegal dismissal cases.

Q: What is the difference between tip and service charge?A:

SERVICE CHARGE TIP

What the restaurant requires you to pay for the benefit of its employees

not a voluntary contribution on the part of the customer

what you give to the waiter/waitress after eating if you like their service

voluntary contribution

Q: What happens to the tips given freely by customers? A: Pooled tips should be monitored, accounted for and distributed in the same manner as the service charges where a restaurant or similar establishment does NOT collect service charges but has a practice or policy of monitoring and pooling tips given voluntarily by its customers. (No. 7 [c] DOLE handbook on Workers Statutory Monetary Benefits)

WAGES

Q: What is a wage? A: It is the remuneration or earnings, whatever designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, payable by an employer to an employee under a written or unwritten contract of employment:

1.for work done or to be done, or for services rendered or to be rendered; and

2. fair and reasonable value of board, lodging, or other facilities customarily furnished by the employer to the employee as determined by SLE.

[“Fair and reasonable value” shall not include any profit to the employer or to any person affiliated with the employer.]

Q: What is the difference between wage and salary?A:

Salaries/wages of judgment obligor within 4 months preceding levy as are necessary for the support of the family are EXEMPT from execution. (S13(j), Rule 39, Rules of Court)

Q: What does a fair day’s wage for a fair day’s labor mean?A: If there is no work performed by the employee, there can be no wage or pay unless the laborer was able, willing and ready to work but was prevented by management or was illegally locked out,

Q: To whom does this title does not apply?A: It does not apply to the following:

1. farm tenancy or leasehold

2. household or domestic helpers, including family drivers and persons working in the personal service of another

3. homeworkers engaged in needlework or in any cottage industry duly registered in accordance with law.

4. Workers in duly registered cooperatives when so recommended by the Bureau of Cooperative Development and upon approval of the SLE

Q: What is the difference between facilities and supplement?A:

FACILITIES SUPPLEMENT

WAGE SALARYCompensation for manual labor

Denotes higher degree of employment

Not subject to execution except for debts incurred for food, shelter, clothing and medical attendance

Subject to execution (Gaa vs.CA)

Items of expenses necessary for the laborer’s and his family’s existence and subsistence

(NOTE: does NOT include tools of trade or articles/ services primarily for the benefit of the employer or necessary to the conduct of the employer’s business.)

Extra remuneration or special privilege or benefit given to or received by the laborers over and above their ordinary earnings. (State Marine Corp. and Royal Line, Inc. v. Cebu Seaman’s Assoc., Inc.)

Forms part of the wage Independent of WageDeductible from wage Not wage deductiblefor the benefit of the worker and his family

granted for the convenience of the employer

The criterion in determining whether an item is a supplement or facility is not so much with the kind of benefit or item given, but its PURPOSE. (State Marine vs. Cebu Seamen’s Association)

Art. 99REGIONAL MINIMUM WAGES

Q: What is the duty of Regional Tripartite Wages and Productivity Board (RTWPB)? A: Prescribe the minimum wage rates for agricultural and non-agricultural employees and workers in each and every region of the country.

Q: What is the purpose of fixing a minimum wage?

A:1. provide rock-bottom which the rate must not fall (protecting laborer from sweatshop operators);

2. gives protection to enlightened employer who without legal compulsion voluntarily pays a decent wage against competition of employer who pays employee inadequate wages and thus operate lower cost and sell products at lower price. (Atty. Alcantara)

Q: Can an employer be exempt from his liability to pay minimum wages because of poor financial condition of the company?A: NO, the payment of minimum wage not being dependent on the employer’s ability to pay. Payment of wage is a mandatory statutory obligation. (De Racho vs. Mun. of Ilagan)

Art. 100PROHIBITION AGAINST ELIMINATION OR DIMINUTION OF BENEFITS

Q: What is the concept of non-diminution rule?A: Benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, whether written or unwritten.

Q: What are the tests in ascertaining existence of binding and enforceable company practice?Answer: The act of the employer

1) have been done for a long period of time;2) have been done consistently and intentionally;3) should not have been a product of erroneous interpretation or construction of a doubtful or difficult question on law.

Question: What is a BONUS?Answer:

1) amount granted and paid2) to an employee3) for his industry and loyalty4) which contributed to the success of the employer’s business5) and made possible the realization of profits

Question: Can bonus be demanded?Answer:

GR: Bonus CANNOT be demanded. Given and paid ex gratia to the employee for his industry and loyalty which contributed to the success and realization of profits of the employer’s business.

XPNS:Given for a long period of time

1)Consistent and deliberate – employer continued giving benefit without any condition imposed for its payment

2)Employer knew he was not required to give benefit3)Nature of benefit is not dependent on profit4)Made part of the wage or compensation agreed and stated in the employment contract.

Question: What is 13TH MONTH PAY (PD 851)?Answer: An additional income equivalent to 1/12 of the total basic salary earned by an employee within a calendar year. (Minimum Amount).

May be given anytime but not later than December 24

Question: In what forms is the 13th month pay paid or given?Answer: It is given in the forms of:

Christmas Bonus Midyear Bonus Profit Sharing Scheme Other Cash bonuses amounting to not less than 1/12 of its basic salary

Difference of opinion on how to compute the 13th month pay does NOT justify a strike.

It must always be in the form of legal tender.Free rice, electricity, cash and stock dividends and COLA are NOT proper substitutes for the 13th

month pay.

Question: What is the coverage of the 13th month pay?

Rank-and-File employees - regardless of their designation or employment status and - irrespective of the method which their wages are paid, - who worked for at least 1 month during the calendar year.

Question: What is covered by basic salary?Answer: All remunerations or earnings paid by its employer for services rendered.

Question: What are the exclusions to the basic salary?Answer: Allowances and monetary benefits which are NOT considered integrated as part of the regular or basic salary SUCH AS vacation and sick leave credits, overtime, premium, night differential, holiday pay and COLA .

Qualification: They are treated as part of the basic salary if provided by reasons of individual or collective bargaining or company practice or policy.

Art. 101PAYMENT BY RESULTS

Question: What are the two categories of piece-rate workers?Answer:

1.those who are paid rates as prescribed in Piece Rate Orders by the DOLE2.those who are paid output rates which are prescribed by the employer and are not yet approved by the DOLE.

Question: What are non-time workers?Answer: They are workers paid according to the quantity, quality or kind of job and the consequent results thereof.

Question: What does workers paid on piece-rate basis mean?

ENTITLED EXEMPTED EMPLOYERS

1. All rank-and-file employees who have worked at least 1 month

2. Those with Multiple employers

3. Paid by result

4. Private School Teachers

5. Resigned or Separated employees (proportional)

1. Government

2. Employers of Household Helpers

3. Those already paying

4. Employers paid purely on commission, fixed, boundary or task basis

Answer: Workers paid by standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same.

Question: What is the difference between piece rate employee from task work employee?

Answer:

Question: What are the benefits payable to piece-rate workers?

Answer:

1.Holiday pay2.Applicable statutory minimum daily rate3.Night shift differential pay4.Service incentive leave of five days with pay5.Meal and rest periods

6.Premium pay (conditional)7.Overtime pay (conditional)8.Thirteenth Month Pay9.Other benefits granted by law, individual or collective bargaining agreements or company policy

or practice.

PAYMENT OF WAGES

Question: What is the form of payment of wages?

Answer:

GR: Wages shall be paid in legal tender. (Art. 102)

XPN: Payment of wages by bank checks, postal checks or money orders is allowed where such manner of wage payment is:

1. Customary on the date of the effectivity of the Labor Code.

2. Stipulated in the CBA.

3. Where ALL of the following conditions are met:a. there is a bank or other facility for encashment within a radius of 1 km. from the workplace;

b. the employer or any of its agents or representatives does not receive any pecuniary benefit directly or indirectly from the arrangement.

c. the employees are given reasonable time during banking hours to withdraw their wages from the bank which time shall be considered as compensable hours worked IF done during working hours.

d. payment by check is with consent of the employees concerned IF there is no CBA authorizing payment of wages by bank checks.

4. other instances when necessary because of special circumstances as specified in appropriate regulations to be issued by the SLE.

The use of tokens, promissory notes, vouchers, coupons, or any other form alleged to represent legal tender is ABSOLUTELY PROHIBITED even when expressly requested by the employee.

TIME OF PAYMENT

Question: When should wages be paid?Answer:

GR: Wages shall be paid - At least once every two (2) weeks or - twice a month at intervals not exceeding 16 days

PIECE RATE TASK WORKStress is placed on the unit of work produced, or the quantity thereof.

Emphasis on the task itself

Uniform amount is paid per unit accomplished

Payment is not reckoned in terms of numbers of unit produced, but in terms of completion of work.

No employer shall make payment with less frequency than once a month.

XPN: Payment cannot be made with such regularity - due to force majeure or - circumstances beyond the employer’s control, - in which case the employer shall pay wages immediately after such force majeure or circumstance have ceased. (Art. 103)

Question: How will wages by results involving work which cannot be completed in 2 weeks be paid?Answer:

1.Payment is made at intervals not exceeding 16 days, in proportion to the amount of work completed.

2.Final settlement is made immediately upon completion of work.

Art. 104PLACE OF PAYMENT

Question: Where is the place of payment of wages?

Answer:

GR: Place of payment shall be AT or NEAR the place of undertaking.

XPNS: permissible only under the following circumstances:1.when payment cannot be effected at or near the place of work

a.by reason of the deterioration of the peace and order conditions or

b.by reason of actual or impending emergencies covered by fire, flood, epidemic, or other calamity

c. rendering payment thereat permissible;

2.when the employer provides free transport to the employer back and forth;

3.any analogous circumstances provided that the time spent by the employer is collecting their wage shall be considered a compensable hours worked.

No employer shall pay his employees in any bar, night or day club, drinking establishment, massage clinic, dance hall, or other similar places or in place where games are played with stakes of money or things representing money EXCEPT in case of persons employed in said places.

Question: When can payment thru banks be permitted?Answer:

1. Written permission of the majority of the employees concerned in the establishments

2. Establishment must have 25 or more employees

3. Establishment must be located within 1km radius to the bank. (Section 7, R.A. 6727)

Question: What is the duty of the bank?Answer: Whenever applicable and upon request of a concerned worker or union, the bank shall issue a certification of the record of payment of wages of a particular worker or workers for a particular payroll period.

Question: How does payment of wages be made?Answer:

GR: Payment of wages shall be made DIRECTLY TO THE EMPLOYEES entitled thereto.

XPNS: 1.Force majeure rendering such payment impossible or under other special circumstances in

which the worker may be paid:a.Through another person under written authorization, orb.Upon authorization to a member of his family;

2.In case of death of the employee, in which case it will be paid directly to the worker’s heirs.

3.Authorized by existing laws

a.payment for the insurance premiums of the employee and b.union dues where the right to check off provided in CBA or c.authorized in writing by the individual employees concerned. (Sec. 5, Rule VIII, Book III,

IRR)

CONTRACTING OR SUBCONTRACTING

Question: What is contracting or subcontracting?

Answer:1.refers to an arrangement 2.whereby a principal agrees to put out or farm out with a contractor or subcontractor3. the performance or completion of a specific job, work or service 4.within a definite or predetermined period 5.regardless of whether such job, work or service to be performed or completed within outside the premises of the principal. (D.O. 18-02)

Question: What is a contractual employee?Answer: It includes one employed by a contractor or subcontractor to perform or complete a job, work, or service pursuant to an arrangement between the latter and principal. (D.O. 18-02)

Question: What is job contracting?Answer:

1.refers to the act of carrying out by a person 2.under his own responsibility, supervision and control,3.the performance or completion of a specific job, service or work 4.which has been farmed out by another for the latter’s benefit.

Question: What is labor-only contracting?Answer: It refers to an arrangement where the following conditions concur:

1.the person supplying workers to an employera.does NOT have substantial capital or investment in the form of tools, equipment,

machineries, work, premises, among others, or

b.even if such person has substantial assets, the same are not actually or directly used by the employees contracted out;

2.the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer.

Question: What does substantial capital or investment mean? Answer: It refers to the capital stocks and subscribed capitalization in case of corporations, tools, equipments, implement, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out. (D.O. 18-02)

The law does NOT require BOTH substantial capital and investment in the form of tools, equipments, machineries, etc. this is clear from the use of conjunction “or”. If the contention was to require the contractor to prove that he has both capital and requisite investment, then the conjunction “and” should have been used. (Virginia Neri vs. NLRC, GR No. 97008-09, July 23, 1993)

Question: What does the right to control mean? Answer: It refers to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end. (D.O. 18-02)

Question: What are the conditions before permitting job contracting?

Answer:

1.The labor contractor must be duly LICENSED by the appropriate Regional Office of the DOLE2.There should be a WRITTEN CONTRACT between the labor contractor and his client- employer that will assure the employees at least the minimum labor standards and benefits provided by existing laws.

The employees of the contractor or subcontractor shall be paid in accordance with the provisions of

the Labor Code. (Art. 106)

Question: What is the liability of the employer entering contract with a contractor or subcontractor?

Answer: Joint and several liability with his contractor or subcontractor to such employees to the extent of the work performed under the contract.

Question: What is the difference between job contracting and labor-only contracting?

Answer:

JOB CONTRACTING LABOR-ONLY CONTRACTING

Liability is limited (shall be solidarily liable with employer only when the employer fails to comply with requirements as to unpaid wages and other labor standards violations)

Liability extends to all those provided under the Labor Standards law

Permissible subject only to certain conditions Prohibited by Law

The contract has substantial capital or investment Has no substantial capital or investment

Question: What are the grounds for delisting of contractors or subcontractors?Answer:

1. Non-submission of contracts between the principal and the contractor or subcontractor when required to do so;

2. Non-submission of annual report;

3. Findings through arbitration that the contractor or subcontractor has engaged in labor-only contracting and other prohibited activities;

4. Non-compliance with labor standards and working conditions. (Section 16, D.O. 18-02)

Indirect Employer The provisions of Art 106 shall likewise apply to ANY person, partnership, association or corporation which, NOT being an employer, contracts with an independent contractor for the performance of any work, task, job or project. (Art. 107)

The employer or indirect employer may require the contractor or subcontractor to furnish a bond to the cost of labor under contract conditioned to answer for the wages due the employees should the latter fail to pay the same. (Art. 108)

Every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of the provisions of the Labor Code.

For purposes of determining their civil liability, every employer or indirect employer shall be considered as direct employers. (Art. 109)

Where however the law provides for the subsidiary liability of the principal for unpaid wages as in RA 6640, the same should be given its literal meaning and applied without interpretation. The term “subsidiarily liable” as used in RA 6640 means “secondarily liable.”

Secondary liability is a personal liability which attaches when the remedy against one primarily liable has been exhausted and which may be satisfied from all assets of one secondarily liable. (Enjay, Inc. vs. NLRC, GR No. 110240, July 4, 1995.)

Under SSS Law (RA 8282), the principal is also made subsidiarily answerable for the liabilities of its job contractor.

Question: What happens if the employer’s business experiences BANKRUPTCY OR LIQUIDATION?

Answer: His workers shall enjoy first preference as regards their wages and monetary claims, any provision of the law to the contrary notwithstanding.

IMPORTANT! Such unpaid wages and monetary claims shall be paid in FULL before the claims of the government and other creditors may be paid. (Art. 110)

Question: What the principles underlying the preference?

Answer:

1. Declaration of bankruptcy or judicial liquidation before enforcement of the worker’s preferential right

2. The right does not constitute a lien to the property of the insolvent debtor in favor of workers (DBP vs. NLRC, GR No. 8276384, march 19, 1990 and GR No. 97175, March 18, 1993)

3. The preference in favor of the employees applies to discharge of funds. The preference does not only cover unpaid wages, it also extends to termination pay and other monetary claims.

Termination pay, after all, is considered as additional remuneration for services rendered to the employer for a certain period of time; it is computed on the basis of length of service.(PNB vs. Crux, GR No. 80593, December 2, 1989)

Question: What are the limitations to the assessment of attorney’s lien against the culpable party (Art. 111)?

Answer:

1. In case of unlawful withholding of wages – 10% of the amount of wages to be recovered.

2. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees that exceed 10% of the amount of wages recovered.

The prohibition for attorney’s lien refers to proceedings for recovery of wages and not to services rendered in connection with CBA negotiations.

In the latter case, the amount of attorney’s fees may be agreed upon by the parties and the same is to be charged against union funds as provided for in Art. 222 of the Labor Code. (Pacific Banking Corporation vs. Clave GR No. L-56965, March 7, 1984)

PROHIBITION REGARDING WAGES

Question: What does the non-Interference in the disposal of wages (Art. 112) means?

Answer:

1.Limit or otherwise interfere with the freedom of any employee to dispose of his wages;

2.Force, compel, or oblige his employees to purchase merchandise, commodities or other property from any person, or otherwise make use of any store, or service of such employer or any other person.

WAGE DEDUCTIONS

Question: What are the ALLOWABLE DEDUCTIONS?Answer:

1.Deductions under Art. 113 for insurance premiums

2.Union dues in cases where the right of the worker or his union to check off has been recognized by the employer or authorized in writing by the individual worker concerned (Art. 113). Paragraph (o) Article 241 provides that special assessments may be validly checked-off provided that there is an individual written authorization duly signed by every employee.

3.Deductions for SSS, Medicare and Pag-Ibig Premiums

4.Taxes withheld pursuant to the Tax Code

5.Deductions under Art. 114 for loss or damage to tools, materials or equipments

6.Deductions made with the written authorization of the employee for payment to a third person, as authorized under Sec 13, Rule VIII, Book III of the IRR

7.Deductions as disciplinary measures for habitual tardiness (Opinion dated March 10, 1975 of the SLE)

8.Agency Fees under Art. 248(e)

9.Deductions for value of meals and facilities freely agreed upon

10. In case where the employee is indebted to the employer where such indebtedness has become due and demandable. (Art. 1706, Civil Code)

11. In court awards, wages may be subject of execution or attachment, but only for debts incurred for food, shelter, clothing, and medical attendance. (Art. 1703, Civil Code)

12. Salary deduction of a member of a legally established cooperative (RA 6938, Art. 59)

Union Dues: employee’s check-off authorization, even if declared irrevocable, is good only as long as the employee remains a member in good standing of the union concerned

Question: Can the employer make deductions from an employee’s wage?Answer:

GR: No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss or damage to tools, materials, or equipment supplied by the employer. (Art. 114)

XPNS:1. The employer is engaged in trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one.

2. Necessary or desirable as determined by the SLE in appropriate rules and regulations.

Question: What are the conditions for deductions?Answer:

1.The employee concerned is clearly shown to be responsible for the loss or damage;

2.The employee is given reasonable opportunity to show cause why deduction should not be made;

3.The amount of such deduction is fair and reasonable and shall not exceed the actual loss or damage;

4.The deduction from the wages of the employee does not exceed 20% of the employee’s wage in a week.

Arts. 116-119

Question: What are considered UNLAWFUL ACTS?Answer:

1. Withholding of any amount, a. by any person, b. indirectly or directly, c. from the wage of a worker or d. induce him to give up any part of his wages e. by force, stealth, intimidation, thereat or by any other means whatsoever without the

worker’s consent. (Art. 116)

2. Make any deductions a. from the wages of any employee b. for the benefit of the employer or his representative or intermediary c. as consideration of a promise or employment or retention in employment. (Art 117)

3. Refusal of an employer a. to pay or reduce the wages and benefits, b. discharge or in any manner discriminate against any employee

c. who has filed any complaint or instituted any proceeding under this title or d. has testified or is about to testify in such proceedings. (Art. 118)

4. For any person to make any statement, report or record filed or kept pursuant to the provisions of the Labor Code

- knowing such statement, report or record to be false in any material aspect. (Art. 119)

WAGE STUDIES, WAGE AGREEMENTS AND WAGE DISTORTIONS

Question: What is a Minimum Wage?Answer: It is the lowest wage rate fixed by law that an employer can pay his employees.

Question: What is a Wage Order? Answer: It refers to the Order promulgated by the RTWPB pursuant to its wage fixing authority.

Question: When does a wage order take effect?Answer: It takes effect after 15 days from the complete publication in at least 1 newspaper of general circulation in the region.

Frequency: a wage order issued by the Board may NOT BE DISTURBED for a period of 12 months from its effectivity and no petition for wage increase shall be entertained during said period, unless Congress itself issue a law increasing the wages.

Question: What are requisites for validity of wage order?

Answer:

1.Public consultation and hearing2.Publication in a newspaper of general circulation

Question: When does an appeal to a wage order be made?Answer:

1. It shall be made within 10 days from publication

2. The commission will decide within 60 calendar days from the filing of the aggrieved party

3. Grounds:a.Non-conformity with prescribed guidelines and/or procedureb.Questions of lawc.Grave abuse of discretion

GR: Appeal will NOT stay the wage order.XPN: Appellant files adequate surety

Art. 124

Question: What are STANDARDS OR CRITERIA FOR MINIMUM WAGE FIXING?Answer:

1. Demand for living wages

2. Wage adjustment vis-à-vis the consumer price index

3. Cost of living and changes or increase therein

4. Needs of workers and their families

5. Need to induce industries to invest in the countryside

6. Improvements in standards of living

7. Prevailing wage levels

8. Fair return of capital invested and the capacity to pay of employers

9. Effects on employment generation and family income

10. Equitable distribution of income and wealth along the imperatives

Question: What is Regional Minimum Wage?Answer: It is the lowest basic wage rates that an employer can pay his workers, as fixed by the RTWPB, and which shall not be lower than the applicable statutory minimum wage rates.

Question: What is a wage distortion?Answer:

1.a situation 2.where an increase in wage 3.results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates 4.between and among the employee-groups in an establishment 5.as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service or other logical bases of differentiation.

Question: How does a correction of a wage distortion be made?Answer:

Wage Distortion: NON-Strikeable

Wage Order can not prevent workers in particular firms or enterprises or industries from bargaining for higher wages with their respective employers. (Art. 125)

No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or entity against any proceedings before the Commission or the Regional Boards. (Art. 126)

No wage order issued by any Regional Board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. (Art. 127)

ADMINISTRATION AND ENFORCEMENT

Question: What are the 3 Kinds of powers of the SLE?Answer:

1. Visitorial powers2. Enforcement Powers3. Appellate or power to review

Question: What is a visitorial power?Answer:

1) access to employer’s records and premises at any time of the day or night, whenever work is being undertaken therein

2) to copy from said records3) question any employee and investigate any fact, condition or matter which may be necessary

to determine violations or which may aid in the enforcement of the Labor Code and of any labor law, wage order, or rules and regulation issued pursuant thereto.

Question: What is enforcement power?Answer:

1)Issue compliance orders

2)Issue writs of execution for the enforcement of their orders, EXCEPT in cases where the employer contests the findings of the labor officer and raise issues supported by documentary proof which were not considered in the course of inspection

Organized Establishment

Unorganized Establishments

the employer and the union shall NEGOTIATE to correct distortion

the employer and the workers shall ENDEAVOR to correct the distortion

any dispute shall be resolved through a GRIEVANCE PROCEDURE under the CBA

any dispute shall be settled through the NCMB

If it remains unresolved, it shall be dealt with through VOLUNTARY ARBITRATION

if it remains unresolved within 10 days it shall be REFERRED to the NLRC

The dispute will be resolved within 10 days from the time the dispute was referred to voluntary arbitration

The NLRC shall conduct continuous hearings and decide the dispute within 20 days from the time the same was referred

3)Order stoppage of work or suspension of operation when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to health and safety of workers in the workplace;

4)Require employers to keep and maintain such employment records as may be necessary in aid to the visitorial and enforcement powers.

Question: What are the VIOLATIONS UNDER ART. 128?

Answer:

1.Obstruct, impede, delay or otherwise render ineffective the orders of the SLE or his authorized representatives

2.Any government employee found guilty of, or abuse of authority, shall be subject to administrative investigation and summary dismissal from service.

Question: What are the limitations to other courts?

Answer: In relation to enforcement orders issued under Art. 128, no inferior court or entity

1. shall issue temporary or permanent injunction or restraining order or2. assume jurisdiction over any case

Art. 129RECOVERY OF WAGES, SIMPLE MONEY CLAIMS, AND OTHER BENEFITS

Question: What are the powers of a Regional Director?Answer: He exercises jurisdiction over recovery of wages, et. al.

Provided:1. Claim is presented by an employee/person employed in domestic or household service, or househelper

2. Claim arises from employer-employee relations

3. Claimant does not seek reinstatement

4. Aggregate amount of the money claim does not exceed P5,000 inclusive of legal interest

Resolved within 30 calendar days from the date of filing.

WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES

EMPLOYMENT OF WOMEN

Art. 130

Question: Can a woman be permitted to work with or without compensation?Answer:

Art. 128Visitorial and Enforce-ment Powers of SLE

Art. 129Regional Directors

Art. 217(a)(6)Labor Arbiter

Inspection of establishments and issuance of orders to compel compliance with labor standards, wage orders and other labor laws

Adjudication of employees’ claims for wages and benefits

Labor Arbiter exercises original and exclusive jurisdiction

Enforcement of labor legislation in general

Limited to monetary claims

All other claims arising from employer-employee relations

Proceeding is an offshoot of routine inspections

Initiated by sworn complaints filed by any interested party

Labor Arbiter decides case within 30 calendar days after submission of the case by the parties for decision

No jurisdictional requirements

Jurisdictional requirements:

1) Complaint arises from employer-employee relationship

2) Claimant is an employee or person employed in domestic or household service or a househelper

3) Complaint does NOT include a claim for reinstatement

4) Aggregate money claim of EACH claimant does not exceed P5,000

1) All other claims arising from employer-employee relations

2) including those of persons in domestic or household service

3) involving an amount exceeding P5,000

4) whether or not accompanied with a claim for reinstatement

Order is appealable to SLE

Order is appealable to NLRC

Appealable to NLRC

GR: NO WOMAN regardless of age shall be employed or permitted to work, with or without compensation:

1. In any industrial undertaking or branch thereof between 10pm and 6am the following day.

2. In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and 6am of the following day

3. In any agricultural undertaking at nighttime unless she is given period of rest not less than 9 consecutive hours.

XPNS (Art. 131):1. actual or impending emergencies a. caused by serious accident, fire, flood, typhoon, earthquake, epidemic, other disasters, or calamityb. to prevent loss of life or property or c. in case of force majeure or d. imminent danger to public safety

2. urgent work a. to be performed on machineries, equipment or installations, b. to avoid serious loss which the employer would otherwise suffer

3. work is necessary to prevent serious loss to perishable goods

4. woman employeea. holds a responsible position of managerial or technical nature, orb. has been engaged to provide health and welfare services

5. nature of the work a. requires the manual skill and dexterity of women workers and b. the same cannot be performed with equal efficiency by male workers

6. women employees are immediate members of the establishment or undertaking

7. analogous cases exempted by the Secretary of Labor in appropriate regulations.

The operation of CALL CONTRACT CENTER which provides offshore case solutions to US based clients who phone in to conduct product inquiries and technical support, operating for 24/7, has been exempted from the prohibition considering the inevitable time difference between the US and the Philippines and the peak time for its operation is between 8:00 pm to 10:00 am Manila time, thereby making it necessary for eighty (80%) of its employees, including women, to work during graveyard shift. (BWC-WHSD Opinion No. 491, s 2003).

Art. 132

Question: What are FACILITIES FOR WOMEN?Answer: SLE may require employers to:

1) Provide seats which are proper for women2) Establish separate toilet rooms and lavatories for men and women 3) Provide at least one dressing room for women4) Establish a nursery in the establishment5) Determine appropriate minimum age and other standards for retirement or termination of

employment in special occupations such as those of flight attendants and the like

Question: What is MATERNITY LEAVE? Answer:

1.period of time 2.which may be availed of by a woman employee, 3.married or unmarried, 4.to undergo and recuperate from child birth, miscarriage or complete abortion 5.during which she is permitted to retain her rights and benefits flowing from her employment. (Art. 133) (SEE SSS LAW)

Question: What is PATERNITY BENEFIT (RA 8178)?Answer:

1.granted to male married employees in the private or public sector

2.allows employee not to report for work within 7 working days

3.conditions:a. spouse has delivered a child or b.suffered a miscarriage

4.purpose: enabling male employee to effectively lend support to his wife in her period of recovery and/or in the nursing of the newly-born child

5.requires notification of employer of the pregnancy of his legitimate spouse and the expected delivery date

6.employee is entitled 7 days with full pay for the first 4 deliveries of the legitimate spouse with whom he is cohabiting

7.benefit is not convertible in cash in case it is not availed of

Art. 134

FAMILY PLANNING SERVICES

Question: What is the duty of employer?

