Professional Documents
Culture Documents
Social legislation
As those laws that provide particular kinds of protection or benefits to society or segments thereof in
furtherance of social justice.
Social justice
It is neither communism nor despotism nor atomism nor anarchy, but the humanization of laws and the
equalization of social and economic forces of the State so that justice in its rational and objectively
secular conception may at least be approximated.
Social justice means the promotion of the welfare of all people, of the adaptation by the government of
measures calculated to insure economic stability of the component elements of society through the
maintenance of a proper economic and social equilibrium in the interrelation of the members of the
community, constitutionally, through the adoption of measures legally justifiable, or extra constitutionally,
through the exercise f powers underlying the existence of all governments, on the time honored principle
of Salus Populi Est Suprema Lex.
Social justice does not champion division of property or equality of economic status, what it and the
constitution do guarantee are equality of opportunity, equality of political rights, equality before the law,
equality between values given and received, and equitable sharing of the social and material goods on the
basis of efforts exerted in their production.
ART. 6. Applicability. - All rights and benefits granted to workers under this Code shall, except as may
otherwise be provided herein, apply alike to all workers, whether agricultural or non-agricultural.
The applicability of the labor code extends to GOCCs, the test is the manner of its creation. If the GOCC
has an original charter (Statute creating it) it is governed by the civil service law and if it is created under
the provisions of our general incorporation statute (corporation code) it is governed by the labor code.
This rule is the result of the constitutional provision which includes GOCCs with original charter withn
the coverage of the civil service.
Fundamental principles
Constitutional Provisions
Article 2
Section 9.
The State shall promote a just and dynamic social order that will ensure the prosperity and independence
of the nation and free the people from poverty through policies that provide adequate social services,
promote full employment, a rising standard of living, and an improved quality of life for all.
Section 10.
The State shall promote social justice in all phases of national development.
Section 11.
The State values the dignity of every human person and guarantees full respect for human rights.
Section 13.
The State recognizes the vital role of the youth in nation-building and shall promote and protect their
physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.
Section 14.
The State recognizes the role of women in nation-building, and shall ensure the fundamental equality
before the law of women and men.
Section 18.
The State affirms labor as a primary social economic force. It shall protect the rights of workers and
promote their welfare.
Section 20.
The State recognizes the indispensable role of the private sector, encourages private enterprise, and
provides incentives to needed investments.
Article 3
Section 1.
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.
Section 4.
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.
Section 7.
The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
Section 8.
The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged.
Section 10.
No law impairing the obligation of contracts shall be passed.
Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies.
Section 18.
(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party
shall have been duly convicted.
Article 13
Section 1.
The Congress shall give highest priority to the enactment of measures that protect and enhance the right
of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural
inequities by equitably diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its
increments.
Section 2.
The promotion of social justice shall include the commitment to create economic opportunities based on
freedom of initiative and self-reliance.
LABOR
Section 3.
The State shall afford full protection to labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their
mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its
just share in the fruits of production and the right of enterprises to reasonable returns to investments, and
to expansion and growth.
Civil Code
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
Art. 1700. The relations between capital and labor are not merely contractual. They are so impressed with
public interest that labor contracts must yield to the common good. Therefore, such contracts are subject
to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages,
working conditions, hours of labor and similar subjects.
Art. 1701. Neither capital nor labor shall act oppressively against the other, or impair the interest or
convenience of the public.
Art. 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the
safety and decent living for the laborer.
Art. 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever,
shall be valid.
Art. 1704. In collective bargaining, the labor union or members of the board or committee signing the
contract shall be liable for non-fulfillment thereof.
Art. 1706. Withholding of the wages, except for a debt due, shall not be made by the employer.
Art. 1707. The laborer's wages shall be a lien on the goods manufactured or the work done.
Art. 1708. The laborer's wages shall not be subject to execution or attachment, except for debts incurred
for food, shelter, clothing and medical attendance.
Art. 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer.
Art. 1710. Dismissal of laborers shall be subject to the supervision of the Government, under special
laws.
Art. 1711. Owners of enterprises and other employers are obliged to pay compensation for the death of or
injuries to their laborers, workmen, mechanics or other employees, even though the event may have been
purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in
the course of the employment. The employer is also liable for compensation if the employee contracts any
illness or disease caused by such employment or as the result of the nature of the employment. If the
mishap was due to the employee's own notorious negligence, or voluntary act, or drunkenness, the
employer shall not be liable for compensation. When the employee's lack of due care contributed to his
death or injury, the compensation shall be equitably reduced.
Art. 1712. If the death or injury is due to the negligence of a fellow worker, the latter and the employer
shall be solidarily liable for compensation. If a fellow worker's intentional malicious act is the only cause
of the death or injury, the employer shall not be answerable, unless it should be shown that the latter did
not exercise due diligence in the selection or supervision of the plaintiff's fellow worker.
Labor Code
(a) To promote and emphasize the primacy of free collective bargaining and negotiations, including
voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes;
(b) To promote free trade unionism as an instrument for the enhancement of democracy and the
promotion of social justice and development;
(c) To foster the free and voluntary organization of a strong and united labor movement;
(d) To promote the enlightenment of workers concerning their rights and obligations as union members
and as employees;
(e) To provide an adequate administrative machinery for the expeditious settlement of labor or industrial
disputes;
(f) To ensure a stable but dynamic and just industrial peace; and
(g) To ensure the participation of workers in decision and policy-making processes affecting their rights,
duties and welfare.
B. To encourage a truly democratic method of regulating the relations between the employers and
employees by means of agreements freely entered into through collective bargaining, no court or
administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or
other terms and conditions of employment, except as otherwise provided under this Code. (As amended
by Section 3, Republic Act No. 6715, March 21, 1989).
DEFINITIONS
(c) "Board" means the National Conciliation and Mediation Board established under Executive Order No.
126.
(d) "Council" means the Tripartite Voluntary Arbitration Advisory Council established under Executive
Order No. 126, as amended.
(e) "Employer" includes any person acting in the interest of an employer, directly or indirectly. The term
shall not include any labor organization or any of its officers or agents except when acting as employer.
(f) "Employee" includes any person in the employ of an employer. The term shall not be limited to the
employees of a particular employer, unless the Code so explicitly states. It shall include any individual
whose work has ceased as a result of or in connection with any current labor dispute or because of any
unfair labor practice if he has not obtained any other substantially equivalent and regular employment.
(g) "Labor organization" means any union or association of employees which exists in whole or in part
for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of
employment.
(h) "Legitimate labor organization" means any labor organization duly registered with the Department of
Labor and Employment, and includes any branch or local thereof.
(i) "Company union" means any labor organization whose formation, function or administration has been
assisted by any act defined as unfair labor practice by this Code.
(j) "Bargaining representative" means a legitimate labor organization whether or not employed by the
employer.
(k) "Unfair labor practice" means any unfair labor practice as expressly defined by the Code.
(l) "Labor dispute" includes any controversy or matter concerning terms and conditions of employment or
the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the
terms and conditions of employment, regardless of whether the disputants stand in the proximate relation
of employer and employee.
(m) "Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline
employees. Supervisory employees are 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. All employees not falling within any of the above definitions
are considered rank-and-file employees for purposes of this Book.
(n) "Voluntary Arbitrator" means any person accredited by the Board as such or any person named or
designated in the Collective Bargaining Agreement by the parties to act as their Voluntary Arbitrator, or
one chosen with or without the assistance of the National Conciliation and Mediation Board, pursuant to a
selection procedure agreed upon in the Collective Bargaining Agreement, or any official that may be
authorized by the Secretary of Labor and Employment to act as Voluntary Arbitrator upon the written
request and agreement of the parties to a labor dispute.
(o) "Strike" means any temporary stoppage of work by the concerted action of employees as a result of an
industrial or labor dispute.
(p) "Lockout" means any temporary refusal of an employer to furnish work as a result of an industrial or
labor dispute.
(q) "Internal union dispute" includes all disputes or grievances arising from any violation of or
disagreement over any provision of the constitution and by laws of a union, including any violation of the
rights and conditions of union membership provided for in this Code.
(r) "Strike-breaker" means any person who obstructs, impedes, or interferes with by force, violence,
coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work or
in the exercise of the right of self-organization or collective bargaining.
(s) "Strike area" means the establishment, warehouses, 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.
Article 255. Exclusive bargaining representation and workers participation in policy and decision-
making.
The labor organization designated or selected by the majority of the employees in an appropriate
collective bargaining unit shall be the exclusive representative of the employees in such unit for the
purpose of collective bargaining. However, an individual employee or group of employees shall have the
right at any time to present grievances to their employer.
Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules
and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and
decision-making processes of the establishment where they are employed insofar as said processes will
directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-
management councils: Provided, That the representatives of the workers in such labor-management
councils shall be elected by at least the majority of all employees in said establishment.
People vs Pamis
The number of persons is not an essential ingredient of the act of recruitment. Any of the acts mentioned
in the basic rule of article 13 (b) will constitute recruitment and placement even if one prospective worker
is involved. The proviso merely lays down the rule of evidence that where a fee is collected in
consideration of a promise or offer f 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.
Hence the proviso is not made a condition precedent to the act of recruitment but more appropriately
only creates a legal presumption that the person involved is deemed as engages in recruitment and
placement
In order for recruitment to exist the accused must have given the complainant the distinct impression that
she had the power or ability to send the complainant abroad for work, such that the latter was convinced
to part with her money in order to be so employed. Where such act or representation is not proven, there
is no recruitment activity and conviction for illegal recruitment has no basis.
Selective Deployment
SEC. 4. Deployment of Migrant Workers. - The State shall allow the deployment of overseas Filipino
workers only in countries where the rights of Filipino migrant workers are protected. The government
recognizes any of the following as a guarantee on the part of the receiving country for the protection of
the rights of overseas Filipino workers:
(a) It has existing labor and social laws protecting the rights of workers, including migrant workers;
(c) It has concluded a bilateral agreement or arrangement with the government on the protection of the
rights of overseas Filipino Workers:
Provided, That the receiving country is taking positive, concrete measures to protect the rights of
migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c)
hereof.
In the absence of a clear showing that any of the aforementioned guarantees exists in the country of
destination of the migrant workers, no permit for deployment shall be issued by the Philippine Overseas
Employment Administration (POEA).
The members of the POEA Governing Board who actually voted in favor of an order allowing the
deployment of migrant workers without any of the aforementioned guarantees shall suffer the penalties of
removal or dismissal from service with disqualification to hold any appointive public office for five (5)
years, Further, the government official or employee responsible for the issuance of the permit or for
allowing the deployment of migrant workers in violation of this section and in direct contravention of an
order by the POEA Governing Board prohibiting deployment shall be meted the same penalties in this
section.
For this purpose, the Department of Foreign Affairs, through its foreign posts, shall issue a certification to
the POEA, specifying therein the pertinent provisions of the receiving country's labor/social law, or the
convention/declaration/resolution, or the bilateral agreement/arrangement which protect the rights of
migrant workers.
The State shall also allow the deployment of overseas Filipino workers to vessels navigating the foreign
seas or to installations located offshore or on high seas whose owners/employers are compliant with
international laws and standards that protect the rights of migrant workers.
The State shall likewise allow the deployment of overseas Filipino workers to companies and contractors
with international operations: Provided, That they are compliant with standards, conditions and
requirements, as embodied in the employment contracts prescribed by the POEA and in accordance with
internationally-accepted standards.
SEC. 5. Termination or Ban on Deployment.
- Notwithstanding the provisions of Section 4 hereof, in pursuit of the national interest or when public
welfare so requires, the POEA Governing Board, after consultation with the Department of Foreign
Affairs, may, at any time, terminate or impose a ban on the deployment of migrant workers.
Migrant worker
A person who is to be engaged, is engaged or been engaged in a remunerated activity in a state of which
he is not a legal resident.
The law allows claims for money or damages sustained during that period of deployment or
before departure abroad
The liability of the principal/employer and the recruitment/placement agency for any and all claims under
this section shall be joint and several. These provisions shall be incorporated in the contract for overseas
employment and shall be a condition precedent for its approval. The performance bond to be filed by the
recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages
that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily
liable with the corporation or partnership for the aforesaid claims and damages.
Such liabilities shall continue during the entire period or duration of the employment contract and shall
not be affected by any substitution, amendment or modification made locally or in a foreign country of
the said contract.
In case of termination of overseas employment without just, valid or authorized cause as defined by law
or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of
twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or
for three (3) months for every year of the unexpired term, whichever is less.
Serrano vs Gallant
The proviso in the law which provides for three (3) months for every year of the unexpired
term, whichever is less. is unconstitutional since it violates the equal protection clause by
discriminating between OFWS with unexpired term of less than 12 months from those which has
an expired term of more than 12 months and from local employees. Also the proviso was declared
unreasonable since it was over burdensome to the employees thereby violating substantive due
process.
Non-compliance with the mandatory periods for resolutions of cases provided under this section shall
subject the responsible officials to any or all of the following penalties:
(a) The salary of any such official who fails to render his decision or resolutions within the prescribed
period shall be, or caused to be, withheld until the said official complies therewith;
(c) Dismissal from the service with disqualifications to hold any appointive public office for five (5)
years.
Provided, however, that the penalties herein provided shall be without prejudice to any liability which any
such official may have incurred under other existing laws or rules and regulations as a consequence of
violating the provisions of this paragraph.
Death of a seafarer results is always compensable when such death occurred during the term of
employment contract.
Another exception to the above provision is Name hires, or those individual workers who are able to
secure contracts for overseas employment on their own efforts and representation without the assistance
or participation of any agency.
Side agreements which diminishes the employees pay and benefits as contained in the POEA-approved
contract is void, unless such subsequent agreement is approved by the POEA
(b) The National Seamen Board shall be composed of the Secretary of Labor and Employment as
Chairman, the Undersecretary of Labor as Vice-Chairman, the Commandant of the Philippine Coast
Guard, and a representative each of the Department of Foreign Affairs, the Department of Education,
Culture and Sports, the Central Bank, the Maritime Industry Authority, the Bureau of Employment
Services, a national shipping association and the Executive Director of the NSB as members.
The members of the Boards shall receive allowances to be determined by the Board which shall not be
more than P2,000.00 per month.
(c) The Boards shall be attached to the Department of Labor for policy and program coordination. They
shall each be assisted by a Secretariat headed by an Executive Director who shall be a Filipino citizen
with sufficient experience in manpower administration, including overseas employment activities. The
Executive Director shall be appointed by the President of the Philippines upon the recommendation of the
Secretary of Labor and shall receive an annual salary as fixed by law. The Secretary of Labor shall
appoint the other members of the Secretariat.
(d) The Auditor General shall appoint his representative to the Boards to audit their respective accounts in
accordance with auditing laws and pertinent rules and regulations. chanroblesvirtuallawlibrary
ART. 24. Boards to issue rules and collect fees. - The Boards shall issue appropriate rules and regulations
to carry out their functions. They shall have the power to impose and collect fees from employers
concerned, which shall be deposited in the respective accounts of said Boards and be used by them
ART. 25. Private sector participation in the recruitment and placement of workers. - Pursuant to national
development objectives and in order to harness and maximize the use of private sector resources and
initiative in the development and implementation of a comprehensive employment program, the private
employment sector shall participate in the recruitment and placement of workers, locally and overseas,
under such guidelines, rules and regulations as may be issued by the Secretary of Labor.
Local employment:
1) 200k for single proprietorship and partnerships
2) 500k corp
Overseas employment
1) 2M for all
The bond set forth under Art 31 is not limited to monetary awards arising out employment
contracts but extends to the right of the POEA to against such bond for violations by the recruiter
of the conditions for its license. Hence the Bond under article 31 is different from the bond
required pending appeal set forth in article 223 since the latter is for the sole purpose of
guaranteeing payment of the monetary award to be adjudge by the courts.
The bond under article 31 of the labor code is intended only for employment related claims and
for violations of labor law. Hence garnishment may not be allowed even if it stems out from the
agencys to settle expenses necessary for their operations (bills, Meralco and stuff)
Once the bond has been validly garnished or withdrawn the agency must replenish the same.
Failure to replenish within 15 days from the date of receipt of notice from the POEA that the
bonds or deposits in escrow, or any part of it had been garnished, shall cause the suspension of the
license
Chargeable fees:
1) Placement fees for local employment
A licensed private recruitment and placement agency for local employment may charge a
worker placement fee which shall not exceed 20% of the workers first months basic salary.
In no case shall such fee be charged prior to the actual commencement of employment
2) Placement and documentation fees for Overseas employment
a. Fees and cost chargeable to principals
Unless otherwise provided, the principal shall be responsible for the payment of the
following:
Visa fee
Airfare
POEA processing fee
OWWA membership fee
b. Fees chargeable to workers
Except where the prevailing system in the country where the worker is to be
deployed, either by law, policy or practice, does not allow the charging or collection
of placement and recruitment fee, a land-based agency may charge and collect from
its hired workers a placement fee in an amount equivalent to one month salary,
exclusive of documentation costs.
In the even that the recruitment agency agrees to perform documentation services, the
worker shall pay only the actual costs of the document which shall be covered by
official receipts.