Answer: He is required to provide clinic or infirmary in order to provide free family planning services to their employees which shall include but not limited to the application or use of contraceptives or intra-uterine devices.

The rule applies only to all private establishments which habitually employ 200 or more employees at any given period within a year.

Question: What is the duty of DOLE?Answer: Develop and prescribe incentive bonus scheme to encourage family planning among female workers in any establishment or enterprise.

Question: What are the UNLAWFUL ACTS AGAINST WOMEN EMPLOYEES?Answer:

1. Discrimination with respect to the terms and conditions of employment solely on account of sex a. Payment of lesser compensation to a female employee as against a male employee for work

of equal valueb. Favoring a male employee with respect to promotion, training opportunities, study and

scholarship grants on account of gender (Art. 135)

2. Stipulating, a. whether as a condition for employment or continuation of employment,b. that a woman employee shall not get married,c. or that upon marriage, such woman employee shall be deemed resigned or separated. (Art.

136)

3. Dismissing, discriminating or otherwise prejudice a woman employee by reason of her being married (Art. 136)

4. Denying any woman employee benefits provided by law (Art. 137)

5. Discharge any woman for the purpose of preventing her from enjoying any of the benefits provided by law (Art. 137)

6. Discharging such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy (Art. 137)

7. Discharging or refusing the admission of such woman upon returning to her work for fear that she may again be pregnant (Art. 137)

Philippine AIDS Prevention and Control Act of 1998 (RA 8504): discrimination in any form from pre employment to post employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual is UNLAWFUL.

Art. 138

Question: What is the classification of certain women workers?Answer:

1. any women who is permitted or suffered to work 2. with or without compensation3. in any night club, cocktail lounge, massage clinic, bar or similar establishment4. under the effective control or supervision of the employer for a substantial period of time5. shall be considered as an employee of such establishment for purposes of labor and social

legislation.

EMPLOYMENT OF MINORS

Question: What is the Minimum Employable Age?Answer:

Age of Minor

Condition

Below 15

GR: Not employable

XPN: when child works directly under the sole responsibility of his parents or guardianAND his employment does not interfere with his schooling

Above 15 but below 18

Employable for such number of hours and such periods of day as determined by the SLE in appropriate regulations.

Question: What are the general prohibitions?Answer:

1. No person under 18 years of age will be allowed to be employed in an undertaking which is hazardous or deleterious in nature.

2. No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age.

Question: What is a non-hazardous work?Answer: It is any work or activity in which the employee is not exposed to any risk which constitutes an imminent danger to his safety and health

Question: When is an employment of person below 15 allowed (RA 7658)?Answer:

1. The child works directly under the sole responsibility of his parents, or guardians who employ members of his family, subject to the following conditions:

a. employment does not endanger the child’s safety, health and moralsb. employment does not impair the child’s normal developmentc. employer-parent or legal guardian provides the child with the primary and/or

secondary education prescribed by the DEPED

2. The child’s employment or participation in public entertainment or information through cinema, theater, radio or television is essential provided

a. employment contract is concluded by the child’s parents or legal guardian, b. with the express agreement of the child concerned, if possible, c. and the approval of DOLE, the following must be complied with:

i. the employment does not involve advertisement or commercials promoting alcoholic beverages, intoxicating drinks, tobacco and its by-products or exhibiting violence

ii. there is a written contract approved by DOLEiii. the conditions provided in the first instance are met.

Pertinent provisions of the Child and Youth Welfare Code (PD 603)

Art. 107: Children below 16 years of age may be employed to perform light work which is not harmful to their safety, health or normal development and which is not prejudicial to their studies.

Art. 108: The employer shall submit to DOLE a report of all children employed by him.

Art. 109: Every employer in any commercial, industrial or agricultural establishment or enterprise shall keep: 1. A register of all children employed by him, indicating dates of their birth2. A separate file for the written consent to their employment given by their parents

3. A separate file for their educational and medical certificates4. A separate file for special work permits issued by the SLE in accordance with existing laws.

Art. 110: if a domestic is under 16 years of age, the head of the family shall give him an opportunity to complete at least elementary education as required under Art. 71.

Provisions under Revised Penal Code on Child LaborArt. 272: Exploitation of Child laborArt. 278: Exploitation of Minors

EMPLOYMENT OF HOUSEHELPERS

Question: What is a domestic or household service?Answer:

1)services in the employer’s home 2)which is usually necessary or desirable 3)for the maintenance and employment thereof and 4)includes ministering to the personal comfort and convenience of the members of the employer’s household, 5)including services of family drivers.

Question: What is a househelper?Answer: A househelper is synonymous to domestic servant

1) any person, 2) whether male or female, 3) who renders services in and about the employer’s home and 4) which services are usually necessary or desirable for the maintenance and enjoyment thereof, and 5) ministers exclusively to the personal comfort and enjoyment of the employer’s family

The children and relatives of a househelper who live under the employer’s roof and who share the accommodations provided for the househelpers by the employer shall NOT be deemed as househelpers if they are NOT otherwise engaged as such and are not required to perform any substantial household work. (Sec 3, Rule XII, Book III, IRR)

Question: What are RIGHTS OF HOUSEHELPERS?Answer:

1.Original contract of domestic service shall not last for more than 2 years but it may be renewed by the parties. (Art. 142)

2.Entitled to minimum wage in addition to lodging, food, and medical attendance. (Art. 144)

3.Employment contract should be reviewed every 3 years with the end view of improving the terms and conditions of employment. (Art. 143)

4.SSS benefits for those who are receiving at least P1,000 (Art. 143)

5.Non-assignment to a work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers. (Art. 145)

6.Employees under 18 years of age shall be given opportunity for at least elementary education. The cost of education shall be part of the household’s compensation, unless otherwise stipulated. (Art 146)

7.Should be treated in a just and humane manner. (Art. 147)

8.Not to be treated with physical violence (Art. 147)9.Suitable and sanitary living headquarters as well as adequate food and medical attendance. (Art. 148)

10. Termination of employment should bea. upon expiration of term of employment orb. based on just cause (Art. 149)

Book FiveLABOR RELATIONS

Q: WHAT IS LABOR RELATIONS?

A: The interaction between an employer and employees and their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted and enforced.

Q: WHAT IS LABOR RELATIONS LAW?

A: It is concerned with the stabilization of relations of employer and employees and seeks to forestall and adjust differences between them by the encouragement of collective bargaining (CB) and the settlement of labor disputes thru conciliation, mediation and arbitration.

Q: WHAT IS COLLECTIVE BARGAINING?

A: The process of negotiation between an employer and employee’s organization or union to reach agreement on the terms and conditions of employment for a specified period.

Q: CAN THERE BE COLLECTIVE BARGAINING WITHOUT AN EMPLOER- EMPLOYEE RELATIONSHIP?

A: If the employer-employee relationship is absent, there would be no basis for collective bargaining since there is no labor relation to speak of.

Q: WHAT IS ARBITRATION?

A: The submission for determination of disputed matter to private unofficial persons selected in the manner provided by law or agreement. It may be compulsory (enforced by statutory provision) or voluntary (agreement).

Q: WHAT IS MEDIATION?

A: It is the act of a third person that interferes between two contending parties with a view to reconcile them or persuade them to adjust or settle their dispute.

Q: WHAT ARE THE PERTINENT CONSTUTIONAL PROVISIONS ON LABOR RELATIONS?

A: UNDER, Section 3, Article XIII of the 1987 Constitution, it guarantees to all workers:1. Right to self-organization, 2. Collective bargaining and negotiations, 3. Peaceful and concerted activities

- Including the right to strike in accordance with law and 4. To participate in policy and decision-making processes affecting their rights and benefits as may be

provided for by law.

Q: WHAT ARE THE STATE POLICIES ON LABOR RELATIONS AS PROVIDED UNDER ART. 211 OF THE LABOR CODE?

A: The state aims to promote the following:1. Free collective bargaining and negotiations, mediation and conciliation.2. Free trade unionism3. Free and voluntary organization of a strong and united labor movement.4. Enlightenment of workers concerning their rights and obligations as union members and employees.5. Adequate administrative machinery settlement of labor and industrial disputes.6. Stable but dynamic and just industrial peace must be ensured.7. Truly democratic method of regulating the relations of workers and employers should be

encouraged.8. Participation of workers in decision and policy-making processes affecting their rights, duties and

welfare must be ensured.

Q: CAN THE COURT FIX RESORT TO VOLUNTARY ARBITRATION?

A: Except, for compulsory arbitration under art 263 par. G, resort to voluntary arbitration dispute, should not be fixed by the court but by the parties relying on their strengths and resources.

Q: WHO ARE THE PARTIES TO LABOR RELATION CASES?

A: 1. Employee’s organization 2. Management 3. The Public

Q: WHO IS AN EMPLOYER?

A: It includes any person acting in the interest of an employer, directly or indirectly, does not include any labor organization or any of its officers or agents except when acting as employer.

Q: WHO IS AN EMPLOYEE?

A: Any person in the employ of a particular employer including an individual whose work has ceased as a result of or in connection with any current labor dispute or because of any ULP, if he has not obtained any other substantially equivalent and regular employment.

Q: WHAT IS A BARGAINING UNIT?

A: Group of employees, sharing mutual interests, within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit.

Q: WHAT IS A WORKER’S ASSOCIATION?

A: Any association of workers organized for the mutual aid and protection of its members for any legitimate purpose other than for collective bargaining.

Q: WHO IS AN EXCLUSIVE BARGAINING REPRESENTATIVE?

A: Any legitimate labor organization duly recognized or certified as the sole and exclusive bargaining agent of all the employees in a bargaining unit.

Q: WHO IS A VOLUNTARY ARBITRATOR?

A: Any person accredited by the Board to act as such pursuant to a selection procedure agreed upon.

Q: CAN THERE BE SEVERAL UNIONS IN ONE BARGAINING UNIT?

A: YES. There may be several unions in a bargaining unit but only one will be chosen as bargaining agent thru certification election.

Q: CAN THERE BE SEVERAL AGENTS IN ONE UNIT?

A: No.

Q: CAN THERE BE SEVERAL AGENTS IN ONE COMPANY?

A: Yes.

Q: CAN THERE BE SEVERAL CBA’S IN ONE COMPANY?

A: YES. Provided only one CBA per bargaining unit.

Q: ARE ALL LEGITIMATE UNIONS A BARGAINING UNIT?

A: NO. Union may be legitimate but not a bargaining agent.

Q: WHAT IS A LABOR MANAGEMENT COUNCIL?

A: Deals with the employer on matters affecting the employee’s rights, benefits and welfare.

NATIONAL LABORRELATIONS COMMISSION

Q: WHAT IS THE EFFECT IF A UNION IS NOT REGISTERED WITH DOLE?

A: It is still a lawful union but without legal personality. It does not acquire certain rights which are accorded only to registered unions.

Q: WHAT IS A LABOR ORGANIZATION?

A: Any union or association of employees in whole or in part for the purpose of collective bargaining or of dealing with employers concerning the terms and conditions of employment.

Q: WHAT ARE THE THREE KINDS OF LABOR DISPUTE?

A: IT INCLUDES THE FOLLOWING:

1. Matter or controversy concerning the terms and conditions of employment;2. Association – e.g. intra union dispute;3. Representation -- e.g. inter union dispute.

Arts. 213- 216

Q: WHAT IS THE NATURE OF THE NATIONAL LABOR RELATIONS COMMISSION?

A: It is the principal government agency that hears and decides labor-management disputes. - An independent labor court.- Has regional arbitration branch- Acts as a body, either en Banc of 15 commissioners or any of the 5 divisions, each with 3

commissioners.

Q: WHAT ARE THE INSTANCES IN WHICH THE NLRC IS REQUIRED TO SIT EN BANC?

A: 1.Promulgation of rules and regulations governing the hearing and disposition of cases.

2.Formulation of policies affecting its administration and operations.

3.Allow cases within the jurisdiction of any division to be heard and decided by any other division.

Outside of the 3 instances, the acts of the NLRC are done thru its divisions and the concurrence of 2 commissioners of a division shall be necessary for the pronouncement of a judgment or resolution.

Q: WHAT IF THERE ARE INCONSISTENCIES IN THE FINDINGS OF FACTS OF THE LABOR ARBITER AS AFFIRMED BY THE NLRC AND THAT OF THE COURT OF APPEALS?

A: The Supreme Court will make a scrutiny of the findings of fact.

Q: WHAT IS THE TRIPARTITE COMPOSITION OF THE NLRC?

A: 1. Workers 2. Employers 3. Public

Q: WHAT IS THE EFFECT OF FAILURE TO RAISE THE LACK OF JURISDICTION OF THE LABOR TRIBUNAL AT THE EARLIEST OPPORTUNITY?

A: Estoppel will lie.

Art. 217 -JURISDITION OF LABOR ARBITER

Q: WHAT ARE THE INSTANCES IN WHICH THE LABOR ARBITER HAS EXCLUSIVE AND ORIGINAL JURISDICTION?

A: Labor Arbiters have original and exclusive jurisdiction to hear and decide the following cases involving ALL workers:

1. Unfair labor practice2. Termination disputes3. Cases filed by workers

a. Involving wages, rates of pay, hours of work and other terms and conditions of employment

b. Accompanied with a claim for reinstatement4. Claims

a. For actual, moral, exemplary and other damagesb. Arising from employer-employee relations (even for OFWs’. However, The POEA

continues to have jurisdiction over recruitment or pre-employment cases which are administrative in nature, involving or arising out of recruitment laws, rules and regulations, including money claims arising there from or violation of the conditions for issuance of license to recruit workers).

5. Cases arising from violations of Art. 264 (prohibited activities – strikes and lock-outs)6. Questions involving legality of strikes and lock-outs7. All other claims arising from employer-employee relations

a. Including persons in domestic or household serviceb. Involving an amount exceeding P5,000c. Whether or not accompanied with a claim for reinstatement

EXCEPTIONS:1. Claims for employees’ compensation2. Social security3. Medicare4. Maternity benefits

Q: WHO ARE THE WORKERS COVERED BY THE JURISDICTION OF THE LABOR ARBITER?

A: ALL workers whether agricultural or non-agricultural; GOCCs without an original charter and has been incorporated under the Corporation Code; religious organization. NO JURISDICTION over international agencies.

Q: WHAT IS THE EXTENT OF THE JURISDICTION OF THE LABOR ARITER IF THERE ARE UNRESOLVED MATTERS ARISING FROM THE INTERPRETATION OF THE CBA?

A. Labor Arbiters have no jurisdiction over unresolved or unsettled grievances arising from the interpretation or implementation of a CBA and those arising from the interpretation or enforcement of company personnel policies, which fall within the jurisdiction of the voluntary arbitrator/s named in the CBA, unless the case involves actual dismissal.

XPN: Actual termination dispute can be heard by the labor arbiter although an interpretation of the CBA provision.

Q: WHO HAS EXCLUSIVE APPELLATE JURISDICTION OVER ALL CASES DECIDED BY LABOR ARBITERS?

A: National Labor Relations Commission

Q: IS A MOTION FOR RECONSIDERATION REQUIRED BEFORE CERTIORARI MAY BE AVAILED OF?

A: YES. Before certiorari may be availed of, the petitioner must have filed a Motion for Reconsideration, to enable it to correct its mistakes, within 10 calendar days from receipt of such order or resolution. If no MR was filed, NLRC’s decision becomes final and executory after 10 days from its receipt and is a fatal defect that warrants the dismissal of the petition for certiorari before the SC.

EXCEPTION: In the interest of substantial justice, MR on the decision of the NLRC may not be required.

Q: WHAT IS THE EFFECT OF THE DENIAL OF THE MOTION FOR RECONSIDERATION?

A: If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than 5 days in any event, reckoned from the notice of the denial. No extension of time to file the petition shall be granted except for the most compelling reason and in no case to exceed 15 days.

Q: DOES THE JURISDICTION OF LABOR ARBITERS HAVE JURISDICTION OVER WAGE DISTORTION CASES IN ORGANIZED ESTABLISHMENTS?

A: Labor Arbiters have jurisdiction over wage distortion cases only in unorganized establishments. In organized establishments, jurisdiction is vested with Voluntary Arbitrators.

Arts. 218-219

Q: WHAT ARE THE POWERS OF THE NATIONAL LABOR RELATIONS COMMSSION?

A:1. Make rules and regulations pertaining to its functions.2. Administer oaths and issue subpoenas and summons.3. Decide appealed cases.4. Hold persons in contempt.5. Investigate, hear and decide disputes within its jurisdiction.6. Issue restraining orders and injunctions (exception to Art. 254 which provides that injunction or

restraining order is prohibited in any case growing or involving out of labor disputes.7. Conduct ocular inspection at any time during office hours.

Q: WHAT IS THE EXTENT OF JURISDICTION OF NLRC OVER MONEY CLAIMS?

A: Jurisdiction of NLRC over money claims is only appellate.

Q: CAN THE LABOR ARBITER ISSUE WRITS OF INJUNCTION?

A: NO. The labor arbiter does not have the power to issue writs of injunction nor TRO. Art 217 nor the NLRC rules of procedure does not grant them such authority.

Art. 220

Q: WHAT IS COMPULSORY ARBITRATION?

A: It is a process of settlement of labor disputes by a government agency that has the authority to investigate and make an award, which is binding on all parties.

Q: ARE THE STRICT RULES OF EVIDENCE OBSERVED IN PROCEEDINGS BEFORE THE NLRC?

A: The general rule states that strict rules of evidence and procedures are NOT binding in any of the proceedings before the NLRC or Labor Arbiter. All efforts towards amicable settlement shall be exerted.

Exceptions: The cardinal primary requirements of due process must be respected such as:1. Violator must be heard and be given the opportunity to present evidence2. Evidence presented must be duly considered before any decision is made3. Decision must be based on substantial evidence4. Decision was made by the authority and should explain the issues involved and the reason for the

decision rendered.5. Right to a speedy disposition of cases

Q: Can denial of due process by the labor arbiter be cured by appeal to the NLRC?

A: Yes.

Art. 222 (APPEARANCES AND FEES)

Q: WHEN MAY NON-LAWYERS APPEAR BEFORE THE COMMISSION OR ANY LABOR ARBITER?

A: Non-lawyers may appear before the Commission or any Labor Arbiter only:

1. If they represent themselves; or 2. If they represent their organization or members thereof.

Q: WHERE SHALL ATTORNEY’S FEES TAKEN?

A: The attorney’s fees for CBA negotiation and conclusions shall be in the amount agreed upon by the parties to be taken from the union funds and not from the individual union members.

Q: WHAT IS THE MAXIMUM AMOUNT TO BE GIVEN TO A LAWYER FOR LEGAL ASSISTANCE RENDERED?

A: The amount must not exceed 10% of the total monetary award adjudged the employees excluding the award for moral and exemplary damages.

Q: ARE LABOR CASES SUBJECT TO BARANGAY CONCILIATION?

A: NO. Labor cases are NOT subject to Barangay Conciliation under PD 1508

Art. 223APPEAL

Q: ARE THE DECISIONS, ORDERS OR AWARDS OF THE LABOR ARBITER FINAL AND EXECUTORY?

A: YES. Decisions, orders or awards of the Labor Arbiter are final and executory UNLESS it has been appealed to the NLRC within 10 days from its receipt.

Q: WHAT ARE THE GROUNDS FOR APPEAL?

A: Grounds for appeal are as follows:1. Prima facie evidence of abuse of discretion on part of Labor Arbiter or Compulsory Arbitrator2. Decision, order or award was secured thru fraud or coercion, including graft and corruption.3. Appeal is purely on questions of law.4. Serious errors in the finding of facts are raised which would cause great or irreparable damage

or injury to the appellant

Q: IS THE DECISION OF THE LABOR ARBITER REINSTATING A DISMISSED EMPLOYEE PENDING APPEAL EXECUTORY?

A: YES. The decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory EVEN PENDING APPEAL.

Q: WHAT ARE THE TWO OPTIONS OF EMPLOYER IN REINSTATEMENT?

A: (1) Re-admit employee under same terms and conditions; (2) Reinstate merely in the payroll

Q: IS THE POSTING OF A CASH OR SURETY BOND REQUIRED FOR THE PERFECTION OF THE LABOR ARBITER’S MONETARY AWARD?

A: Posting of a cash or surety bond is a SINE QUA NON for the perfection of an appeal from the labor arbiter’s monetary award UNLESS:

(1) The amount of the monetary award is not included in the judgment; (2) Monetary award consists of moral and exemplary damages; (3) Appellant employer is prepared to accept and comply with the monetary awards. HOWEVER, posting of a bond by the employer shall not stay the execution of reinstatement.

Q: IS THE APPROVAL OF THE LABOR ARBITER BEFORE WHOM A CASE IS PENDING REQUIRED BEFORE A COMPROMISE AGREEMENT MAYBE ENTERED INTO?

A: Sec. 2 Rule V of the New Rules of the NLRC requires that a compromise agreement of case pending before the Labor Arbiter be approved by the labor arbiter before whom the case is pending after being satisfied that it was voluntarily entered by the parties and after having explained to them the terms and consequences thereof.

Quitclaims executed before the labor arbiters who had no participation in any aspect of the case are not valid compromises.

Q: WHAT IS THE PERIOD TO DECIDE A CASE FILED BEFORE THE NLRC?

A: The NLRC shall decide all cases within 20 calendar days from receipt of the answer of the appellee. The same becomes final and executory after 10 calendar days from receipt of the parties.

Q: WHO MAY ISSUE A WRIT OF EXECUTION ON A JUDGMENT?

A. The Secretary or any Regional Director, the NLRC or any Labor Arbiter, or med-arbiter or voluntary arbitrator may, motu proprio or on motion of any interested parties, issue a WRIT OF EXECUTION on a judgment within 5 years from the date it becomes final and executory. (Art 224)

Q: CAN REINSTAMENT BE MADE EVEN WITHOUT A MOTION FOR EXECUTION FILED?

A: Reinstatement should be made even without a motion of execution filed.

Q: CAN THE RTC ISSUE INJUNCTION AGAINST THE NLRC?

A: NO. The general rule is that no court has the power to interfere by injunction with judgments of another court with concurrent or concurrent jurisdiction. Except, if a third party complaint is involved

BUREAU OF LABOR RELATIONS

Q: BLR and Labor Relations Divisions have original and exclusive authority to act on?

A:

1. inter-union disputes2. intra-union disputes3. all disputes, grievances or problems

i. arising from or affecting labor-management relationsii. in all workplaces whether agricultural or non-agriculturaliii. EXCEPT those arising from implementation/interpretation of CBA (governed by grievance

procedure and/or voluntary arbitration)

Q: WHAT IS INTER-UNION DISPUTE?

A: Inter-Union Dispute refers to any conflict between and among legitimate labor unions involving representation questions for purposes of collective bargaining or to any other conflict or dispute between legitimate labor unions

Q: WHAT IS INTRA-UNION DISPUTE?

A: Intra-Union Dispute: refers to any conflict between and among union members, including grievances arising from any violation of the rights and conditions of membership, violation or disagreement over any provision of the union’s constitution and by-laws, or disputes arising from chartering or affiliation of union

Q: HOW MANY DAYS MUST BLR ACT ON A LABOR CASE SUBMITTED BEFORE IT?

A: BLR has 15 days to act on a labor case before it, subject to the extension by agreement of the parties.

Q: WHEN CAN A COMPROMISE SETTLEMENT BETWEEN THE PARTIES BE FINAL AND BINDING?

A: 1. The compromise settlement must be voluntarily agreed upon by the parties 2. It must be reduced in writing and;3. It must be signed in the presence of the Regional Director or his duly authorized representative (with the assistance of the BLR or Regional Office)

Q: WHO IS A MED-ARBITER?

A: An officer in the regional office or bureau authorized to hear, conciliate and decide representation cases or assist in the disposition of intra or inter-union disputes.

Q: CAN THE RIGHT TO REINSTATEMENT BE WAIVED BY A COMPROMISE AGREEMENT ENTERED INTO BY THE WORKERS AND THEIR EMPLOYER DURING THE PENDENCY OF AN APPEAL BEFORE THE NLRC IN CONSIDERATION OF THE EMPLOYER’S UNDERTAKING TO ABIDE BY THE MONEY CLAIMS?

A: YES, a compromise agreement entered into by the workers and their employer, during the pendency of an appeal before the NLRC, wherein the former waived their right to reinstatement as decreed by the labor arbiter in consideration of the employer’s undertaking to abide by the award of their money claims plus attorney’s fees, is valid and binding.

Q: WHAT IS THE EFFECT OF THE FAILURE OF A PARTY TO COMPLY WITH THE TERMS OF THE COMPROMISE AGREEMENT?

A: Should a party fail or refuse to comply with the terms of the CA, the other party could be either enforce the compromise by a writ of execution or regard it as rescinded and insist upon his original demand (Morales vs. NLRC, GR No. 1003133, Feb 6, 1995).

Q: IS A JUDGMENT MADE IN ACCORDENACE WITH A COMPROMISE AGREEMENT APPEALABLE?

A: A judgment made in accordance with a compromise agreement is NOT appealable and is immediately executory.

EXCEPTIONS:

1) When a motion is filed to set aside the agreement 2) On the ground of fraud, mistake or duress, 3) In which case an appeal may be taken against the order denying the motion.

Q: WHAT ARE THE INSTANCES IN WHICH THE NLRC OR ANY COURT SHALL NOT ASSUME JURISDICTION OVER ISSUES INVOLVED IN COMPROMISE SETTLEMENT CASES?

A: 1. Non-compliance of the compromise agreement 2. Prime facie evidence that the settlement was obtained thru fraud, misrepresentation or coercion.

Q: CAN THE BLR ISSUE SUBPOENAS?

A: The Bureau has the power to issue subpoenas under its jurisdiction either at the request of any interested party or at its own initiative. (Art 229)

Q: WHAT ARE THE DUTIES OF THE BLR?

A:

1. It shall keep a registry of legitimate labor organizations.2. It shall also maintain a file of all collective bargaining agreements and other related agreements

and records of settlement of labor disputes, and copies of orders, and decisions of arbiters. (Art 231)

Q: CAN THE BLR ENTERTAIN ANY PETITION FOR CERTIFICATION ELECTION OR ANY OTHER ACTION, WHICH MAY DISTURB THE ADMINISTRATION OF AN EXISTING CBA AFFECTING THE PARTIES

A: NO. The general rule is that BLR shall NOT entertain any petition for certification election or any other action, which may disturb the administration of existing CBA affecting the parties (Art 232). THE EXCEPTIONS ARE THOSE PROVIDED UNDER:

1. Art. 2532. Art. 253-A3. Art. 256

Q: WHAT IS A CONTRACT BAR RULE?

A: It provides that where there is an existing CBA, no petition for certification election should be entertained. To allow otherwise would result in the promotion of discord and disturbance in the administration of the agreement.

Q: CAN THE INFORMATIONS AND STATEMENTS OBTAINED DURING THE CONCILIATION PROCEEDINGS BE USED AS EVIDENCE?

A: NO. Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence. Conciliators and other officials shall not testify regarding any matters taken up therein. The reason behind the rule is to encourage the parties to freely divulge information to the conciliator/mediator.

LABOR ORGANIZATION

Q: WHAT IS A LABOR ORGAINZATION (LO)?

A: It refers to any union or association of employees in the private sector, which exist in whole or in part for the purpose of collective bargaining, mutual aid, interest, cooperation, protector other lawful purposes.

Q: WHAT IS A LEGITIMATE LABOR ORGANIZATION (LLO)?

A: Refers to any labor organization in the private sector registered with the DOLE.

Q: WHAT IS A WORKER’S ASSOCIATION?

A: It refers to any association of workers organized for mutual aid and protection of its members or for any legitimate purpose OTHER than collective bargaining.

Art. 234 –

Q: WHAT ARE THE REQUIREMENTS TO BE REGISTERED AS A LABOR ORGANIZATION?

A:1. Fifty pesos registration fee2. Four copies of the:

a. Constitution and by-lawsb. Minutes of its adoption or ratificationc. List of participating members

3. Applicant union, if existing for more than 1 year, must submit copies of its annual financial report4. Names of its officers, their addresses, principal address of the labor organization, minutes of the

organizational meeting & list of the workers who participated in such meetings5. Names of all its members (comprise at least 20% of all employees in the bargaining unit where it

seeks to operate)

Q: WHAT IS THE EFFECT OF REGISTRATION?

A: LO acquires legal personality as well as the rights and privileges granted to it by law. Unregistered association is still lawful but without juridical capacity, therefore, cannot avail the rights enumerated by Art. 242.

Q: WHEN IS AN LO DEEMED REGISTERED?

A: An LO is deemed registered and vested with legal personality on the date of issuance of its certificate of registration or certificate of chartered local. Such legal personality may be questioned only through an independent petition for cancellation of union registration

Q: WHAT IS THE REMEDY TO COMPEL REGISTRATION?

A: MANDAMUS

DOCUMENTS AND PAPERS TO BE VALID FOR REGISTRATION?

A: All requisite documents and papers:

1. Shall be certified under oath by the Secretary or the Treasurer of the organization and 2. Attested to by its President. (Art 235)

Q: WHAT IS THE EFFECT OF THE DISCOVERY OF LACKING ON THE ISSUANCE OF CERTIFICATION ELECTION?

A: Where NO books of account were filed before the BLR, the constitution, by-laws and the list of members who ratified the same were not attested to by the union president, and the same were not verified, it was ruled that the local or chapter did not become a LLO and its petition for certification election should be dismissed (Phoenix Iron vs. Secretary of Labor GR No. 112141, May 16, 1995).

Q: WHAT IS THE PERIOD IN WHICH THE BLR IS REQUIRED TO ACT ON APPLICATIONS FOR REGISTRATION?

A: The BLR shall act on all applications for registration within 30 days from filing.

Q: WHAT IS THE EFFECT OF THE GRANTING OR DENIAL OF THE APPLICATION FOR REGISTRATION?

A: If application is granted, a certificate of registration shall be issued. If it is denied, the decision is appealable to the Secretary within 10 days from receipt of notice, based on grave abuse of discretion or gross incompetence.

Q: WHAT IS A LABOR FEDERASTION OR A NATIOANAL UNION?

A: It is a grouping of local unions from different plants, factories or companies.

Q: WHAT IS A LOCAL UNION OR A CHAPTER?

A: A labor organization operating at the enterprise level whose legal personality is derived thru the issuance of a charter by a duly registered federation or national union.

Q: WHAT ARE THE ADDITIONAL REQUIREMENTS FOR REGISTRATION IF A LABOR ORGANIZATION IS A FEDERATION OR A NATIONAL UNION?

A: There must be a proof of affiliation of at least 10 locals or chapters. Each of which must be a duly recognized collective bargaining agent in the establishment/industry. It must also include

1. Names and addresses of companies where locals/chapters operate and 2. List of all members in each company involved

Q: WHAT ARE THE GROUNDS FOR CANCELLATION OF UNION REGISTRATION?

A: The following are the grounds for cancellation of union registration:

1. Misrepresentation, false statement or fraud in connection witha. Adoption or ratification of the constitution or by-laws or amendments theretob. Minutes of ratificationc. List of members who took part in ratification of constitution and by-laws or amendments

thereto d. Election of officerse. List of votersf. Financial report

2. Failure to submit a. Required documents within 30 days from adoption/ratification of constitution/by-lawsb. Required documents together with list of newly elected-appointed officers and their postal

addresses within 30 days from electionc. Annual financial report within 30 days after the closing of every fiscal yeard. List of individual members once a year or whenever required

3. Acting as labor contractor or engaging in “cabo” system or otherwise engaging in any activity prohibited by law

4. Entering into CBA with terms and conditions BELOW minimum labor standards5. Asking for or accepting attorney’s fees or negotiation fees from employers6. Checking off special assessments or any other fees WITHOUT duly signed individual written

authorizations of members7. Failure to comply with any of the requirements

Q: WILL THE EXISTENCE OF A UNION BE AFFECTED BY A SUSPENSION OF ITS JURIDICAL PERSONALITY, STATUTORY RIGHTS AND PRIVILEGES?

A: NO. The existence of the union would not be affected although its juridical personality, statutory rights & privileges are suspended.

Q: WHAT IS A CHECK-OFF?

A: A process whereby the employer, on agreement with the union recognized as the proper bargaining representative, or on prior authorization from its employees, deducts union dues or agency fees from the latter’s wages and remits them directly to the union. The legal basis of it is thus found in contract. No provision of law makes the employer directly liable for the payment to the labor organization of union dues and assessments that the former fails to deduct from its employees’ salaries pursuant to a check-off stipulation (Holy Cross of Davao vs. Joaquin GR No. 110007, Oct 8, 1996).

Q: WITHIN HOW MANY DAYS CAN YOU APPEAL A CANCELLATION OF REGISTRATION?

A: Cancellation of Registration is APPEALABLE within 10 days.

Q: TO WHOM MAY CANCELLATION OF REGISTRATION BE APPEALED?

A: To BLR or in case of cancellation by the BLR, to the Secretary,

Q: WHAT ARE THE GROUNDS FOR APPEAL?

A:

1. Grave abuse of discretion or2. Any violation of implementing rules.

Q: WHO MAY COMMENCE A PETITION FOR CANCELLATION OF REGISTRATION?

A: Any party-in-interest may commence a petition for cancellation of registration.

EXCEPTION: Violations of Art. 241 (rights and conditions of membership) which can be commenced only by members of the respondent labor organization or worker’s association.

Q: WHAT IS A COMPROMISE AGREEMENT?

A: A contract whereby the parties by making reciprocal concessions, avoid litigation or put an end one already commenced.

RIGHTS and CONDITIONSOF MEMBERSHIP

Art. 241 -THE RIGHTS AND CONDITIONS OF MEMBERSHIP IN A LABOR ORGANIZATION

Q: IS THE MEMBERSHIP IN A PARTICULAR UNION AN ABSOLUTE RIGHT?

A: NO. A union is free to select its own members and no person has an absolute right to membership in a trade union.

EXCEPTION: the right of an industrial worker to protection against arbitrary and discriminatory exclusion from union membership should be recognized wherever membership is a necessary prerequisite to work since the public interest is involved.

Q: WHAT ARE THE POLITICAL RIGHTS OF A LABOR ORGANIZATION?

A:

1. Right against admission of subversives2. Right against the appointment/election of a person convicted of a crime involving moral turpitude3. Directly elect union officers by secret ballot at intervals of 5 years

Q: WHAT IS DELIBERATIVE AND DECISION-MAKING RIGHT OF A LABOR ORGANIZATION?

A: It is the right to determine by secret ballot any question of major policy affecting the entire membership UNLESS the nature of the organization or force majeure renders secret ballot impractical

Q: WHAT ARE THE RIGHTS OF A MEMBER OF A LO ON MATTERS INVOLVING FINANCES?

A:

1. Right against arbitrary or excessive initiation fees, fines and forfeitures2. Entitled to full and detailed reports of all financial transactions3. Right against unauthorized collection of fees, dues or other contributions and illegal

disbursement of union funds 4. Right to demand a receipt for every payment of fees, dues or other contributions5. Union funds shall only be applied for purposes expressly provided in Constitution/by-laws or by

written resolution 6. Every income or revenue should be evidenced by a record showing source7. Every expenditure should be evidenced by a receipt8. Officers shall NOT be paid any compensation other than salaries/expenses due to their positions9. Treasurer shall render a true and correct account of all moneys received and paid by him since

he assumed officea. At least once a year within 30 days after close of fiscal yearb. At such other times required by resolution of membersc. Upon vacating his office

10. Access to books of account and other financial records11. Right against special assessments or other extraordinary fees UNLESS authorized by a written

resolution of majority of members in a general membership meeting called for such purpose12. Checking off of special assessments, negotiation fees or any other extraordinary fees

REQUIRES an individual written authorization duly signed by the employee EXCEPT for special assessments for MANDATORY union activities

Q: WHAT DOES THE RIGHT TO INFORMATION INCLUDE?

A: It includes the right to be informed of the provisions of the Consti, by-laws, CBA, prevailing labor relations system and all their rights and obligations

Q: IS THE EXHAUSTION OF REMEDIES WITIHN THE UNION REQUIRED BEFORE A COMPLAINT FOR VIOLATION OF THE UNION’S CONSTITUTION AND BY-LAWS MAY BE FILED?

A: YES. Exhaustion of remedies within the union is required before a complaint for violation of the union’s constitution and by-laws or Art. 241 may be filed. EXCEPT, where it would practically amount to a denial of justice or would be illusory or in vain

Art. 242 Q: WHAT ARE THE RIGHTS OF A LEGITIMATE LABOR ORGANIZATION? A:

1. Act as representative of members for purposes of collective bargaining2. Be certified as exclusive representative of all employees in an appropriate collective bargaining

unit for purposes of collective bargaining (most important right)3. Be furnished by the employer of annual audited financial statements4. Own real or personal properties for the use and benefit of LO and members5. Sue and be sued in its registered name6. Undertake all other activities designed to benefit organization and members

RIGHT TO SELF-ORGANIZATION

Q: WHAT ARE THE ELEMENTS OF THE RIGHT TO SELF- ORGANIZATION?

A: 1. Freedom to decide 2. Authority to act or not to act pursuant to one’s decision

Q: WHAT IS THE RIGHT TO SELF-ORGANIZATION?

A:

1. It is the right to join, form or assist labor organizations a. For the purpose of collective bargaining b. Thru representatives of the bargaining unit’s own choosing.

2. A right: a. To engage in lawful concerted activities b. For collective bargaining orc. For mutual aid & protection subject to Art 264.

Q: IS THERE A LAW REQUIRING WORKERS TO JOIN A UNION?

A: NONE. There is no law in the Philippines requiring workers to join a union although there may be disqualifications in joining unions.

Q: WHO ARE THE EMPLOYEES ALLOWED TO JOIN A UNION FOR PURPOSES OF COLLECTIVE BARGAINING?

A: Persons employed in1. Commercial, 2. Industrial, or 3. Agricultural enterprises 4. In religious 5. Medical WON6. Educational for profit7. Charitable institutions 8. Alien employees with valid working permits

PROVIDED: nationals of a country which grants same/similar rights to Filipino workers

Q: CAN GOVERNMENT EMPLOYEES STAGE A STRIKE?

A: NO. Government employees may organize, even unionize but CANNOT bargain and stage a strike, and negotiate only on matters NOT fixed by law.

Q: WHAT IS THE REMEDY OF GOVERNMENT EMPLOYEES?

A: The government employees may lobby that the law fixing their benefits and salaries be amended.

Q: WHAT ARE THE DISTINCTIONS BETWEEN GOCCs WITH ORIGINAL CHARTER AND GOCCs INCORPORATED UNDER THE CORPORATION CODE?

A: 1. GOCCs w/ orig. charter is governed by the civil service law while GOCCs incorporated under the corporation code is governed by the Labor code.2.Those with original charter cannot wage a strike but GOCCs w/o original charter cannot do so.

3. GOCCs w/ orig. charter: can negotiate only in matter no fixed by law GOCCs w/o orig. charter: Has unlimited bargaining powers

4.GOCCs w/ orig. charter: May join, form or assist labor organizations for purposes not contrary to lawGOCCs w/o orig. charter: May join, form or assist labor organization for purposes of collective bargaining and for mutual aid and protection

Q: WHO ARE THOSE EXCLUDED TO FORM LABOR ORGANIZATIONS?

A:

1. High Level Government Employeesa. Policy-makingb. Managerialc. With highly confidential duties

2. Employees of International Organizations who are granted diplomatic immunity3. Employees of cooperatives who are members of the cooperative itself4. Confidential employees5. Excluded from union AND rank-and-file bargaining unit

1. Members of the Armed Forces and police

2. Managerial Employees

3. Supervisory Employees – to the extent that they cannot join labor organization of rank-and-file employees

Confidential Employees1. Assist or act in a confidential capacity

2. Persons who formulate, determine and effectuate management policies in the field of labor relations

Reason: Conflict of interest

Q: ARE ALL CONFIDENTIAL EMPLOYEES EXCLUDED FROM JOINING A UNION?

A: Not all confidential employees are excluded, only those whose positions involve policies regarding labor relations.

Q: WHAT ARE UNION SECURITY CLAUSES?

A: They are stipulations in a CBA requiring membership in the contracting union as a condition for employment or retention of employment in the company. It is likewise intended to strengthen the contracting union and protect it from fickleness of own members

Q: WHAT IS A CLOSED SHOP AGREEMENT?

A: It is an agreement in which the employer undertakes NOT to employ an individual who is not a member of the contracting union (bargaining agent) and to dismiss the said individual if once employed, he does not, for the duration of the agreement, remain a member of the union in good standing

Q: ARE ALL EMPLOYEES IN THE BARGAINING UNIT COVERED BY A CLOSED-SHOP AGREEMENT SUBJECT TO ITS TERMS?

A: YES. The general rule is that all employees in the bargaining unit covered by a closed-shop agreement are subject to its terms.

Exceptions:1. Religious objectors2. Employees already in the service and members of a different union at time closed-shop

agreement took effect

3. Those expressly excluded

Q: WHAT IS A UNION SHOP AGREEMENT?

A: It is an agreement where the employer is permitted to employ an individual who is not a member of the contracting union (bargaining agent) but is obliged to dismiss such employee if he does not become a member of the contracting union within a specified period and remain as such in good standing for the duration of the agreement

Q: WHAT IS MAINTENANCE OF MEMBERSHIP CLAUSE?

A: A maintenance membership clause merely requires the employer to dismiss those who are union members at time of execution of CBA or who may thereafter become members IF they do not, for the duration of the CBA, maintain their membership IN GOOD STANDING

Q: WHAT IS THE RULE IN CONSTRUCTION OF UNION SECURITY CLAUSES?

A: Any doubt should always be resolved in favor of the worker

Q: WHAT ARE THE ACTS CONSTITUTING UNFAIR LABOR PRACTICES (ULP)?

A: ULP includes any act which:

1) Violates the constitutional right of workers to self-organization. 2) Hinders the promotion of healthy and stable labor management relations.3) Inimical to the legitimate interest of both labor & management, including the following:

3.1 Right to bargain collectively; or3.2 Deal with each other in an atmosphere of freedom & mutual respect.

4) Disrupts industrial peace

Q: IS ULP LIMITED TO VIOLATION OF CIVIL RIGHTS OF LABOR AND MANAGEMENT?

A: NO. It is not only a violation of the civil rights of labor and management but also a criminal offense against the State.

Q: WHO SHALL HAVE JURISDICTION OVER THE CIVIL ASPECT OF ULP CASES AND WITHIN WHAT PERIOD MUST IT BE RESOLVED?

A: Civil aspect of ULP cases shall be under the jurisdiction of the Labor Arbiters who must resolve said cases within 30 days from the time it is submitted.

Q: WHAT IS THE EFFECT OF RECOVERY OF CIVIL LIABILITY UNDER THE ADMINISTRATIVE PROCEEDINGS?

A: Recovery of civil liability under the administrative proceedings shall bar recovery under the Civil Code.

Q: CAN CRIMINAL PROSECUTION BE INSTITUTED WITHOUT A FINAL JUDGMENT THAT ULP HAS BEEN COMMITTED IN AN ADMINSTRATIVE PROCEEDING?

A: No criminal prosecution may be instituted without a final judgment that ULP has been committed in the administrative proceeding.

Q: WILL THE RUNNING OF THE PERIOD OF PRESCRIPTION BE INTERRUPTED DURING THE PENDENCY OF AN ADMINSTRATIVE PROCEEDING?

A: YES. During the pendency of the administrative proceeding, the running of the period of prescription for the criminal offense shall be INTERRUPTED.

Provided: 1) The final judgment in the administrative proceeding shall NOT be binding in the criminal

case, or

2) Final judgment NOT considered as evidence of guilt but merely a proof of compliance of the requirements therein set forth.

Q: WHAT IS A YELLOW DOG CONTRACT?

A: Yellow Dog Contract is a promise exacted from workers as a condition of employment that they are not to belong to, or attempt to foster, a union during their period of employment

Q: WHAT IS FEATHERBEDDING?

A: It is a practice of the union or its agents in causing or attempting to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, for services which are not performed or to be performed

Q: WHAT IS TOTALITY OF CONDUCT DOCTRINE?

A: It states that the culpability of an employer regarding unionization is to be evaluated not only on the basis of their implications, but against the background of collateral circumstances.

Q: UNDER WHAT INSTANCE MAY EXPRESSIONS OF OPINION MADE BY AN EMPLOYER CONSTITUTE UNFAIR LABOR PRACTICE?

A: Expressions of opinion by an employer, though innocent in themselves, may be held to be constitutive of unfair labor practice because of the circumstances under which they were uttered, the history of the particular employer’s labor relations or anti-union bias or because of their connection with an established collateral plan of coercion or interference. An expression, which might be permissibly uttered by one employer, might, in the mouth of a more hostile employer, be deemed improper and consequently actionable as an unfair labor practice.

Q: WHAT IS A SWEETHEART CONTRACT?

A: Asking for or accepting negotiations or attorney’s fees from employers as part of the settlement of any issue in CB or other dispute

Q: WHAT IS BLUE-SKY BARGAINING?

A: Blue-sky bargaining means making exaggerated or unreasonable proposals.

Q: WHO ARE THE PARTIES WHO MAY COMMIT ULP?

A: (1) Employer (Article 248);

(2) Labor Organization (Article 249)

Q: WHAT ARE THE ELEMENTS OF ULP MADE BY EMPLOYER?

A: The following must be present:

1. Employer-employee relationship2. Act done is as defined in Art. 248

Q: CAN ULP BE COMMITTED IF THERE IS NO EMPLOYER-EMPLOYEE RELATIONSHIP?

A: The general rule is that ULP can be committed only if there is an employer-employee relationship.

Except: Yellow Dog Contract

Q: CAN ULP BE COMMITTED AGAINST A MANAGERIAL EMPLOYEE?

A: NO. ULP cannot be committed against a managerial employee because of their disqualification to form a union.

Q: IS REFUSAL TO FURNISH FINANCIAL INFORMATION ULP?

A: YES. Refusal to furnish financial information is ULP. Except, if the union failed to put its request in writing as required in Article 242 [c] of the Labor Code, management cannot be held liable for ULP.

Q: WITHIN WHAT PERIOD MUST AN ACTION BAESD ON ULP BE FILED?

A: The action must be filed within 1 yr. from accrual of such ULP.

Q: WHO HAS THE BURDEN OF PROOF IN ULP CASES?

A: In unfair labor practice cases, it is the union that has the burden of proof to present substantial evidence to support its allegations of unfair labor practices committed by the employer. (Schering Employees Labor Union [SELU] vs. Schering Plough Corporation, G. R. No. 142506, Feb. 17, 2005)

Arts. 250-253-A (COLLECTIVE BARGAINING)

Q: WHAT IS COLLECTIVE BARGAINING?

A: Collective Bargaining is a negotiation by an organization or group of workmen, in behalf of its members, with the employer, concerning wages, hours of work and other terms and conditions of employment and the settlement of disputes by negotiation between the employer and the representative of his employees.

Q: WHAT IS A COLLECTIVE BARGAINING AGREEMENT? (CBA)

A: It refers to the contract between a legitimate labor union and the employer concerning wages, hours of work, and all other terms and conditions of employment in a bargaining unit.

Q: WHAT ARE THE PROCEDURES TO BE OBSERVED IN COLLECTIVE BARGAINING?

A:

1. Party who desires to negotiate : serves a written notice upon other party with a statement of proposals

2. Other party makes a reply not later than 10 days from receipt of notice 3. Differences arise based on notice or reply : either party may request a conference which begins

10 days from date of request 4. Dispute not settled :

a. Board intervenes upon request of either/both parties or NCMB’s own initiative, call parties to conciliation.

b. Board has power to issue subpoenas. c. Duty of the parties: to participate fully and promptly in the conciliation meetings

5. During conciliation : parties are prohibited from doing any act which may disrupt or impede settlement of disputes

6. NCMB shall exert efforts to settle dispute amicably and encourage parties to submit case to a voluntary arbitrator

Q: WHAT COMPRISES THE DUTY TO BARGAIN COLLECTIVELY?

A: The performance of a mutual obligation:1) To meet and convene promptly and expeditiously in GF 2) For purpose of negotiating an agreement 3) With respect to wages, hours of work and all other terms and conditions of employment 4) Including proposals for adjusting any grievances or questions arising under such agreement

Q: WHAT ARE THE LIMITATIONS ON THE DUTY TO BARGAIN COLLECTIVELY?

A: Duty to bargain collectively does NOT compel any party to:(1) Agree to a proposal; or(2) Make a concession(3) Parties CANNOT stipulate terms and conditions of employment that are BELOW the minimum requirements prescribed by law

Q: WHAT ARE THE SPHERES OF COLLECTIVE BARGAINING?

A:1) Wages2) Hours of work3) Grievance machinery4) Voluntary arbitration5) Family planning6) Rates of pay7) Mutual observance clause

Q: WHAT IS THE EFFECT OF REFUSAL OF ANY PARTIES TO NEGOTIATE ON ANY OF THE AFORESAID SUBJECTS?

A: Refusal of any parties to negotiate on any of the aforesaid subjects constitute ULP.

Q: WHAT ARE ACTS NOT DEEMED REFUSAL TO BARGAIN?

A: 1. Adoption of an adamant bargaining position in G 2. Refusal to bargain over demands for commission of ULP 3. Refusal to bargain during period of illegal strike 4. There is no request for bargaining 5. Union seeks recognition for an inappropriately large unit 6. Union seeks to represent some persons who are excluded from the Code

Q: IS MINUMUM WAGE INCLUDED IN THE SPHERE OF COLLECTIVE BARGAINING?

A: NO. It is beyond the sphere of collective bargaining because law requires their enactment.

Q: WHAT IS THE NATURE OF A CBA CONTRACT?

A: CBA is a contract in personam: binding only between the parties and not enforceable against a transferee of an enterprise UNLESS expressly assumed.

Q: WHAT ARE THE JURISDICTIONAL PRECPNDITIONS OF A CBA?

A: The Jurisdictional Preconditions are as follows:

1. Possession of the status of majority representation of the employees’ representative in accordance with any of the means of selection/designation

2. Proof of majority representation3. Demand to bargain

Q: IF ALL JURISDICTIONAL PRECONDITIONS ARE PRESENT WHEN SHOULD COLLECTIVE BARGAINING BEGIN?

A: Collective bargaining shall begin within 12 months following the determination and certification of the employees’ exclusive bargaining representative. (CERTIFICATION YEAR)

Q: WHAT DOES THE DUTY TO BARGAIN COLLECTIVELY INCLUDE WHERE THERE EXISTS A CBA?

A: The Duty to Bargain Collectively When There Exists a CBA:

1) Neither party shall terminate nor modify such agreement during its lifetime;2) Either party can serve written notice to terminate or modify agreement at least 60 days prior to its

expiration date; 3) Duty of both parties to keep status quo and continue in full force and effects terms and

conditions of the existing agreement during the 60 day period or until new agreement is reached by parties.

EXCEPTION: during the 60 day period prior to its expiration, upon service of a written notice of a party’s intention to terminate or modify the same, a party may choose to terminate or modify the non-representational aspect of the CBA only after the expiration of the CBA of fixed duration

Q: WHAT IS AN AUTOMATIC RENEWAL CLAUSE?

A: It provides that the CBA shall remain effective and enforceable even after the expiration of the period fixed by the parties as long as they reach no new agreement

Q: WHAT MAY BE DONE DURING THE 60-DAY PERIOD PRIOR TO THE EXPIRATION OF THE CBA?

A:1) A LU may disaffiliate from the mother union to form a local/independent union only during the 60-

day freedom period immediately preceding the expiration of the CBA

2) Either party can serve a written notice to terminate or modify the agreement at least 60 days prior to its expiration period

3) A petition for certification election may be filed

Q: WHAT ARE THE USUAL PROVISIONS IN A CBA?

A:

1. Scope of Bargaining Unit

2. Union Security Clause – intended to maintain strength of the contracting union during the life of the agreement and safeguard it against the fickleness of its members and incursions by the employers.

3. Check-off Provision 4. Management Prerogative Clause 5. Economic Benefits6. Provision on Administration of Agreement – Art. 260 of the Labor Code requires the parties to

include in their agreement provisions to ensure mutual observance of the terms and conditions agreed upon and to establish machinery for the adjustment of grievances.

7. Voluntary Arbitration Clause – also to designate in advance an arbitrator or panel of arbitrators8. No-Strike, No-Lock-out Clause 9. Completeness of Agreement – stipulation that the CBA shall be the full settlement of all demands

and proposals made during the negotiations.10. Provisions on Family Planning, Participation in Sports, etc. – participation in programs pertaining

to such,11. Duration of Agreement

Q: WHAT IS TERM OR DURATION OF A CBA?

A:

1) Any CBA that the parties may enter into shall, insofar as representation aspect is concerned: 5 years

2) Outside 60-day period immediately before the date of expiry of the 5-year term of the CBA: NO petition questioning incumbent BA be entertained; NO certification election shall be conducted

3) All other provisions shall be renegotiated not later than 3 years after execution4) Agreement on other provisions of the CBA entered into within 6 months from date of expiry of

such provisions as fixed in the CBA: automatic retroaction5) If beyond 6 months, parties shall agree on the duration of retroactivity period6) If there’s deadlock in the renegotiation of CBA, parties may exercise their rights under the Code

Q: WHAT IS THE EFFECT OF SHIFT OF UNION ALLEGIANCE OF EMPLOYEES AFTER THE EXECUTION OF CBA?

A: The shift will not result in the cancellation of the contract.

164. Q: WHAT ARE THE PURPOSES OF 253-A?

A: Purposes of Art. 253-A?

1) Promote industrial stability and predictability2) Assign specific timetables wherein negotiations become a matter of right and requirement

Q: WHAT ARE THE VIOLATIONS OF THE DUTY TO BARGAIN CONSIDERED AS ULP?

A:

1. Failure/refusal to meet or convene2. Evading the purposes of bargaining3. Not observing good faith bargaining (Surface Bargaining)4. Grossly violating the economic provisions of the CBA

Kinds of bargaining under the implementing rules:

Q: WHAT IS A SINGLE ENTERPRISE BARGAINING?

A: It involves negotiation between one certified labor union and one employer. Any voluntarily recognized or certified labor union may demand negotiations with its employer for terms and conditions of work covering employees in the bargaining unit concerned.

Q: WHAT IS A MULTI-EMPLOYER BARGAINING SCHEME?

A: It involves negotiation between and among several certified labor unions and employers. (Sections 3 and 5, Rule XVI, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, Feb. 17, 2003)

Q: WHAT IS SURFACE BARGAINING?

A: It is the act of going through the motions of negotiating without any legal intent to reach an agreement

Q: WHEN DOES BULWARISM OCCUR?

A: It occurs when the employer directly bargains with the employee disregarding the union; the aim was to deal with the LU through the employees rather than with the employees through the union. Employer submits its proposals and adopts a take it or leave it stand. This is not negotiation because it implies a threat.

Q: WHEN DOES DEADLOCK OCCUR?

A: When there is an impasse that presupposes reasonable effort at GF bargaining, which, despite noble intentions, does not conclude in agreement between the parties

Q: WHAT ARE THE MANDATORY REQUISITES FOR THE VALIDITY OF THE CBA?

A: Publication- CBA is required to be posted in two (2) conspicuous places in the work premises, for a period of at least five (5) days prior to its ratification. In the case of multi-employer bargaining, two (2) signed copies of the CBA should be posted for at least five (5) days in two (2) conspicuous areas in each workplace of the employer units concerned. Said CBA shall affect only those employees in the bargaining units who have ratified it. (Section 7, Rule XVI, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]).

B. Ratification of the CBA- should be made not by the majority of the members of the bargaining union but by the majority of the members of the bargaining unit which is being represented by the bargaining union in the negotiations.