The above mentioned placement and documentation costs are the only authorized
payments that may be collected from a hired worker. No other charfes in whatever
form, manner or purpose, shall be imposed on and be paid by the worker without
prior approval of the POEA.
Such fees shall be collected from a hired worker only after he has obtained
employment through the facilities of the recruitment agency.
3) Service Fees
A licensed private recruitment and placement agency may charge the employer service fee
which shall not exceed 20% of the annual salary of the worker. In no case shall the service fee
be deducted from the workers salary. Transportation of the worker from the place of origin to
the place of work shall be charged against the employer and shall in no case be deducted from
the workers salary.
(a) To charge or accept, directly or indirectly, any amount greater than that specified in the
schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any
amount greater than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to recruitment or
employment;
(c) To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under this Code.
(d) To induce or attempt to induce a worker already employed to quit his employment in order to
offer him to another unless the transfer is designed to liberate the worker from oppressive
terms and conditions of employment;
(e) To influence or to attempt to influence any person or entity not to employ any worker who has
not applied for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health or
morality or to the dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly
authorized representatives;
(h) To fail to file reports on the status of employment, placement vacancies, remittance of foreign
exchange earnings, separation from jobs, departures and such other matters or information as
may be required by the Secretary of Labor.
(i) To substitute or alter employment contracts approved and verified by the Department of Labor
from the time of actual signing thereof by the parties up to and including the periods of
expiration of the same without the approval of the Secretary of Labor;
(j) To become an officer or member of the Board of any corporation engaged in travel agency or
to be engaged directly or indirectly in the management of a travel agency; and
(k) To withhold or deny travel documents from applicant workers before departure for monetary
or financial considerations other than those authorized under this Code and its implementing
rules and regulations.
For comments please read under illegal recruitment portion
Recruitment violations that may cause the imposition of administrative sanctions (suspension or
cancelation):
1) Misrepresentation for the purpose of securing a license or renewal thereof:
a. By giving false testimonies
b. By giving falsified documents
2) Engaging in the recruitment or placement of workers in jobs harmful to public health or
morality or to the dignity of the RP
3) Charging of any fee before employment is obtained for an applicant worker
4) Charging of any fee in amount exceeding the allowable rate
5) Obstructing inspections by dole
6) Acts constituting illegal recruitment
Both the POEA and the secretary of labor may exercise concurrent jurisdiction to suspend or
cancel a license. The POEA was granted jurisdiction by the Labor secretary by the power vested
in him under article 36 of the LC allowing granting him quasi legislative power to promulgate
rules and regulations to carry out the objectives and implement the provisions governing said
activities.
A recruitment agency is solidarily liable for the unpaid salaries of a worker recruited form
employment with a foreign principal. The solidary liability of the parties continuous to exist
despite the fact that the relationship between the agency and the principal has already terminated
provided that no notice of such termination was given to the employee. This rule is supported
under article 1921 of the NCC which provides that if the agency has been entrusted for the
purpose of contracting with specified persons, its revocation shall not prejudice the latter if they
were not given notice thereof. Further, per Catan vs NLRC, the obligations covenanted in the
recruitment agreement entered into by and between the local agent and its foreign principal are
not coterminous with the term of the agency agreement so that if either or both of the parties
decide to end the agreement, the responsibilities of such parties towards the contracted employees
under the agreement do not at all end. It extends up to and until the expiration of the employment
contracts of the employees recruited an employed pursuant to the said recruitment agreement.
Otherwise, this will render nugatory the very purpose for which the law governing the
employment of workers for foreign jobs abroad was enacted.
The rule on solidary liability of the agency is not absolute and is subject to exceptions depending
on the peculiar circumstances surrounding a particular case, such as the case where the employees
themselves insisted to go back to the employer despite sufficient warning given by the agency as
to the insolvency of the employer, to the extend that they executed written waivers for the same
Illegal recruitment
(RA 10022)
SEC. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and
includes referring, contract services, promising or advertising for employment abroad, whether
for profit or not, when undertaken by non-licensee or non-holder of authority contemplated under
Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of
the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers
or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It
shall likewise include the following acts, whether committed by any person, whether a non-
licensee, non-holder, licensee or holder of authority:
"(a) To charge or accept directly or indirectly any amount greater than that specified in the
schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a
worker pay or acknowledge any amount greater than that actually received by him as a loan or
advance;
"(b) To furnish or publish any false notice or information or document in relation to recruitment
or employment;
"(c) To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under the Labor Code, or for
the purpose of documenting hired workers with the POEA, which include the act of reprocessing
workers through a job order that pertains to nonexistent work, work different from the actual
overseas work, or work with a different employer whether registered or not with the POEA;
"(d) To include or attempt to induce a worker already employed to quit his employment in order
to offer him another unless the transfer is designed to liberate a worker from oppressive terms and
conditions of employment;
"(e) To influence or attempt to influence any person or entity not to employ any worker who has
not applied for employment through his agency or who has formed, joined or supported, or has
contacted or is supported by any union or workers' organization;
"(f) To engage in the recruitment or placement of workers in jobs harmful to public health or
morality or to the dignity of the Republic of the Philippines;
"(h) To fail to submit reports on the status of employment, placement vacancies, remittance of
foreign exchange earnings, separation from jobs, departures and such other matters or
information as may be required by the Secretary of Labor and Employment;
"(i) To substitute or alter to the prejudice of the worker, employment contracts approved and
verified by the Department of Labor and Employment from the time of actual signing thereof by
the parties up to and including the period of the expiration of the same without the approval of the
Department of Labor and Employment;
"(j) For an officer or agent of a recruitment or placement agency to become an officer or member
of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in
the management of travel agency;
"(k) To withhold or deny travel documents from applicant workers before departure for monetary
or financial considerations, or for any other reasons, other than those authorized under the Labor
Code and its implementing rules and regulations;
"(l) Failure to actually deploy a contracted worker without valid reason as determined by the
Department of Labor and Employment;
"(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. Illegal recruitment when committed by a syndicate or in large
scale shall be considered an offense involving economic sabotage; and
"Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or
more persons conspiring or confederating with one another. It is deemed committed in large scale
if committed against three (3) or more persons individually or as a group.
"In addition to the acts enumerated above, it shall also be unlawful for any person or entity to
commit the following prohibited acts:
"(1) Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per
annum, which will be used for payment of legal and allowable placement fees and make the
migrant worker issue, either personally or through a guarantor or accommodation party, postdated
checks in relation to the said loan;
"(2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is
required to avail of a loan only from specifically designated institutions, entities or persons;
"(3) Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the
latter's employment contract has been prematurely terminated through no fault of his or her own;
"(4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is
required to undergo health examinations only from specifically designated medical clinics,
institutions, entities or persons, except in the case of a seafarer whose medical examination cost is
shouldered by the principal/shipowner;
"(5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is
required to undergo training, seminar, instruction or schooling of any kind only from specifically
designated institutions, entities or persons, except fpr recommendatory trainings mandated by
principals/shipowners where the latter shoulder the cost of such trainings;
"(6) For a suspended recruitment/manning agency to engage in any kind of recruitment activity
including the processing of pending workers' applications; and
"In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the
Secretary of Labor and Employment, the POEA Administrator or their duly authorized
representatives, or any aggrieved person may initiate the corresponding criminal action with the
appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from
the Department of Labor and Employment, POEA and other law enforcement agencies who
witnessed the acts constituting the offense shall be sufficient to prosecute the accused.
"In the prosecution of offenses punishable under this section, the public prosecutors of the
Department of Justice shall collaborate with the anti-illegal recruitment branch of the POEA and,
in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers
who act as prosecutors in such cases shall be entitled to receive additional allowances as may be
determined by the POEA Administrator.
"The filing of an offense punishable under this Act shall be without prejudice to the filing of cases
punishable under other existing laws, rules or regulations."
License
Means a document issued by the Department of Labor authorizing a person or entity to operate a private
employment agency.
Authority
Means a document issued by the Department of Labor authorizing a person or association to engage in
recruitment and placement activities as a private recruitment entity.
"(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not less
than twelve (12) years and one (1) day but not more than twenty (20) years and a fine of not less than One
million pesos (P1,000,000.00) nor more than Two million pesos (P2,000,000.00).
"(b) The penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) nor
more than Five million pesos (P5,000,000.00) shall be imposed if illegal recruitment constitutes economic
sabotage as defined therein.
"Provided, however, 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.
"(c) Any person found guilty of any of the prohibited acts shall suffer the 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 Five
hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00).
"If the offender is an alien, he or she shall, in addition to the penalties herein prescribed, be deported
without further proceedings.
"In every case, conviction shall cause and carry the automatic revocation of the license or registration of
the recruitment/manning agency, lending institutions, training school or medical clinic."
Economic sabotage
Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense
involving economic sabotage
Venue:
A criminal action arising from illegal recruitment shall be filed with the RTC of the province where the
offense was committed or where the offended party actually resides at the time of the commission of the
offense. The court where the criminal action is first filed shall acquire jurisdiction over the case to the
exclusion of the other courts.
Prescriptive period
Actions for illegal recruitment shall prescribe in five years and 20 years if it involves economic sabotage.
The prescriptive period shall begin from the date the crime was discovered..
Trade and industry associations may recommend to the Secretary of Labor appropriate educational
requirements for different occupations.
Comment:
Apprenticeship needs DOLEs prior approval, or apprentice becomes a regular employee since the
approval is a condition sine qua non to a valid apprenticeship agreement (Nitto vs NLRC)
An apprenticeship agreement with a minor shall be signed in his behalf by his parent or guardian, if the
latter is not available, by an authorized representative of the Department of Labor, and the same shall be
binding during its lifetime.
Every apprenticeship agreement entered into under this Title shall be ratified by the appropriate
apprenticeship committees, if any, and a copy thereof shall be furnished both the employer and the
apprentice.
LEARNERS
The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or
his duly authorized representative.
Learners vs Apprentices
Learners Apprentices
Semi skilled or industrial occupations Highly skilled job or a job found only in a highly
technical industry
Training period cannot exceed 3 months Training exceeds 3 months
A learner is not an apprentice An apprentice is, conceptually a learner
HANDICAPPED WORKERS
ART. 78. Definition.
Handicapped workers are those whose earning capacity is impaired by age or physical or mental
deficiency or injury.
The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized
representative.
Five percent(5%) of all casual emergency and contractual positions in the Departments of Social Welfare
and Development; Health; Education, Culture and Sports; and other government agencies, offices or
corporations engaged in social development shall be reserved for disabled persons.
Sec. 6. Sheltered Employment
If suitable employmentfor disabled persons cannot be found through open employment as provided in the
immediately preceding Section, the State shall endeavor to provide it by means of sheltered employment.
In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual
qualities, vocational goals and inclinations to ensure a good working atmosphere and
efficient production.
Sec. 7.Apprenticeship.
Subject to the provisions of the Labor Code as amended, disabled persons shall be eligible as apprentices
or learners: Provided, That their handicap is not as much as to effectively impede the performance of job
operations in the particular occupation for which they are hired; Provided, further, That after the lapse of
the period of apprenticeship, if found satisfactory in the job performance, they
shall be eligible for employment.
Conditions of Employment
ART. 82. Coverage.
The provisions of this Title shall apply to employees in all establishments and undertakings whether for
profit or not, but not to government employees, managerial employees, field personnel, members of the
family of the employer who are dependent on him for support, domestic helpers, persons in the personal
service of another, and workers who are paid by results as determined by the Secretary of Labor in
appropriate regulations.
As used herein, "managerial employees" refer to those whose primary duty consists of the management of
the establishment in which they are employed or of a department or subdivision thereof, and to other
officers or members of the managerial staff.
"Field personnel" shall refer to non-agricultural employees who regularly perform their duties away from
the principal place of business or branch office of the employer and whose actual hours of work in the
field cannot be determined with reasonable certainty.
2 tiered test
1) Control test
2) The underlying economic realities of the activity or relationship.
This determines the level of economic dependence the employee has on his employer
Independent contractors
Generally rely on their own resources, and the manner by which they seek to achieve the end result is
usually dependent on their own volition.
Unregistered associations or associations without any legal personality can still be held as employers
since there is no legal requirement requiring the employer to be a person, natural or juridical, it is
sufficient when the circumstances of a case fall within the 4 fold test.
Labor-only contractor
Arises when the contract is not to accomplish a job or service but merely to supply the people to do the
job. By virtue of the law this type of contractor is rendered as a mere agent of his client thereby creating a
E&E relationship between the client and the employee.
2 types of benefits:
1) Statutory
Provided for by law
2) Voluntary
Initiated by the employer unilaterally or by contractual stipulation.
Since Article 82 mentions managerial employees including managerial staff, supervisors are also
excluded from its coverage
Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in
hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for
eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of
the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they
shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for
work on the sixth day. For purposes of this Article, "health personnel" shall include resident physicians,
nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical
technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.
Rest periods of short duration during working hours shall be counted as hours worked.
Principles determining whether the time spent by an employee is considered hours worked:
1) All hours worked 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
2) An employee need not leave the premises of the workplace in order that his rest period shall not
be counted it being enough that he stops working, may rest completely and may leave his
workplace, to go elsewhere, whether or outside the premises of his workplace
3) If the work performed was necessary, or it benefited the employer, or the employee could not
abandon his work at of his normal working hours because he had no replacement all tim spent fir
such work shall be considered as hours worked, if the work was with the knowledge of his
employer or immediate supervisor.
4) The time during which an employee is inactive by reason of interruptions in his work beyond his
control shall be considered time worked either because of the imminence of resumption of work
requires the employees presence at the place of work or if the interval is too brief to be utilized
effectively and gainfully in the employees own interest.
Preliminary activities
Preliminary activities and postliminary activities are deemed performed during working hours, where
such activities are controlled or required by the employer and are pursued necessarily and primarily for
the employers benefit
2) Waiting to be engaged, the time consumed here is not considered as hours worked.
The test to determine whether the time spent is engaged to wait or waiting to be engaged is whether
waiting is considered an integral part of his job or of the employee is required or engaged by the employer
to wait ----- the controlling factor is whether the waiting time spent in idleness is so spent predominantly
for the employers benefit.
In order for meal time not t be considered hours worked the employee must be completely relieved from
duty for the purpose of eating regular meals otherwise it may constitute overtime
Working while sleeping depends upon the express or implied agreement of the parties in the absence of
the agreement, it will depend upon the nature of the service and its relation to the working time
When an employer alleges that the employee performs less than 8 hours of work per day the burden of
proof to prove such allegation is with the employer
Meal time is usually nor compensable except when the meal time is spent predominantly for the
benefit of the employer or the meal time is less than 60 minutes
Meal times may be shortened subject to certain conditions however it may not be less than 20
minutes otherwise it would no longer be considered as meal time but a rest period.
4 situations where meal time may be lessened to less than 60 minutes with full pay:
1) Where the work is non manual or does not involve serious physical exertion
2) Where the establishment regularly operates not less than 16 hours a day
3) Where there is actual or impending emergencies or there is urgent work to be performed on
machineries, equipment or installation to avoid serious loss which the employer would otherwise
suffer
4) Where the work is necessary to prevent serious loss of perishable goods
However upon the request of the employee, subject to certain requirements, meal time may be
lessened to less than 60 minutes without pay in order for the employee to leave earlier.
Conditions where the employee may request to lessened the meal time:
1) The employees voluntarily agree in writing to a shortened meal period of 30 minutes and are
willing to waive the OT pay for such shortened meal period
2) There will be no diminution whatsoever in the salary and other fringe benefits of the employees
existing before the effectivity of the shortened meal period
3) The work of the employees does not involve strenuous physical exertion and they are provided
with adequate rest periods in the afternoon and morning
4) The value of the benefits derived by the employees from the proposed work arrangement is equal
to or commensurate with the compensation due them for the shortened meal period as well as the
OT pay for 30 minutes as determined by the employees concerned
5) The OT pay of the employees will become due and demandable if ever they are permitted to work
beyond 4:30pm
6) The effectivity of the proposed working time arrangement shall be of temporary duration as
determined by the secretary of labor and employment
Changing the lunch break from a 30 minute paid break to an hour unpaid break is a valid exercise of
management prerogative since the work schedule ultimately rest within the discretion of the employer
subject to the provisions of the labor code.
Chapter V
(RA 10151)
Night worker means any employed person whose work requires performance of a substantial number of
hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor
after consulting the workers representatives/labor organizations and employers.
Art. 155. Health Assessment, At their request, workers shall have the right to undergo a health
assessment without charge and to receive advice on how to reduce or avoid health problems associated
with their work:
(c) If they experience health problems during such an assignment which are not caused by factors other
than the performance of night work.
With the exception of a finding of unfitness for night work, the findings of such assessments shall not be
transmitted to others without the workers consent and shall not be used to their detriment.
Art. 156. Mandatory Facilities. Suitable first-aid facilities shall be made available for workers
performing night work, including arrangements where such workers, where necessary, can be taken
immediately to a place for appropriate treatment. The employers are likewise required to provide safe and
healthful working conditions and adequate or reasonable facilities such as sleeping or resting quarters in
the establishment and transportation from the work premises to the nearest point of their residence subject
to exceptions and guidelines to be provided by the DOLE.
Art. 157. Transfer. Night workers who are certified as unfit for night work, due to health reasons, shall
be transferred, whenever practicable, to a similar job for which they are fit to work.