C. Registration with the DOLE should carry a sworn statement of the union secretary and attested by the president that the CBA has been duly posted and ratified. (Section 7, Rule XVI, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-03, Series of 2003, [Feb. 17, 2003]).

Q: WHO SHALL RATIFY A CBA?

A: The CBA should be ratified by the MAJORITY of all the workers of the bargaining unit and not just members of the contracting union

Q: IS POSTING OF THE CBA REQUIRED?

A: Yes. CBA should be posted for at least 5 days in 2 conspicuous places in the establishment before ratification

Q: IS SWORN STATEMENT REQUIRED IN THE CBA TO BE SUBMITTED?

A: CBA to be submitted to the DOLE should carry a sworn statement of the union secretary and attested by the president that the CBA has been duly posted and ratified.

Q: WHAT IS THE EFFECT OF NON-COMPLIANCE WITH THE REQUIREMENTS?

A: Non-compliance renders the CBA ineffective.

No Injunction Rule (Art. 254)

Q: CAN TEMP. OR PERMANENT INJUNCTION OR RESTRAINING ORDER BE ISSUED IN ANY CASE INVOLVING THE GROWING OUT OF LABOR DISPUTES?

A: The general rule provides that no temporary or permanent injunction or restraining order in any case involving or growing out of labor disputes shall be issued by any court or other entity.

EXCEPTIONS:

1. Art. 218(e)2. Art. 263(g): “national interest” cases3. Art. 264: prohibited activities in the course of a strike or lock-out

Q: WHAT IS THE REASON BEHIND THE PROHIBITION ON INJUNCTION?

A: To give labor a comparable bargaining power with capital and must be liberally construed to that end; contradicts the constitutional preference for voluntary modes of dispute settlement

Q: WHO ARE THE PERSONS/ENTITIES AUTHORIZED TO ISSUE INJUNCTION?

A:1. Labor Arbiters2. NLRC or any division3. Bureau of Labor Relations4. Secretary of Labor5. President

REPRESENTATION AND CERTIFICATION ELECTIONS

Q: WHAT IS A SOLE AND EXCLUSIVE BARGAINING AGENT?

A: A “Sole and exclusive bargaining agent” refers to any legitimate labor organization duly recognized or certified as the sole and exclusive bargaining agent of all the employees in a bargaining unit.

Art. 255

Q: WHO IS THE EXCLUSIVE REPRESENTATIVE OF EMPLOYEES FOR COLLECTIVE BARGAINING?

A: The Labor organization designated/selected by the majority of the employees in an appropriate collective BU is the exclusive representative of the employees in such unit for the purpose of collective bargaining

Labor Management Councils

Q: WHAT IS THE RATIONALE FOR THE CREATION OF A LABOR MANAGEMENT COUNCLI?

A: DOLE shall promote the formation of a labor-management council in organized and unorganized establishments to enable the workers to participate in policy and decision-making processes in the establishment, insofar as said processes will directly affect their rights, benefits and welfare

Q: WHAT IS THE PROCESS OF SELECTION OF SELECTION OF REPRESENTATIVES?

A: 1) Organized establishments: workers representatives to the council shall be nominated by the

exclusive bargaining representative 2) Unorganized establishments: worker’s representatives shall be elected directly by the employees

at large

Q: WHAT IS AN APPROPRIATE BARGAINING UNIT?

A: An Appropriate Bargaining Unit: 1. A group of employees 2. Of a given employer, 3. Comprised of all or less than all of the entire body of employees, 4. Which the collective interest of all the employees consistent with equity to the employer, 5. Indicate to be best suited to serve the reciprocal rights and duties of the parties under the

collective bargaining provisions

Q: WHEN CAN A BARGAINING UNIT BE CONSIDERED AS APPROPRIATE?

A: To be appropriate, the bargaining unit must effect a grouping employees who have substantial, mutual interest in wages, hours, working conditions and other subjects of collective bargaining.

Q: WHAT ARE THE FACTORS IN DETERMINING A BARGAINING UNIT?

A: 1. Will of employees (Globe doctrine) 2. Substantial mutual interests principle or community or mutuality of interests3. Prior collective bargaining history - employment status i.e. temporary, seasonal, probationary

employees

Q: EXPLAIN THE PROCEDURE IN THE REPRESENTATION ISSUE IN ORGANIZED ESTABLISHMENT.

A:

1) A verified petition questioning the majority status of the incumbent bargaining agent is filed before DOLE within the 60-day period before CBA.

2) Med Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least 25% of all employees in the bargaining unit to ascertain the will of the employees in the appropriate bargaining unit.

3) Valid election: at least a majority of all eligible voters in the unit must have cast their votes.

4) LU receiving the majority of the valid votes cast shall be certified as the exclusive BA of all workers in the unit.

5) Election provides for 3 or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the LU receiving the 2 highest no. of votes; provided the total no. of votes for all contending unions is at least 50% of the no. of votes.

6) Expiration of the freedom period: employer shall continue to recognize the majority status of the incumbent BA where no petition for certification election is filed.

Q: EXPLAIN THE NATURE AND PROCESS OF THE DETERMINATION OF REPRESENTATION STATUS.

A:1) The determination of an exclusive representative is a non-litigious proceedings and, as far as

practicable, shall be free from technicalities of law and procedure provided that in any case the exclusive bargaining representative enjoys the majority support of all the employees in the BU.

2) The determination of an exclusive bargaining representative shall be through:- Voluntary recognition in cases where there I only 1 legitimate labor organization operating within the

BU; or - Through certification, run-off or consent election.

Q: WHAT ARE THE FOUR (4) WAYS OF DETERMINING A BARGAINING AGENT?

A:(1) Voluntary recognition of union - process whereby the employer recognizes a labor organization

as the exclusive bargaining representative of the employees in the appropriate BU after a showing that the labor organization is supported by at least a majority of the employees in the BU.

(2) Certification election. - refers to the process of determining through secret ballot the sole and exclusive bargaining representative of the employees in an appropriate bargaining unit, for purposes of collective bargaining.

(3) Consent election. - refers to the election voluntarily agreed upon by the parties, with or without the intervention of the Department of Labor and Employment, to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit.

(4) Run-off election. - refers to an election between the labor unions receiving the two (2) highest number of votes when a certification election which provides for three (3) or more choices results in no choice receiving a majority of the valid votes cast; provided, that the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast.

Q: WHAT IS VOLUNTARY RECOGNITION?

A: It is a process whereby the employer recognizes a labor organization as the exclusive bargaining representative of the employees in the appropriate BU after a showing that the labor organization is supported by at least a majority of the employees in the BU.

Q: EXPLAIN THE PROCEDURE IN REPRESENTATION ISSUE IN UNORGANIZED ESTABLISHMENTS.

A: With only 1 legitimate labor organization, the employer may voluntarily recognize the

representation status of such a union.

Within 30 days from such recognition, the employer and union shall submit a notice of voluntary recognition with the Regional Office which issued the recognized LU’s certificate of registration/creation of a chartered local.

Q: WHAT ARE ITS REQUIREMENTS?

A: A joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition.

Certificate of posting of the joint statement of voluntary recognition following publication requirements.

Approximate no. of employees in the BU, accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the BU.

Statement that the LU is the only legitimate labor organization operating with the BU.

All accompanying documents must be certified under oath by the employer representative and president of the recognized LU.

Q: EXPLAIN THE PROPER ACTION ON THE NOTICE.

A: If sufficient in form , number and substance and no other registered LU operating with the BU

concerned, the RO, through Labor Relations Division shall, within 10 days from receipt of the notice record the fact of voluntary recognition.

If insufficient , the RO shall notify the LU of its findings and advise it to comply with the necessary requirements.

Where either the employer or the labor union failed to complete the requirements within 30 days from receipt of advisory, RO shall return the notice for voluntary recognition together with its documents without prejudice to its resubmission.

Q: WHAT IS THE EFFECT OF THE RECORDING OF FACT OF VOLUNTARY RECOGNITION?

A:o From the time of recording of voluntary recognition, the recognized LU shall enjoy the rights,

privileges and obligations of an existing BA of all the employees in the BU.

o The entry of voluntary recognition bars the filing of petition for certification election by any labor organization for 1 year from date of entry.

o Upon expiration: may file such petition unless a CBA between the employer and voluntarily recognized LU was executed and registered with the RO.

Q: WHAT IS CERTIFICATION ELECTION?

A: It is the process of determining by secret ballot the sole and exclusive BA of the employees in an appropriate BU for purposes of collective bargaining. It is the fairest and most effective way of determining which labor organization can truly represent the working force.

Such proceeding is not a litigation but a mere investigation of a non-adversary fact-finding character in which DOLE plays the part of a disinterested investigator seeking merely to ascertain the desires of the employees as to the matter of their representation.

Q: WHAT IS CONSENT ELECTION?

A: It refers to the election voluntarily agreed upon by the parties, with or without the intervention of the Department of Labor and Employment, to determine the issue of majority representation of all the workers in the appropriate collective bargaining unit.

Q: STATE THE DIFFERENCES BETWEEN A CERTIFICATION ELECTION AND A CONSENT ELECTION.

A:

AS TO NATURE:

Certification Election: separate and distinct from a consent election

Consent election: a separate and distinct process and has nothing to do with the import and effect of a certification election.

AS TO PURPOSE:

Certification Election: To determine the sole and exclusive BA of all the employees in an appropriate BU for the purpose of the purpose of collective bargaining.

Consent Election: To determine the issue of majority representation of all the workers in the appropriate collective BU mainly for the purpose of determining the administrator of the CBA when the contracting union suffered massive disaffiliation but not for the purpose of determining the BA for purposes of collective bargaining.

Q: WHAT IS DIRECT CERTIFICATION?

A: It is a process whereby the Med Arbiter directly certifies a labor organization of an appropriate BU of a company after a showing that such petition is supported by at least a majority of the employees in the BU (It is no longer allowed.).

Q: STATE THE DIFFERENCES BETWEEN CERTIFICATION ELECTION IN ORGANIZED AND UNORGANIZED ESTABLISHMENTS.

A: WHEN MANDATORY ON THE PART OF THE BLR

ORGANIZED: upon the filing of a verified petition by a legitimate labor organization questioning the majority status of the incumbent bargaining agent within 60-day freedom period before the expiration of CBA

The petition must be supported by the written consent of at least 25% of all the employees in the appropriate BU

The employer cannot file a petition or certification election; only a legitimate labor organization can file such petition.

UNORGANIZED: upon the filing of a verified petition by a legitimate labor organization OR upon the filing of a petition by the employer when such employer is requested by the employees to bargain collectively

AS TO THE PERIOD OF FILING:Organized: When there is a CBA, the labor organization can file a petition for certification election within the 60-day period (Contract Bar Rule). When there is no CBA, then the labor organization can file a petition for certification election at any time subject to the Deadlock Bar RuleUnorganized: any time, subject however to the ‘one election per year rule’

Q: WHO MAY FILE A PETITION FOR CERTIFICATION ELECTION?

A: A petition for certification election may be filed by:

1. A legitimate labor organization; or 2. An employer, but only when requested by a labor organization to bargain collectively and the status of the union is in doubt.

Q: WHERE IS THE VENUE OF CERTIFICATION ELECTION?

A: Where the place of work of the employees and the principal office of the employer are within the

territorial jurisdiction of different ROs, the petition for certification election may be filed in the RO where the employee’s workplace is located.

RO having jurisdiction over the principal office of the employer applies only to cases where the employees’ place of work and the employer’s principal place are under the same DOLE RO to prevent inconvenience to the workers.

Q: WHAT ARE THE REQUISITES BEFORE A LABOR UNION CAN BE DECLARED A WINNER (DOUBLE MAJORITY RULE)?

A: Majority of the eligible voters cast their vote Majority of the valid votes cast is for such union

Q: WHAT ARE INCLUDED IN DETERMINING THE DOUBLE MAJORITY RULE?

A: In determining the eligible votes cast (first majority), spoiled ballots are included.

In determining valid votes (second majority), spoiled ballots are eliminated but challenged votes are included.

212. Q: WHEN IS THE 25% REQUIREMENT CONSIDERED DIRECTORY?

A: 25% requirement shall be satisfied upon the filing of the petition, otherwise it will be dismissed. It should not be strictly applied to frustrate the determination of the legitimate representative of

the workers.

Mere filing of a petition for certification election within the freedom period is sufficient basis for holding such election, subject to the submission of the consent signatures within a reasonable period.

Q: WHEN IS A RUN-OFF ELECTION PROPER?

A: A valid election took place because majority of the collective BU members voted (first majority).

The said election presented at least 3 choices.

Not one of the choices obtained the majority (50% + 1 - second majority) of the valid votes cast.

The total votes for the unions are at least 50% of the votes cast.

There are no unresolved challenged votes or election protest which if sustained can materially alter the results.

The two choices which garnered the highest votes will be voted and the one which garners the highest number of votes will be declared the winner provided they get the majority votes of the total votes cast.

The unions receiving the highest and second highest number of votes cast will participate in the run-off election.

“No union” can not be a choice in the run-off election.

Q: WHAT ARE THE RULES WHICH PREVENT THE HOLDING OF A CERTIFICATION ELECTION? EXPLAIN EACH.

A:

1. Deadlock Bar Rule is a petition for certification election can only be entertained if there’s no pending bargaining deadlock submitted to conciliation or arbitration or which has become the subject of a valid notice of strike or lockout

Q: WHAT ARE THE INDICATIONS OF A GENUINE DEADLOCK?

A: The submission of the deadlock to a third party conciliator or arbitrator The deadlock is the subject of a valid notice or strike/lockout

2. One Year Bar Rule (Certification Year Rule) states that no petition for certification election may be filed within 1 year from the date of a valid certification, consent, or run-off election or from the date of voluntary recognition

3. Negotiation Bar Rule is a petition for certification election cannot be entertained if, before the filing of the petition for certification election, the duly recognized or certified union has commenced negotiation with the employer in accordance with Art. 250

4. Contract Bar Rule provides that while a valid and registered CBA of a fixed duration is subsisting, the BLR is not allowed to hold an election contesting the majority status of the incumbent union during the 5-year term of the CBA except during the 60-day period immediately prior to the expiration of the CBA

5. Agreement is in writing and signed by all contracting parties It must contain the terms and conditions of employment Covered employees in an appropriate BU It is for a reasonable period of duration It must be ratified

It must be registered with the BLR The violation of the contract bar rule or the existence of a duly registered CBA must be

specifically impleaded as a defense

Q: EXCEPTIONS TO CONTRACT BAR RULE.

A:(1) CBA is not registered or, although registered, contains provisions lower than the standards fixed

by law; (2) CBA deregistered during the 60-day freedom period;(3) CBA was hastily concluded way ahead of the freedom period;(4) CBA is incomplete in itself or when the documents supporting its registration are falsified,

fraudulent or tainted with misrepresentation;(5) CBA does not foster industrial peace because of schism resulting in an industrial dispute;(6) CBA was concluded in violation of an order enjoining the parties from entering into a CBA until

the issue of representation is resolved.

Petition must be filed during the 60-day period

Q: EXPLAIN THE SUBSTITUTIONARY DOCTRINE.

A: Where there occurs a shift in the employees’ union allegiance after the execution of a collective bargaining contract with the employer, employees can change their agent (LU), but the collective bargaining contract which is still subsisting continues to bind the employees up to its expiration date. They may however, bargain for the shortening of said expiration.

Q: WHAT IS ITS LIMITATION?

A: it cannot be invoked to support the contention that a newly certified collective BA automatically assumes all the personal undertakings of the former agent like the ‘no-strike clause’ in the CBA executed by the latter.

Q: WHAT IS THE EFFECT OF A FORMAL CHARGE OF COMPANY DOMINATION AGAINST ONE OF THE UNIONS PARTICIPATING IN THE CERTIFICATION PROCEEDING?

A: This is a prejudicial question that, until decided, bars such proceedings.

Arts. 260-262-B

GRIEVANCE MACHINERY AND VOLUNTARY ARBITRATION

Q: WHAT IS GRIEVANCE?

A: It is any question, complaint or dissatisfaction by either the employer or the union regarding the interpretation or application of the CBA or company personnel policies or any claim by either party of any violation thereof.

Q: WHAT IS GRIEVANCE MACHINERY?

A: It refers to the mechanism for the adjustment and resolution of grievances arising from the interpretation or implementation of a CBA and those arising from the interpretation or enforcement of company personnel policies. It is part of the continuing process of collective bargaining.

Q: WHAT IS GRIEVANCE PROCEDURE?

A: It refers to the internal rules of procedure established by the parties in their CBA which usually consists of successive steps starting at the level of the complainant and his immediate supervisor and ending, when necessary, at the level of the top union and company officials and with voluntary arbitration as the terminal step, which are intended to resolve all issues arising from the implementation and interpretation of their CBA.

Q: WHAT PROVISIONS MUST THE PARTIES TO A CBA INCLUDE?

A: Parties to a CBA shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall also establish a machinery for adjustment and resolution of grievances arising from the interpretation/implementation of their CBA and those arising from interpretation/enforcement of personnel policies.

Q: WHAT WILL HAPPEN TO THE GRIEVANCES SUBMITTED TO THE GRIEVANCE MACHINERY WHICH ARE NOT SETTLED WITHIN 7 CALENDAR DAYS FROM THE DATE OF SUBMISSION?

A: All grievances submitted to the grievance machinery which are not settled within 7 calendar days from date of submission shall automatically be referred to voluntary arbitration prescribed in the CBA.

Q: HOW IS A VOLUNTARY ARBITRATOR/PANEL CHOSEN?

A: Parties in CBA shall name in advance a voluntary arbitrator/panel preferably from the listing of qualified voluntary arbitrators duly accredited by NCMB

Q: WHO WILL DESIGNATE THE VOLUNTARY ARBITRATOR/ PANEL IN CASE THE PARTIES FAIL TO SELECT ONE?

A: In case the parties fail to select a voluntary arbitrator, NCMB shall designate the voluntary arbitrators/panel pursuant to the selection procedure provided by the CBA.

Q: DISCUSS THE PROCEDURE FOR THE ESTABLISHMENT OF GRIEVANCE MACHINERY?

A: In case of the absence of grievance machinery in the CBA: a grievance committee shall be created within 10 days from signing of CBA. It shall be composed of at least 2 representatives each from members of BU and employer unless otherwise agreed upon and the representatives of BU shall be designated by the members of the BU.

Q: WHAT IS THE PROCEDURE IN HANDLING GRIEVANCES (IN THE ABSENCE OF PROCEDURE IN CBA)?

A: Employee presents his grievance/complaint orally/writing to the shop steward; latter will verify

the facts and determine validity of grievance.

If grievance is valid, shop steward shall immediately bring the complaint to employee’s immediate supervisor; shop steward, employee, supervisor shall exert effort to settle grievance at their level.

If there is no settlement, the grievance shall be referred to the grievance committee; which shall give its decision within 10 days upon receipt referral.

If the issue involves/arises from interpretation of CBA, order, memo, circular, etc. issued by appropriate authority in the establishment and such can’t be resolved at the level of the shop steward/supervisor, the same may be referred immediately to grievance committee.

SUBMISSION TO VOLUNTARY ARBITRATION:

Q: WHAT IS VOLUNTARY ARBITRATION?

A: It refers to the mode of settling labor-management disputes by which the parties select a competent, trained and impartial third person who shall decide on the merits of the case and whose decision is final and executory. (Section 1 [d], Rule II, NCMB Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings [Oct. 15, 2004]).

Grievance remains unresolved: either party may serve notice upon the other of its decision to submit the issue to voluntary arbitration.

o Notice must state the issue/s

Party upon whom the notice is served failed/refused to respond within 7 days from receipt: voluntary arbitrator/panel designated in the CBA shall commence arbitration proceedings.

o CBA does not designate, NCMB appoints voluntary arbitrator

Parties fail to select voluntary arbitrator/panel: regional branch of NCMB shall designate voluntary arbitrator/panel

Q: WHAT IS THE JURISDICTION OF THE VOLUNTARY ARBITRATOR/PANEL?

A: Exclusive and original jurisdiction to hear and decide (rights disputes):

o All grievances arising from the implementation/interpretation of the CBA and those of personnel policies which remain unresolved after exhaustion of the grievance procedure

o Wage distortion issues arising from application of any wage orders in organized establishments

o Unresolved grievances arising from the interpretation/implementation of productivity incentive programs (RA 6971)

Q: CAN NLRC, ITS REGIONAL BRANCHES AND RDS OF DOLE ENTERTAIN DISPUTES, GRIEVANCES, OR MATTERS UNDER THE EXCLUSIVE AND ORIGINAL JURISDICTION OF THE VOLUNTARY ARBITRATOR/PANEL?

A: No. NLRC, its regional branches and RDs of DOLE shall NOT entertain disputes, grievances, or matters under the exclusive and original jurisdiction of the voluntary arbitrator/panel and shall immediately dispose and refer the same to the appropriate grievance machinery or voluntary arbitration in the CBA.

Similar provisions stated in Article 261 Jurisdiction of voluntary arbitrator/panel over disputes/issues (rights disputes):

Violations of a CBA, except those that are gross in character, shall no longer be treated as ULP, and shall be resolved as grievances under the CBA.

Gross violations of CBA: flagrant/malicious refusal to comply with the economic provisions of CBA.

Q: CAN ALL OTHER DISPUTES INCLUDING ULP AND BARGAINING DEADLOCKS BE SUBMITTED TO VOLUNTARY ARBITRATION?

A: Yes. Under Article 262, all other disputes including ULP and bargaining deadlocks (interest disputes) may by agreement of parties be also submitted to voluntary arbitration.

Q: CAN “NATIONAL INTEREST” DISPUTES BE SUBMITTED TO VOLUNTARY ARBITRATION?

A: Yes. Under Article 263 (h) even “national interest” disputes may, be submitted by the parties to voluntary arbitration before or at any stage of the compulsory arbitration process.

Q: WHAT ARE THE POWERS OF THE VOLUNTARY ARBITRATOR/PANEL?

A: To hold hearings, receive evidence and take whatever action necessary to resolve the

issues/subject of dispute.

Conciliate/mediate to aid the parties in reaching a voluntary settlement of the dispute.

Q: WHAT IS THE PROCEDURE FOR VOLUNTARY ARBITRATION?

A: All parties to the dispute shall be entitled to attend to arbitration proceedings.

Attendance of third party or exclusion of witnesses shall be determined by the voluntary arbitrator/panel.

Unless parties agree otherwise, mandatory for the arbitrator to render award/decision within 20 days from date of submission of resolution.

Failure of the arbitrator to render a decision, resolution, award, order within the prescribed period, upon complaint of a party, is a sufficient ground for NCMB to discipline said arbitrator.

If the recommended sanction is de-listing, it is unlawful for the arbitrator to refuse/fail to turn over to NCMB for its further disposition the records of the case within 10 days from date of demand.

Similar with Article 262-A

Q: WHEN IS THE DECISION/AWARD FINAL?

A: The decision, order or award of the arbitrator shall be final and executory after 10 calendar days from receipt of the copy of said award/decision and shall not be a subject for an MR.

Q: WHAT IS THE EFFECT OF THE AWARD OF THE VOLUNTARY ARBITRATORS?

A: Under Article 261, the award of voluntary arbitrators acting within the scope of their authority determines the rights of the parties and their decisions have the same legal effects as judgment of the courts. Such decisions on matters of fact and law are conclusive.

Q: WHO MAY ISSUE THE WRIT OF EXECUTION IN CASE OF ABSENCE OR INCAPACITY OF THE ARBITRATOR WHO ISSUED THE AWARD/DECISION?

A: Upon motion of any interested party, the arbitrator or Labor Arbiter in the region where the movant decides, in case of absence/incapacity for any reason of the arbitrator who issued the award/decision, may issue a writ of execution requiring either the Sheriff of the Commission or regular courts or any public officer whom the parties may designate in the submission agreement to execute the final decision/award

Q: ARE BOTH EMPLOYER AND THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES REQUIRED TO GO THROUGH THE GRIEVANCE MACHINERY IN CASE A GRIEVANCE ARISES?

A: Yes. Both the employer and the bargaining representative of the employees are required to go through the grievance machinery in case a grievance arises

RATIO:

It is logical, just and equitable that whoever is aggrieved should initiate settlement of grievance through grievance machinery

To impose compulsory procedure on employers alone would be oppressive of capital.

Q: EXPLAIN THE CONCEPT OF GRIEVANCE MACHINERY.

A: Under the CBA, the department head shall act on the grievance within 5 days from the date of

presentation; otherwise, the grievance must be resolved in favor of the aggrieved party.

One way of implementing the constitutional mandate for protection of labor.

A must provision in any CBA and no collective agreement can be registered in the absence of such procedure.

Although the provision mentions “parties to a CBA” it does not mean that a grievance machinery cannot be set up in a CBA-less enterprise. In any workplace where grievance can arise, a grievance machinery can be established

Part of the continuous process of collective bargaining intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace


A: It is a contractual proceeding where parties to a dispute select a judge of their own choice and by consent submit their controversy to him for determination

Q: HOW MAY ARBITRATION BE INITIATED?

A: Arbitration may be initiated by:

Submission agreement: where the parties define the disputes to be resolved; or

Demand notice: invoking collective agreement arbitration clause

Q: WHO HAS JURISDICTION OVER ACTUAL TERMINATION DISPUTES AND COMPLAINTS FOR ILLEGAL DISMISSAL FILED BY WORKERS PURSUANT TO THE UNION SECURITY CLAUSE?

A: The Labor Arbiter NOT Grievance Machinery has Jurisdiction over Actual Termination Disputes and over complaints for illegal dismissal filed by workers who were dismissed pursuant to the union security clause in the CBA; where the dispute between the union and the company on one hand and some union and non-union members on the other, the same must be settled by an impartial body.

Q: EXPLAIN THE CONCEPT OF JUDICIAL REVIEW OF VOLUNTARY ARBITRATION.

A:

Decisions of voluntary arbitrators must be give the highest respect and as a general rule must be accorded a certain measure of finality.

Such decisions are final and inappealable except when there is want of jurisdiction, grave abuse of discretion, and violation of due process, denial of substantial justice or erroneous interpretation of the law.

Arbitrators, by the nature of their functions, act in a quasi-judicial capacity (BP 129, as amended by RA 7902); where a question of law is involved or there’s abuse of discretion, courts will not hesitate to pass upon review of his acts.

Proper remedy from an adverse decision of the voluntary arbitrator is a petition for review under Rule 43 of the Revised Rules of Court which must be filed with the Court of Appeals within 15 days from notice of the decision of the voluntary arbitrator. The special civil action of certiorari is not and cannot be sustained for an appeal.

Q: WHO WILL SHOULDER THE COST OF VOLUNTARY ARBITRATION AND VOLUNTARY ARBITRATOR’S FEE?

A: The parties to a collective bargaining agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the voluntary arbitrator’s fee.

Q: WHAT ARE THE FACTORS IN FIXING THE FEE OF VOLUNTARY ARBITRATORS?

A:a. Nature of the case;b. Time consumed in hearing the case;c. Professional standing of voluntary arbitrator;d. Capacity to pay the parties; ande. Fees provided for in the Revised Rules of Court.

Arts. 263-264STRIKES AND LOCKOUTS

Q: WHAT IS A STRIKE?

A: It is any temporary stoppage of work by the concerted action of employees as a result of an industrial/labor dispute.

It is the most effective weapon of labor in protecting the rights of employees to improve the terms and conditions of their employment.

Government employees may form labor unions but are not allowed to strike.

Only legitimate labor organizations are given the right to strike.

Unionized workers may hold a protest action but not a strike

Not all concerted activities are strikes; they may only be protest actions — they do not necessarily cause work stoppage by the protesters. A strike in contrast is always a group action accompanied by work stoppage.

Q: WHAT IS A LOCKOUT?

A: It is the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.

Q: WHAT IS PICKETING?

A: It is the act of marching to and fro the employer’s premises which is usually accompanied by the display of placards and other signs, making known the facts involved in a labor dispute. It is an exercise of one’s freedom of speech.

Q: WHO IS A STRIKE-BREAKER?

A: A strike-breaker is any person who obstructs, impedes or interferes by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy affecting wages, hour or conditions of work or in the exercise of the right to self-organization or collective bargaining.

Q: WHAT IS A STRIKE AREA?

A: It is the establishment, warehouse, depots, plants or offices, including the sites or premises used as runaway shops of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment.

Q: GIVE SOME EXAMPLES OF STRIKES AND EXPLAIN THEIR LEGALITY.

A:

1. Sit-down strike: characterized by a temporary work stoppage of workers who thereupon seize or occupy property of the employer or refuse to vacate the premises of the employer.

Illegal – amounts to a criminal act because the employees trespass on their premises of the employer.

2. Wildcat strike: a work stoppage that violates the labor contract and is not authorized by the union.

Illegal – invalid because it fails to comply with certain requirements of the law to wit: notice of strike, vote and report on strike vote.

3. Slowdown: strike on the installment plan; an activity by which workers, without complete stoppage of work, retard production or their performance of duties and function to compel management to grant their demands.

Illegal – employees work on their own terms; while the employees continue to work and remain in their positions and accept wages paid to them, they at the same time select what part on their allotted tasks they care to perform on their own volition or refuse openly or secretly.

4. Sympathetic strike: work stoppages of workers of one company to make common cause with other strikers or other companies without demands or grievances of their own against the employer.

Illegal – there is no labor dispute between the workers who are joining the strikers and the latter’s employer.

5. Secondary strikes: work stoppages of workers of one company to exert pressure on their employer so that the latter will in turn bring pressure upon the employer of another company with whom another union has a labor dispute.

Illegal – there is no labor dispute involved.

6. ‘Welga ng Bayan’: a political strike and therefore there is neither a bargaining deadlock nor any ULP.

Illegal – it is a political rally

Q: WHAT ARE THE GROUNDS FOR THE DECLARATION OF STRIKE?

A: Deadlock in CBA (economic) ULP (political)

Q: EXPLAIN THE DIFFERENCES BETWEEN AN ECONOMIC STRIKE AND A ULP STRIKE.

A:AS TO NATURE:ECONOMIC: voluntary strike because the employee will declare a strike to compel management to grant its demands

ULP STRIKE: involuntary strike; the labor organization is forced to go on strike because of the ULP committed against them by the employer. It is an act of self-defense since the employees are being pushed o the wall and their only remedy is to stage a strike

WHO WILL INITIATE:

ECONOMIC: the collective bargaining agent of the appropriate bargaining unit can declare an economic strike.ULP STRIKE: either: collective bargaining agent or the legitimate labor organization in behalf of its members.

AS TO THE COOLING-OFF PERIOD

ECONOMIC STRIKE: 30 days from notice of strike before the intended date of actual strike subject to the 7-day strike ban.

ULP STRIKE: 15 days from the filing of the notice of strike.

AS TO THE EXCEPTION TO THE COOLING-OFF PERIOD:

ECONOMIC STRIKE: No exception – mandatorynotice of strike and strike vote maybe dispensed with. They may strike immediately.

ULP STRIKE: The cooling off period may be dispensed with, and the union may take immediate action in case of dismissal from employment of their officers duly elected in accordance with the union’s Constitution and by-laws, which may constitute union busting where the existence of the union is threatenedit must still observe the mandatory 7-day (strike ban) period before it can stage a valid strike

Q: WHAT ARE THE CHARACTERISTICS OF STRIKES?

A: There is an established relationship between the strikers and the persons against whom the

strike is called.

The relationship is one of employer and employee.

The existence of a dispute between the parties and the utilization by labor of the weapon of concerted refusal to work as a means of persuading or coercing compliance with the working men’s demands.

The contention advanced by the workers that although the work ceases, the employment relation is deemed to continue albeit in a state of belligerent suspension.

There is work stoppage, which is temporary.

The work stoppage is done through the concerted action of the employees.

The striking group is a legitimate labor organization, and in case of bargaining deadlock, is the employees’ sole bargaining representatives.

Q: WHAT ARE THE TESTS IN DETERMINING THE LEGALITY OF STRIKE?

A:-Purpose Test: the strike must be due to either bargaining deadlock and/or -ULP

Q: DISCUSS THE COMPLIANCE REQUIREMENTS ON THE PROCEDURAL AND SUBSTANTIVE ASPECTS OF THE LAW ON STRIKES.

A: 1. Notice of Strike 2. 30/15-day cooling off period before the intended date of actual strike subject to the 7-day strike ban cooling off period:

that period of time given by the NCMB to mediate and conciliate the parties that span of time allotted by law for the parties to settle their disputes in a peaceful manner

before staging a strike or lockout

3. Strike Vote: a requirement wherein the decision to declare a strike must be:

Approved by a majority of the total union membership in the BU concerned Obtained by secret ballot through meetings or referenda called for the purpose Its purpose is to ensure that the intended strike is a majority decision The report on the strike vote must be submitted to DOLE at least 7 days before the intended

strike subject to the cooling off period

4. 7-day Strike Ban: a 7-day waiting period before the date of the purported strike (within which the union intending to conduct a strike must at least submit a report to DOLE as to the result of the strike vote) intended to give DOLE an opportunity to verify whether the projected strike really carries the

imprimatur of the majority of the union members in addition to the cooling off period before actual strike. Cooling off and waiting period may be done simultaneously.

Q: EXPLAIN THE CONCEPT OF MEANS EMPLOYED TEST.

A: It states that a strike may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which is widespread, pervasive and adopted as a matter of policy and not merely violence which is sporadic which normally occur in a strike area

Q: WHAT IS THE EFFECT OF GF OF STRIKERS ON THE LEGALITY OF STRIKE?

A: A strike may be considered legal where the union believed that the company committee ULP and the circumstances warranted such belief in GF, although subsequently such allegations of ULP are found out as not true

Q: EXPLAIN THE TOTALITY DOCTRINE.

A: It provides that the culpability of an employer’s remarks is to be evaluated not only on the basis of their implicit implications but are to be appraised against the background of an in conjunction with collateral circumstances

Q: WHEN IS AN EXPRESSION OF AN OPINION BY THE EMPLOYER HELD TO BE CULPABLE?

A: Expressions of an opinion by an employer which, though innocent in them, frequently were held to be culpable based on the following:

The circumstances under which they were uttered; The history of the particular employer’s labor relations of anti-union bias; or Their connection with an established collateral plan of coercion or interference.

Q: WHEN MAY THE SECRETARY OF LABOR ASSUME JURISDICTION OVER A STRIKE?

A: There exists a labor dispute causing or likely to cause a strike or lockout in an industry

indispensable to the national interest

The Secretary may decide it or certify the same to NLRC for compulsory arbitration

Prior notice or hearing be given to parties not necessary as justified by the exigency of the situation in relation to national interests

Q: WHAT ARE THE EFFECTS OF THE ASSUMPTION OF JURISDICTION BY THE SECRETARY?

A: It automatically enjoins the intended or impending strike or lockout, as specified in the

assumption or certification order.

If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work.

The employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout.

MR does not suspend the effects, as the assumption order is immediately executory.

Q: ARE STRIKERS ENTITLED TO THEIR WAGES DURING THE PERIOD OF STRIKE?

A: G.R NO. Strikers are NOT entitled to their wages during the period of a strike even if the strike is legal.

Q: WHAT ARE ITS EXCEPTIONS?

A: in case of ULP strike, in the discretion of the authority deciding the case:

Where the strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept the offer

They are entitled to back wages from the date the offer was made

When there is return-to-work order and the employees are discriminated against other employees

They are entitled to back wages from the date of discrimination

Q: WHAT IS THE RULE ON THE REINSTATEMENT OF STRIKING WORKERS?

A: G.R.: Striking employees are entitled to reinstatement, regardless of whether or not the strike was the consequence of the employer’s ULP because while out on strike, the strikers are not considered to have abandoned their employment, but rather have only ceased from their labor; the declaration of a strike is not a renunciation of employment relation.

Q: WHO ARE NOT ENTITLED TO REINSTATEMENT?

A: Union officers who knowingly participate in the illegal strike.

Any striker or union who knowingly participates in the commission of illegal acts during the strike.

Those union members who have joined an illegal strike but have not committed any illegal act shall be reinstated but without backwages.

Q: WHAT IS THE RULE ON STRIKES IN HOSPITALS?

A: It shall be the duty of the striking employees or locking-out employer to provide and maintain an

effective skeletal workforce of medical and other health personnel for the duration of the strike or lockout.

The Secretary of Labor may immediately assume jurisdiction within 24 hours from knowledge of the occurrence of such strike or lockout or certify it to the NLRC for compulsory arbitration.

Art. 264PROHIBITED ACTIVITIES

Q: WHAT ARE THE REQUIREMENTS BEFORE A LABOR ORGANIZATION OR EMPLOYER CAN DECLARE A STRIKE/LOCKOUT?

A:No Labor organization or employer shall declare a strike/lockout:

Without first having bargained collectively in accordance with Title VII of this Book; or

Without first having filed the notice required in Art. 263; or

Without the necessary strike/lockout vote first having obtained and reported in DOLE.

Q: WHEN IS A STRIKE, OR LOCKOUT WILL NOT BE ALLOWED TO BE DECLARED?

A: After assumption of jurisdiction by the President or the Secretary or

After certification or submission of the dispute to compulsory or voluntary arbitration or

During the pendency of cases involving the same grounds for the strike/lockout

Q: MAY THIRD PERSONS OBSTRUCT, IMPEDE OR INTERFERE BY FORCE, VIOLENCE, COERCION, THREATS OR INTIMIDATION PEACEFUL PICKETING OR STRIKES BY EMPLOYEES?

A: No. No person (third person) shall obstruct, impede or interfere by force, violence, coercion, threats or intimidation:

Any peaceful picketing by employees

During any labor controversy or in the exercise of the right of self-organization or collective bargaining or

Shall aid or abet such obstruction or interference

Q: MAY AN EMPLOYER USE OR EMPLOY A STRIKEBREAKER?

A: No. No employer shall use or employ any strikebreaker nor shall any person be employed as a strike-breaker

SUBMISSION TO VOLUNTARY ARBITRATION:


A: It refers to the mode of settling labor-management disputes by which the parties select a competent, trained and impartial third person who shall decide on the merits of the case and whose decision is final and executory. (Section 1 [d], Rule II, NCMB Revised Procedural Guidelines in the Conduct of Voluntary Arbitration Proceedings [Oct. 15, 2004]).

Grievance remains unresolved: either party may serve notice upon the other of its decision to submit the issue to voluntary arbitration.

o Notice must state the issue/s

Party upon whom the notice is served failed/refused to respond within 7 days from receipt: voluntary arbitrator/panel designated in the CBA shall commence arbitration proceedings.

o CBA does not designate, NCMB appoints voluntary arbitrator

Parties fail to select voluntary arbitrator/panel: regional branch of NCMB shall designate voluntary arbitrator/panel

Q: WHAT IS THE JURISDICTION OF THE VOLUNTARY ARBITRATOR/PANEL?

A: Exclusive and original jurisdiction to hear and decide (rights disputes):

o All grievances arising from the implementation/interpretation of the CBA and those of personnel policies which remain unresolved after exhaustion of the grievance procedure

o Wage distortion issues arising from application of any wage orders in organized establishments

o Unresolved grievances arising from the interpretation/implementation of productivity incentive programs (RA 6971)

Q: CAN NLRC, ITS REGIONAL BRANCHES AND RDS OF DOLE ENTERTAIN DISPUTES, GRIEVANCES, OR MATTERS UNDER THE EXCLUSIVE AND ORIGINAL JURISDICTION OF THE VOLUNTARY ARBITRATOR/PANEL?

A: No. NLRC, its regional branches and RDs of DOLE shall NOT entertain disputes, grievances, or matters under the exclusive and original jurisdiction of the voluntary arbitrator/panel and shall immediately dispose and refer the same to the appropriate grievance machinery or voluntary arbitration in the CBA.

Similar provisions stated in Article 261 Jurisdiction of voluntary arbitrator/panel over disputes/issues (rights disputes):

Violations of a CBA, except those that are gross in character, shall no longer be treated as ULP, and shall be resolved as grievances under the CBA.

Gross violations of CBA: flagrant/malicious refusal to comply with the economic provisions of CBA.

Q: CAN ALL OTHER DISPUTES INCLUDING ULP AND BARGAINING DEADLOCKS BE SUBMITTED TO VOLUNTARY ARBITRATION?

A: Yes. Under Article 262, all other disputes including ULP and bargaining deadlocks (interest disputes) may by agreement of parties be also submitted to voluntary arbitration.

Q: CAN “NATIONAL INTEREST” DISPUTES BE SUBMITTED TO VOLUNTARY ARBITRATION?

A: Yes. Under Article 263 (h) even “national interest” disputes may, be submitted by the parties to voluntary arbitration before or at any stage of the compulsory arbitration process.

Q: WHAT ARE THE POWERS OF THE VOLUNTARY ARBITRATOR/PANEL?

A: To hold hearings, receive evidence and take whatever action necessary to resolve the

issues/subject of dispute.

Conciliate/mediate to aid the parties in reaching a voluntary settlement of the dispute.

Q: WHAT IS THE PROCEDURE FOR VOLUNTARY ARBITRATION?

A: All parties to the dispute shall be entitled to attend to arbitration proceedings.

Attendance of third party or exclusion of witnesses shall be determined by the voluntary arbitrator/panel.

Unless parties agree otherwise, mandatory for the arbitrator to render award/decision within 20 days from date of submission of resolution.

Failure of the arbitrator to render a decision, resolution, award, order within the prescribed period, upon complaint of a party, is a sufficient ground for NCMB to discipline said arbitrator.

If the recommended sanction is de-listing, it is unlawful for the arbitrator to refuse/fail to turn over to NCMB for its further disposition the records of the case within 10 days from date of demand.

Similar with Article 262-A

Q: WHEN IS THE DECISION/AWARD FINAL?

A: The decision, order or award of the arbitrator shall be final and executory after 10 calendar days from receipt of the copy of said award/decision and shall not be a subject for an MR.

Q: WHAT IS THE EFFECT OF THE AWARD OF THE VOLUNTARY ARBITRATORS?

A: Under Article 261, the award of voluntary arbitrators acting within the scope of their authority determines the rights of the parties and their decisions have the same legal effects as judgment of the courts. Such decisions on matters of fact and law are conclusive.

Q: WHO MAY ISSUE THE WRIT OF EXECUTION IN CASE OF ABSENCE OR INCAPACITY OF THE ARBITRATOR WHO ISSUED THE AWARD/DECISION?

A: Upon motion of any interested party, the arbitrator or Labor Arbiter in the region where the movant decides, in case of absence/incapacity for any reason of the arbitrator who issued the award/decision, may issue a writ of execution requiring either the Sheriff of the Commission or regular courts or any public officer whom the parties may designate in the submission agreement to execute the final decision/award

Q: ARE BOTH EMPLOYER AND THE BARGAINING REPRESENTATIVE OF THE EMPLOYEES REQUIRED TO GO THROUGH THE GRIEVANCE MACHINERY IN CASE A GRIEVANCE ARISES?

A: Yes. Both the employer and the bargaining representative of the employees are required to go through the grievance machinery in case a grievance arises

RATIO:

It is logical, just and equitable that whoever is aggrieved should initiate settlement of grievance through grievance machinery

To impose compulsory procedure on employers alone would be oppressive of capital.

Q: What is Grievance machinery? Distinguished it from Grievance

A: A mechanism or the adjustment of controversies or disputes arising from the interpretation/implementation of the CBA and the interpretation/implementation of personnel policies both employer and the bargaining representative of the employees are required to go through the grievance machinery in case a grievance arises logical, just and equitable that whoever is aggrieved should initiate settlement of grievance through grievance machinery to impose compulsory procedure on employers alone would be oppressive of capital.

On the other hand a Grievance arises when there is a dispute/controversy over the implementation/interpretation of a CBA or of personnel policies, and either the union or the employer invokes the grievance machinery provision for the adjustment or resolution of such dispute/controversy)

Q: EXPLAIN THE CONCEPT OF GRIEVANCE MACHINERY.

A: Under the CBA, the department head shall act on the grievance within 5 days from the date of

presentation; otherwise, the grievance must be resolved in favor of the aggrieved party.

One way of implementing the constitutional mandate for protection of labor.

A must provision in any CBA and no collective agreement can be registered in the absence of such procedure.

Although the provision mentions “parties to a CBA” it does not mean that grievance machinery cannot be set up in a CBA-less enterprise. In any workplace where grievance can arise, a grievance machinery can be established

Part of the continuous process of collective bargaining intended to promote a friendly dialogue between labor and management as a means of maintaining industrial peace


A: It is a contractual proceeding where parties to a dispute select a judge of their own choice and by consent submit their controversy to him for determination

Q: HOW MAY ARBITRATION BE INITIATED?

A: Arbitration may be initiated by:

Submission agreement: where the parties define the disputes to be resolved; or

Demand notice: invoking collective agreement arbitration clause

Q: WHO HAS JURISDICTION OVER ACTUAL TERMINATION DISPUTES AND COMPLAINTS FOR ILLEGAL DISMISSAL FILED BY WORKERS PURSUANT TO THE UNION SECURITY CLAUSE?

A: The Labor Arbiter NOT Grievance Machinery has Jurisdiction over Actual Termination Disputes and over complaints for illegal dismissal filed by workers who were dismissed pursuant to the union security clause in the CBA; where the dispute between the union and the company on one hand and some union and non-union members on the other, the same must be settled by an impartial body.

Q: EXPLAIN THE CONCEPT OF JUDICIAL REVIEW OF VOLUNTARY ARBITRATION.

A: Decisions of voluntary arbitrators must be give the highest respect and as a general rule must be

accorded a certain measure of finality.

Such decisions are final and inappealable except when there is want of jurisdiction, grave abuse of discretion, violation of due process, denial of substantial justice or erroneous interpretation of the law.

Arbitrators by the nature of his functions acts in a quasi-judicial capacity (BP 129, as amended by RA 7902); where a question of law is involved or there’s abuse of discretion, courts will not hesitate to pass upon review of his acts.

Proper remedy from an adverse decision of the voluntary arbitrator is a petition for review under Rule 43 of the Revised Rules of Court which must be filed with the Court of Appeals within 15

days from notice of the decision of the voluntary arbitrator. The special civil action of certiorari is not and cannot be sustained for an appeal.

Q: WHO WILL SHOULDER THE COST OF VOLUNTARY ARBITRATION AND VOLUNTARY ARBITRATOR’S FEE?

A: The parties to a collective bargaining agreement shall provide therein a proportionate sharing scheme on the cost of voluntary arbitration including the voluntary arbitrator’s fee.

Q: WHAT ARE THE FACTORS IN FIXING THE FEE OF VOLUNTARY ARBITRATORS?

A:f. Nature of the case;g. Time consumed in hearing the case;h. Professional standing of voluntary arbitrator;i. Capacity to pay the parties; andj. Fees provided for in the Revised Rules of Court.

Arts. 263-264STRIKES AND LOCKOUTS

Q: WHAT IS A STRIKE?

A: It is any temporary stoppage of work by the concerted action of employees as a result of an industrial/labor dispute.

It is the most effective weapon of labor in protecting the rights of employees to improve the terms and conditions of their employment.

Government employees may form labor unions but are not allowed to strike.

Only legitimate labor organizations are given the right to strike.

Unionized workers may hold a protest action but not a strike

Not all concerted activities are strikes; they may only be protest actions — they do not necessarily cause work stoppage by the protesters. A strike in contrast is always a group action accompanied by work stoppage.

Q: WHAT IS A LOCKOUT?

A: It is the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute.

Q: WHAT IS PICKETING?

A: It is the act of marching to and fro the employer’s premises which is usually accompanied by the display of placards and other signs, making known the facts involved in a labor dispute. It is an exercise of one’s freedom of speech.

Q: WHO IS A STRIKE-BREAKER?

A: A strike-breaker is any person who obstructs, impedes or interferes by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy affecting wages, hour or conditions of work or in the exercise of the right to self-organization or collective bargaining.

Q: WHAT IS A STRIKE AREA?

A: It is the establishment, warehouse, depots, plants or offices, including the sites or premises used as runaway shops of the employer struck against, as well as the immediate vicinity actually used by picketing strikers in moving to and fro before all points of entrance to and exit from said establishment.

Q: GIVE SOME EXAMPLES OF STRIKES AND EXPLAIN THEIR LEGALITY.

A:

1. Sit-down strike: characterized by a temporary work stoppage of workers who thereupon seize or occupy property of the employer or refuse to vacate the premises of the employer.

Illegal – amounts to a criminal act because the employees trespass on their premises of the employer.

2. Wildcat strike: a work stoppage that violates the labor contract and is not authorized by the union.

Illegal – invalid because it fails to comply with certain requirements of the law to wit: notice of strike, vote and report on strike vote.

3. Slowdown: strike on the installment plan; an activity by which workers, without complete stoppage of work, retard production or their performance of duties and function to compel management to grant their demands.

Illegal – employees work on their own terms; while the employees continue to work and remain in their positions and accept wages paid to them, they at the same time select what part on their allotted tasks they care to perform on their own volition or refuse openly or secretly.

4. Sympathetic strike: work stoppages of workers of one company to make common cause with other strikers or other companies without demands or grievances of their own against the employer.

Illegal – there is no labor dispute between the workers who are joining the strikers and the latter’s employer.

5. Secondary strikes: work stoppages of workers of one company to exert pressure on their employer so that the latter will in turn bring pressure upon the employer of another company with whom another union has a labor dispute.

Illegal – there is no labor dispute involved.

6. ‘Welga ng Bayan’: a political strike and therefore there is neither a bargaining deadlock nor any ULP.

Illegal – it is a political rally

Q: WHAT ARE THE GROUNDS FOR THE DECLARATION OF STRIKE?

A: Deadlock in CBA (economic) ULP (political)

Q: EXPLAIN THE DIFFERENCES BETWEEN AN ECONOMIC STRIKE AND A ULP STRIKE.

A:AS TO NATURE:ECONOMIC: voluntary strike because the employee will declare a strike to compel management to grant its demands

ULP STRIKE: involuntary strike; the labor organization is forced to go on strike because of the ULP committed against them by the employer. It is an act of self-defense since the employees are being pushed o the wall and their only remedy is to stage a strike

AS TO WHOM SHALL INITIATE:

ECONOMIC: the collective bargaining agent of the appropriate bargaining unit can declare an economic strike.ULP STRIKE: either: collective bargaining agent or the legitimate labor organization in behalf of its members.AS TO THE COOLING-OFF PERIOD

ECONOMIC STRIKE: 30 days from notice of strike before the intended date of actual strike subject to the 7-day strike ban.

ULP STRIKE: 15 days from the filing of the notice of strike.AS TO THE EXCEPTION TO THE COOLING-OFF PERIOD:

ECONOMIC STRIKE: No exception – mandatorynotice of strike and strike vote maybe dispensed with. They may strike immediately.

ULP STRIKE: The cooling off period may be dispensed with, and the union may take immediate action in case of dismissal from employment of their officers duly elected in accordance with the union’s Constitution and by-laws, which may constitute union busting where the existence of the union is threatened

it must still observe the mandatory 7-day (strike ban) period before it can stage a valid strike

Q: WHAT ARE THE CHARACTERISTICS OF STRIKES?

A: There is an established relationship between the strikers and the persons against whom the

strike is called.

The relationship is one of employer and employee.

The existence of a dispute between the parties and the utilization by labor of the weapon of concerted refusal to work as a means of persuading or coercing compliance with the working men’s demands.

The contention advanced by the workers that although the work ceases, the employment relation is deemed to continue albeit in a state of belligerent suspension.

There is work stoppage, which is temporary.

The work stoppage is done through the concerted action of the employees.

The striking group is a legitimate labor organization, and in case of bargaining deadlock, is the employees’ sole bargaining representatives.

Q: WHAT ARE THE TESTS IN DETERMINING THE LEGALITY OF STRIKE?

A:-Purpose Test: the strike must be due to either bargaining deadlock and/or -ULP

Q: DISCUSS THE COMPLIANCE REQUIREMENTS ON THE PROCEDURAL AND SUBSTANTIVE ASPECTS OF THE LAW ON STRIKES.

A: 1. Notice of Strike 2. 30/15-day cooling off period before the intended date of actual strike subject to the 7-day strike ban cooling off period:

that period of time given by the NCMB to mediate and conciliate the parties that span of time allotted by law for the parties to settle their disputes in a peaceful manner

before staging a strike or lockout

3. Strike Vote: a requirement wherein the decision to declare a strike must be:

Approved by a majority of the total union membership in the BU concerned Obtained by secret ballot through meetings or referenda called for the purpose Its purpose is to ensure that the intended strike is a majority decision The report on the strike vote must be submitted to DOLE at least 7 days before the intended

strike subject to the cooling off period

4. 7-day Strike Ban: a 7-day waiting period before the date of the purported strike (within which the union intending to conduct a strike must at least submit a report to DOLE as to the result of the strike vote) intended to give DOLE an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members in addition to the cooling off period before actual strike. Cooling off and waiting period may be done simultaneously.

Q: EXPLAIN THE CONCEPT OF MEANS EMPLOYED TEST.

A: It states that a strike may be legal at its inception but eventually be declared illegal if the strike is accompanied by violence which is widespread, pervasive and adopted as a matter of policy and not merely violence which is sporadic which normally occur in a strike area

Q: WHAT IS THE EFFECT OF GF OF STRIKERS ON THE LEGALITY OF STRIKE?

A: A strike may be considered legal where the union believed that the company committee ULP and the circumstances warranted such belief in GF, although subsequently such allegations of ULP are found out as not true

Q: EXPLAIN THE TOTALITY DOCTRINE.

A: It provides that the culpability of an employer’s remarks is to be evaluated not only on the basis of their implicit implications but are to be appraised against the background of an in conjunction with collateral circumstances

Q: WHEN IS AN EXPRESSION OF AN OPINION BY THE EMPLOYER HELD TO BE CULPABLE?

A: Expressions of an opinion by an employer which, though innocent in them, frequently were held to be culpable based on the following:

The circumstances under which they were uttered; The history of the particular employer’s labor relations of anti-union bias; or Their connection with an established collateral plan of coercion or interference.

Q: WHEN MAY THE SECRETARY OF LABOR ASSUME JURISDICTION OVER A STRIKE?

A: There exists a labor dispute causing or likely to cause a strike or lockout in an industry

indispensable to the national interest

The Secretary may decide it or certify the same to NLRC for compulsory arbitration

Prior notice or hearing be given to parties not necessary as justified by the exigency of the situation in relation to national interests

Q: WHAT ARE THE EFFECTS OF THE ASSUMPTION OF JURISDICTION BY THE SECRETARY?

A: It automatically enjoins the intended or impending strike or lockout, as specified in the

assumption or certification order.

If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work.

The employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout.

MR does not suspend the effects, as the assumption order is immediately executory.

Q: ARE STRIKERS ENTITLED TO THEIR WAGES DURING THE PERIOD OF STRIKE?

A: G.R NO. Strikers are NOT entitled to their wages during the period of a strike even if the strike is legal.

Q: WHAT ARE ITS EXCEPTIONS?

A: in case of ULP strike, in the discretion of the authority deciding the case:

Where the strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept the offer

They are entitled to back wages from the date the offer was made

When there is return-to-work order and the employees are discriminated against other employees

They are entitled to back wages from the date of discrimination

Q: WHEN MAY A SECRETARY OF LABOR ASSUME JURISDICTION OVER A STRIKE? WHAT ARE THE EFFECTS?

A: There exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest. The Secretary may decide it or certify the same to NLRC for compulsory arbitration. Prior notice or hearing be given to parties not necessary as justified by the exigency of the situation in relation to national interests

Q: EFFECTS OF THE ASSUMPTION OF JURISDICTION BY THE SECRETARY:

A: It automatically enjoins the intended or impending strike or lockout, as specified in the assumption or certification order, if one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work, the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout

MR does not suspend the effects as the assumption order is immediately executory.

Q: WHAT IS THE CONCEPT OF STRIKE DURATION PAY?