If such transfer to a similar job is not practicable, these workers shall be granted the same benefits as
other workers who are unable to work, or to secure employment during such period.
A night worker certified as temporarily unfit for night work shall be given the same protection against
dismissal or notice of dismissal as other workers who are prevented from working for reasons of health.
Art. 158. Women Night Workers. Measures shall be taken to ensure that an alternative to night work is
available to women workers who would otherwise be called upon to perform such work:
(a) Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided
between the time before and after childbirth;
(b) For additional periods, in respect of which a medical certificate is produced stating that said
additional periods are necessary for the health of the mother or child:
(2) During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a)
above, the length of which shall be determined by the DOLE after consulting the labor organizations and
employers.
(i) A woman worker shall not be dismissed or given notice of dismissal, except for just or authorised
causes provided for in this Code that are not connected with pregnancy, childbirth and childcare
responsibilities.
(ii) A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion
which may attach to her regular night work position.
Pregnant women and nursing mothers may he allowed to work at night only if a competent physician,
other than the company physician, shall certify their fitness to render night work, and specify, in the ease
of pregnant employees, the period of the pregnancy that they can safely work.
The measures referred to in this article may include transfer to day work where this is possible, the
provision of social security benefits or an extension of maternity leave.
The provisions of this article shall not have the effect of reducing the protection and benefits connected
with maternity leave under existing laws.
Art. 159. Compensation. The compensation for night workers in the form of working time, pay or
similar benefits shall recognize the exceptional nature of night work.
Art. 160. Social Services.Appropriate social services shall be provided for night workers and, where
necessary, for workers performing night work.
Art. 161. Night Work Schedules. Before introducing work schedules requiring the services of night
workers, the employer shall consult the workers representatives/labor
organizations concerned on the details of such schedules and the forms of organization of night work that
are best adapted to the establishment and its personnel, as well as on the occupational health measures
and social services which are required. In establishments employing night workers, consultation shall take
place regularly.
SEC. 5. The subsequent articles starting from Book Four, Title I, Chapter I of Presidential Decree No. 442
are hereby renumbered accordingly.
SEC. 6. Application. The measures referred to in this chapter shall be applied not later than six (G)
months from the effectivity of this Act.
SEC. 7. Guidelines. The DOLE shah promulgate appropriate regulations in addition to existing ones to
ensure protection, safety and welfare of night workers.
SEC. 8. Penalties. Any violation of this Act, and the rules and regulations issued pursuant hereof shall
be punished with a fine of not less than Thirty thousand pesos (P30,000.00) nor more than Fifty thousand
pesos (P50,000.00) or imprisonment of not less than six (6) months, or both, at the discretion of the court.
If the offense is committed by a corporation, trust, firm, partnership or association, or other entity, the
penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership or
association, or entity.
IRR of RA 10151
Night Worker
Means any employed person whose work covers the period from 10pm to 6am the following morning
provided that the worker performs no less than 7 consecutive hours of work.
Mandatory Facilities
1) Suitable first aid and emergency facilities
2) Lactation stations in required companies pursuant to RA 10028 (expanded breastfeeding
promotion act of 2009
3) Separate toilet facilities for men and women
4) Facility for eating with potable drinking water
5) Facilities for transportation and/or properly ventilated temporary sleeping or resting quarters,
separate for female and male workers, shall be provided except where any of the following
circumstances are present
a. Where there is an existing company guideline, practice or policy , CBA, or similar
agreement between management and workers providing for equivalent or superior benefit
b. Where the start or end of night shift does not fall within 12am to 5am
c. Where the workplace is located in an area that is accessible 24 hours to public
transportation
d. Where the number of employees does not exceed a specific number as may be provided
by the secretary of labor and employment in subsequent issuances
Transfers
Night Workers who are certified by a competent physician , as unfit to render night work, due to health
reasons, shall be transferred to a job where they are fit to work whenever practicable. The transfer of the
employee must be to a similar or equivalent position in good faith.
If such transfer is not practicable or workers are unable to render night work for a continuous period of
not less than 6 months upon the certification of a competent public health authority, this workers shall be
granted the same company benefits as other workers who are unable to work due to illness.
A night worker certified as temporarily unfit for night work for a period of less than 6 months shall be
given the same protection against dismissal or notice of dismissal as other workers who are prevented
from working due to health reasons.
Night differential is not susceptible to waiver under the reasoning that the additional
compensation is founded upon public policy hence the same cannot be waived as provided in
article 6 of the NCC
Work day
Is the 24 hour period which commences from the time the employee regularly starts to work.
The limit of eight hours need not be continuous so long as they are rendered within the same work day
Verbal order to render OT despite the existence of a memorandum to render OT is sufficient knowledge
to qualify the employee to avail of OT pay. An express instruction from the employer to render OT work
is not required for the employee to be entitled to OT pay; it is sufficient that the employee is permitted or
suffered to work
Actions for recovery of compensation for past overtime work is not subject to the principles of
laches and estoppel subject to reasonable circumstances (very long time) under the following
reasons:
1) It would be contrary to the spirit of the law since the employees themselves cannot waive
their right to collect OT payment
2) The law obligates the employer to observe it and punishes them for non-performance
3) The employee is already at a disadvantageous position as to be naturally reluctant or even
apprehensive in asserting a claim which may cause the employer to devise a way to exercise
his right of termination
OT pay in arrears retroacts to the date when the services were actually performed and not just to
the date where he presented a claim against his employer.
As a general rule OT pay is not subject to waiver nor to quitclaims except in cases the waiver was
in exchange for certain benefits or benefits which will be more than what will accrue to them in
overtime pay
Limitations
1) The CWW scheme shall not divest the employee the right to:
a. 60 minute meals
b. Holiday pay
c. Rest day pay
d. Leaves in accordance with law or applicable CBA
2) The adoption of the CWW scheme shall in no case result in the diminution of existing benefits.
Reversion to the normal eight hour workday shall not constitute a diminution of benefits. The
reversion shall be considered a legitimate exercise of management prerogative, provided that the
employer shall give the employees prior notice of such reversion within a reasonable period of
time.
3) Unless there is a more favourable practice existing in the firm, work performed beyond eight
hours until the ordained CWW work schedule, not exceeding 12 hours, shall not be compensable.
4) Flexi holiday
Where the employees agree to avail themselves of the holidays at some other days, provided that
there is n diminution of existing benefits as a result of such arrangement.
(b) In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious
loss which the employer would otherwise suffer;
(c) In the event of abnormal pressure of work due to special circumstances, where the employer cannot
ordinarily be expected to resort to other measures;
(e) Where the nature of the work requires continuous operations and the stoppage of work may result in
irreparable injury or loss to the employer; and
(f) Under other circumstances analogous or similar to the foregoing as determined by the Secretary of
Labor and Employment.
(b) When the nature of the work of the employee is such that he has no regular workdays and no regular
rest days can be scheduled, he shall be paid an additional compensation of at least thirty percent
(30%) of his regular wage for work performed on Sundays and holidays.
(c) Work performed on any special holiday shall be paid an additional compensation of at least thirty
percent (30%) of the regular wage of the employee. Where such holiday work falls on the employees
scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%)
of his regular wage.
(d) Where the collective bargaining agreement or other applicable employment contract stipulates the
payment of a higher premium pay than that prescribed under this Article, the employer shall pay such
higher rate.
Sec. 1. Unless otherwise modified by law, order or proclamation, the following regular holidays and
special days shall be observed in this country:
(b) This provision shall not apply to those who are already enjoying the benefit herein provided, those
enjoying vacation leave with pay of at least five days and those employed in establishments regularly
employing less than ten employees or in establishments exempted from granting this benefit by the
Secretary of Labor and Employment after considering the viability or financial condition of such
establishment.
(c) The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any
court or administrative action.
Part-time workers are also entitled to SIL after 1 year of service however the availment and commutation
of the same can be proportionate to the daily work rendered and the regular daily salary, respectively.
Teachers on contract basis are entitled to SIL, the phrase in the IRR excluding employees on contract
basis should be interpreted to mean a term related to field personnel as supported by the principle of
ejusdem generis.
If the employer excludes an employee from the coverage of any benefit specifically SIL, the employer
has the burden of proof in proving why the employee is excluded
Paternity Leave
IRR of RA 8187
SECTION 2. Coverage.
Every married male employee in the private sector shall be entitled to paternity leave benefits of seven (7)
days with full pay for the first four deliveries by his lawful spouse under such terms and conditions as
hereinafter provided.
The rules on paternity leave of employees in the public sector shall be promulgated by the Civil Service
Commission.
SECTION 5. Availment.
Paternity leave benefits shall be granted to the qualified employee after the delivery by his wife, without
prejudice to an employer allowing an employee to avail of the benefit before or during the delivery;
provided, that the total number of days shall not exceed seven (7) days for each delivery.
SECTION 6. Benefits.
The employee is entitled to his full pay, consisting of basic salary, for the seven (7) days during which he
is allowed not to report for work, provided, that his pay shall not be less than the mandated minimum
wage.
SECTION 7. Non-commutation of benefits.
In the event that paternity leave benefit is not availed of, said leave shall not be convertible to cash.
a. If the existing paternity leave benefit is greater than the benefitherein provided, the greater benefit
shall prevail;
b. If the existing paternity leave is less than that provided herein, such existing benefit shall be adjusted
to the extent of the difference.
However, where a contract, company policy or collective bargaining agreement provides for an
emergency or contingency leave without specific provisions on paternity leave, the paternity leave as
herein provided shall apply in full.
If the violation is committed by a corporation, trust or firm, partnership, association or any other entity,
the penalty of imprisonment shall be imposed on the entitys responsible officers, including but not
limited to, the president, vice president, chief executive officer, general manager, managing director or
partner directly responsible therefor.
(a) That the employee shall have 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;
(b) The full payment shall be advanced by the employer within thirty (30) days from the filing of the
maternity leave application;
(c) That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits Provided
by this Act for the same period for which daily maternity benefits have been received;
(d) That the maternity benefits Provided under this section shall be paid only for the first four (4)
deliveries or miscarriages;
(e) That the SSS shall immediately reimburse the employer of one hundred percent (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
(f) That 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.
Section 3. Definition of Terms. - Whenever used in this Act, the following terms shall mean as follows:
(a) "Solo parent" - any individual who falls under any of the following categories:
(1) A woman who gives birth as a result of rape and other crimes against chastity even without a final
conviction of the offender: Provided, That the mother keeps and raises the child;
(2) Parent left solo or alone with the responsibility of parenthood due to death of spouse;
(3) Parent left solo or alone with the responsibility of parenthood while the spouse is detained or is
serving sentence for a criminal conviction for at least one (1) year;
(4) Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity
of spouse as certified by a public medical practitioner;
(5) Parent left solo or alone with the responsibility of parenthood due to legal separation or de facto
separation from spouse for at least one (1) year, as long as he/she is entrusted with the custody of the
children;
(6) Parent left solo or alone with the responsibility of parenthood due to declaration of nullity or
annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody
of the children;
(7) Parent left solo or alone with the responsibility of parenthood due to abandonment of spouse for at
least one (1) year;
(8) Unmarried mother/father who has preferred to keep and rear her/his child/children instead of having
others care for them or give them up to a welfare institution;
(9) Any other person who solely provides parental care and support to a child or children;
(10) Any family member who assumes the responsibility of head of family as a result of the death,
abandonment, disappearance or prolonged absence of the parents or solo parent.
A change in the status or circumstance of the parent claiming benefits under this Act, such that he/she is
no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for these
benefits.
(b) "Children" - refer to those living with and dependent upon the solo parent for support who are
unmarried, unemployed and not more than eighteen (18) years of age, or even over eighteen (18) years
but are incapable of self-support because of mental and/or physical defect/disability.
The seven day leave is subject to the discretion of the employee, hence he must indicate the same in his
request to file for leave, the only limitation is that it cannot exceed 7 days
The 15% shall be retained by management to answer for losses and breakages and for distribution to
managerial employees, at the discretion of management in the latter case. The shares shall be distributed
and paid to the employees not less than once every 2 weeks or twice a month at intervals not exceeding
16 days
If the company does not require a service charge, tips earned if any shall be handled in the same manner
ART. 98. Application of Title. - This Title shall not apply to farm tenancy or leasehold, domestic service
and persons working in their respective homes in needle work or in any cottage industry duly registered in
accordance with law.
The technical distinction between wages and salaries is that the former is the compensation given for
manual labor, skilled or unskilled whereas Salary denotes a higher degree of employment, or superior
grade of services, implies a position or office.
The term wages includes sales commissions, hence sales commissions should be included in the
computation of separation pay basing the average of the commissioned earned during their last year of
employment
2 reasons why commissions form part of wages/salaries hence computation of separation pay
(Songco et al vs NLRC et al)
1) Commissions are in the form of incentives or encouragement, so that the petitioners would be
inspired to put a little more industry on the jobs particularly assigned to them, still these
commissions are direct remuneration services rendered which contributed to the increase of
income of Zuellig . Commission is the recompense, compensation or reward of an agent,
salesman, executor, trustees, receiver, factor, broker or bailee, when the same is calculated as a
percentage on the amount of his transactions or on the profit to the principal (Black's Law
Dictionary, 5th Ed., citing Weiner v. Swales, 217 Md. 123, 141 A.2d 749, 750). The nature of the
work of a salesman and the reason for such type of remuneration for services rendered
demonstrate clearly that commission are part of petitioners' wage or salary.
2) The workingman's welfare should be the primordial and paramount consideration. This kind of
interpretation gives meaning and substance to the liberal and compassionate spirit of the law as
provided for in Article 4 of the Labor Code which states that "all doubts in the implementation
and interpretation of the provisions of the Labor Code including its implementing rules and
regulations shall be resolved in favor of labor.
Inclusions of wages:
1) Any form of remuneration earnings for services rendered.
2) Commissions
3) Ecola, depending on the wage order providing for it
4) Transportation allowance
Facilities are chargeable against the wage of the employees subject to the limitations set forth by the
secretary of labor and the IRR However supplements are not capable of being charged against wages
Facilities
Includes articles or services for the benefit of the employee or his family but shall not include tools of the
trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the
employers business.
Supplements
Constitutes extra remuneration or special privileges or benefits given to or received by the employees
over and above their ordinary earnings or wages given for the benefit of the employer or necessary to the
conduct of the employers business.
3 requirements before the value of the facility may be deducted from the wage (Mabeza vs NLRC)
1) Proof must be shown that such facilities are customarily furnished by the trade
2) The provision of deductible facility must be voluntarily accepted in writing by the employee.
3) Facilities must be charged at fair and reasonable value
The controlling factor in determining whether the benefit given is a facility or supplement is the purpose,
if it is solely for the benefit of the employee it is a facility but where the purpose is to benefit the
employer and the benefit enjoyed by the employee is only incidental it is a supplement
The time required for the practice to ripened into a long period of time is subject to reasonable standards
however the court has least number of years approved by the court is 2 years.
Comment:
The rule on non-diminution of benefits embodied in article 100 covers only those benefits already in
existence prior the promulgation of the labor code on 01 May 1974 and prevents its diminution due to the
provisions found in the code.
However under the principle of mutuality of contracts under article 1308 of the civil code, the terms of
the contract whether express or implied cannot be withdrawn except by mutual agreement of the parties.
13 month pay
Employees excluded from the coverage of the 13th month pay law:
1) Managerial employees;
2) Those covered under the civil service law;
3) Those already receiving 13th month pay or its equivalent. Christmas bonus, mid-year bonus, cash
bonuses and other payments amounting to not less than 1/12 of the basic salary are treated as
equivalent of 13th month pay;
4) Household helpers and persons in the personal service of another; and
5) Those paid on purely commission, boundary, or task basis, and those who are paid fixed amount
for performing specific work except those paid on a piece-rate basis.
6) Seafarers, since there are more appropriately termed as contract employees
Harmonization of Duplicators inc. VS. NLRC and BOIE-Takeda VS. SEC of Labor
The ruling of the court here is that 13th month pay may include the commission earned by the employee
for the calendar year provided that the commission forms part of the basic salary. The following are the
criteria used to determine whether commission is part of the term basic salary:
1) Does not partake of a profit sharing or productivity bonus incentive program (Takeda) since the
medical representatives here are similar to that of a promotion agents which are not tasked to sell
the goods of the company
2) That the commission is based on the predetermined percent of the selling price of the goods sold
by each salesman
Hence if the incentive or commission is given as something extra for which no specific additional
services are rendered by any particular employee, such incentive is not part of the employees basic
salary. However when the commissions or incentives are related or directly proportional to the extent of
energy of an employees endeavors and the commissions paid based upon the specific result achieved by
employee such as via a percentage of the sales closed by the employee, such commission forms part of
such employees basic pay.
Comment:
Teachers overload work is included in the calculation of the 13 th month pay.
The load in excess of the normal load of a private school teacher as prescribed by DECS or the policies,
rules and standard of particular private schools. Overload work is different from overtime work since the
former may be performed within the 8 hour work day of the employee and refers to the additional load a
teacher is requested to perform outside the regular load prescribed by DECS or the policies, rules or
standards of the involved private school. Whereas overtime refers to work performed outside the 8 hour
work day of a teacher.