A: G.R.: Strikers are NOT entitled to their wages during the period of a strike even if the strike is legal

XPN: In case of ULP strike, in the discretion of the authority deciding the case where the strikers voluntarily and unconditionally offered to return to work, but the employer refused to accept the offer. They are entitled to back wages from the date the offer was made and when there is return-to-work order and the employees are discriminated against other employees they are entitled to back wages from the date of discrimination

Q: WHAT IS THE RULE ON THE REINSTATEMENT OF STRIKING WORKERS?

A: G.R.: Striking employees are entitled to reinstatement, regardless of whether or not the strike was the consequence of the employer’s ULP because while out on strike, the strikers are not considered to have abandoned their employment, but rather have only ceased from their labor; the declaration of a strike is not a renunciation of employment relation.

Q: WHO ARE NOT ENTITLED TO REINSTATEMENT?

A: Union officers who knowingly participate in the illegal strike.

Any striker or union who knowingly participates in the commission of illegal acts during the strike.

Those union members who have joined an illegal strike but have not committed any illegal act shall be reinstated but without backwages.

Q: WHAT IS THE RULE ON STRIKES IN HOSPITALS?

A: It shall be the duty of the striking employees or locking-out employer to provide and maintain an

effective skeletal workforce of medical and other health personnel for the duration of the strike or lockout.

The Secretary of Labor may immediately assume jurisdiction within 24 hours from knowledge of the occurrence of such strike or lockout or certify it to the NLRC for compulsory arbitration.

Stamford Marketing Corp., vs. Julian, [G. R. No. 145496, February 24, 2004], SC ruled that a strike conducted by a union which has not been shown to be a legitimate labor organization, is illegal. Under Article 263 [c], only a legitimate labor organization is entitled to file a notice of strike on behalf of its members. While the right to strike is specifically granted by law, it is a remedy which can only be availed of by a legitimate labor organization. Absent a showing as to the legitimate status of the labor organization, said strike would have to be considered as illegal.

PLDT vs. Manggagawa ng Komunikasyon sa Pilipinas, [G. R. No. 162783, July 14, 2005], Secretary of Labor and Employment Patricia Sto. Tomas certified the labor dispute to the NLRC for compulsory arbitration. In her order, she directed the return to work of all strikers “except those who were terminated due to redundancy.” In setting aside this “qualified” return-to-work order for being contrary to law, the Court of Appeals observed that: “The phrase ‘all striking or locked-out employees’ and ‘readmit all workers’ does not distinguish or qualify and emphatically is a catch-all embracing enumeration of who should be returned to work. ‘Where the law does not distinguish, courts should not distinguish.

Art. 264PROHIBITED ACTIVITIES

Q: WHAT ARE THE PROHIBITED ACTIVITIES AS PROVIDED FOR IN ART. 264?

A:a. Labor Organizations

No Labor organization or employer shall declare a strike/lockout:Without first having bargained collectively in accordance with Title VII of this Book orWithout first having filed the notice required in Art. 263 or

Without the necessary strike/lockout vote first having obtained and reported in DOLE

b. No strike/lockout shall be declared:After assumption of jurisdiction by the President or the Secretary or After certification or submission of the dispute to compulsory or voluntary arbitration or During the pendency of cases involving the same grounds for the strike/lockout.

c. Third Persons No person (third person) shall obstruct, impede or interfere with by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy or in the exercise of the right of self-organization or collective bargaining or shall aid or abet such obstruction or interference

d. EmployersNo employer shall use or employ any strike-breaker nor shall any person be employed as a strike-

breaker

e. Public OfficialNo public official or employee, including officers and personnel of the New Armed Forces of the Phil.,

of the Integrated National Police, or armed persons: shall bring in, introduce, or escort in any manner, any individual who seeks to replace strikes in entering or leaving the premises of a strike area or work in place of the strikers. The police force shall keep out of picket lines unless actual violence or other criminal acts occur therein

Provided that nothing herein shall be interpreted to prevent any public officers from taking any measure necessary to:

maintain peace and orderprotect life and propertyenforce the law and legal order

Persons Engaged in Picketing:No person engaged in picketing shall:

commit any act of violence, coercion or intimidation orobstruct the free ingress to or egress from the employer’s premises for lawful purposes orobstruct public thoroughfares

Strike declared DESPITE assumption of Certification Order: declared ILLEGAL if still continued or undertaken

Q: WHEN IS A STRIKE, OR LOCKOUT WILL NOT BE ALLOWED TO BE DECLARED?

A: After assumption of jurisdiction by the President or the Secretary or

After certification or submission of the dispute to compulsory or voluntary arbitration or

During the pendency of cases involving the same grounds for the strike/lockout

Q: MAY THIRD PERSONS OBSTRUCT, IMPEDE OR INTERFERE BY FORCE, VIOLENCE, COERCION, THREATS OR INTIMIDATION PEACEFUL PICKETING OR STRIKES BY EMPLOYEES?

A: No. No person (third person) shall obstruct, impede or interfere by force, violence, coercion, threats or intimidation:

Any peaceful picketing by employees

During any labor controversy or in the exercise of the right of self-organization or collective bargaining or

Shall aid or abet such obstruction or interference

Q: MAY AN EMPLOYER USE OR EMPLOY A STRIKEBREAKER?

A: No. No employer shall use or employ any strikebreaker nor shall any person be employed as a strike-breaker

Q: What is a Runaway Shop?

A: An industrial 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 discriminate against employees at the old plant because of their union activities

Q: Distinguished IMPROVED OFFER BALLOTING VS. REDUCED OFFER BALLOTING

Improved Offer Reduced Offer Balloting

Nature

A referendum conducted by NCMB on or before the 30th day of the strike, for the purpose of determining whether or not the improved offer of the employer is acceptable to the union members

A referendum conducted by NCMB for the purpose of determining whether or not the reduced offer of the union is acceptable to the board of directors, trustees or partners

Purpose

To determine whether or not the improved offer of the employer is acceptable to the union members

To ascertain the real sentiment of the silent majority of the union members on strike

To determine whether or not reduced offer of the union is acceptable to the employer

To ascertain whether at least a majority of the Board of Directors or trustees or partners holding the controlling interest vote to accept the reduced offer

Period of filing

on or before the 30th day of strike

on or before the 30th day of lockout

Limitation

applies only to economic strikes (deadlock)

applies only to economic strikes-deadlock in bargaining

Upon Acceptance

Majority of union members vote to accept improved offer: striking workers shall immediately return to work and employer shall readmit them upon signing of the agreement

Majority of the Board of Directors, trustees or partners vote to accept the reduced offer: workers shall immediately return to work and employer shall readmit them upon signing of the agreement

Art. 266ARREST AND DETENTION

Q: Give the rules as to Arrest and Detention of police officers

A:G.R.: A police officer CANNOT arrest or detain a union member for union activities WITHOUT previous consultations with the Secretary of Labor XPNS: (incidences pertaining to)

national securitypublic peacecommission of crimes

Arts. 278-287POST EMPLOYMENT

Q: Give the coverage of the Labor Code as regards post employment

A: G.R.: Apply to all establishments and undertakings, whether operated for profit or not, including educational, medical, charitable and religious institutions and organizations in cases of regular employmentXPN: Government and its political subdivisions including GOCC.M

TERMINATION OF EMPLOYMENT

Q: What is Security of Tenure?A: It is the constitutional right granted to the employee, that the employer shall not terminate the service of an employee except for just cause or when authorized by law

Q: What is the Extent of the application of Security of tenure?A: It does not exclusively apply to regular employment only. It also applies to probationary, seasonal, project and other forms of employment during the effectivity thereof. Managerial employees also enjoy security of tenure.

Q: What are the reliefs available to an illegally dismissed employee under the Labor Code and the Civil Code?A:1. Reinstatement without loss of seniority rights and other privileges; 2. Full back wages, inclusive of allowances; 3. Other benefits or their monetary equivalent; 4. Damages (moral, exemplary, if the dismissal is with malice or effected in bad faith); 5. Attorney’s fees (10% of all monetary awards).

[NOTE: Nos. 2 and 3 above are computed from the time the compensation was withheld from the employee (date of dismissal) up to the time of his actual reinstatement. If reinstatement is not possible, the computation is up to the time of finality of decision].

In case reinstatement is not possible, payment of separation pay in lieu thereof may be awarded, computed at one month or one month pay per year of service, whichever is higher.

The reliefs mentioned above are not available to a legally dismissed employee. Any order of reinstatement and award of back wages have, under such situation, no factual and legal bases. (Philippine Airlines, Inc. vs. NLRC, G. R. No. 115785, August 4, 2000).

Q: An Employee unjustly dismissed from work is entitled to what?A:I. REINSTATEMENT without loss of seniority rights

Q: What is Reinstatement?A: It is the restoration of the employee to the State from which he has been unjustly removed or separated without loss of seniority rights and other privileges

Q: What are the forms of Reinstatement:A: Actual or Physical: the employee shall be admitted back to workPayroll: the employee is merely reinstated in the payroll

* Reinstatement under Articles 279 and 223 of the Labor Code, distinguished. Reinstatement under Article 279 presupposes that the judgment has already become final and executory. Consequently, there is nothing left to be done except the execution thereof. Reinstatement under Article 223 of the Labor Code, however, may be availed of as soon as the Labor Arbiter renders a judgment declaring that the dismissal of the employee is illegal and ordering said reinstatement. It may be availed of even pending appeal.

Q: May a court order the reinstatement of a dismissed employee even if the prayer of the complaint did not include such relief? A: YES. So long as there is a finding that the employee was illegally dismissed, the court can order the reinstatement of an employee even if the complaint does not include a prayer for reinstatement, unless, of course, the employee has waived his right to reinstatement. By law, an employee who is unjustly dismissed is entitled to reinstatement, among others. The mere fact that the complaint did not pray for reinstatement will not prejudice the employee, because technicalities of law and procedure are frowned upon in labor proceedings. (General Baptist Bible College vs. NLRC, 219 S 549)

Pheschem Industrial Corporation vs. Moldez, [G. R. No. 161158, May 9, 2005], respondent’s omission to pray for reinstatement in his position paper before the Labor Arbiter was not considered as an implied waiver to be reinstated. It was considered a mere procedural lapse which should not affect his substantive right to reinstatement. It is a settled principle that technicalities have no place in labor cases as rules of procedure are designed primarily to give substance and meaning to the objectives of the Labor Code to accord protection to labor.

HOWEVER, in Dela Cruz vs. NLRC, [G. R. No. 121288, Nov. 20, 1998, 299 SCRA 1, 13], the petitioner therein would have been entitled to reinstatement as a consequence of his illegal dismissal from employment. However, by expressly asking for separation pay, he is deemed to have opted for separation pay in lieu of reinstatement.

Q: What happens if there is an order of reinstatement but the position is no longer available?

A: The employee should be given a SUBSTANTIALLY EQUIVALENT POSITION. If no substantially equivalent position is available, reinstatement should not be ordered because that would in effect compel the employer to the impossible. In such a situation, the employee should merely be given SEPARATION PAY CONSISTING OF ONE MONTH SALARY FOR EVERY YEAR OF SERVICE (1:1). Also, if the respondent no longer desires to be reinstated, he should be awarded separation pay at the rate of one (1) month for every year of service as an alternative, following settled jurisprudence.

Q: Give some Circumstances when a company may NOT reinstate an employees DESPITE order of reinstatementA:1. Transfer of business ownership: there is no law requiring a purchasing corporation to absorb the employees of the selling corporation. A fortiori, reinstatement of unjustly dismissed employees cannot be enforced against the new owner UNLESS there is an express agreement on the assumption of liabilities by the purchasing corporation

2. When reinstatement is rendered impossible due to the abolition of the position

3. When the business has closed-down

4. Physical incapacity of the employee

5. Doctrine of strained relations: depends upon circumstances and cannot be applied with impunity. Strained relations may be invoked only against employees whose positions demand trust and confidence, or whose differences with their employer are of such nature or degree as to preclude reinstatement

Long period of time that elapsed without any settlement of the case does not, by itself, indicate the existence of strained relations. In Palmeria vs. NLRC, [G. R. No. 113290-91, Aug. 3, 1995 HOWEVER, Criminal prosecution confirms the existence of “strained relations” which would render the employee’s reinstatement highly undesirable. (RDS Trucking, vs. NLRC, G. R. No. 123941, Aug. 27, 1998).

II. BACKWAGESQ: What do you mean by Back wages?A: It is the relief given to an employee to compensate him for lost earnings during the period of his dismissal

Period covered: shall cover the period from the date of dismissal of the employee up to the date of actual reinstatement.

Q: What is included in the computation of back wages? A: 1. Transportation and emergency allowances2. Vacation or service incentive leave and sick leave3. 13th month pay

Q: What are the Circumstances that prevent the award of back wages?A: 1. Death of the employee

2. Physical and mental incapacity3. Business reverses4. Closure of business5. Reinstatement of dismissed employee 6. Confinement in jail

OTHER benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement

OFWs are not entitled to the reliefs under Article 279. The proper basis for the monetary awards of the overseas Filipino workers (OFWs) is Section 10 of R. A. No. 8042 and not Article 279 of the Labor Code. Consequently, the remedies provided for under Article 279 such as reinstatement, or separation pay in lieu of reinstatement or full back wages, are not available to OFWs. This is so because the OFWs are contractual employees whose rights and obligations are governed primarily by the Rules and Regulations of the POEA and, more importantly, by R. A. No. 8042. (Gu-Miro vs. Adorable, G. R. No. 160952, Aug. 20, 2004).

Q: What is Constructive dismissal?A: It is an employee who quits his work because of the employer’s unreasonable, humiliating or demeaning actuations which render continued work impossible is deemed to have been illegally dismissed

Security of tenure enjoyed only for the period of the contract: if the contract of employment fixes a period, the employee enjoys security of tenure only for such period. The moment the period expires, the constitutional protection can no longer be invoked. The employer may or may not elect to renew the contract.

Q: What is the effect of dismissal for a just or authorized cause? A: It severs the employer-employee relations and it does not entitle the dismissed employee to any separation pay and does not prevent the employer from claiming from the dismissed employee damages it has suffered by reason of the latter’s acts which gave rise to his termination; It also presupposes guilt or culpability on the part of the employee

XPNS: Instances that require payment of severance benefit:Termination of employment due to: (RIC)

1. Redundancy, retrenchment to prevent losses2. Installation of labor-saving devices3. Closure or cessation of the operation of business

Philippine Industrial Security Agency Corporation vs. Aguinaldo, [G. R. No. 149974, June 15, 2005]: “In constructive dismissal, the employer has the burden of proving that the transfer and demotion of an employee are for just and valid grounds such as genuine business necessity. The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee. It must not involve a demotion in rank or a diminution of salary and other benefits. If the employer cannot overcome this burden of proof, the employee’s demotion shall be tantamount to unlawful constructive dismissal.”

Q: What is Resignation? (Take note that the definition in Labor Law is different from how the Supreme Court defined resignation in Political Law) A: It is the voluntary act of an employee who finds himself in a situation where he believes that personal relations can be sacrificed in favor of the exigency of the service, and he has no other choice but to dissociate himself from his employment.

Q: When Moral and Exemplary Damages may be recovered?A: 1. Termination is attended by fraud or bad faith on the part of the employer.

2. Lack of due process.

Art. 280REGULAR AND CASUAL EMPLOYMENT

Q: What is Regular employment?A: It is one wherein an employee is engaged to perform activities which are (not) usually necessary or desirable in the usual business or trade of the employer

he/she is a regular employee at the point of hiring

test of regularity: nature of employment

Q: Distinguish Project Employee from Regular Employee

Q: What is temporary employment or employment for a fixed specific period?

PROJECT EMPLOYEE

REGULAR EMPLOYEE

- employment is fixed for a specific project or undertaking the completion of which has been determined at the time of the engagement of the employee

- a regular employee is one engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer

A: It is one wherein an employee is engaged to work on a specific project or undertaking which is usually necessary or desirable in the usual business or trade of the employer, the completion of which has been determined at the time of the engagement of the employee

he/she does not become a regular employeeemployment is coterminous with the specific period

Q: What is Seasonal employment?A: It is one wherein an employee is engaged to work during a particular season on an activity that is usually necessary or desirable in the usual business or trade of the employer

pakiao employees are considered employees as long as the employer exercises control over the means by which such workers are to perform their work

employee are considered a regular employee insofar as the season to which he was employed is concerned

during the off-season, his employment is merely suspended not terminated

Q: What do you mean by Probationary period of employment? What is its purpose?A: It is the period needed to determine the fitness for the job; the period which the employer may determine if the employee is qualified for possible inclusion on the regular force

PURPOSE: to afford the employer an opportunity to observe the fitness of a probationary employee at work

The standard which the probationary employee is to meet must be made known by the employer to the employee at the time of engagement. The services of probationary employees may be terminated for the same causes as in the case of regular employee, except that there is an additional ground–failure to meet the standard

Q: What are the limitations on the employer’s power to terminate a probationary employment contract?A: 1. The power must be exercised in accordance with the specific requirements of the contract (compliance with specific requirements)

2. If a particular time is prescribed, the termination must be within such time and if formal notice is requires, then that form must be used (within particular prescribed time)

3. The employer’s dissatisfaction must be real and in GF, not feigned so as to circumvent the contract or the law (dissatisfaction – real and in GF)4. there must be no unlawful discrimination in the dismissal

G.R.: Probationary employment shall NOT exceed 6 months from the date the employee started working.XPNS:

1. When it is covered by an apprenticeship agreement stipulating a longer period; or

2. When the parties to an employment contract agree otherwisesuch as when the same is established by company policy or when the same is required by

the nature of the work to be performed by the employee

Effect if probationary employee is allowed to work beyond 6 months/agreed probationary period: said employee becomes a regular employee by operation of law

‘an employee who is allowed to work after a probationary period shall be considered a regular employee’ (Article 281, last sentence)

Q: What are the guidelines to determine the VALIDITY of termination of employment?A: gravity of the offense

position occupied by the employeedegree of damage to the employerprevious infractions of the same offenselength of service

Q: What are the Just causes for termination?A: 1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work 2. Misconduct: transgression of some established an definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment3. Gross and habitual neglect by the employee of is duties such as repeated absenteeism and tardiness4. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly organized representative but fraud must be committed against the employer or his representative and in connection with the employee’s work5. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative. Conviction or prosecution is not required.

Other causes analogous to the foregoing

A cause must be due to the voluntary and willful act or omission of the employeeIn the situations mentioned below, hearing is not required to be conducted by the employer in order for the termination to be valid.

a. Admission of guilt by employee. b. Termination due to authorized causes under Article 283; but prior notice is required.c. Termination due to disease under Article 284. d. Termination by the employee (resignation). e. Termination after 6 months of bona-fide suspension of operation. f. Termination due to expiration of fixed-period employment. g. Termination of casual employment. h. Termination due to completion of project in project employment. i. Termination due to lapse of season in case of seasonal employment. j. Termination due to expiration of period of probationary employment. k. Termination due to expiration of tenure made coterminous with lease. l. Termination due to expiration of contractual employment. m. Termination due to abandonment. n. Termination due to closure or stoppage of work by government authorities.

Q: What is the process to be observed by the employer for termination of the employment based on any of the just causes for termination?

A: The requirements of due process that an employer must comply with are:

a. written notice should be served to the employee specifying the ground/s for termination and giving the said employee reasonable opportunity within which to explain.

b. a hearing of conference should be held during which the employee concerned, with the assistance of counsel, if the employee so desires, is given the opportunity to respond to the charge, present his evidence and present the evidence presented against him.

c. a written notice of termination: if termination is the decision of the employer, it should be served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination

Note: For termination of employment to be based on authorized causes, the requirements of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate RO of DOLE and employment at least 30 days before the effectivity of the termination specifying the grounds for termination

In WENPHIL vs. NLRC (1989), it was held that where the employer had a valid reason to dismiss an employee but did not follow the due process requirement, the dismissal may be upheld but the employer will be penalized to pay an indemnity to the employee. This became known as the Wenphil or Belated Due Process Rule.

On January 27, 2000, in SERRANO vs. NLRC, the rule on the extent of the sanction was changed. The Supreme Court held that the violation by the employer of the notice requirement in termination for just or authorized causes WILL NOT CONSTITUTE a denial of due process that will nullify the termination. However, the dismissal is ineffectual and the employer must pay FULL BACKWAGES from the time of termination until it is judicially declared that the dismissal was for a just or authorized cause. Serrano was confronting the practice of employers to “dismiss now and pay later” by imposing full back wages.

AGABON vs. NLRC (Nov. 17, 2004): After carefully analyzing the consequences of the divergent doctrines in the law on employment termination, we believe that in cases involving dismissals for cause but without observance of the twin requirements of notice and hearing, the better rule is to abandon the Serrano doctrine and to follow Wenphil by holding that the dismissal was for just cause but imposing sanctions on the employer. Such sanctions, however, must be stiffer than that imposed in Wenphil. By doing so, this Court would be able to achieve a fair result by dispensing justice not just to employees, but to employers as well. In said case, the SC awarded P30, 000 in the form of nominal damages. SC held that this form of damages would serve to deter employers from future violations of the statutory due process rights of employees.

In case of termination, the notices shall be served on the employee’s last known address. (Section 2, Rule I, Book VI, Rules to Implement the Labor Code, as amended by Article III, Department Order No. 10, Series of 1997; Agabon vs. NLRC, G.R. No. 158693, Nov. 17, 2004).

Cruz vs. Coca-Cola Bottlers Phils., Inc., [G. R. No. 165586, June 15, 2005], the notices given to petitioner were declared legally deficient. The first notice dated July 27, 1998, did not contain the particulars of the charges nor the circumstances in which the violation happened. The notice was also couched in general

terms that it only mentions the specific sections and rule numbers of the Red Book that was violated without defining what such violation was. A cursory reading of this notice likewise shows that it does not state that petitioner was in fact facing a possible dismissal from the company. Consequently, petitioner was not sufficiently apprised of the gravity of the situation he was in.

In Philippine Pizza, Inc. vs. Bungabong, [G. R. No. 154315, May 9, 2005], petitioners violated respondent’s right to due process, particularly the requirement of first notice because the offense notice petitioners gave to respondent is insufficient since it did not comply with the requirement of the law that the first written notice must apprise the employee that his termination is being considered due to the acts stated in the notice. The first notice issued in this case merely stated that respondent is being charged of dispensing and drinking beer on December 5, 1997, around 11:30 to 11:45 p.m., and nothing more.

Q: What is Preventive Suspension? A: It is when there is an imminent threat to the lives and properties of the employer, his family and representatives as well as the offender’s co-workers by the continued service of the employee, then he may be placed under preventive suspension pending the investigation leading to termination.

Duration: It should not last for more than 30 days. The employee should be made to resume to his work after 30 days.

It can be extended provided the employee’s wages are paid after the 30day period

Q: What are the Authorized Causes of Termination by the Employer? (Articles 283-284)A: 1. Installation of labor-saving devices (automation)2. Redundancy (superfluity in the performance of a particular work): exists where the services of an

employee are in excess of what is reasonably demanded by the actual requirements of the enterprise3. Reorganization: as a cost-saving device is acknowledged by jurisprudence.

An employer is not precluded from adopting a new policy conducive to a more economical and effective management, and the law does not require that the employer should be suffering financial losses before he can terminate the services of the employee on the ground of redundancy (DOLE Phil., Inc. vs. NLRC)

4. Retrenchment: cutting of expenses and includes the reduction of personnel; It is a management prerogative, a means to protect and preserve the employer’s viability and ensure his survival. To be an authorized cause it must be effected in GF and for the purposes of preventing losses and there should be a certain degree of urgency for the retrenchment, which is after all a drastic recourse with serious consequences for the livelihood of the employees retired or otherwise laid-off.

Q: What are the Conditions under which an employer may retrench?A: 1. Substantial losses which are not merely de minimis in extent2. Imminence of such loss3. Effectively prevent the expected and additional losses

The alleged losses and expected losses must be proven by sufficient and convincing evidenceother measures to minimize loss ineffective

4. Closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of Labor Code5. Installation of labor-saving devices6. Disease

incurable within 6 months and the continued employment of the employee is prohibited by law or prejudicial to his health as well as to the health of his co-employees

with a certification from the public health officer that the disease is incurable within 6 months despite due medication and treatment

In the case of Allied Banking Corporation vs. CA, [G. R. No. 144412, November 18, 2003], An employee could not validly refuse the lawful transfer orders on the ground of parental obligations, additional expenses, and the anguish he would suffer if assigned away from his family. The Supreme Court distinguished transfer from the Philippines to overseas post and transfer from city to city within the Philippines. The High Court observed that the transfer of an employee to an overseas post, as in the Dosch vs. NLRC case, [208 Phil. 259; 123 SCRA 296 1983, (where the refusal of the employee was upheld as valid) cannot be likened to a transfer from one city to another within the country, Consequently, the refusal to be transferred within the Philippines based on personal grounds was considered willful disobedience of a lawful order.

Discrimination in any form from pre-employment to post employment including hiring, promotion or assignment, based on the actual perceived or suspected HIV status of an individual is prohibited.

Termination from work on the sole basis of actual perceived or suspected HIV status is deemed unlawful. (Sec. 35, RA 8504 HIV/AIDS Law)

Art. 283 governs the grant of separation benefits ‘in case of closure/cessation of operation of business establishment’ not due to serious business losses/financial reverses

When termination of employment brought by failure of employee to meet the standards of employer (probationary employment): sufficient that a written notice is served to the employee within the reasonable time from the effective date of termination

When termination brought about by completion of contract: no prior notice is required

Art. 285TERMINATION BY THE EMPLOYEE

Q: How can an employee terminate his services with his employer? A:a. without just cause: by serving written notice on the

employer at least 1 month in advance. The employer upon whom no such notice was served may hold the employee liable for damages

b. with just cause: an employee may put an end to employment without serving any notice on the employer for any of the ff. just causes:

1. Serious insult by the employer or his representative on the hour and person of the employee

2. Inhuman and unbearable treatment accorded the employee by the employer or his representative

3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family

4. Other causes analogous to any of the foregoing

RETIREMENT

Q: What is the Retirement age? A: It is the age of retirement is that specified in the CBA or in the employment contract. In the absence of the retirement plan or agreement providing for retirement benefits of employees in an establishment, an employee upon reaching the age of 60 years or more but not beyond 65 years which is hereby declared as the compulsory retirement age, who has served at least 5 years in said establishment.

Retirement is different with respect to underground mining employees whose optional retirement age is 50-60 years provided they have at least served for a period of 5 years (Article285 as amended by RA 8558)Q: What is retirement Benefits?A: A retiree is entitled to a retirement pay equivalent to at least ½ month salary for every year of service, a fraction of at least 6 months being considered as 1 whole year

Unless parties provide for broader inclusions, the term ‘ 1/2 month salary ’ shall mean:15 days plus 1/12 of the 13th month pay andcash equivalent of not more than 5 days of service incentive leaves (22.5/year of service)

Section 26, RA 4670 (Magna Carta for Public School Teachers): public school teachers having fulfilled the age and service requirements of the applicable retirement laws shall be given one range salary raise upon retirement, which shall be the basis of the computation of the lump sum of the retirement pay and the monthly benefit thereafter.

Exempted from payment of retirement pay are retail service and agricultural establishments or operations employing not more than 10 employees.

60 – 65 years of age: optional but the employee must have served at least 5 years

65 and more: compulsory (no need for 5 years of service requirement)

CAUSE OF TERMINATION

SEPARATION PAY

Automation Equivalent to at least 1 month pay or at least 1 month pay for every year of service, whichever is higher

Redundancy Equivalent to at least 1 month pay or at least 1 month pay for every year of service, whichever is higher

Retrenchment Equivalent to 1 month pay or at least ½ month pay for every year of service

Closures or cessation of operations not due to serious business losses/financial reverses

Equivalent to at least 1 month pay or at least 1 month pay for every year of service (if due to severe financial losses, no separation pay)

Disease Equivalent to at least 1 month pay or at least 1/2 month pay for every year of service, whichever is higher, a fraction of at least 6 months shall be considered 1 whole year

Arts. 288-302TRANSITORY AND FINAL PROVISIONS

Q: What are the penalties provided for in Art. 288 of the Labor Code?