Comment:
a) A distressed employer may seek exemption from the 13 th month pay rule with the SEC of labor
his failure to do so would render him covered by the said rule.
b) The disagreement as to the computation of the 13 th month pay is not a strikeable issue and any
strike held for that purpose is considered an illegal strike
Comment:
A closer reading of article 82 would show that the piece rate workers that are excluded from the coverage
of title 1 of book 3 of the LC is subjected to the discretion of the SEC of Labor as supported by:
In any event the IRR of the LC provides that the piece rate employees whose time and performance are
supervised by the employer are entitled to:
1) Statutory minimum daily rate
2) Yearly SIL of 5 days with pay (if with power of control)
3) Night shift differential pay (if with power of control)
4) Holiday pay(if with power of control)
5) Meal and rest periods
6) OT (conditional)
a. If the rates has been set by the SEC of Labor no OT is applicable
b.
7) Premium pay (conditional)
a. If the rates has been set by the SEC of Labor no OT is applicable
b.
8) 13 month pay
9) Other benefits granted by law, CBA or individual agreements or company policy or practice
Payment of wages by check or money order shall be allowed when such manner of payment is customary
on the date of effectivity of this Code, or is necessary because of special circumstances as specified in
appropriate regulations to be issued by the Secretary of Labor and Employment or as stipulated in a
collective bargaining agreement.
Comment:
When the employee alleges that there has been non-payment of wages and/or commission the employer
has the burden to prove payment
The payment of wages of employees engaged to perform a task which cannot be completed in two (2)
weeks shall be subject to the following conditions, in the absence of a collective bargaining agreement or
arbitration award:
(1) That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of
work completed;
(2) That final settlement is made upon completion of the work.
ART. 105. Direct payment of wages. - Wages shall be paid directly to the workers to whom they are due,
except:
(a) In cases of force majeure rendering such payment impossible or under other special circumstances to
be determined by the Secretary of Labor and Employment in appropriate regulations, in which case,
the worker may be paid through another person under written authority given by the worker for the
purpose; or
(b) Where the worker has died, in which case, the employer may pay the wages of the deceased worker to
the heirs of the latter without the necessity of intestate proceedings. The claimants, if they are all of
age, shall execute an affidavit attesting to their relationship to the deceased and the fact that they are
his heirs, to the exclusion of all other persons. If any of the heirs is a minor, the affidavit shall be
executed on his behalf by his natural guardian or next-of-kin. The affidavit shall be presented to the
employer who shall make payment through the Secretary of Labor and Employment or his
representative. The representative of the Secretary of Labor and Employment shall act as referee in
dividing the amount paid among the heirs. The payment of wages under this Article shall absolve the
employer of any further liability with respect to the amount paid.
In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance
with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to
such employees to the extent of the work performed under the contract, in the same manner and extent
that he is liable to employees directly employed by him.
The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the
contracting-out of labor to protect the rights of workers established under this Code. In so prohibiting or
restricting, he may make appropriate distinctions between labor-only contracting and job contracting as
well as differentiations within these types of contracting and determine who among the parties involved
shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of
any provision of this Code.
There is "labor-only" contracting where the person supplying workers to an employer does not have
substantial capital or investment in the form of tools, equipment, machineries, work premises, among
others, and the workers recruited and placed by such person are performing activities which are directly
related to the principal business of such employer. In such cases, the person or intermediary shall be
considered merely as an agent of the employer who shall be responsible to the workers in the same
manner and extent as if the latter were directly employed by him.
ART. 107. Indirect employer. - The provisions of the immediately preceding article 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. 108. Posting of bond. - An employer or indirect employer may require the contractor or
subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will
answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to
pay the same.
ART. 109. Solidary liability. - The provisions of existing laws to the contrary notwithstanding, every
employer or indirect employer shall be held responsible with his contractor or subcontractor for any
violation of any provision of this Code. For purposes of determining the extent of their civil liability
under this Chapter, they shall be considered as direct employers.
The foregoing provisions shall be without prejudice to the application of Article 248 (C ) of the Labor
Code, as amended.
"Substantial capital or investment" refers to capital stocks and subscribed capitalization in the case of
corporations, tools, equipment, implements, 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.
The "right to control" shall refer 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.
Comment:
Labor-only contracting is hereby declared prohibited. For this purpose, labor only contracting shall refer
to an arrangement where the contractor or subcontractor merely recruits, supplies or place workers to
perform a job, work or service for a principal, and any of the following elements are present:
1) The contractor does not have substantial capital or investment which relates to the job, work or
service to be performed and the employees recruited, supplied or placed by such contractor or
subcontractor are performing activities which are directly related to the main business of the
principal; or
2) The contractor does not exercise the right to control over the performance of the work of the
contractual employee.
DO no. 18-02
Section 10. Effect of Termination of Contractual Employment.
In cases of termination of employment prior to the expiration of the contract between the principal and the
contractor or subcontractor, the right of the contractual employee to separation pay or other related
benefits shall be governed by the applicable laws and jurisprudence on termination of employment.
Where the termination results from the expiration of the contract between the principal and the contractor
or subcontractor, or from the completion of the phase of the job, work or service for which the contractual
employee is engaged, the latter shall not be entitled to separation pay. However, this shall be without
prejudice to completion bonuses or other emoluments, including retirement pay as may be provided by
law or in the contract between the principal and the contractor or subcontractor.
The registration of contractors and subcontractors shall be necessary for purposes of establishing an
effective labor market information and monitoring. Failure to register shall give rise to the presumption
that the contractor is engaged in labor-only contracting.
Section 6. Prohibitions.
Notwithstanding Section 5 of these Rules, the following are hereby declared prohibited for being contrary
to law or public policy:
(a) Contracting out of a job, work or service when not done in good faith and not justified by the
exigencies of the business and the same results in the termination of regular employees and reduction
of work hours or reduction or splitting of the bargaining unit;
(b) Contracting out of work with a "cabo" as defined in Section 1 (ii), Rule I, Book V of these Rules.
"Cabo" refers to a person or group of persons or to a labor group which, in the guise of a labor
organization, supplies workers to an employer, with or without any monetary or other consideration
whether in the capacity of an agent of the employer or as an ostensible independent contractor;
(c) Taking undue advantage of the economic situation or lack of bargaining strength of the contractual
employee, or undermining his security of tenure or basic rights, or circumventing the provisions of
regular employment, in any of the following instances:
i) In addition to his assigned functions, requiring the contractual employee to perform functions
which are currently being performed by the regular employees of the principal or of the
contractor or subcontractor;
ii) Requiring him to sign, as a precondition to employment or continued employment, an antedated
resignation letter; a blank payroll; a waiver of labor standards including minimum wages and
social or welfare benefits; or a quitclaim releasing the principal, contractor or subcontractor from
any liability as to payment of future claims; and
iii) Requiring him to sign a contract fixing the period of employment to a term shorter than the term
of the contract between the principal and the contractor or subcontractor, unless the latter contract
is divisible into phases for which substantially different skills are required and this is made
known to the employee at the time of engagement;
(d) Contracting out of a job, work or service through an in-house agency which refers to a contractor or
subcontractor engaged in the supply of labor which is owned, managed or controlled by the principal
and which operates solely for the principal;
(e) Contracting out of a job, work or service directly related to the business or operation of the principal
by reason of a strike or lockout whether actual or imminent;
(f) Contracting out of a job, work or service being performed by union members when such will interfere
with, restrain or coerce employees in the exercise of their rights to self organization as provided in
Art.248 (c) of the Labor Code, as amended.
The principal shall be deemed the employer of the contractual employee in any of the following cases, as
declared by a competent authority:
(a) where there is labor-only contracting; or
(b) where the contracting arrangement falls within the prohibitions provided in Section 6
(Prohibitions) hereof.
Comment:
Prohibited labor only contracting under DO 18-02
1) labor only contracting
2) contracting that terminates the employment of regular employees or reduces their work hours, or
reduces or splits a bargaining unit, if such contracting out is not done in good faith and not
justified by business exigencies
3) contracting with a cabo
4) contracting with in house agency
5) contracting because of a strike or lock out (under article 264, an employer may directly hire
replacements during a strike or lock out)
6) contracting that constitute ULP under article 248
(c) Taking undue advantage of the economic situation or lack of bargaining strength of the contractual
employee, or undermining his security of tenure or basic rights, or circumventing the provisions of
regular employment, in any of the following instances:
iv) In addition to his assigned functions, requiring the contractual employee to perform functions
which are currently being performed by the regular employees of the principal or of the
contractor or subcontractor;
v) Requiring him to sign, as a precondition to employment or continued employment, an antedated
resignation letter; a blank payroll; a waiver of labor standards including minimum wages and
social or welfare benefits; or a quitclaim releasing the principal, contractor or subcontractor from
any liability as to payment of future claims; and
vi) Requiring him to sign a contract fixing the period of employment to a term shorter than the term
of the contract between the principal and the contractor or subcontractor, unless the latter contract
is divisible into phases for which substantially different skills are required and this is made
known to the employee at the time of engagement;
Commission of any of the acts prohibited as well as labor contracting will render the principal of the
contractor or subcontractor the employer of the workers thereby legally subjecting him to all the
provisions applicable to an employer with respect to his employees, as provided for by section 7 of DO
18-02 provided however that the solidary liability of the principal is qualified or limited only. This means
that the liability of the principal extends only to failure to pay the wages, SIL holiday pay and other
benefits provided for by law. But if the liability invested is punitive in character, such as an award for
backwages and separation pay because of illegal dismissal by the contractor, the sole liability of which
lies with the contractor unless the principal conspired with him to illegal dismiss the employee (rosewood
processing vs NLRC)
Hence solidary liability of the principal for labor only contractor and commission of the prohibited acts is
limited to the following:
1) Payment to the extent of the work performed under the contract (article 106)
2) Payment to the performance of any work, task job or project (107)
3) To the extent of their civil liability under this chapter ( payment of wages) (109)
However if the contractor validly engages in job contracting only the solidary liability of the employer is
limited only to the nonpayment of wages of the contractor for which he can prior the engagement require
the latter to set up a bond.
Note: in a recent case the SC has ruled that the SSC has the authority and jurisdiction to determine the
existence of a E&E between the parties in order to determine who is the appropriate party to create and
pay for the SSS contributions of the workers in question RP vs Asiapro
Independent contractor
Is 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.
Comment:
The solidary liability of the principal in the event that the independent contractor fails to pay the wages of
the workers is limited only to the wages earned in respect to the service rendered for the benefit of the
principal.
In cases where the principal made payment he can secure reimbursement from the employer however this
is not permissible in the same labor case he must institute a separate case in the RTC since this issue does
not devolve upon a labor dispute by arising from a civil contract.
Comment:
The general rule is that if there is a change in the law requiring a higher pay for any services rendered
including holiday pay and the like only the employer, in this case the independent contractor is liable to
pay the increase however a special circumstance is created by RA 6727 with respect to the increase of
wage rate of employees mentioned below:
Section 6. In the case of contracts for construction projects and for security, janitorial and similar
services, the prescribed increases in the wage (statutory minimum wage) rates of the workers
shall be borne by the principals or clients of the construction/service contractors and the contract
shall be deemed amended accordingly. In the event, however, that the principal or client fails to
pay the prescribed wage rates, the construction/service contractor shall be jointly and severally
liable with his principal or client.
Adjustment of contract rates between the independent contractor and the principal is not within the
jurisdiction of the DOLE nor of the NLRC but with the courts of general jurisdiction since it does arise
from an E&E relationship
Comment:
Rules to consider in the preference of workers in case of bankruptcy:
1) The SC has ruled that the preference shall arise only upon judicial determination of bankruptcy of
the employer hence until that time the worker is not accorded the preference givern by art 110
2) The preference must be distinguished from a lien, hence the lien given by law to mortgagors as
well as to the government for payment of taxes shall take precedence over the workers right to
preference.
(b) It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings
for the recovery of wages, attorneys fees which exceed ten percent of the amount of wages
recovered.
Comment:
2 concepts of attys fees:
1) Ordinary concept
Is the reasonable compensation paid to a lawyer by his client for legal services rendered. In absences
of a stipulation the amount of attys fee will be determined based on quatum meruit
2) Extraordinary attys fee
Are indemnity for damages ordered by the court to be paid by the losing party in litigation
Instances under the labor code where extraordinary ATTYs fees may be granted:
1) In cases of unlawful withholding of wages, the culpable party may be assessed attorneys fees
equivalent to ten percent of the amount of wages recovered (110 A)
2) Those arising from CBA negotiations that may be charged against union funds in an amount to be
agreed upon by the parties.
Art. 1706. Withholding of the wages, except for a debt due, shall not be made by the employer.
Art. 1707. The laborer's wages shall be a lien on the goods manufactured or the work done.
Art. 1708. The laborer's wages shall not be subject to execution or attachment, except for debts incurred
for food, shelter, clothing and medical attendance.
Art. 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer.
Comment:
Unjustified work reduction not backed up by evidence is a ground for constructive dismissal or ULP
depending on the circumstances
Comment:
Although the law allows the employer to deduct from the wages of their employee the debts of the latter
to the former which are due and demandable, the same is outside the jurisdiction of the labor courts but is
vested in the civil courts since it is excluded in the enumeration under article 217 of the LC and is based
on article 1706 of the civil code.
Deductions from the wages of the employees may be made by the employer in any of the following cases:
(a) When the deductions are authorized by law, including deductions for the insurance premiums
advanced by the employer in behalf of the employee as well as union dues where the right to check-
off has been recognized by the employer or authorized in writing by the individual employee himself.
(b) When the deductions are with the written authorization of the employees for payment to the third
person and the employer agrees to do so; Provided, That the latter does not receive any pecuniary
benefit, directly or indirectly, from the transaction.
Comment:
The practice wherein the employer deducts a percentage from the monthly salary of an employee in
consideration of their securing his employment is hereby declared null and void for being contracry to
public policy and the abovestated provision
Comment:
Prohibition on retaliatory measures includes silent testimonies, meaning where the employee refuses to
testify in favor of the employer in court, article 118 shall be violated if the employer retaliates.
In the performance of its wage-determining functions, the Regional Board shall conduct public
hearings/consultations, giving notices to employees and employers groups, provincial, city and
municipal officials and other interested parties.
Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the
Commission within ten (10) calendar days from the publication of such order. It shall be mandatory for
the Commission to decide such appeal within sixty (60) calendar days from the filing thereof.
The filing of the appeal does not stay the order unless the person appealing such order shall file with the
Commission, an undertaking with a surety or sureties satisfactory to the Commission for the payment to
the employees affected by the order of the corresponding increase, in the event such order is affirmed. (As
amended by Republic Act No. 6727, June 9, 1989).
The wages prescribed in accordance with the provisions of this Title shall be the standard prevailing
minimum wages in every region. These wages shall include wages varying with industries, provinces or
localities if in the judgment of the Regional Board, conditions make such local differentiation proper and
necessary to effectuate the purpose of this Title.
Any person, company, corporation, partnership or any other entity engaged in business shall file and
register annually with the appropriate Regional Board, Commission and the National Statistics Office, an
itemized listing of their labor component, specifying the names of their workers and employees below the
managerial level, including learners, apprentices and disabled/handicapped workers who were hired under
the terms prescribed in the employment contracts, and their corresponding salaries and wages.
Where the application of any prescribed wage increase by virtue of a law or wage order issued by any
Regional Board results in distortions of the wage structure within an establishment, the employer and the
union shall negotiate to correct the distortions. Any dispute arising from wage distortions shall be
resolved through the grievance procedure under their collective bargaining agreement and, if it remains
unresolved, through voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute
shall be decided by the voluntary arbitrators within ten (10) calendar days from the time said dispute was
referred to voluntary arbitration.
In cases where there are no collective agreements or recognized labor unions, the employers and workers
shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled through the
National Conciliation and Mediation Board and, if it remains unresolved after ten (10) calendar days of
conciliation, shall be referred to the appropriate branch of the National Labor Relations Commission
(NLRC). It shall be mandatory for the NLRC to conduct continuous hearings and decide the dispute
within twenty (20) calendar days from the time said dispute is submitted for compulsory arbitration.
The pendency of a dispute arising from a wage distortion shall not in any way delay the applicability of
any increase in prescribed wage rates pursuant to the provisions of law or wage order.
As used herein, a wage distortion shall mean a situation where an increase in prescribed wage rates results
in the elimination or severe contraction of intentional quantitative differences in wage or salary rates
between and among employee groups in an establishment as to effectively obliterate the distinctions
embodied in such wage structure based on skills, length of service, or other logical bases of
differentiation.
All workers paid by result, including those who are paid on piecework, takay, pakyaw or task basis, shall
receive not less than the prescribed wage rates per eight (8) hours of work a day, or a proportion thereof
for working less than eight (8) hours.
All recognized learnership and apprenticeship agreements shall be considered automatically modified
insofar as their wage clauses are concerned to reflect the prescribed wage rates. (As amended by Republic
Act No. 6727, June 9, 1989).
Wage distortion
A situation where an increase in prescribed wage rates results in the elimination or severe contraction of
intentional quantitative difference in wage or salary rates between and among employee groups in an
establishment as to effectively obliterate the distinction embodied in such wage structure based on skills,
length of service, or other logical bases of differentiation. In order for wage distortion to be susceptible of
rectification under the provisions of article 124 of the LC, the same must have resulted from compliance
with a wage order or a valid governmental order.
b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases
where the relationship of employer-employee still exists, the Secretary of Labor and Employment or
his duly authorized representatives shall have the power to issue compliance orders to give effect to
the labor standards provisions of this Code and other labor legislation based on the findings of labor
employment and enforcement officers or industrial safety engineers made in the course of inspection.
The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate
authority for the enforcement of their orders, except in cases where the employer contests the findings
of the labor employment and enforcement officer and raises issues supported by documentary proofs
which were not considered in the course of inspection.
c) An order issued by the duly authorized representative of the Secretary of Labor and Employment
under this Article may be appealed to the latter. In case said order involves a monetary award, an
appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a
reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount
equivalent to the monetary award in the order appealed from. (As amended by Republic Act No.
7730, June 2, 1994).
iv. The Secretary of Labor and Employment may likewise order stoppage of work or suspension of
operations of any unit or department of an establishment when non-compliance with the law or
implementing rules and regulations poses grave and imminent danger to the health and safety of
workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine
whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case
the violation is attributable to the fault of the employer, he shall pay the employees concerned their
salaries or wages during the period of such stoppage of work or suspension of operation.
v. It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective
the orders of the Secretary of Labor and Employment or his duly authorized representatives issued
pursuant to the authority granted under this Article, and no inferior court or entity shall issue
temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case
involving the enforcement orders issued in accordance with this Article.
vi. Any government employee found guilty of violation of, or abuse of authority, under this Article shall,
after appropriate administrative investigation, be subject to summary dismissal from the service.
vii. The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep
and maintain such employment records as may be necessary in aid of his visitorial and enforcement
powers under this Code.
Comment:
A condition in order for the secretary of labor or a regional director to exercise its enforcement power
under article 128 (b) is that the work relationship between the parties must be existing at the time of the
filling of the complaint, formal or informal. However when the employees who filed the complaint has
been dismissed, the case is placed out of the jurisdiction of the SOL or the RD since the issue now has
become a case for illegal dismissal hence jurisdiction is properly lodged with the labor arbitrators.
Powers of the SOL and RD
1) Visitorial or inspection power
2) Enforcement power
a. Issue Compliance order with the labor standards provisions of the LC and other labor
legislation
b. Issue writs of execution to the appropriate authority for the enforcement of his orders in
line with the provisions of article 128 in relation to article 289 and 290
However in those cases where the employer contests the finding of the labor standards and welfare
officers and raises issues which cannot be resolved without considering evidentiary matters that are not
verifiable in the normal course of inspection, the regional director must endorse the case to the
appropriate arbitration branch of the NLRC.
The visitorial power of the SOL or RD extends to matters not included in the complaint as the power is
provided in article 128 of the LC which was not made subject to the submission of a previous complaint
Comment:
Violations of labor standards found during the inspection is susceptible to a compromise agreement
however subject to the following conditions:
1) It must be reduced in writing
2) Signed by the parties
3) In the presence of the RD
4) A settlement that provides for an amount of money far below the sum legally due violates public
policy even if signed in the presence of the DR, hence is appealable to the SOL
Comment:
1) Enforcement orders for suspension of operations is not susceptible to injunctive relief.
2) A pre condition to a valid appeal is the posting of a cash or surety bond equivalent to the
monetary award which the SOL cannot reduce
3) All employees shall benefit the rectification ordered by the SOL even those who are not signatory
to the complaint under the reasoning that the correction was a result of the visitorial power of the
DR or SOL.
ART. 129. Recovery of wages, simple money claims and other benefits.
Upon complaint of any interested party, the Regional Director of the Department of Labor and
Employment or any of the duly authorized hearing officers of the Department is empowered, through
summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages
and other monetary claims and benefits, including legal interest, owing to an employee or person
employed in domestic or household service or househelper under this Code, arising from employer-
employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided
further, That the aggregate money claims of each employee or househelper does not exceed Five thousand
pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within
thirty (30) calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any
employee or househelper pursuant to this Article shall be held in a special deposit account by, and shall be
paid on order of, the Secretary of Labor and Employment or the Regional Director directly to the
employee or househelper concerned. Any such sum not paid to the employee or househelper because he
cannot be located after diligent and reasonable effort to locate him within a period of three (3) years, shall
be held as a special fund of the Department of Labor and Employment to be used exclusively for the
amelioration and benefit of workers.
Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be
appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from
receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall
resolve the appeal within ten (10) calendar days from the submission of the last pleading required or
allowed under its rules.chan robles virtual law library
The Secretary of Labor and Employment or his duly authorized representative may supervise the payment
of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any
employee or househelper under this Code. (As amended by Section 2, Republic Act No. 6715, March 21,
1989).
Requirements to avail of the summary proceedings by the DR for money claims under article 129
1) The claim is presented by an employee, or a person employed in domestic or household service or
househelper
2) The claim arises from E&E relations
3) The claimant does not seek reinstatement
4) The aggregate money claim of each claimant does not exceed P5k
In the absence of any of the above requisites, the labor arbiter shall have exclusive jurisdiction over
claims arising from E&E relationships save that of claims arising from those specified under article 217
128 129
Nature and subject of proceedings
Refers to inspection of establishments and issuance Refers to adjudication through summary
of orders to compel compliance with labor proceedings after due notice and hearing of
standards, wage orders and other labor laws and employees money claims for wages and benefits.
regulations. Hence refers to enforcement of labor Hence involves only money claims arising from
legislations labor standards
Workers involved
Involves workers currently employed by the Refers to past and present employees provided that
employer reinstatement is not requested
Jurisdictional limits
No limits required by law Requisites for exercise of jurisdiction are set forth
in article 129
Officers designated
SOL or any of his duly authorized representatives RD ir aby duly authorized hearing officer of the
who may or may not be a RD DOLE
Appeals
Appealable to the SOL Appealable to the NLRC
Adjustment of contract rates between the independent contractor and the principal is not within the
jurisdiction of the DOLE nor of the NLRC but with the courts of general jurisdiction since it does arise
from an E&E relationship
Employment of Women
(a) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe
benefits, to a female employee as against a male employee, for work of equal value; and
(b) Favoring a male employee over a female employee with respect to promotion, training opportunities,
study and scholarship grants solely on account of their sexes.
Criminal liability for the willful commission of any unlawful act as provided in this Article or any
violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as provided in
Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this
provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for
money claims, which may include claims for damages and other affirmative reliefs. The actions hereby
authorized shall proceed independently of each other. (As amended by Republic Act No. 6725, May 12,
1989).
Article 137. Prohibited Acts. (a) It shall be unlawful for any employer:
(1) To deny any woman employee the benefits provided for in this Chapter or to discharge any woman
employed by him for the purpose of preventing her from enjoying any of the benefits provided under
this Code;
(2) To discharge such woman on account of her pregnancy, or while on leave or in confinement due to
her pregnancy;
(3) To discharge or refuse the admission of such woman upon returning to her work for fear that she may
again be pregnant.
Article 138. Classification of Certain Women Workers. Any woman who is permitted or suffered
to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or
similar establishments under the effective control or supervision of the employer for a substantial
period of time as determined by the Secretary of Labor and Employment, shall be considered as an
employee of such establishment for purposes of labor and social legislation.
Sexual Harassment
SECTION 3. Work, Education or Training -Related, Sexual Harassment Defined.
Work, education or training-related sexual harassment is committed by an employer, employee, manager,
supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who,
having authority, influence or moral ascendancy over another in a work or training or education
environment, demands, 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.
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.
(a) Promulgate appropriate rules and regulations in consultation with and joint1y approved by the
employees or students or trainees, through their duly designated representatives, prescribing the
procedure for the investigation of sexual harassment cases and the administrative sanctions therefor.
Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual
harassment.
The said rules and regulations issued pursuant to this subsection (a) shall include, among others,
guidelines on proper decorum in the workplace and educational or training institutions.
(b) Create a committee on decorum and investigation of cases on sexual harassment. The committee shall
conduct meetings, as the case may be, with officers and employees, teachers, instructors, professors,
coaches, trainors, and students or trainees to increase understanding and prevent incidents of sexual
harassment. It shall also conduct the investigation of alleged cases constituting sexual harassment.
In the case of a work-related environment, the committee shall be composed of at least one (1)
representative each from the management, the union, if any, the employees from the supervisory rank, and
from the rank and file employees. In the case of the educational or training institution, the committee shall
be composed of at least one (1) representative from the administration, the trainors, instructors, professors
or coaches and students or trainees, as the case may be.
The employer or head of office, educational or training institution shall disseminate or post a copy of this
Act for the information of all concerned.
EMPLOYMENT OF MINORS
(b) Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of
hours and such periods of the day as determined by the Secretary of Labor and Employment in
appropriate regulations.
(c) The foregoing provisions shall in no case allow the employment of a person below eighteen (18)
years of age in an undertaking which is hazardous or deleterious in nature as determined by the
Secretary of Labor and Employment.
Hazardous Work
1) Where the nature of the work exposes the workers to dangerous environmental elements,
contaminations or work conditions including ionization radiations, chemicals, fire, flammable
substances noxious components, and the like
2) Where the workers are engaged in construction work, logging, firefighting, mining, quarrying
blasting stevedoring, dock work, deep sea fishing, and mechanized farming
3) Where the workers are engaged in manufacture or handling of explosive and other pyrotechnic
products
4) Where the workers use or are exposed to heavy or power-driven machinery or equipment
5) Where workers use or are exposed to power driven tools
Section 12 of the same Act, as amended, is hereby further amended to read as follows:
Sec. 2. Employment of Children - Children below fifteen (15) years of age shall not be employed except:
1) When a child works directly under the sole responsibility of his/her parents or legal guardian and
where only members of his/her family are employed: Provided, however, That his/her employment
neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development:
Provided, further, That the parent or legal guardian shall provide the said child with the prescribed
primary and/or secondary education; or
2) Where a child's employment or participation in public entertainment or information through cinema,
theater, radio, television or other forms of media is essential: Provided, That the employment contract
is concluded by the child's parents or legal guardian, with the express agreement of the child
concerned, if possible, and the approval of the Department of Labor and Employment: Provided,
further, That the following requirements in all instances are strictly complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal development of the
child;
(b) The employer shall institute measures to prevent the child's exploitation or discrimination taking
into account the system and level of remuneration, and the duration and arrangement of working
time; and
(c) The employer shall formulate and implement, subject to the approval and supervision of
competent authorities, a continuing program for training and skills acquisition of the child.
In the above-exceptional cases where any such child may be employed, the employer shall first
secure, before engaging such child, a work permit from the Department of Labor and Employment
which shall ensure observance of the above requirements.
For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age.
(1) A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a
week: Provided, That the work shall not be more than four (4) hours at any given day;
(2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than
eight (8) hours a day, and in no case beyond forty (40) hours a week;
(3) No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the
evening and six o'clock in the morning of the following day and no child fifteen (15) years of age but
below eighteen (18) shall be allowed to work between ten o'clock in the evening and six o'clock in the
morning of the following day."
Sec. 12-B. Ownership, Usage and Administration of the Working Child's Income.
The wages, salaries, earnings and other income of the working child shall belong to him/her in ownership
and shall be set aside primarily for his/her support, education or skills acquisition and secondarily to the
collective needs of the family: Provided, That not more than twenty percent (20%) of the child's income
may be used for the collective needs of the family.
The income of the working child and/or the property acquired through the work of the child shall be
administered by both parents. In the absence or incapacity of either of the parents, the other parent shall
administer the same. In case both parents are absent or incapacitated, the order of preference on parental
authority as provided for under the Family Code shall apply.
Sec. 12-C. Trust Fund to Preserve Part of the Working Child's Income.
The parent or legal guardian of a working child below eighteen (18) years of age shall set up a trust fund
for at least thirty percent (30%) of the earnings of the child whose wages and salaries from work and
other income amount to at least two hundred thousand pesos (P200,000.00) annually, for which he/she
shall render a semi-annual accounting of the fund to the Department of Labor and Employment, in
compliance with the provisions of this Act. The child shall have full control over the trust fund upon
reaching the age of majority.
Sec. 12-D. Prohibition Against Worst Forms of Child Labor. No child shall be engaged in the worst
forms of child labor. The phrase "worst forms of child labor" shall refer to any of the following:
(1) All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices
similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or
compulsory labor, including recruitment of children for use in armed conflict; or
(2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography
or for pornographic performances; or
(3) The use, procuring or offering of a child for illegal or illicit activities, including the production and
trafficking of dangerous drugs and volatile substances prohibited under existing laws; or
(4) Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be
harmful to the health, safety or morals of children, such that it:
a) Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
b) Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful
psychologically or may prejudice morals; or
c) Is performed underground, underwater or at dangerous heights; or
d) Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive
power-actuated tools; or
e) Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing,
physical strength or contortion, or which requires the manual transport of heavy loads; or
f) Is performed in an unhealthy environment exposing the child to hazardous working conditions,
elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable
substances, noxious components and the like, or to extreme temperatures, noise levels, or
vibrations; or
g) Is performed under particularly difficult conditions; or
h) Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and
other parasites; or
i) Involves the manufacture or handling of explosives and other pyrotechnic products
EMPLOYMENT OF HOUSEHELPERS
Article 141. Coverage.
This Chapter shall apply to all persons rendering services in households for compensation.
Domestic or household service shall mean service in the employers home which is usually necessary
or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort
and convenience of the members of the employers household, including services of family drivers.
Provided, That the employers shall review the employment contracts of their househelpers every three (3)
years with the end in view of improving the terms and conditions thereof.
Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00)
shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided
thereunder. (As amended by Republic Act No. 7655, August 19, 1993).
If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or
her not exceeding fifteen (15) days.
EMPLOYMENT OF HOMEWORKERS
(1) Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or
about a home and thereafter to be returned or to be disposed of or distributed in accordance with his
directions; or
(2) Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys
them after such processing or fabrication, either by himself or through some other person.
POST EMPLOYMENT
ART. 278. Coverage.
The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not.
Kiamco vs NLRC
Security of tenure-the right not to be removed from ones job without valid cause and valid procedure- is
so fundamental it extends to regular (permanent) as well as non-regular (Temporary employment).
Termination of Employment
Comment:
In order for the provisions herein to apply it is assumed that there exist an E&E relationship between the
parties
Project employment:
Is one whose employment has been fixed for a specific project or undertaking, the completion or
termination of which has been determined at the time of the engagement of the employee or where the
work or service to be performed is seasonal in nature and the employment is for the duration of the
season.
Bona fide project employees are not entitled to separation pay as a result of the termination of their
employment by reason of completion of the project in which they were hired.
The fact that the employees has been rehired each time a project has been completed over a long span of
time is not controlling but a strong indicator that the project employees have been converted to regular
employees
Seasonal Employment
Comment:
Once a seasonal employee is rehired for more than 1 season he becomes a regular seasonal employee and
due to such he has the right to expect re-engagement once the employer requires the rendition of services
again. However during the period where he is not so engaged he is deemed only on a leave of absence
without pay under the principle of no work no pay.
Comment:
In situations where the parties freely agree to enter into a contract of employment with a fixed
term the ratione anima of the law is not defeated since what the law seeks to prevent is the abuse
committed by an employer precisely to evade or violate the security of tenure granted to an
employee. In this situation the employees knowingly and voluntary agreed to a pre-defined
termination date of his employment.
However, employees with a contract of employment with a fixed term does not lose their security
of tenure but rather they enjoy the same fully during the duration of their employment contract
and thus they cannot be terminated without just cause otherwise it would constitute illegal
dismissal and render the employer liable for payment of the unexpired portion of his contract.
Finally, when circumstance surrounding the case shows that the real intent behind by the
employer is to evade tenurial security of the employees the same shall be struck down as contrary
to public morals hence void abinitio
Comment:
If an employee hired allegedly on probationary employment basis was not informed of the standards that
should qualify her as a regular employee, the employee is deemed to have been hired from day one as a
regular employee.
Comment:
The probationary period of 6 months is a general rule and a longer period may be justified provided that
the parties freely agree upon it and the nature of the work to be performed by the employee requires a
longer period of probation or there exist a clear company policy to that effect.
The period of probation is subject to waiver in the sense that if the employee has been judged as lacking
in qualifications to be a regular employee prior to the expiration of the probationary period however due
to the gratuitous act of the employer, the parties agreed to extend the probationary period to give the
employee another chance to prove his worth, the additional period for probation even exceeding the 6
month quota shall not be construed to automatically vest the employee with the status of regularity.
The six month period is determined by determining the 180 th day counted from the date of engagement of
the employee.
6 Management prerogatives:
A. Discipline
B. Transfer of employees
C. Productivity standard
D. Grant of bonus
E. Change of working hours
F. Rules on Marriage between employees of competitor-employers
G. Post-employment ban
Comment:
Removal under article 282 is called dismissal or discharged if under 283 and 284 it is called separation
Serious misconduct
1) There must be wrongful intent not a mere error in judgment
2) There is a grave and aggravated character and not merely trivial or unimportant
3) The misconduct is in connection with the employees work
4) A serious of irregularities when put together may constitute serious misconduct.