A: Any violation of the provisions of this Code declared to be unlawful or penal in nature shall be punished XPNS:as otherwise provided in this Code; orthe acts complained of hinge on a question of interpretation or implementation of ambiguous provisions of an

existing collective bargaining agreement

Fine: not less than P1,000.00 nor more than P10,000.00 or

Imprisonment: not less than 3 months nor more than 3 years, or both such fine and imprisonment at the discretion of the court. In addition to such penalty, any alien found guilty shall be summarily deported upon completion of service of sentence. Any criminal offense punished in this Code: under the concurrent jurisdiction of the Municipal or City Courts and the RTC. (As amended by Section 3, Batas Pambansa Bilang 70).

ART. 289

Q: Who are liable when committed by other than natural person?A: If offense is committed by: corporation, trust, firm, partnership, association or any other entityPenalty: imposed upon the guilty officer or officers of such corporation, trust, firm, partnership, association or entity.

Q: Give the rules as regards the prescriptive period as provided for in the Labor Code?A: ART. 290. Offenses. – 3 years

ULP filed with the appropriate agency: within one (1) year from accrual of such ULP; otherwise, forever barred.

ART. 291. Money claims. - 3 years from the time the cause of action accrued; otherwise forever barred. All money claims accruing prior to the effectivity of this Code: within one (1) year from the date of

effectivity, in accordance with IRR; otherwise, they shall be forever barred.

Workmen’s compensation claims accruing prior to the effectivity of this Code and between November 1, 1974 - December 31, 1974 shall be filed not later The claims shall be processed and adjudicated in accordance with the law and rules at the time their causes of action accrued.

ART. 292. Institution of money claims. - shall be filed before the appropriate entity independent of the criminal action that may be instituted in the proper courts.

Pending the final determination of money claims cases filed, no civil action arising from the same cause of action shall be filed with any court. This provision shall not apply to employees compensation cases.

SPECIAL LAWSPD 851

13TH MONTH PAY LAW

All employers shall give all their employees thirteenth-month pay.

The 13th month pay shall mean 1/12 of the employee’s basic salary.

Q: What is Basic salary?A: It is all the remunerations and earnings paid by an employer to an employee.

Q: Who are the Employers NOT covered by PD 851?A: (a) Distressed employers:

(1) those which are currently incurring substantial losses or

(2) in the case of non-profit institutions and organizations, where their income [whether from donations, contributions, grants and other earnings] has consistently declined by more than 40% of their normal income for the last 2 years.

However, to be considered exempted, there must be prior decree of the Secretary of Labor of their being a distressed employer.

(b) The Government and any of its political subdivisions, including GOCCs

Except those corporations operating essentially as private subsidiaries of the Government;

(c) Employers already paying their employees 13-month pay [or more] or its equivalent;

Equivalent: includes Christmas bonus, mid-year bonus, profit-sharing payments and other cash bonuses amounting to not less than 1/12th of the basic salary.

Where an employer pays less than 1/12th of the employee’s basic salary, the employer shall pay the difference.

(d) Employers of household helpers and persons in the personal service of another; and (e) Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, [irrespective of the time consumed in the performance thereof]

except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance.

Q: Who are the Employees covered?A: All employees who have worked for at least one month during the calendar year.

The employer has the option to choose when to give the 13 th month pay – one half before the opening of the regular school year and the other half on or before the 24th day of December of every year.

The date may be a subject in the CBA.

Non-payment of the 13th month pay shall be treated as money claims cases – cognizable by the NLRC.

Nothing herein shall be construed to authorize any employer to eliminate, or diminish in any way, supplements or other employee benefits or favorable practice being enjoyed by the employee at the time of promulgation of this issuance.

RA 6657COMPREHENSIVE AGRARIAN REFORM LAW OF 1988

Q: Give the Principle/Purpose or Philosophy of the CAR Law of 1988, as amendedA: The welfare of the landless farmers and farm workers will receive the highest consideration to promote social justice and to move the nation towards sound rural development and industrialization, and the establishment of owner cultivatorship of economic-sized farms as the basis of Philippine agriculture.

The agrarian reform program is founded on the right of farmers and regular farm workers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a share of the fruits thereof.

This land-sharing shall be subject to prior rights, homestead rights of small settlers and the rights of indigenous communities to their ancestral lands.

The State shall protect the rights of subsistence fishermen to the preferential use of communal marine and fishing resources. It shall provide support through appropriate technology and research, adequate financial, production and marketing assistance and other services.

The State shall provide incentives to landowners to invest the proceeds of the agrarian reform program to promote industrialization, employment and privatization of public sector enterprises.

Q: What are the Lands covered by CARP?A: 1. All alienable and disposable lands of the public domain devoted to or suitable for agriculture.2. All lands of the public domain in excess to the specific limits as determined by Congress3. All other lands owned by the Government devoted to or suitable for agriculture; and4. All private lands devoted to or suitable for agriculture

Q: What are the Retention Limits?A: -5 hectares for the landowner

-3 hectares may be awarded to each child of the landowner, subject to:1. at least 15 years of age2. actually tilling or managing the farm

Provided that:

Original homestead grantees or direct compulsory heirs -- who still own the original homestead -- shall retain the same areas as long as they continue to cultivate said homestead.

Right to choose area to be retainedThe right to choose the area to be retained shall pertain to the landowner.

Provided, that in case the area selected for retention by the landowner is tenanted, the tenant shall have the option:

1. to remain or 2. be a beneficiary in the same or another agricultural land with similar or comparable features.

If tenant chooses to remain, he shall be considered a leaseholder and shall lose his right to be a beneficiary under this Act. In case the tenant chooses to be a beneficiary in another agricultural land, he loses his right as a leaseholder.

The tenant must exercise this option within a period of one (1) year from the time the landowner manifests his choice of the area for retention.

In Cooperatives/Associations:Lands shall be distributed directly to the individual worker-beneficiaries.

In case it is NOT economically feasible to divide the land, they shall form a workers' cooperative or association which will deal with the corporation or business association or any other proper party, for the purpose of entering into a lease or growers agreement and for all other legitimate purposes.

The individual members of the cooperatives or corporations shall be provided with home lots and small farm lots for their family use, to be taken from the land owned by the cooperative or corporation.

Ancestral Lands:For purposes of this Act, ancestral lands of indigenous cultural community (lands in the actual,

continuous and open possession and occupation of the community and its members) shall be retained by them.

Provided, That the Torrens System shall be respected.

Q: What are the Exempted and Excluded lands?A: (a) Parks, wildlife, forest reserves, reforestation, fish sanctuaries and breeding grounds, watersheds and mangroves.

(b) Private lands used for prawn farms and fishponds.

(c) Lands used and found to be necessary for national defense, school sites and campuses, including experimental farm stations operated educational purposes, seeds and seedlings research and pilot production center, church sites and convents, mosque sites and Islamic centers, communal burial grounds and cemeteries, penal colonies and penal farms, government and private research and quarantine centers and all lands with 18% slope and over.

Q: What are the circumstances to be considered in the determination of Just Compensation?A: 1. The cost of acquisition of the land2. The current value of like properties3. Its nature4. Actual use and income5. Sworn valuation by the owner6. Tax declarations7. Assessment made by government assessors

As additional factors:1. Social and economic benefits contributed by the farmers and the farm workers and by government to the property 2. Non-payment of taxes or loans secured from any government financing institution on the said land

Q: What is the concept of LAND REDISTRIBUTION in CARP?

A: The lands covered by the CARP shall be distributed as much as possible to landless residents of the same barangay. In the absence thereof, landless residents of the same municipality in the following order of priority:

(a) agricultural lessees and share tenants; (b) regular farm workers; (c) seasonal farm workers; (d) other farm workers; (e) actual tillers or occupants of public lands;

(f) collective or cooperatives of the above beneficiaries; and (g) others directly working on the land.

The children of landowners who are qualified shall be given preference in the distribution of the land of their parents; AND that actual tenant -tillers in the landholding shall not be ejected or removed there from.

Beneficiaries shall be awarded an area not exceeding 3 hectares, which may cover a contiguous tract of land or several parcels of land cumulated up to the prescribed award limits.

Q: What is the jurisdiction of Special Agrarian Courts?

A: The Special Agrarian Courts shall have original and exclusive jurisdiction over all petitions for the determination of just compensation to landowners, and the prosecution of all criminal offenses. The Rules of Court shall apply to all such proceedings.

Q: What are the Prohibited Acts and Omissions in CARP? A:

(a) The ownership or possession, for the purpose of circumventing the provisions of this Act, of agricultural lands in excess of the total retention limits or award ceilings by any person, natural or juridical, except those under collective ownership by farmer-beneficiaries.

(b) The forcible entry or illegal detainer by persons who are not qualified beneficiaries to avail themselves of the rights and benefits of the Agrarian Reform Program; (c) The conversion by any landowner of his agricultural land into non-agricultural use with intent to avoid the application of this Act to his landholdings and to dispossess his tenant farmers or the land tilled by them;

(d) The willful prevention or obstruction by any person, association or entity of the implementation of the CARP;

(e) The sale, transfer, conveyance or change of the nature of lands outside of urban centers and city limits either in whole or in part.

(f) The sale, transfer or conveyance by a beneficiary of the right to use or any other usufructuary right over the land he acquired by virtue of being a beneficiary, in order to circumvent the provisions of this Act.

RA 7877ANTI-SEXUAL

HARASSMENT LAW

Q: Who may commit Sexual Harassment?A:

an employer employee manager, supervisor agent of the employer, teacher, instructor, professor, coach, trainer; OR any other person who, having AUTHORITY, INFLUENCE OR MORAL ASCENDANCY over another

in a work or training or education environment,

Q: What are the criminal acts committed in RA7877?A:

1. DEMANDS, OR REQUESTS or otherwise REQUIRES any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act.

2. Any person who DIRECTS or INDUCES another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another, without which it would not have been committed, shall also be held liable under this Act.

3.1) In a WORK-RELATED or EMPLOYMENT ENVIRONMENT, sexual harassment is committed when:

a) The sexual favor is made as a condition:i) in the hiring, ii) employment, iii) re-employment or iv) continued employment of said individual, or v) in granting said individual favorable compensation, terms of conditions, promotions, or privileges;

b) or the refusal to grant the sexual favor results in:

i) limiting,ii) segregating or iii) classifying the employee which in any way would iv) discriminate, deprive or diminish employment opportunities or otherwise adversely affect said

employee;

c) The above acts would impair the employee's rights or privileges under existing labor laws; or

d) The above acts would result in an intimidating, hostile, or offensive environment for the employee.

2) In an EDUCATION or TRAINING ENVIRONMENT, sexual harassment is committed:

a. Against one who is under the care, custody or supervision of the offender;

b. One whose education, training, apprenticeship or tutorship is entrusted to the offender;

c. When the sexual favor is made a condition:i. to the giving of a passing grade, or ii. the granting of honors and scholarships, or iii. the payment of a stipend, allowance or other benefits, privileges, or consideration;

ord. When the sexual advances result in an intimidating, hostile or offensive environment for the student,

trainee or apprentice.

RA 8042MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT

OF 1995

Q: Who is a MIGRANT WORKER? A: 1) a person who is:

a) to be engaged, b) is engaged, or c) has been engaged in a remunerated activity

2) in a state of which he or she is not a legal resident;

To be used interchangeably with Overseas Filipino Worker.

Q: What is ILLEGAL RECRUITMENT?A:I. Any act of:

canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated

under Article 13(f) of the Labor Code.

Provided that: That any such non-licensee or non-holder who, in any manner, offers or promises for a fee, employment abroad to two or more persons shall be deemed so engaged.

II. Shall also include the following acts whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority:

a. charging or accepting directly or indirectly any amount greater than the allowable fees (prescribed by the Secretary of Labor and Employment), or to make a worker pay any amount greater than that actually received by him as a loan or advance.

b. furnishing or publishing of any FALSE notice or information or document in relation to recruitment or employment.

c. giving of false notice, testimony, information or document or committing any act of misrepresentation for the purpose of securing a license or authority under the Labor Code

d. inducing or attempting to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment.

e. influencing or attempting to influence any person or entity not to employ any worker who has not applied for employment through his agency.

http://www.chanrobles.com/legal4labor.htm

f. engaging in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines.

g. obstructing or attempting to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative.

h. failure to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment;

i. To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the DOLE

j. For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency.

k. To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations

l. Failure to actually deploy without valid reason

m. Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault.

Q: When is illegal recruitment deemed committed by a syndicate? A: Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage.

by a syndicate : carried out by a group of three (3) or more persons conspiring or confederating with one another.

large scale : committed against three (3) or more persons individually or as a group.

PENALTIES1) penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12)

years and a fine of not less than Two hundred thousand pesos (P200,000.00) nor more than Five hundred thousand pesos (P500,000.00).

2) If the illegal recruitment constitutes economic sabotage penalty of life imprisonment and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00) shall be imposed

Provided that the maximum penalty shall be imposed if the person illegally recruited is less than eighteen (18) years of age OR committed by a non-licensee or non-holder of authority.

Q: Who are the persons that are prohibited by from engaging the business of recruiting migrant workers?

A:1) unlawful for any official or employee

a) Department of Labor and Employmentb) Philippine Overseas Employment Administration (POEA)c) Overseas Workers Welfare Administration (OWWA)d) Department of Foreign Affairs, or e) other government agencies involved in the implementation of this Act,

2) or their relatives within the fourth civil degree of consanguinity or affinity, to engage, directly or indirectly in the business of recruiting migrant workers.

Q: What is the Role of the following Government Agencies to our OFW’s?

ROLE OF GOVERNMENT AGENCIES (Sec 23)

1) Department of Foreign Affairs a) shall take priority action or make representation with the foreign authority concerned to protect the

rights of migrant workers and other overseas Filipinos

b) extend immediate assistance including the repatriation of distressed or beleaguered migrant workers and other overseas Filipinos.

2) Department of Labor and Employment

a) shall see to it that labor and social welfare laws in the foreign countries are fairly applied to migrant workers

b) shall see to the grant of legal assistance and the referral to proper medical centers or hospitals2.1) Philippine Overseas Employment Administration

(Subject to deregulation and phase-out as provided under Sections 29 and 30)~The POEA shall regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system.~ formulate and implement a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements.

2.2) Overseas Workers Welfare Administration~ shall provide the Filipino migrant worker and hisfamily all the assistance they may need in the enforcement of contractual obligations by agencies or entities and/or by their principals.

RA 8291GOVERNMENT SERVICE INSURANCE SYSTEM ACT

OF 1997 1. Q: What are the purposes behind the enactment of the GSIS Act?

A: To provide and administer the following social security benefits for government employees: Compulsory life insurance Optional life insurance Retirement benefits Disability benefits to work-related contingencies; and Death benefits

2. Q: Who are the persons COMPULSORY COVERED by the GSIS Act?

A: All government employees receiving compensation, irrespective of employment status, who have NOT reached the compulsory retirement age at the time of election or appointment.

All other government contractual and other employees as long as an employer-employee relationship exist.

3. Q: What are the BENEFITS PROVIDED for by the GSIS Act?

A:social security protection including

separationunemployment benefitsretirementdisabilitysurvivorshipfunerallife insurance

such other benefits and protection as may be extended to them by the GSIS.

Q: Define Employer under the GSIS Act.

A: The National Government, its political subdivisions, branches, agencies, instrumentalities, including government-owned or controlled corporations, and financial institutions with original charters, the constitutional commissions and the judiciary.

Q: Define an employee or member.

A: Any person, receiving compensation while in the service of an employer as defined herein, whether by election or appointment, irrespective of status of appointment, including barangay and sanggunian officials.

4. Q: For the purpose of benefit entitlement, how are the members classified?

A: They are classified as follows: 1. active members

- still in the service and are paying integrated premiums- covered for the entire package benefits and privileges being extended by GSIS

2. policyholders- covered for life insurance only - can avail of policy loan privilege only- may also apply for housing loans- Judiciary and Constitutional Commissions

3. separated members- former active members who have been separated from the service- not entitled to any loan privilege- may, however, apply for housing loans

4. retired members- former active members who have retired from the service and are already enjoying the

corresponding retirement benefits applied for- not entitled to any loan privilege, except stock purchase loan

Q: Who are considered dependents?

A: 1. Legitimate spouse dependent for support upon the member or pensioner;

2. Legitimate, legitimated, legally adopted child, including the illegitimate child, who is

unmarried, not gainfully employed, not over the age of majority, or if over the age of majority, incapacitated and incapable of self-support due to a mental or physical defect acquired prior to age of majority; and

3. Parents dependent upon the member for support.

Q: Who are the primary beneficiaries?

A: 1. The legal dependent spouse until he/she remarries and2. The dependent children.

Q: Who are the secondary beneficiaries?

A: 1. The dependent parents and 2. Subject to the restrictions on dependent children, the legitimate descendants.

Q: Define Compensation.

A: The basic pay or salary received by an employee, pursuant to his or her election or appointment, excluding per diems, bonuses, overtime pay, honoraria, allowances and any other emoluments received in addition to the basic pay which are not integrated into the basic pay under existing laws.

Q: What is the period of membership?

A: Membership in the GSIS shall take effect upon the employee’s actual assumption of duty pursuant to a valid appointment or election and oath of office.

Q: Who are the government employees excluded from the coverage?

1. employees who have separate retirement schemes (members of the Judiciary, Constitutional Commissions and others similarly situated)

2. contractual employees who have no employer-employee with the agencies they serve

3. uniformed members of the AFP, Bureau of Fire Protection and the Bureau of Jail Management and Penology

4. uniformed members of the PNP

Q: What are the benefits under PD 1146 (Revised GSIS Act of 1977) that may be granted to the separated members of the PNP, BJMP and BFP?

A:1. Old-Age Benefit 2. Permanent Disability Benefit 3. Survivorship Benefit4. Funeral Benefit5. Retirement Benefit

Q: What are the effects of separation from service with regard to membership?

A: A member separated from the service shall continue to be a member and shall be entitled to whatever benefits he has qualified to.

A member separated for a valid cause shall automatically forfeit his benefits, unless the terms of resignation or separation provide otherwise.

In the case of forfeiture, the separated employee shall be entitled to receive only of the ½ of the cash surrender value of his insurance.

Q: What is the proportion of contribution?A:

for the maximum average monthly compensation (AMC) limit and below- employee: 9%- employer: 12%

over the maximum AMC limit, additional- employee: 2%- employer: none, still 12%

Members of the Judiciary and Constitutional Commissions shall pay 3% of their monthly compensation as personal share and their employees a corresponding 3% share for their life insurance coverage.

Each employer shall remit directly to the GSIS the employer’s and employee’s contributions within the first 10 days of the calendar month following the month to which the contributions apply.

Note: The employer shall report annually to the GSIS the names of all of its employees, their corresponding employment status, positions, salaries and other pertinent information. Subsequent changes in the information, if any, shall be reported every month as they take place.

SEPARATION BENEFITS

Q: When will a member be entitled to Separation Benefits? What will compose these Separation Benefits?

A: A member who has rendered a minimum of 3 years creditable service shall be entitled to separation benefit upon resignation or separation under the following terms:

1. a member with at least 3 years but less than 15 years: cash payment equivalent to 100% of the AMC for every year of service the member has paid contributions not less than P12,000.00 payable upon reaching 60 years of age or upon separation, whichever comes later.

2. a member with less than 15 years of service and less than 60 years of age at the time of resignation or separation:

cash payment equivalent to 18 times the basic monthly pension (BMP), payable at the time of resignation or separation

an old-age pension benefit equal to the basic monthly pension, payable monthly for life upon reaching the age of 60.

UNEMPLOYMENT BENEFITS

Q: What will consist of an Unemployment Benefit?

A: It will consists of cash payment equivalent to 50% of the average monthly compensation

Note: A member who has rendered at least 15 years of service will be entitled to Separation benefits instead of Unemployment benefits.

Q: What are the conditions for entitlement to unemployment benefits?

A: a. the recipient must be a permanent employee at the time of separation;

b. his separation was involuntary due to the abolition of his office or position resulting from reorganization; and

c. he has been paying the contribution for at least 1 year prior to separation.

RETIREMENT BENEFITS

Q: What are the conditions in order to be entitled to retirement benefits?

A: A member has rendered at least 15 years of service;He is at least 60 years of age at the time of retirement; andHe is not receiving a monthly pension benefit from permanent total disability.Note: If less than 15 years of service, the member may be allowed to continue in the service in accordance

with the existing Civil Service rules and regulations.

Q: What are the options of the retiree with regard to his/her retirement benefits?

A: The retiree may get either of the following:1. lump sum equivalent to 6 months of the BMP ( Basic Monthly Pension) payable at the time of

retirement and an old-age pension benefit equal to BMP payable for life, starting upon the expiration of the 5 years covered by the lump sum; or

2. cash payment equivalent to 18 times his BMP and monthly pension for life payable immediately.

In case of conflicting dates, the date in the birth or baptismal certificate shall prevail.

DISABILITY BENEFITS

Q: What are the causes in order that a disability benefit may be given?

A:1. In case of loss or reduction of earning capacity.

2. Caused by a loss or impairment of the normal function of is physical and/or mental faculties.

3. Loss or impairment caused by injury or disease.

4. Loss in earning capacity is determined on the basis of:a. members actual loss of income fro his usual occupationb. his capacity to continue engaging in any other gainful occupation

Q: What are the causes that will give rise to non-entitlement?

A: Disability was DUE to the member’s1.grave misconduct 2.notorious negligence 3.habitual intoxication4.willful intention to kill himself or another

Q: What are the kinds of disability?A:1. Permanent Total3 situations:

a)a member is entitled to the monthly income benefit for life equivalent to the BMP when

he is in the service at the time of the disability

if separated from service- he has paid at least 36 monthly contributions within 5 years immediately preceding his disability- he has paid a total of at least 180 monthly contribution prior his disability

he is not receiving old-age retirement pension benefits

b) besides a monthly income benefit for life, a cash payment equivalent to 18 times his BMP ( Basic Monthly Pension) to a member who was in the service at the time of his permanent total disability and who has paid a total of 180 monthly contributions shall also be given.

c) If the member does not satisfy the conditions above but has rendered at least 3 years service, he

shall be advanced the cash payment equivalent to 100% of his AMC for each year of service he has pad contributions but not less than P12,000.00 which should have been his separation benefit [he shall no longer receive separation benefits]

Note: In general, benefit stops upon re-employment. In permanent total disability, however, member shall be paid the corresponding benefit even if he is able to pursue a gainful occupation.

2. Permanent Partial- accrues when there is complete but temporary incapacity to continue with one’s present work or to

engage in any gainful occupation due to the loss or impairment of the normal function of his physical and/or mental faculties

A member is entitled to cash payment equivalent to the BMP to be paid in accordance with the schedule of disabilities or Table of Loss Percentage if he is qualified [same rules as permanent total]

3. Temporary Totala) member is entitled to 5% of his current daily compensation for each day or fraction thereof of total

disability benefit, to start at the 4th day but nor exceeding 120 days in one calendar year when- he has exhausted all sick leaves -

- he was in the service at time of disability- separated, he has rendered at least 3 years of service and has paid at least 6 monthly

contributions in the year preceding his disability

b) if the disability requires more extensive treatment that lasts beyond 120 days, the benefit may be extended but not to exceed a total of 240 days.

c) The temporary total disability benefits shall in no case be less than P70.00 a day.

d) A member cannot enjoy the temporary total disability benefit and sick leave pay simultaneously,

Q: When will the payment for these benefits be suspended?

A: 1. In case a member is re-employed; or2. member recovers from disability as determined by the GSIS; or3. fails to present himself for medical examination when required by the GSIS.

For injuries or illnesses resulting in a disability NOT listed in the schedule of partial/total disability, the GSIS shall determine the nature of the disability and the corresponding benefits.

Note: An application for disability must be filed with the GSIS within 4 years from the date of the occurrence of the contingency.

Should a new impairment supervene while a member is enjoying disability benefit, the extent of his disability shall be re-evaluated.

In no case shall a member enjoy more than one disability benefit at any given time.

SURVIVORSHIP BENEFITS

Q: When will a beneficiary be entitled to survivorship benefits?

A: When a member or pensioner dies, the beneficiaries shall be entitled to survivorship benefits.

Q: What are the factors to be considered with regard to the amount of benefits?

A: Status in the service at the time of death, length of service, and the monthly contribution to the GSIS.

Q: What the classification of the benefits?

A: Upon death, the primary beneficiaries shall be entitled to:survivorship pension

- 50% of the BMP- Dependent children’s pension not exceeding 50% of the BMP

Provided the deceased was in the service at the time of death

if separated- has at least 3 years of service at the time of death- has paid 36 monthly contributions within the 5 year period preceding his death- has paid a total of 180 monthly contributions prior to his death

the survivorship pension plus a cash payment equivalent to one hundred percent (100%) of his average monthly compensation for every year of service: Provided, That the deceased was in the service at the time of his death with at least three (3) years of service; OR

a cash payment equivalent to one hundred percent (100%) of his average monthly compensation for each year of service he paid contributions, but not less than Twelve thousand pesos (P12,000.00): Provided, That the deceased has rendered at least three (3) years of service prior to his death but does not qualify for the benefits under item (1) or (2) of this paragraph.

Q: How is Survivorship Pension among Primary Beneficiaries allocated?

A:1) when the dependent spouse is the only survivor, he/she shall receive the basic survivorship pension

for life or until he/she remarries;

2) when only dependent children are the survivors, they shall be entitled to the basic survivorship pension for as long as they are qualified, plus the dependent children’s pension equivalent to 10% of the basic monthly pension for every dependent child not exceeding 5, counted from the youngest and without substitution;

3) when the survivors are the dependent spouse and the dependent children, the dependent spouse shall receive the basic survivorship pension for life or until he/she remarries, and the dependent children shall receive the dependent children’s pension mentioned in the immediately preceding paragraph (2) hereof

Q: In case there are no primary beneficiaries, how will the survivorship benefits be allocated?

A: The secondary beneficiaries will be entitled to the cash payment equivalent to 100% of his average monthly compensation for each year of service he paid contributions, but not less than P12,000.00: Provided, That the member is in the service at the time of his death and has at least 3 years of service;

In the absence of secondary beneficiaries, the benefits under this paragraph shall be paid to his legal heirs.

For purposes of the survivorship benefits, legitimate children shall include legally adopted and legitimated children.

FUNERAL BENEFITS

Q: What comprises the funeral benefit?

A: Cash not less than P12, 000.00 to be increased to at least P18, 000.00 after 5 years (specifically year 2002). The amount shall be determined and specified by the GSIS through an information circular distributed to all employers for posting at their premises.

Q: When will it be paid?

A: It will be paid upon the death of:1) an active member2) a member who has been separated from the service but is entitled to future separation or retirement

benefits3) a member who is a pensioner (excluding survivorship pensioners)4) a retiree who is at the time of his retirement was of pensionable age, at least 60 years old, who opted

to retire under RA 1616.

LIFE INSURANCE BENEFITS

Q: Who are entitled?

A:1) all survivorship pensioners2) those who have optional life insurance

Q: What is the concept of Compulsory Life Insurance?

A: All employees including the members of the Judiciary and the Constitutional Commissioners except for Members of the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), BFP and BJMP, shall, under such terms and conditions as may be promulgated by the GSIS, be compulsory covered with life insurance, which shall automatically take effect as follows:

those employed after the effectivity of this Act, their insurance shall take effect on the date of their employment;

for those whose insurance will mature after the effectivity of this Act, their insurance shall be deemed renewed on the day following the maturity or expiry date of their insurance;

for those without any life insurance as of the effectivity of this Act, their insurance shall take effect following said effectivity.

Q: What are the types of Optional Life Insurance?

A: A member may at any time apply for himself and/or his dependents:Ordinary lifeLimited payment lifeSingle PaymentJoint LifeEndowmentTerm Insurance

Any employer may apply for group insurance coverage for its employees.

The payment of the premiums may be made by the insured or his employer and/or any person acceptable to the GSIS.

Q: When may a lapsed policy/ plan be reinstated?1. a lapsed policy may be reinstated

- upon submission of satisfactory proofs of insurability

- payment of at least the difference between the cash value of the policy at the time of reinstatement and the total premium indebtedness

2. the lapsed pre-need plan may be reinstated/re-applied/ updated within a period of two years from date of default

- upon payment of arrearages plus interest- upon approval of the GSIS in writing

The rights and obligations of the insured/plan holder and the GSIS are set forth in the policy/plan issued to the member or his dependents, in the application for optional life insurance/pre-need coverage.