Immoral behavior to constitute a valid ground for termination must be grossly immoral, that is it must be
so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree or
committed under such scandalous or revolting circumstances as to shock the common sense of decency.
Requisites for willful disobedience
1) The assailed conduct must have been willful or intentional, the will-fullness being characterized
by a wrongful and perverse attitude
2) The orders, regulations or instructions of the employer must be
a) Reasonable and lawful
b) Sufficiently known to the employee
c) In connection with the duties which the employee has been engaged to discharged.
3) The disobedience must relate to substantial matters and not merely to trivial or unimportant
matters
Comment:
The SC has decided that there is no law requiring an employee to accept a promotion hence to decline one
is within the rights of an employee and any other obligations (transfer to another location) attached to the
promotion is no longer enforceable.
Transfer vs Promotion
Is a movement from one position to another of equivalent rank, level or salary without break in the
service. Promotion, on the other hand is the advancement from one position to another with an increase in
duties and responsibilities as authorized by law and usually accompanied by an increased in salary.
Comment:
In order for negligence be a ground for dismissal it must not only be gross but habitual amounting to
reckless disregard of the safety of a person or property. The degree of skill, care, diligence and attention
imposed by the implied possession of competency, knowledge or skillfulness or the like is that or ordinary
and reasonable skill unless:
1) Expressly stipulates the need to exercise the highest degree of competency, skill or diligence
2) The employee represented that he has such degree of skill, competency or diligence
However (not sure) if there is a provision in the contract of employment that the employees service shall
be warranted or agreed to give satisfaction, the employer is vested with the power to determine the
question of whether the work is satisfactory; and the reasonableness of the grounds of dissatisfaction
cannot be inquired into by the court in an action by the employee for damages for his discharge.
Elements of abandonment:
1) The failure to report for work or absence without valid or justifiable reason.
2) Clear intention to sever the E&E relationship
The second element is more determinative factor and being manifested by some overt acts. Mere absence
is not sufficient to constitute abandonment, the employer has the burden of proof to show a deliberate and
unjustified refusal of the employee to resume his employment without any intention of returning.
Comment:
Attitude problem may be a sufficient ground for termination of an employee since it is akin to loss of trust
and confidence, provided however substantial evidence must exist to support the allegation that the
employee has in fact an attitude problem detrimental to the company. It is the employer who carries the
burden of proof in proving such an attitude problem.
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 representatives; and
Conviction of the offense charged is not required to constitute this ground for dismissal.
ART. 284. Disease as ground for termination. An employer may terminate the services of an employee
who has been found to be suffering from any disease and whose continued employment is prohibited by
law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid
separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year
of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole
year.
Comment:
The SC has opined that the decision that retrenchment exist in not a management prerogative but a
question of fact the burden of proving which lies with the employer
Redundancy
Exist where the services of an employee are in excess of what is reasonably demanded by the actual
requirements of the enterprise. A position is redundant where it is superfluous and superfluity of a
position or positions may be the outcome of a number of factors, such as overhiring of workers, decreased
volume of business, or dropping of a particular product line or service activity previously manufactured
or undertaken by the enterprise
Retrenchment
It is an act of the employer of dismissing employees because of losses in the operation of a business, lack
of work, and considerable reduction on the volume of his business.
Comment:
An employer when justified may seek temporary retrenchment however upon the expiration of six months
therefrom the employer needs to either recall the employee or permanently retrench the employees by
following the requirements of the law. Hence the employer, if deciding to undergo permanent
retrenchment must follow the requirements of retrenchment during the 6 month period otherwise they
would be guilty of illegal dismissal.
My comment:
The main distinction between redundancy and retrenchment is that in the latter there is an actual
substantial or imminent danger of a loss whereas in redundancy the fact that the position dismissed is
based on loss of new orders or the like which has not necessarily caused or will cause a loss but instituted
only to improve the business of the employer. The determinative factor is the reason behind the abolition
whether forced by a an imminent or actual substantial loss or the mere loss of purpose of the position.
Comments:
Reduction of workdays if substantial and lasted for more than a period of 6 months would constitute
constructive retrenchment thereby placing the employer liable for separation pay for retrenchment.
Comment:
The general rule is that if the employer closes its business it is required to pay the separation pay of the
employees of salary per year of service or 1 month salary whichever is higher except that in cases
where the closure is due to serious business losses or financial reverses.
Comment:
Closure in order to be under the coverage of article 283 must by voluntary on the part of the employer in
the sense it must not be forced upon it by an act of the government for the benefit of the employee similar
to the instance where by virtue of the CARP law, majority of the estate was subjected to eminent domain
and forced the company to close. In this situation the employees are no longer entitled to separation pay
under article 283, since the closure was not voluntary.
Where employment of the employees is contingent upon the continuing possession of the employer of
the property involved in the business, the expiration of the contract of lease over the said property
constitutes the expiration of the tenure of the employees and not dismissal viewed under article 283.
Petitioner insists that the payment of 30 days salary to respondents in place of notice was sufficient
compliance with the 30-day notice rule. We cannot agree. Nothing in the law gives petitioner the option
to substitute the required prior written notice with payment of 30 days salary. Indeed, a job is more than
the salary it carries. Payment of 30 days salary cannot compensate for the psychological effect or the
stigma of immediately finding ones self laid off from work. It cannot be a fully effective substitute for
the 30 days written notice requirement by law, especially when, as in this case, no notice was given to the
DOLE
Successor-Employer Doctrine
This doctrine involves a transfer of ownership of the business to a new employer. Where the change of
ownership is in bad faith or is used to defeat the rights of labor, the successor-employer is deemed to have
absorbed the employees and is held liable for the transgressions of his or her predecessor and is liable for
the lawful obligations of the predecessor employers.
Effect of merger if done in good faith (BPI vs BPI employees Union Davao Chapter)
The Supreme Court has decided that the effect of merger done in good faith does not ipso facto create a
an E&E relationship between the surviving corporation and the employee of the absorbed corporation
since:
The rule is that unless expressly assumed, labor contracts such as employment contracts and
collective bargaining agreements are not enforceable against a transferee of an enterprise, labor
contracts being in personam, thus binding only between the parties. A labor contract merely
creates an action in personam and does not create any real right which should be respected by
third parties. This conclusion draws its force from the right of an employer to select his
employees and to decide when to engage them as protected under our Constitution, and the same
can only be restricted by law through the exercise of the police power.
XXXX
(b) Subject to the constitutional right of workers to security of tenure and their right to be protected
against dismissal except for a just and authorized cause and without prejudice to the requirement of
notice under Article 283 of this Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the causes for termination and shall
afford the latter ample opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and regulations promulgated
pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the
employer shall be without prejudice to the right of the worker to contest the validity or legality of his
dismissal by filing a complaint with the regional branch of the National Labor Relations Commission.
The burden of proving that the termination was for a valid or authorized cause shall rest on the
employer. The Secretary of the Department of Labor and Employment may suspend the effects of the
termination pending resolution of the dispute in the event of a prima facie finding by the appropriate
official of the Department of Labor and Employment before whom such dispute is pending that the
termination may cause a serious labor dispute or is in implementation of a mass lay-off. (As amended
by Section 33, Republic Act No. 6715, March 21, 1989).
XXXXXXX
Comment:
Lack of valid cause (substantive due process) makes dismissal illegal and invalid, generally entitling the
employee to reinstatement. Lack of proper procedure (procedural due process), on the other hand, does
not invalidate the dismissal which means that employee remains dismissed but the employer becomes
liable for indemnity for violating the employees right to due process. In short what makes a dismissal
invalid or illegal is lack of a valid cause not the nonobservance of procedural due process
Following notice is not sufficient to comply with the requirements of procedural due process:
1) Notice of preventive suspension
The notice must be for the purpose of appraising the employee that termination is sought against
him on the grounds specified in the notice to adequately appraise of the same. Further, interview
without appraising him that he is already being investigated does not comply with the hearing
requirement otherwise known as the right to be heard. Finally hearing made during the
determination of the NLRC does not cure the defect since what the law requires is notice prior to
termination which in the case where the notice is given in NLRC, termination has already been
effected
2) Consultation with the union, insufficient notice
The right to procedural due process is a personal right and may not be exercised by any other
person even the union. Further, being a personal right the same is subject to waiver however such
waiver must be made by the employee himself and not any other party.
Comment:
As a rule, notice and hearing must be made prior to a declaration or decision of termination to the extent
that the requirement of ample opportunity to prepare his defense is deemed not complied with even if the
notice of termination had an effective date of a much later date, even assuming that the interim period is
sufficient for him to prepare his defense, because the fact is the employee has already been dismissed
without the complying with the requirements of procedural due process
Comment:
The SC has ruled that reasonable opportunity should be construed as a period of at least 5 calendar days
from receipt of the notice to give the employee an opportunity to study the accusation against them.
Close shop agreements does not exempt the company from following the requirements of procedural due
process
Hearing is not required when the employee has categorically admitted his guilt. If the employee merely
narrated what he did without admitting his guilt, then conducting a hearing is required; otherwise , there is
a failure of procedural due process.
The notice requirement requires that the notice be given individually to employees whose employment is
sought to be terminated and a group notice is not sufficient to comply with this requirement since the law
is specifically requires that notice be given to him in writing 30 days before the intended dismissal
2 instances where hearing is not required:
1) When the employee categorically admits his guilt
2) Where the termination is based upon authorized causes since the employer is not alleging any
malfeasance or nonfeasance on the part of the employee.
Comment:
Notice requirement under article 283 is deemed complied with when voluntary arbitration has been
availed of by the parties or of the employer.
Substantial evidence
Is the quantum of evidence requiring that there is more than a mere scintilla supporting the allegation. It
means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Comment:
Condonation/pardon or waiver of a misconduct by the employer of his employees, precludes himself from
subsequently asserting the right to discharge them for cause. Retention of an employee after the actual
discovery of the misconduct on his part, in some instance warrant the inference that the act has been
condoned, so as to be no longer available as a ground for dismissal. However if there has been a repetition
of the offense, the employer has a right to take the entire record into account, the condoning of the
employees misconduct being deemed to have been conditioned upon future good conduct.
Comment:
However with respect to project and non project employees employed in the construction industry the
preventive suspension period shall not exceed 15 day otherwise the employee will be entitled to payment
of wages and shall not be bound to reimburse what he receives even after the employer has decided to
terminate his services.
Constructive Dismissal
Does not always involve forthright dismissal or diminution in rank, compensation, benefit and
privileges.14 There may be constructive dismissal if an act of clear discrimination, insensibility, or
disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any
choice by him except to forego his continued employment.
Appropriate penalty
It would imply at the very least that where a penalty less punitive would suffice, whatever missteps may
be committed by labor ought not to be visited with a consequence so severe. It is not only because of the
laws concern for the workingman. There is, in addition, his family to consider. Unemployment brings
untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on
the loss of jobs then could be avoided if there be acceptance of the view that under all the circumstances
of this case, petitioners should not be deprived of their means of livelihood. Nor is this to condone what
had been done by them. For all this to condone what had been done by them. For all this while, since
private respondent considered them separated from the service, they had not been paid. For the strictly
juridical standpoint, it cannot be too strongly stressed, to follow Davis in his masterly work, Discretionary
Justice, that where a decision may be made to rest on informed judgment rather than rigid rules, all the
equities of the case must be accorded their due weight. Finally, labor law determinations, to quote from
Bultmann, should be not only secundum rationem but also secundum caritatem.
Comment:
Past offenses may be compiled and become a basis of a valid dismissal provided that the present and past
offense are related to one another, in other words, it may be used if it has a bearing to the proximate
offense warranting dismissal.
In case of termination, the foregoing notices shall be served on the employees last
known address.
From the foregoing rules four possible situations may be derived: (1) the dismissal is for a just cause
under Article 282 of the Labor Code, for an authorized cause under Article 283, or for health reasons
under Article 284, and due process was observed; (2) the dismissal is without just or authorized cause but
due process was observed; (3) the dismissal is without just or authorized cause and there was no due
process; and (4) the dismissal is for just or authorized cause but due process was not observed.
In the first situation, the dismissal is undoubtedly valid and the employer will not suffer any liability.
In the second and third situations where the dismissals are illegal, Article 279 mandates that the employee
is entitled to reinstatement without loss of seniority rights and other privileges and full ackwages,
inclusive of allowances, and other benefits or their monetary equivalent computed from the time the
compensation was not paid up to the time of actual reinstatement.
In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be cured, it
should not invalidate the dismissal. However, the employer should be held liable for non-compliance
with the procedural requirements of due process.
Comment:
The above Agabon case was further revised by Jaka and later by Industrial Timber case where the court
has ruled in Jaka that if the cause of termination was due to an authorized cause, since the termination
was due to the employers exercise of management prerogative a higher penalty should be given.
However in the Industrial Timber case the Court has provided guidelines in determining the amount of
indemnity to be provided, namely:
1) The authorized cause invoked, whether it was a retrenchment or a closure or cessation of
operation of establishment due to serious business losses or financial reverses or otherwise
2) The number of employees to be awarded
3) The capacity of the employer to satisfy the awards, taking into account their prevailing financial
status as borne by the records
4) Employers grant of termination benefits in favor of the employees
5) Whether there was a bona fide attempt to comply with the notice requirements
Consequences of termination
ART. 279. Security of tenure.
In cases of regular employment, the employer shall not terminate the services of an employee except for a
just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights and other privileges and to his full ackwages,
inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual reinstatement.
Comment:
Separation pay given as financial assistance in cases of a valid dismissal due to just causes is justified
only on situations where the grounds of termination is not of serious misconduct or those reflecting the
moral character of the employee.
Backwages
Presupposes illegal termination. It is the restitution of earnings unduly withheld from the employee
because of illegal termination. Hence there is no illegal termination there is no basis for claiming or
awarding of Backwages. However in exceptional cases where there was evident good faith on the part of
the employer the Supreme Court has in several instances did not impose the payment of Backwages
despite a finding of illegal termination
Comment:
Backwages is a substantive right granted by article 279 of the LC as such the mere failure to claim
Backwages is considered by the court as a mere procedural lapse and would not justify the refusal to
award the same when warranted.
Comment:
The fact that the lower court failed to award Backwages when it is warranted, despite the fact of the
employees failure to appeal the same, does not preclude a higher court in granting the same specially
noting that justice requires a full resolution of the controversy and not a piecemeal justice.
Computation of Backwages
1) Salary rate of the employee at the time of his dismissal
2) Allowances granted to the employees
3) 13 month pay and other benefits or their cash value
4) Wage increase should not be considered.
What is evident is that salary increases are a mere expectancy. They are, by its nature volatile and are
dependent on numerous variables, including the companys fiscal situation and even the employees
future performance on the job, or the employees continued stay in a position subject to management
prerogative to transfer him to another position where his services are needed. In short, there is no vested
right to salary increases. That respondent Sadac may have received salary increases in the past only
proves fact of receipt but does not establish a degree of assuredness that is inherent in backwages. From
the foregoing, the plain conclusion is that respondent Sadacs computation of his full backwages which
includes his prospective salary increases cannot be permitted.
Comment:
Note that however the decision of the SC against including salary increase is based on the fact that there
is no vested right in salary increase since it is volatile and subject to several factors which cannot be
determined at the time of awarding. What if there is a law or contract stipulation whether in the
employment contract or in the CBA granting annual salary increase, would it now be included in the
computation of Backwages, it being not volatile anymore? I vote in the affirmative
Comments:
1) Payment of Backwages continue to accrue until reinstatement is made
2) Reinstatement is immediately executory even while the case is pending however the employer is
granted the option to include the employee in the payroll only thus entitling the employee to
receive his salary and the benefits previously received by her.
3) Refusal to comply with an order by the LA to reinstate the employee, the LA shall thereafter issue
a writ of execution, If the writ is also refused the employer shall be liable for contempt
4) No reimbursement rule, grants the employee the right not to reimburse paid salaries he has
received when reinstatement was granted by a lower tribunal but only to be reversed by a higher
court. The reasoning for the same is a substantive right provided for by article 223:
In any event, the decision of the Labor Arbiter reinstating a dismissed or separated
employee, insofar as the reinstatement aspect is concerned, shall immediately be
executory, even pending appeal. The employee shall either be admitted back to work
under the same terms and conditions prevailing prior to his dismissal or separation or, at
the option of the employer, merely reinstated in the payroll. The posting of a bond by the
employer shall not stay the execution for reinstatement provided herein.
5) Reinstatement is self executory if the LA has awarded the same since to declare otherwise would
defeat the purpose and the language of article 223 however reinstatement ordered by the NLRC is
not self executory under the following reasons:
a. A similar provision granting immediate execution of an order for reinstatement by the
NLRC is lacking
b. Under paragraph 6 of article 223 states that the orders of the NLRC shall become final
and executory only after the expiration of 10 days from the receipt of the judgment
c. Under article 224 (a) it was provided that a writ of execution may be issued from the date
the decision has become final.
6) Strained relationship as an exception to reinstatement is a question of fact which must be adduced
and proved by substantial evidence however if the employee fails to include a prayer for
reinstatement he shall be entitled to receive separation pay instead.
7) Moral damages may be granted by the court in case of illegal dismissal as based in article 220 of
the NCC provided that the act of the employer was attended by bad faith or fraud.