Q: What is the prescription period to claim for benefits?

A: Claims for benefits, except for life insurance and retirement, shall prescribe after 4 years from date of contingency.

Q: Discuss the adjudication of claims and disputes regarding the GSIS benefits.

A: The quasi-judicial functions of the GSIS shall be vested in its Board of Trustees.

The GSIS, in appropriate cases, or any person whose rights are or may be prejudiced by the operations or enforcement of RA 8291 and other laws administered by the GSIS, may file a petition before the GSIS either personally or through counsel.

Within 15 days from receipt of the notice of decision or award, the aggrieved party may appeal the decision of the GSIS Board of Trustees to the Court of Appeals.

When no appeal is perfected and there is no order to stay by the Board, by the Court of Appeals or by the Supreme Court, any decision or award of the Board shall be enforced and executed in the same manner as decisions of the Regional Trial Court.

For this purpose, the Board shall have the power to issue to the city or provincial sheriff or its appointed sheriff such writs of execution as may be necessary for the enforcement of such decision or award

Any person who shall fail or refuse to comply with such decision, award, writ or process after being required to do so shall, upon application by the GSIS, be punished for contempt.

The social security benefits shall be EXEMPT from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial bodies or administrative agencies including the Commission on Audit, disallowances, and from all financial obligations of the members.

Q: What are the acts punishable under the GSIS Act?

A:1) Any person found to have participated in the commission of fraud, collusion, falsification, or

misrepresentation in any transaction with the GSIS, whether for him or for some other persons, shall suffer the penalties provided for in Article 172 of the RPC.

2) Whoever shall obtain or receive any money or check invoking any provision of this Act without being entitled thereto with the intent to defraud any member, any employer, the GSIS, or any third party.

3) Whoever fails or refuses to comply with the provisions of this Act or with the rules and regulations adopted by the GSIS.

4) The treasurer, finance officer, cashier, disbursing officer, budget officer or other official or employee who fails to include in the annual budget the amount corresponding to the employer and employee contributions, or who fails or refuses or delays by more than thirty (30) days from the time such amount becomes due and demandable, or to deduct the monthly contributions of the employee.

5) Any employee or member who receives or keeps fund or property belonging, payable or deliverable to the GSIS and appropriates the same, or takes or misappropriates the same, or permits another person to take, misappropriate or use said fund or property by expressly consenting thereto, or through abandonment or negligence, or is otherwise guilty of the misappropriation of said fund or property, in whole or in part.

6) Any employee who, after deducting the monthly contribution or loan amortization from a member’s compensation, fails to remit the same to the GSIS within thirty (30) days from the date they should have been remitted.

7) The heads of the offices of the national government, its political subdivisions, branches, agencies and instrumentalities, including GOCCs and government financial institutions, and the personnel of such

offices who are involved in the collection of premium contributions, loan amortization and other accounts due the GSIS who shall fail, refuse or delay the payment, turnover, remittance or delivery of such accounts to the GSIS within thirty (30) days from the time that the same shall have been due and demandable

8) Such officers and/or personnel shall be liable not only criminally but also civilly to the GSIS or to the employee or member concerned in the form of damages, including surcharges and interests.

RA 8282SOCIAL SECURITY ACT OF 1997

Q: What is the principal purpose behind the enactment of the SSS Act?

A: SSS Law was enacted pursuant to the policy of the Government to establish, develop and perfect a social security system suitable to the needs of the people throughout the Philippines against the hazards of disability, sickness, old age and death.

The law requires compulsory coverage of employers and employees under the system. Membership is in compliance with a lawful exercise of police power of the State, to which the principle of non-impairment of the obligation of contract is not a defense.

Q: What are the benefits under the SSS Act?

A:1. Monthly Pension2. Retirement Benefits3. Death Benefits4. Disability Benefits5. Funeral Benefits6. Sickness Benefits7. Maternity Benefits (No Maternity Benefits under the GSIS Act)

Q: Who composes the Social Security Commission?

A:1. Secretary of Labor and Employment or his duly designated undersecretary;2. SSS president; and3. 7 appointive members

a. 3 represent the workers group, at least 1 of whom shall be a woman;b. 3 represent the employers group, at least 1 of whom shall be a woman; andc. 1 from the general public whose representative shall have adequate knowledge and

experience regarding social

security, to be appointed by the President of the Philippines.

Chairman of the Commission shall be designated by the President of the Philippines from among its members.

Q: Define an Employer.

A: Any person, natural or juridical, domestic or foreign, who carries on in the Philippines any trade, business, industry, undertaking, or activity of any kind and uses the services of another person who is under his orders as regards the employment, except the Government and any of its political subdivisions, branches or instrumentalities, including corporations owned or controlled by the Government: Provided, That a self-employed person shall be both employee and employer at the same time.

Q: Define an Employee:

A: Any person who performs services for an employer in which either or both mental or physical efforts are used and who receives compensation for such services, where there is an employer-employee relationship

Provided, that a self-employed person shall be both employee and employer at the same time.

Q: Define Employment as contemplated in SSS Act.

A: Any service performed by an employee for his employer except:1. Employment purely casual and not for the purpose of occupation or business of the employer;

2. Service performed on or in connection with an alien vessel by an employee if he is employed when such vessel is outside the Philippines;

3. Service performed in the employ of the Philippine Government or instrumentality or agency thereof;

4. Service performed in the employ of a foreign government or international organization, or their wholly-owned instrumentality:

Provided, however, That this exemption notwithstanding, any foreign government, international organization or their wholly-owned instrumentality employing workers in the Philippines or employing Filipinos outside of the Philippines, may enter into an agreement with the Philippine Government for the inclusion of such employees in the SSS except those already covered by their respective civil service retirement systems:

Provided, further, That the terms of such agreement shall conform with the provisions of the Act on coverage and amount of payment of contributions and benefits:

Provided, finally, That the provisions of the Act shall be supplementary to any such agreement; and

4. Such other services performed by temporary and other employees which may be excluded by regulation of the Commission. Employees of bona fide independent contractors shall not be deemed employees of the employer engaging the service of said contractors.

Q: Classify Beneficiaries.

A:(a) Primary: (1) dependent spouse until he or she remarries;

(2) dependent legitimate, legitimated or legally adopted, and illegitimate children, who shall be the primary beneficiaries of the member: dependent illegitimate children shall be entitled to 50% of the share of the legitimate, legitimated or legally adopted children. absence of the dependent legitimate, legitimated children of the member, his/her dependent illegitimate children shall be entitled to 100% of the benefits.

(b) Secondary:(1) dependent parents and no children

(2) any other person designated by the member as his/her secondary beneficiary and absence of primary beneficiaries

Q: Who are considered Dependents?

A: The dependents shall be the following: The legal spouse entitled by law to receive support from the member;

The legitimate, legitimated or legally adopted, and illegitimate child who is unmarried, not gainfully employed, and has not reached twenty-one (21) years of age, or if over twenty-one (21) years of age, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally; and

The parent who is receiving regular support from the member.

Q: Classify the employees covered under the SSS Act.

A:(a) Compulsory:

(1) All employees not over sixty (60) years of age and their employers

domestic helpers - monthly income of at least P1,000.00 a month.

(2) All self-employed professionals;(3) Partners and single proprietors of businesses; (4) Actors and actresses, directors, scriptwriters and news correspondents who do not fall within

the definition of the term "employee"

(5) Professional athletes, coaches, trainers and jockeys; and (6) Individual farmers and fishermen.

(b) Voluntary:

(1) Spouses who devote full time to managing the household and family affairs, unless they are also engaged in other vocation or employment which is subject to mandatory coverage.

(2) Filipinos recruited by foreign-based employers for employment abroad may be covered by the SSS on a voluntary basis.

Q: Define Compensation.

A: All actual remuneration for employment, including the mandated cost-of-living allowance, as well as the cash value of any remuneration paid in any medium other than cash except that part of the remuneration in excess of the maximum salary credit as provided under Sec. 18 of the Act.

Q: Enumerate the Effective Dates of Coverage

A:(1) Compulsory employer

on the first day of his operation

(2) Compulsory employee

on the day of his employment

(3) Compulsory self-employed

upon his registration with the SSS

Q: What is the effect of Separation from Employment?

A: When a compulsory employee is separated from employment:(1) Employer’s contribution on his account and his obligation to pay contributions arising from that employment shall cease at the end of the month of separation

(2) But said employee shall be credited with all contributions paid on his behalf and entitled to benefits according to the applicable provisions .

(3) He may, however, continue to pay the total contributions to maintain his right to full benefit.

Q: What is the Effect of Interruption of Business or Professional Income?

A: If the self-employed realizes NO income in any given month:(1) He shall not be required to pay contributions for that month.

(2) He may, however, be allowed to continue paying contributions under the same rules and regulations applicable to a separated employee member.

(NO retroactive payment of contributions shall be allowed other than as prescribed under Section 22-A).

BENEFITS:1. Monthly Pension2. Retirement Benefits3. Death Benefits4. Disability Benefits5. Funeral Benefits6. Sickness Benefits7. Maternity Benefits

I. MONTHLY PENSION

Q: Discuss the monthly pension.

A:(a) The monthly pension shall be the highest of the following amounts:

(1) The sum of the following: (i) P300.00; plus (ii) 20% of the average monthly salary credit; plus (iii) 2% of the average monthly salary credit for each credited year of service in excess

of 10 years; OR

(2) 40% of the average monthly salary credit; OR

(3) P1,000.00, provided that the monthly pension shall in no case be paid for an aggregate amount of less than sixty 60 months.

(b) Minimum Pension(1) P1,200.00 - members with at least 10 credited years of service

(2) P2,400.00 for those with 20 credited years of service.

Q: How much is the Dependent’s Pension?

A: Where monthly pension is payable on account of death, permanent total disability or retirement, dependent’s pension is equivalent to:

(1) 10% of the monthly pension; or

(2) P250.00, whichever is higher, shall also be paid for each dependent child conceived on or before the date of the contingency but not exceeding five (5), beginning with the youngest and without substitution.

☀ where there are legitimate or illegitimate children, the former shall be preferred

II. RETIREMENT BENEFITS

Q: Define retirement benefit.

A:

It is a cash benefit paid to a member who can no longer work due to old age.

Q: Who are entitled?

A: (a) A member who(1) has paid at least 120 monthly contributions prior to the semester of retirement; (2) at least 60 years old; and(3) already separated from employment or has ceased to be self-employed

OR

(1) at least 65 years old - entitled for as long as he lives to the monthly pension; and(2) he shall have the option to receive his first 18 monthly pensions in lump sum discounted at a

preferential rate of interest to be determined by the SSS. (b) A member

(1) at least 60 years old at retirement; and (2) does not qualify for pension benefits under paragraph (a) above - entitled to a lump sum benefit

equal to the total contributions paid by him and on his behalf;(3) must be separated from employment and is not continuing payment of contributions to the SSS on

his own.

Q: What are the types of retirement benefits?

A:(1) monthly pension: lifetime cash benefit paid to a retiree who has paid at least 120 monthly contributions to the SSS prior to the semester of retirement (2) lump sum amount: granted to a retiree who has not paid the required 120 monthly contributions.

Q: What happens when the retirement pensioner resumes employment?

A: The monthly pension of a retirement pensioner who resumes employment and is less than 65 years old will be suspended. He and his employer will again be subject to compulsory coverage.

Q: Are the children of a retiree member entitled to the dependent's pension?

A: Yes, but subject to certain conditions.The dependent legitimate, legitimated, legally adopted and illegitimate children, conceived on or

before the date of contingency, will each receive the dependent's pension equivalent to 10 per cent of the member's monthly pension or P250, whichever is higher.

Only five minor children, beginning from the youngest, are entitled to the dependents' pension. No substitution is allowed. Where there are more than five legitimate and illegitimate children, the legitimate ones will be preferred.

Q: For how long will the dependent child receive his pension?

A: Until the child reaches 21 years of age, gets married, gets employed and earns P300 a month or more, or dies. However, the dependent's pension is granted for life to children who are over 21 years old, provided they are incapacitated and incapable of self-support due to physical or mental defect which is congenital or acquired during minority.

Q: What will happen to the monthly pension of a retiree in case of death?

A:(1) Upon the death of a retiree-pensioner, his primary beneficiaries will get 100 per cent of his monthly pension plus the dependents' pension for each child.

(2) If he dies within 60 months from the start of his pension and he has no primary beneficiaries, his secondary beneficiaries will receive a lump sum benefit equivalent to the difference of 60 times the monthly pension and the total monthly pensions paid by the SSS excluding the dependent's pension.

Q: How much is the monthly pension of a member who retires after age 60 with 120 monthly contributions?

A:(1) the monthly pension computed at the earliest time he could have retired had he been separated from employment plus all adjustments;

(2) the monthly pension computed at the time when he actually retires.

A member who retires more than once shall be entitled to the HIGHER of:(1) the monthly pension computed for the first retirement claim; or

(2) the recomputed monthly pension for the new claim.

Note: Pursuant to R.A. 8558 and Opinion No. 84, series of 1999 of the Secretary of Justice, the

retirement age of underground miners is now reduced to 55 years.

III. DEATH BENEFITS

When is a beneficiary entitled to death benefits?

A:(a) Upon death of a member, if he has paid at least 36 monthly contributions prior to the

semester of death:(1) primary beneficiaries shall be entitled to the monthly pension:

(2) no primary beneficiaries - secondary beneficiaries shall be entitled to a lump sum benefit equivalent to 36 times the monthly pension.

(b) Upon death of a member If he has not paid the required 36 monthly contributions prior to the

semester of death:

(1) primary or secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the monthly pension times the number of monthly contributions paid to the SSS: OR

(3) 12 times the monthly pension, whichever is higher.

Q: If the death pensioner is survived by legitimate, legitimated, legally adopted and illegitimate children, how will the pension be divided?

A:If the deceased pensioner is survived by less than five minor legitimate, legitimated, or legally

adopted children, the illegitimate minor children will be entitled to 50 per cent of the share of the legitimate, legitimated or legally adopted children in the basic pension and 100 per cent of the dependents' pension.

In cases where there are NO legitimate, legitimated or legally adopted children, the illegitimate minor children shall be entitled to 100 per cent of the share of the former in the basic pension.

III. DISABILITY BENEFITS

Q: Define Disability Benefit.

A: It is a cash benefit paid to a member who becomes permanently disabled, either partially or totally.

Q: What are the kinds of disabilities?

A: A. Permanent total disabilities (1) Complete loss of sight of both eyes;

(2) Loss of two limbs at or above the ankle or wrists;

(3) Permanent complete paralysis of two limbs;

(4) Brain injury resulting to incurable imbecility or insanity; and

(5) Such cases as determined and approved by the SSS.

(a) Who is entitled?(1) Permanent total disability + paid at least 36 monthly contributions prior to the semester of

disability is entitled to the monthly pension

(2) Permanent Total disability + failed to pay the required 36 monthly contributions - entitled to a lump sum benefit equivalent to

(i) monthly pension times the number of monthly contributions paid to the SSS: OR(ii) 12 times the monthly pension, whichever is higher.

A member shall again be subject to compulsory coverage or considered a new member, when he-(1) has received a lump sum benefit; and

(2) is reemployed or has resumed self-employment not earlier than one (1) year from the date of his disability.

(b) Suspension of monthly pension and dependents’ pension (1) Upon the reemployment or resumption of self-employment

(2) Recovery of the disabled member from his permanent total disability

(3) Failure to present himself for examination at least once a year upon notice by the SSS.

(c) Effect of death of the permanent total disability pensioner(1) Primary beneficiaries are entitled to receive monthly pension as of the date of disability.

(2) No primary beneficiaries + he dies within 60 months from the start of his monthly pension - secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the balance of the 5-year guaranteed period excluding the dependents’ pension.

B. Permanent Partial Disability

Complete and permanent loss of use of any of the following parts:

One thumb

one index finger

one middle finger

one ring finger

one little finger

hearing of one ear

hearing of both ears

sight of one eye

one big toe

one hand

one arm

one foot

one leg

one ear

both ears

Q: What is the effect of retirement or death to partial disability pension?

A: Disability pension shall cease upon his retirement or death.

V. FUNERAL BENEFIT

Q: How much is given as funeral benefit?

A: P12, 000.00 in cash or in kind.

VI. SICKNESS BENEFIT

Q: Define sickness benefit?

A: It is a daily cash allowance paid for the number of days a member is unable to work due to sickness or injury.

(a) Who is entitled?

(1) A member who has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of sickness or injury; and

(2) Confined for more than 3 days in a hospital or elsewhere with the approval of the SSS

(3) he has used up all current company sick leaves with pay for the current year, and

(4) notified his employer or the SSS, if he is a separated, voluntary or self-employed member. (b) How much is the benefit?Daily sickness benefit equivalent to 90% of his average daily salary credit, subject to the following conditions:

(1) In no case shall the daily sickness benefit be paid longer than 120 days in 1 calendar year, nor shall any unused portion of the 120 days of sickness benefit granted be carried forward and added to the total number of compensable days allowable in the subsequent year;

(2) Not paid for more than 240 days on account of the same confinement; and

(3) Employee member shall notify his employer of the fact of his sickness or injury within five (5) calendar days after the start of his confinement unless such confinement:

(i) is in a hospital(ii) the employee became sick or was injured while working or within the premises of the

employer(notification to the employer not necessary);

(4) If the member is unemployed or self-employed, he shall directly notify the SSS of his confinement within 5 calendar days after the start thereof unless such confinement is in a hospital in which case notification is also not necessary;

(5) Where notification is necessary, confinement shall be deemed to have started not earlier than the 5th day immediately preceding the date of notification. (c) When is the commencement of compensable confinement?

(1) Begins on the 1st day of sickness

(2) Payment of such allowances shall be promptly made by the employer:(i) every regular payday or on the fifteenth and last day of each month, (ii) in case of direct payment by the SSS - as long as such allowances are due and

payable.

(3) Such allowance shall begin only after all sick leaves of absence with full pay to the credit of the employee member shall have been exhausted.

VII. MATERNITY LEAVE BENEFIT

Q: Define maternity benefit.

A: It is a daily cash allowance granted to a female member who was unable to work due to childbirth or miscarriage.

(a) Who is entitled?(1) A female member (no need to be married)

(2) has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth or miscarriage;

(3) She has given the required notification of her pregnancy through her employer if employed or to the SSS if separated, voluntary and self-employed member;

Maternity benefit may be given to a separated female employee provided that the female member was pregnant and has given the required notification prior to the date of separation from her employer.

(b) How much is the benefit?Daily maternity benefit - equivalent to 100% of her average daily salary credit for 60 days or 78 days

in case of caesarian delivery, subject to the following conditions:

(1) Employee has notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide;

(2) Full payment shall be advanced by the employer within 30 days from the filing of the maternity leave application;

(3) Payment of daily maternity benefits shall be a bar to the recovery of sickness benefits for the same period for which daily maternity benefits have been received;

(4) Maternity benefits shall be paid only for the first 4 deliveries or miscarriages;

(5) SSS shall immediately reimburse the employer of 100% of the amount of maternity benefits advanced to the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof; and

(6) If an employee member should give birth or suffer miscarriage without the required contributions having been remitted for her by her employer to the SSS, or without the latter having been previously notified by the employer of the time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to.

Q: Discuss the Nature and Settlement of Disputes in SSS.

A: The nature of dispute in SSS is with respect to coverage, benefits, contributions and penalties

(CBCP) thereon or any other matter related thereto.

It must be filed before the Commission and shall be heard by the Commission, or any of its members, or by hearing officers duly authorized by the Commission and decided within 20 days after the submission of the evidence.

Appeal to Courts.o Any decision of the Commission, in the absence of an appeal shall become final and

executory 15 days after the date of notification.o The decision of the Commission upon any disputed matter may be reviewed both upon the

law and the facts by the Court of Appeals. Appeal from a decision of the Commission must be taken within 15 days from notification of such decision.

o If the decision of the Commission involves only questions of law, the same shall be reviewed by the Supreme Court. No appeal bond shall be required and the case shall be heard in a summary manner,

Execution of Decisions. - Commission may, motu proprio or on motion of any interested party, issue a writ of execution to enforce any of its decisions or awards.

Chairman of the Commission on Audit - ex-officio Auditor of the SSS.

Secretary of Justice - ex-officio counsel of the SSS.

RA 7669PORTABILITY LAW

Q: Who are COVERED under this law?

A: All worker-members of the GSIS and/or SSS who transfer from one sector to another, and who wish to retain their membership in both Systems.

Q: Define LIMITED PORTABILITY RULE.

A:

- A covered worker who transfers employment from one sector to another or is employed on both sectors, shall have creditable services or contributions on both Systems credited to his service or contribution record in each of the Systems and shall be totalized for purposes of old-age, disability, survivorship, and other benefits in either or both Systems. (Sec. 3, RA 7669)

- All contribution paid by such member personally, and those that were paid by his employers to both Systems shall be considered in the processing of benefits which he can claim from either or both Systems. (Section 4, RA 7669)

Q: What is the period of contribution?- for the private sector -- the periods during which a person renders services for an employer with

compensation or salary, and during which contributions were paid to SSS.

- for the public sector -- the following shall be considered creditable services:

1. All previous services rendered by an official/employee pursuant to an appointment whether permanent, provisional or temporary;

2. All previous services rendered by an official/employee pursuant to a duly approved appointment to a position in the Civil Service with compensation or salary.

3. The period during which an official/employee was on authorized sick leave of absence without pay not exceeding one year;

4. The period during which an official/employee was out of the service as a result of illegal termination of his service as finally decided by the proper authorities; and

5. All previous services with compensation or salary rendered by elective officials.

STATE INSURANCE FUND

Q: What is the employees’ compensation program?

A: It is a program whereby a fund known as the State Insurance Fund is established through premium payments exacted from employers

Q: What is a state insurance fund?

A: This is a fund which would provide assistance for the employees and their dependents in the event of work-related disability or death.

Q: What are the BENEFITS under this program:

A:(1) medical services, appliances and supplies; (2) rehabilitation services; (3) temporary total disability benefit; (4) permanent total disability benefit; (5) permanent partial disability benefit; (6) death benefit; and (7) funeral benefit.

DEFINITION OF TERMS:

Employer: any person, natural or juridical, employing the services of an employee

Employee: any persons compulsorily covered by the GSIS or any person compulsorily covered by the SSS

INJURY: any sudden harmful change in the human organism from any accident arising out of and in the course of employment.

SICKNESS: any illness definitely accepted as an occupational disease listed by the Commission or any illness caused by employment, subject to proof that the risk of contracting the same is subject to working conditions.

OCCUPATIONAL DISEASE:A: one which results from the nature of the employment, and by nature is meant conditions to which all employees are subject and which produce the disease as a natural incident of a particular occupation.

The disease must be one wholly due to causes and conditions which are normal and constantly present and characteristic of the particular occupation.

THEORY OF INCREASED RISKA: The working conditions increase the probability of contracting a particular kind of disease or sickness.

The degree of proof required from the employee is merely substantial evidence (such relevant evidence as will support a decision)

This may be used as the basis for compensation if the disease is not listed.

Q: Who is COMPULSORY COVERED under this program?

A:1. Every employer and employee not over 60 years of age [either private or public sector];

2. An employee more than 60 yrs. of age if he has been paying contributions prior the age of 60 and has not been compulsorily retired;

Q: What is the period of EFFECTIVITY?A:

Coverage of employers shall take effect on the first day of operation but not earlier than January 1, 1975.

Coverage of employees shall take effect on the first day of employment.

Q: What are the Compensable Grounds?A:

Sickness and the resulting disability or death by reason of an employment accident;

sickness and resulting disability or death, the sickness must be the result of an occupational disease listed by the Employees Compensation Commission.

NOTE: If not listed, the illness may still be compensated subject to proof by the employee that the risk of contracting the disease is increased by working conditions.

Q: What are CONDITIONS TO ENTITLEMENT?A:

1) Employee has been duly reported to the system;

2) He sustains an injury or contracts sickness;

3) The System has been duly notified of the injury or sickness.employee is entitled to the benefits only of the ward services of an accredited hospital and accredited

physician

hospital shall provide all the medicines, drugs, or supplies

necessary for the treatment of the employee

Q: When is injury or death deemed to have arisen out of or in the course of employment?

A:1. The employee must have been injured at the place where his work requires him to be

2. The employee must have been performing his official functions

3. If the injury is sustained elsewhere, the employee must have been executing an order for the employer

Q: What defenses may be interposed by the State Insurance Fund against a claim for compensation made by a covered employee or his dependents?

A: 1. Injury, sickness, disability or death is caused by employee’s intoxication, willful intention to injure oneself or another or notorious negligence;

2. Injury is not work-connected or sickness is not occupational;

3. No notice is given to employer.

4. The claim was filed beyond 3 years from the time the cause of action accrued.

XPN:Suicide is compensable when:

1. It results form insanity resulting from compensable work injury or disease;

2. It occurs during a delirium resulting from a compensable disease.

Q: How much is the EMPLOYER’S CONTRIBUTION?A:

One percent of employee’s monthly salary credit.

Payment of the contribution continues unless employee dies, becomes disabled or is separated from employment.

The liability of the State Insurance Fund shall be exclusive and in place of all other liabilities of the employer to the employee or his dependents or anyone otherwise entitled to recover damages on behalf of the employee or his dependents.

Recovery under the Employees’ Compensation Program is not based on any theory of actionable wrong on the part of the employer. In an action for damages, the injury must be due to the fault of the employer. In this compensation program, no fault need be found, if the injury is compensable it shall be remunerated.

EO 180Guidelines for the exercise

of the Right to Organizeof Government Employees( Di pa ba repealed??

Q: Who are covered under this law?

A: All employees of all branches, subdivisions, instrumentalities, and agencies, of the Government, including government-owned or controlled corporations with original chartersexcept

(i) High-level employees whose functions are normally considered as policy-making or managerial or whose duties are of a highly confidential nature;

(ii) members of the Armed Forces of the Philippines,

(iii) police officers

(iv) policemen

(v) firemen and

(vi) jail guards .

All government employees can form, join or assist employees' organizations of their own choosing for the furtherance and protection of their interests. They can also form, in conjunction with appropriate government authorities, labor-management committees, works councils and other forms of workers' participation schemes to achieve the same objectives.

Q: Discuss this protection of the right to organize.A:

Government employees shall not be discriminated against in respect of their employment by reason of their membership in employees' organizations or participation in the normal activities of their organization.

Their employment shall not be subject to the condition that they shall not join or shall relinquish their membership in the employees' organizations.

Government authorities shall not interfere in the establishment, functioning or administration of government employees' organizations through acts designed to place such organizations under the control of government authority.

Sole and Exclusive Employees' Representative

(1) appropriate organizational unit - employers unit consisting of rank- and-file employees unless circumstances otherwise require.

(2) A duly registered employees' organization having the support of the majority of the employees in the appropriate organizational unit shall be designated as the sole and exclusive representative of the employees.

(3) Voluntary recognition may be accorded to a duly registered employees' organization upon a showing that;

(i) no other employees' organization is registered or is seeking registration, based on records of the Bureau of Labor Relations; and

(ii) said organization has the majority support of the rank-and-file employees in the organizational unit.

Q: What are the Rights of duly recognized employees organizations?

A:Right to negotiate with the appropriate government authorities involving the terms and conditions of

employment or improvements thereof, except those that are fixed by law. (Sec 13, EO 180)

Right to engage in peaceful concerted activities and strikes (Sec. 14, EO 180)

the Civil Service laws and rules governing concerted activities and strikes in the government service shall be observed, subject to any legislation that may be enacted by Congress.

PUBLIC SECTORLABOR-MANAGEMENT COUNCIL

COMPOSITION: Chairman, CSC Chairman Secretary, DOLE Vice Chairman Secretary, DOF Member Secretary, DOJ Member Secretary, DBM Member

Settlement of Disputes(1) Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolution of complaints, grievances and cases involving government employees.

(2) Unresolved disputes after exhausting all the available remedies under existing laws and procedures may referred jointly by the parties to the Council for appropriate action.

Labor Golden Notes

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