8) Exemplary damages may only be awarded in case the dismissal was effected in a wanton,
oppressive or malevonent manner.
(b) An employee may put an end to the relationship without serving any notice on the employer for
any of the following just causes:
1. Serious insult by the employer or his representative on the honor 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; and
4. Other causes analogous to any of the foregoing
Comment:
Resignation is susceptible to withdrawal by the employee provided that the employer has consented to the
withdrawal
As a general rule, a resigned employee is not entitled to resignation pay save that of the following
instances:
1) There is a contrary stipulation in the contract of employment
2) An existing provision in the CBA
3) When resignation pay is a corporate practice or policy
Comment:
In order for an employee to be placed in floating status off-detail there has to be a dire exigency of the
employers bona fide suspension of operation
In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have
earned under existing laws and any collective bargaining agreement and other agreements: Provided,
however, That an employees retirement benefits under any collective bargaining and other agreements
shall not be less than those provided therein.
In the absence of a retirement plan or agreement providing for retirement benefits of employees in the
establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five
(65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years
in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half
(1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one
whole year.
Unless the parties provide for broader inclusions, the term one-half (1/2) month salary shall mean fifteen
(15) days plus one-twelfth (1/12) of the 13 th month pay and the cash equivalent of not more than five (5)
days of service incentive leaves.
Retail, service and agricultural establishments or operations employing not more than ten (10) employees
or workers are exempted from the coverage of this provision.
Violation of this provision is hereby declared unlawful and subject to the penal provisions under Article
288 of this Code.
Comment:
Condition for entitlement to retirement pay is not continuing. Once a person is entitled and has begun
receiving the same, the conditions required of him to be entitled to the same is no longer material since
the so long that the employee was eligible for retirement at the time he retired the lack thereof does not
affect his right to receive it.
If there is an option to exercise optional retirement is exclusively vested with the employee and the
employer cannot force him to avail of the same. However when there is a valid agreement in place vesting
the option to retire to the employer under the CBA or employment contract thereby become a
management prerogative, and the employer exercises this prerogative, the same is not considered as
illegal dismissal nor union busting. This prerogative and/ or the lowering of retirement age must be
assented to by the employee otherwise the management cannot force the employee to retire save that
instance where the same stipulation is found in the CBA.
Note:
The cooling off period is not applicable to the situations of union busting. However the following are still
applicable:
1. Strike vote
2. Notice of strike
3. Submission of strike vote report.
4. 7-day period.
The retirement benefits under article 287 is apart from the retirement benefits granted under the SSS law.
Comment:
Source of fund of the SID (State Insurance Fund) is the requirement that all employers remit to a common
fund a monthly contribution equivalent to one% of the monthly salary credit of every covered worker.
The employee pays no contribution to the fund, any agreement to the contrary is prohibited.
Comment:
Presumptive compensability (presumption that the death or injury is because of the nature of his work) in
a limited sense has been restored in favor of the AFP provided that:
1) The worker suffered a contingency
2) That his injury or death are clearly established through duly issued medical certifications on his
injury or death by the attending physician or duly authorized representatives of the hospital where
he is brought for medical treatment.
(a) "Code" means the Labor Code of the Philippines instituted under Presidential Decree Numbered four
hundred forty-two, as amended.
(b) "Commission" means the Employees Compensation Commission created under this Title.
(c) "SSS" means the Social Security System created under Republic Act Numbered Eleven hundred sixty-
one, as amended.
(d) "GSIS" means the Government Service Insurance System created under Commonwealth Act
Numbered One hundred eighty-six, as amended.
(e) "System" means the SSS or GSIS, as the case may be.
(f) "Employer" means any person, natural or juridical, employing the services of the employee.
(g) "Employee" means any person compulsorily covered by the GSIS under Commonwealth Act
Numbered One hundred eighty-six, as amended, including the members of the Armed Forces of the
Philippines, and any person employed as casual, emergency, temporary, substitute or contractual, or any
person compulsorily covered by the SSS under Republic Act Numbered Eleven hundred sixty-one, as
amended.
(h) "Person" means any individual, partnership, firm, association, trust, corporation or legal representative
thereof.
(i) "Dependent" means the legitimate, legitimated or legally adopted or acknowledged natural child who
is unmarried, not gainfully employed, and not over twenty-one (21) years of age or over twenty-one (21)
years of age provided he is incapacitated and incapable of self-support due to a physical or mental defect
which is congenital or acquired during minority; the legitimate spouse living with the employee and the
parents of said employee wholly dependent upon him for regular support. chanroblesvirtuallawlibrary
(j) "Beneficiaries" means the dependent spouse until he/she remarries and dependent children, who are
the primary beneficiaries. In their absence, the dependent parents and subject to the restrictions imposed
on dependent children, the illegitimate children and legitimate descendants, who are the secondary
beneficiaries: Provided, That the dependent acknowledged natural child shall be considered as a primary
beneficiary when there are no other dependent children who are qualified and eligible for monthly income
benefit.
(k) "Injury" means any harmful change in the human organism from any accident arising out of and in the
course of the employment.
(l) "Sickness" means 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 increased by
working conditions. For this purpose, the Commission is empowered to determine and approve
occupational diseases and work-related illnesses that may be considered compensable based on peculiar
hazards of employment.
(n) "Disability" means loss or impairment of a physical or mental function resulting from injury or
sickness.
(o) "Compensation" means all payments made under this Title for income benefits and medical or related
benefits.
(p) "Income benefit" means all payments made under this Title to the providers of medical care,
rehabilitation services and hospital care.
(q) "Medical benefit" means all payments made under this Title to the providers of medical care,
rehabilitation services and hospital care.
(r) "Related benefit" means all payments made under this Title for appliances and supplies.
(s) "Appliances" means crutches, artificial aids and other similar devices.
(t) "Supplies" means medicine and other medical, dental or surgical items.
(u) "Hospital" means any medical facility, government or private, authorized by law, an active member in
good standing of the Philippine Hospital Association and accredited by the Commission.
(v) "Physician" means any doctor of medicine duly licensed to practice in the Philippines, an active
member in good standing of the Philippine Medical Association and accredited by the Commission.
(w) "Wages" or "Salary", insofar as they refer to the computation of benefits defined in Republic Act No.
1161, as amended, for SSS and Presidential Decree No. 1146, as amended, for GSIS, respectively, except
that part in excess of Three Thousand Pesos.
(x) "Monthly salary credit" means the wage or salary base for contributions as provided in Republic Act
Numbered Eleven hundred sixty-one, as amended, or the wages or salary.
(y) "Average monthly salary credit" in the case of the SSS means the result obtained by dividing the sum
of the monthly salary credits in the sixty-month period immediately following the semester of death or
permanent disability by sixty (60), except where the month of death or permanent disability falls within
eighteen (18) calendar months from the month of coverage, in which case, it is the result obtained by
dividing the sum of all monthly salary credits paid prior to the month of contingency by the total number
of calendar months of coverage in the same period.
(z) "Average daily salary credit" in the case of the SSS means the result obtained by dividing the sum of
the six (6) highest monthly salary credits in the twelve-month period immediately preceding the semester
of sickness or injury by one hundred eighty (180), except where the month of injury falls within twelve
(12) calendar months from the first month of coverage, in which case it is the result obtained by dividing
the sum of all monthly salary credits by thirty (30) times the number of calendar months of coverage in
the period.
In the case of the GSIS, the average daily salary credit shall be the actual daily salary or wage, or the
monthly salary or wage divided by the actual number of working days of the month of contingency.
(aa) "Quarter" means a period of three (3) consecutive months ending on the last days of March, June,
September and December.
(bb) "Semester" means a period of two consecutive quarters ending in the quarter of death, permanent
disability, injury or sickness.
(cc) "Replacement ratio" - The sum of twenty percent and the quotient obtained by dividing three hundred
by the sum of three hundred forty and the average monthly salary credit.
(dd) "Credited years of service" - For a member covered prior to January, 1975, nineteen hundred
seventy-five minus the calendar year of coverage, plus the number of calendar years in which six or more
contributions have been paid from January, 1975 up to the calendar year containing the semester prior to
the contingency. For a member covered on or after January, 1975, the number of calendar years in which
six or more contributions have been paid from the year of coverage up to the calendar year containing the
semester prior to the contingency.
(ee) "Monthly income benefit" means the amount equivalent to one hundred fifteen percent of the sum of
the average monthly salary credit multiplied by the replacement ratio, and one and a half percent of the
average monthly salary credit for each credited year of service in excess of ten years: Provided, That the
monthly income benefit shall in no case be less than two hundred fifty pesos.
Comment:
What the law compensates is not the injury, sickness, disease or death but the loss of earning capacity.
24 hour doctrine
This doctrine presupposes that the AFP PNP or fireman claimant is performing his official functions
regardless while he is in active duty even if he is not found in the place or work provided that when the
accident occurred the work connection requisite is present or at least a prior directive or permission given
by a superior even if the act performed although not in official line of duty, are nonetheless, basically
police service in character.
Resolution No. 3914-A (extention of the proximity rule) extending the compensable coverage of off-
premises injury
An injury or death of a covered member in an accident while he is going to, or coming from work, the
workplace, shall henceforth be duly considered compensable provided the following conditions are
established:
1) The act of the employee of going to, or coming from work must have been a continuing act, that
is, he had not been diverted therefrom by any other activity, and he had not departed from his
usual route to, or from, his workplace
2) An employee on an special errand, the special errand must have been official and in connection
with his work
Comment:
Assault
An assault although resulting from a deliberate act of the slayer, is considered an accident within the
meaning of the workmens compensation act, since the word accident is intended to indicate that the act
causing the injury shall be casual or unforeseen, an act for which the injured party is not legall
responsible.
increased risk
There are employments which increase the risk of assault on the person of the employee and it is that
sense that an injury or harm sustained by the assaulted worker arises out of the employment, because the
increased risk to assault supplies the link or connection between the injury and the employment
Comment:
The fact that the injury resulted or was accompanied the resulting injury does not ipso facto remove the
injury from compensability, the circumstance surrounding the injury must be considered in determining
whether the injury arose out of or in the course of employment. However when the injury resulted from
intoxication, willful intention to injure or kill himself or another, notorious negligence renders the injury
not compensable
Sickness
Any illness definitely accepted as an occupational occupational disease listed by the commission, or any
illness caused by employment subject to proof by the employee that the risk of contracting the same is
increased by working conditions.
Occupational Disease
Is one which develops as a result of hazards peculiar to certain occupations, due to toxic substances,
repeated mechanical injury, emotional strain due to the usual exposure of the employee to this adverse
working conditions in course of his employment.
IE:
Janitor in a clinic
Notorious negligence
Is something more than simple or contributory negligence. It signifies a deliberate act of the employee to
disregard his own personal safety , disobedience to the rules does not in itself constitute notorious
negligence, if no intention can be attributed to the injured to end his life.
ART. 173. Extent of liability.
Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and
in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents. The payment of compensation
under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised
Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act
Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered by
the System or by other agencies of the government. (As amended by Presidential Decree No. 1921).
Comment:
The SC has ruled that the remedy provided in the WCC is an alternative remedy, meaning the claimant
may claim recovery of damages in the normal courts by virtue of the civil code or under the provision in
the WCC. Upon choosing the remedy and being paid thereby the employee is deemed precluded from
recovering under the other remedy as supported by the sense of fair play and unjust enrichment. However
simultaneous recovery under the WCC and the SSS/GSIS is allowed since PD 1921 (1984) has effectively
rendered section 15 of the SSS law repealed.
(b) Where the System recovers from such third party damages in excess of those paid or allowed under
this Title, such excess shall be delivered to the disabled employee or other persons entitled thereto,
after deducting the cost of proceedings and expenses of the System.
Definition of terms:
(c) Employer- 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.
(d) Employee - 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.
(1) The legal spouse entitled by law to receive support from the member;
(2) 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
(3) The parent who is receiving regular support from the member.
(l) Employment - 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;
(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 this Act on coverage and
amount of payment of contributions and benefits: Provided, finally, That the provisions of this
Act shall be supplementary to any such agreement; and
(5) 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.
(m) Beneficiaries - The dependent spouse until he or she remarries, the dependent legitimate, legitimated
or legally adopted, and illegitimate children, who shall be the primary beneficiaries of the member:
Provided, That the dependent illegitimate children shall be entitled to fifty percent (50%) of the share
of the legitimate, legitimated or legally adopted children: Provided, further, That in the absence of the
dependent legitimate, legitimated children of the member, his/her dependent illegitimate children
shall be entitled to one hundred percent (100%) of the benefits. In their absence, the dependent
parents who shall be the secondary beneficiaries of the member. In the absence of all the foregoing,
any other person designated by the member as his/her secondary beneficiary.
(n) Contingency - The retirement, death, disability, injury or sickness and maternity of the member.
SEC. 9. Coverage.
(a) Coverage in the SSS shall be compulsory upon all employees not over sixty (60) years of age and
their employers: Provided, That in the case of domestic helpers, their monthly income shall not be
less than One thousand pesos (P1,000.00) a month:
Provided, further, That any benefit already earned by the employees under private benefit plans
existing at the time of the approval of this Act shall not be discontinued, reduced or otherwise
impaired:
Provided, further, That private plans which are existing and in force at the time of compulsory
coverage shall be integrated with the plan of the SSS in such a way where the employer's
contribution to his private plan is more than that required of him in this Act, he shall pay to the
SSS only the contribution required of him and he shall continue his contribution to such private
plan less his contribution to the SSS so that the employer's total contribution to his benefit plan
and to the SSS shall be the same as his contribution to his private benefit plan before the
compulsory coverage:
Provided, further, That any changes, adjustments, modifications, eliminations or improvements in
the benefits to be available under the remaining private plan, which may be necessary to adopt by
reason of the reduced contributions thereto as a result of the integration, shall be subject to
agreements between the employers and employees concerned:
Provided, further, That the private benefit plan which the employer shall continue for his
employees shall remain under the employer's management and control unless there is an existing
agreement to the contrary:
Provided, finally, That nothing in this Act shall be construed as a limitation on the right of
employers and employees to agree on and adopt benefits which are over and above those
Provided under this Act.
(b) 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, may be covered by
the SSS on a voluntary basis.
(c) Filipinos recruited by foreign-based employers for employment abroad may be covered by the SSS on
a voluntary basis.
Unless otherwise specified herein, all provisions of this Act applicable to covered employees shall also be
applicable to the covered self-employed persons.
(ii) Twenty percent (20%) of the average monthly salary credit; plus
(iii) Two percent (2%) of the average monthly salary credit for each credited year of service
in excess of ten (10) years; or
(3) One thousand pesos (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) Notwithstanding the preceding paragraph, the minimum pension shall be One thousand two hundred
pesos (P1,200.00) for members with at least ten (10) credited years of service and Two thousand four
hundred pesos (P2,400.00) for those with twenty (20) credited years of service.
(b) A covered member who is sixty (60) years old at retirement and who does not qualify for pension
benefits under paragraph (a) above, shall be entitled to a lump sum benefit equal to the total
contributions paid by him and on his behalf: Provided, That he is separated from employment and is
not continuing payment of contributions to the SSS on his own.
(c) The monthly pension shall be suspended upon the reemployment or resumption of self-employment
of a retired member who is less than sixty-five (65) years old. He shall again be subject to Section
Eighteen and his employer to Section Nineteen of this Act.
(d) Upon the death of the retired member, his primary beneficiaries as of the date of his retirement shall
be entitled to receive the monthly pension: Provided, That if he has no primary beneficiaries and he
dies within sixty (60) months from the start of his monthly pension, his secondary beneficiaries shall
be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the
balance of the five-year guaranteed period, excluding the dependents' pension.
(e) The monthly pension of a member who retires after reaching age sixty (60) shall be the higher of
either: (1) the monthly pension computed at the earliest time he could have retired had he been
separated from employment or ceased to be self-employed plus all adjustments thereto; or (2) the
monthly pension computed at the time when he actually retires.
(b) The monthly pension and dependents' pension shall be suspended upon the reemployment or
resumption of self-employment or the recovery of the disabled member from his permanent total
disability or his failure to present himself for examination at least once a year upon notice by the SSS.
(c) Upon the death of the permanent total disability pensioner, his primary beneficiaries as of the date of
disability shall be entitled to receive the monthly pension: Provided, That if he has no primary
beneficiaries and he dies within sixty (60) months from the start of his monthly pension, his secondary
beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions
corresponding to the balance of the five-year guaranteed period excluding the dependents' pension.
EC. 13-B. Funeral Benefit. - A funeral grant equivalent to Twelve thousand pesos (P12,000.00) shall be
paid, in cash or in kind, to help defray the cost of funeral expenses upon the death of a member, including
permanently totally disabled member or retiree.
"SEC. 14. Sickness Benefit. - (a) A member who has paid at least three (3) monthly contributions in the
twelve-month period immediately preceding the semester of sickness or injury and is confined therefor
for more than three (3) days in a hospital or elsewhere with the approval of the SSS, shall, for each day of
compensable confinement or a fraction thereof, be paid by his employer, or the SSS, if such person is
unemployed or self-employed, a daily sickness benefit equivalent to ninety percent (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 one hundred twenty (120) days in one
(1) calendar year, nor shall any unused portion of the one hundred twenty (120) days of sickness benefit
granted under this section be carried forward and added to the total number of compensable days
allowable in the subsequent year;
"(2) The daily sickness benefit shall not be paid for more than two hundred forty (240) days on account of
the same confinement; and
"(3) The 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 is in a hospital or the employee
became sick or was injured while working or within the premises of the employer in which case,
notification to the employer is necessary: Provided, That if the member is unemployed or self-employed,
he shall directly notify the SSS of his confinement within five (5) calendar days after the start thereof
unless such confinement is in a hospital in which case notification is also not necessary: Provided, further,
That in cases where notification is necessary, the confinement shall be deemed to have started not earlier
than the fifth day immediately preceding the date of notification.
"(b) The compensable confinement shall begin on the first day of sickness, and the payment of such
allowances shall be promptly made by the employer every regular payday or on the fifteenth and last day
of each month, and similarly in the case of direct payment by the SSS, for as long as such allowances are
due and payable: Provided, That 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.
"(c) One hundred percent (100%) of the daily benefits Provided in the preceding paragraph shall be
reimbursed by the SSS to said employer upon receipt of satisfactory proof of such payment and legality
thereof: Provided, That the employer has notified the SSS of the confinement within five (5) calendar
days after receipt of the notification from the employee member: Provided, further, That if the notification
to the SSS is made by the employer beyond five (5) calendar days after receipt of the notification from the
employee member, said employer shall be reimbursed only for each day of confinement starting from the
tenth calendar day immediately preceding the date of notification to the SSS: Provided, finally, That the
SSS shall reimburse the employer or pay the unemployed member only for confinement within the one-
year period immediately preceding the date the claim for benefit or reimbursement is received by the SSS,
except confinement in a hospital in which case the claim for benefit or reimbursement must be filed
within one (1) year from the last day of confinement.
"(d) Where the employee member has given the required notification but the employer fails to notify the
SSS of the confinement or to file the claim for reimbursement within the period prescribed in this section
resulting in the reduction of the benefit or denial of the claim, such employer shall have no right to
recover the corresponding daily allowance he advanced to the employee member as required in this
section.
"(e)The claim of reimbursement shall be adjudicated by the SSS within a period of two (2) months from
receipt thereof: Provided, That should no payment be received by the employer within one (1) month after
the period prescribed herein for adjudication, the reimbursement shall thereafter earn simple interest of
one percent (1%) per month until paid.
"(f) The provisions regarding the notification required of the member and the employer as well as the
period within which the claim for benefit or reimbursement may be filed shall apply to all claims filed
with the SSS.
"SEC. 14-A. Maternity Leave Benefit. - A female member who has paid at least three (3) monthly
contributions in the twelve-month period immediately preceding the semester of her childbirth or
miscarriage shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her
average daily salary credit for sixty (60) days or seventy-eight (78) days in case of caesarian delivery,
subject to the following conditions:
"(a) That the employee shall have 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;
"(b) The full payment shall be advanced by the employer within thirty (30) days from the filing of the
maternity leave application;
"(c) That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits Provided
by this Act for the same period for which daily maternity benefits have been received;
"(d) That the maternity benefits Provided under this section shall be paid only for the first four (4)
deliveries or miscarriages;
"(e) That the SSS shall immediately reimburse the employer of one hundred percent (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
"(f) That 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.
(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 this Act on coverage and
amount of payment of contributions and benefits: Provided, finally, That the provisions of this
Act shall be supplementary to any such agreement; and
(5) 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.
GSIS Law
Coverage
It is compulsory upon all government employees receiving compensation who have not reached the
compulsory retirement age irrespective of employment status.
Benefits
1) Monthly pensions
2) Separation benefits
3) Unemployment or involuntary separation benefits
4) Permanent Total Disability Benefits
5) Survivorship benefits
6) Funeral benefits
Comment:
All contributions paid by a member personally, and those that were paid by his employers to both SSS
and GSIS shall be considered in the processing of benefits which he can claim from either or both
systems.
Beneficiaries:
1) Primary beneficiaries The legal dependent spouse until he/she remarries and the dependent
children;
2) Secondary beneficiaries The dependent parents and, subject to the restrictions on dependent
children, the legitimate descendants;
Labor Relations
B. To encourage a truly democratic method of regulating the relations between the employers and
employees by means of agreements freely entered into through collective bargaining, no court or
administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work
or other terms and conditions of employment, except as otherwise provided under this Code. (As
amended by Section 3, Republic Act No. 6715, March 21, 1989).
Labor standards
Refers to the minimum terms and conditions of employment to which employees are legally entitled and
with which employers must comply
Labor relations
Refers to the interactions between employer and employees or their representatives and the mechanism by
which the standards and other terms and conditions of employment are negotiated, adjusted and enforced.
Labor union
A completely organized body of dues-paying members, operating through elected officers and
constituting a militant, vital and functioning organ.
DEFINITIONS
(c) "Board" means the National Conciliation and Mediation Board established under Executive Order
No. 126.
(d) "Council" means the Tripartite Voluntary Arbitration Advisory Council established under Executive
Order No. 126, as amended.
(e) "Employer" includes any person acting in the interest of an employer, directly or indirectly. The term
shall not include any labor organization or any of its officers or agents except when acting as
employer.
(f) "Employee" includes any person in the employ of an employer. The term shall not be limited to the
employees of a particular employer, unless the Code so explicitly states. It shall include any
individual whose work has ceased as a result of or in connection with any current labor dispute or
because of any unfair labor practice if he has not obtained any other substantially equivalent and
regular employment.
(g) "Labor organization" means any union or association of employees which exists in whole or in part
for the purpose of collective bargaining or of dealing with employers concerning terms and conditions
of employment.
(h) "Legitimate labor organization" means any labor organization duly registered with the Department of
Labor and Employment, and includes any branch or local thereof.
(i) "Company union" means any labor organization whose formation, function or administration has
been assisted by any act defined as unfair labor practice by this Code.
(j) "Bargaining representative" means a legitimate labor organization whether or not employed by the
employer.
(k) "Unfair labor practice" means any unfair labor practice as expressly defined by the Code.
(l) "Labor dispute" includes any controversy or matter concerning terms and conditions of employment
or the association or representation of persons in negotiating, fixing, maintaining, changing or
arranging the terms and conditions of employment, regardless of whether the disputants stand in the
proximate relation of employer and employee.
(m) "Managerial employee" is one who is vested with the powers or prerogatives to lay down and execute
management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline
employees. Supervisory employees are 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. All employees not falling within any
of the above definitions are considered rank-and-file employees for purposes of this Book.
(n) "Voluntary Arbitrator" means any person accredited by the Board as such or any person named or
designated in the Collective Bargaining Agreement by the parties to act as their Voluntary Arbitrator,
or one chosen with or without the assistance of the National Conciliation and Mediation Board,
pursuant to a selection procedure agreed upon in the Collective Bargaining Agreement, or any official
that may be authorized by the Secretary of Labor and Employment to act as Voluntary Arbitrator upon
the written request and agreement of the parties to a labor dispute.
(o) "Strike" means any temporary stoppage of work by the concerted action of employees as a result of
an industrial or labor dispute.
(p) "Lockout" means any temporary refusal of an employer to furnish work as a result of an industrial or
labor dispute.
(q) "Internal union dispute" includes all disputes or grievances arising from any violation of or
disagreement over any provision of the constitution and by laws of a union, including any violation of
the rights and conditions of union membership provided for in this Code.
(r) "Strike-breaker" means any person who obstructs, impedes, or interferes with by force, violence,
coercion, threats, or intimidation any peaceful picketing affecting wages, hours or conditions of work
or in the exercise of the right of self-organization or collective bargaining.
(s) "Strike area" means the establishment, warehouses, 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. (As amended by Section 4, Republic Act No. 6715, March 21, 1989).
Comment:
The test to determine the existence of a labor dispute whether it concerns terms, conditions of
employment or representation.
Note:
Either the assumption or certification to the NLRC automatically enjoins an ongoing or
impending strike or lockout. A return to work order is issue to strikers; at the same time the
employer is ordered to immediately resume operations and readmit all workers nder the same
terms and conditions prevailing before the strike or lockout
9) Injunction
Is an extraordinary remedy which is not favored in labor law.
10) Judicial action
A complaint in with the regular courts in cases falling under its jurisdiction
11) Appeal
12) Review by the courts
There is no law authorizing an ordinary appeal to the courts of justice save thatin cases where the
special civil action of certiorari, mandamus or prohibition.
13) Compromise agreement.
NLRC
Eight (8) members each shall be chosen only from among the nominees of the workers and employers
organizations, respectively. The Chairman and the seven (7) remaining members shall come from the
public sector, with the latter to be chosen preferably from among the incumbent Labor Arbiters.
Upon assumption into office, the members nominated by the workers and employers organizations shall
divest themselves of any affiliation with or interest in the federation or association to which they belong.
The Commission may sit en banc or in eight (8) divisions, each composed of three (3) members. The
Commission shall sit en banc only for purposes of promulgating rules and regulations governing the
hearing and disposition of cases before any of its divisions and regional branches and formulating
policies affecting its administration and operations. The Commission shall exercise its adjudicatory
and all other powers, functions, and duties through its divisions. Of the eight (8) divisions, the first,
second, third, fourth, fifth and sixth divisions shall handle cases coming from the National Capital Region
and other parts of Luzon; and the seventh and eighth divisions, cases from the Visayas and Mindanao,
respectively: Provided, That the Commission sitting en banc may, on temporary or emergency basis,
allow cases within the jurisdiction of any division to be heard and decided by any other division
whose docket allows the additional workload and such transfer will not expose litigants to
unnecessary additional expenses. The divisions of the Commission shall have exclusive appellate
jurisdiction over cases within their respective territorial jurisdiction.
The concurrence of two (2) Commissioners of a division shall be necessary for the pronouncement
of a judgment or resolution. Whenever the required membership in a division is not complete and the
concurrence of two (2) Commissioners to arrive at a judgment or resolution cannot be obtained, the
Chairman shall designate such number of additional Commissioners from the other divisions as may be
necessary.
The conclusions of a division on any case submitted to it for decision shall be reached in consultation
before the case is assigned to a member for the writing of the opinion. It shall be mandatory for the
division to meet for purposes of the consultation ordained therein. A certification to this effect signed
by the Presiding Commissioner of the division shall be issued, and a copy thereof attached to the record
of the case and served upon the parties.
The Chairman shall be the Presiding Commissioner of the first division, and the seven (7) other
members from the public sector shall be the Presiding Commissioners of the second, third, fourth,
fifth, sixth, seventh and eight divisions, respectively. In case of the effective absence or incapacity of
the Chairman, the Presiding Commissioner of the second division shall be the Acting Chairman.
The Chairman, aided by the Executive Clerk of the Commission, shall have administrative supervision
over the Commission and its regional branches and all its personnel, including the Labor Arbiters.
The Commission, when sitting en banc, shall be assisted by the same Executive Clerk, and, when acting
thru its Divisions, by said Executive Clerk for its first division and seven (7) other Deputy Executive
Clerks for the second, third, fourth fifth, sixth, seventh and eighth divisions, respectively, in the
performance of such similar or equivalent functions and duties as are discharged by the Clerk of Court
and Deputy Clerks of Court of the Court of Appeals.
The Commission and its eight (8) divisions shall be assisted by the Commission Attorneys in its appellate
and adjudicatory functions whose term shall be coterminous with the Commissioners with whom they are
assigned. The Commission Attorneys shall be members of the Philippine Bar with at least one (1) year
experience or exposure in the field of labor-management relations. They shall receive annual salaries and
shall be entitled to the same allowances and benefits as those falling under Salary Grade twenty-six (SG
26). There shall be as many Commission Attorneys as may be necessary for the effective and efficient
operations of the Commission but in no case more than three (3) assigned to the Office of the
Chairman and each Commissioner.
No Labor Arbiter shall be assigned to perform the functions of the Commission Attorney nor
detailed to the office of any Commissioner. (As amended by Section 1, Republic Act No. 9347 [July 27,
2006] and as previously amended by Republic Act No. 7700 and Section 5, Republic Act No. 6715).
Comment:
The rule that once a labor dispute has been certified to the NLRC, the same must be decided en banc has
been effectively repealed by the grant of the adjudicatory powers only to the divisions of the NLRC.
Administrative supervision over the divisions of the NLRC is vested with the chairman assisted by the
executive clerk of the commission. The NLRC is attached to the DOLE solely for program and policy
coordination only.
The Chairman and the other Commissioners and the Labor Arbiters shall hold office during good
behavior until they reach the age of sixty-five (65) years, unless sooner removed for cause as provided by
law or become incapacitated to discharge the duties of their office; Provided, however, That the President
of the Republic of the Philippines may extend the services of the Commissioners and Labor Arbiters up to
the maximum age of seventy (70) years upon the recommendation of the Commission en banc.
The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by
the President. Appointment to any vacancy in a specific division shall come only from the nominees of
the sector which nominated the predecessor. The Labor Arbiters shall also be appointed by the President,
upon recommendation of the Commission en banc to a specific arbitration branch, preferably in the
region where they are residents, and shall be subject to the Civil Service Law, rules and regulations:
Provided, that the Labor Arbiters who are presently holding office in the region where they are residents
shall be deemed appointed thereat.
The Chairman and the Commission, shall appoint the staff and employees of the Commission, and its
regional branches as the needs of the service may require, subject to the Civil Service Law, rules and
regulations, and upgrade their current salaries, benefits and other emoluments in accordance with law. (As
amended by Section 3, Republic Act No. 9347 [July 27, 2006] and as previously amended by Section 7,
Republic Act No. 6715 [March 21, 1989]).
Comment:
Compulsory arbitration refers only to the proceeding before the LA hence the phrase pending final
resolution of the case by arbitration should be understood to be limited only to the proceeding before the
LA.
Exceptions to the exclusive original jurisdiction of the LA (first and last paragraph of 217)
1) Grievances arising from the interpretation or implementation of the CBA and those arising from
the interpretation or enforcement of company personnel policies and violations of the CBA which
are not gross in character (261)
2) All other labor disputes which has been submitted for voluntary arbitration by the parties (262)
As amended by RA8799
5.2. The Commissions jurisdiction over all cases enumerated under section 5 of Presidential Decree No.
902-A is hereby transferred to the Courts of general jurisdiction or the appropriate Regional Trial Court:
Provided, That the Supreme Court in the exercise of its authority may designate the Regional Trial Court
branches that shall exercise jurisdiction over the cases. The Commission shall retain jurisdiction over
pending cases involving intra-corporate disputes submitted for final resolution which should be resolved
within one (1) year from the enactment of this Code. The Commission shall retain jurisdiction over
pending suspension of payment/rehabilitation cases filed as of 30 June 2000 until finally disposed
Requisites of the Better Policy rule (Renato Real VS. Sangu Philippines 2011):
1) There must be an intra-corporate relationship:
a. Between the corporation, partnership or association and the public;
b. Between the corporation, partnership or association and its stockholders, partners,
members or officers;
c. Between the corporation, partnership or association and the State as far as its franchise,
permit or license to operate is concerned; and
d. Among the stockholders, partners or associates themselves.
2) The nature and subject of the controversy
Whether the issue involved refers to intra-corporate matters
Comment:
Under the case of DY vs NLRC the court has ruled that the non-payment or under payment of wages of a
corporate officer stems from the corporate officers post brings the issue into a corporate dispute:
It is of no moment that Vailoces, in his amended complaint, seeks other reliefs which would
seemingly fall under the jurisdiction of the Labor Arbiter, because a closer look at these
underpayment of salary and non-payment of living allowance shows that they are actually part
of the perquisites of his elective position, hence, intimately linked with his relations with the
corporation. The question of remuneration, involving as it does, a person who is not a mere
employee but a stockholder and officer, an integral part, it might be said, of the corporation, is not
a simple labor problem but a matter that comes within the area of corporate affairs and
management, and is in fact a corporate controversy in contemplation of the Corporation Code.
Further note should be taken that that the re-election or re-appointment of a corporate officer is clearly
within the prerogative of the board hence this will constitute a intra-corporate controversy.
Corporate Officer
Are those officers of the corporation who are given that character by the Corporation Code or by the
corporations by-laws. There are three specific officers whom a corporation must have under Section 25
of the Corporation Code. These are the president, secretary and the treasurer. The number of officers is
not limited to these three. A corporation may have such other officers as may be provided for by its by-
laws like, but not limited to, the vice-president, cashier, auditor or general manager. The number of
corporate officers is thus limited by law and by the corporations by-laws.
Hence the only instance where the LA is deprived of jurisdiction, subject to the existence of a provision
for voluntary arbitration, is when the amount is less than 5k and there is no claim for reinstatement
Comment:
Money claims to be within the jurisdiction of the labor tribunals must have arisen from employment.
However note must be taken that money claims as a reward or prize in an incentive program (promos and
the like), jurisdiction over which would depend upon the following factors:
1) The claim must arise out of or in connection with the existence of the E&E of the parties
2) Resolution of the issue requires the application of the labor laws
Absent any of the above criteria, the courts of general jurisdiction has jurisdiction. On the other hand
where both criteria are present it is the labor tribunals which has jurisdiction.
Comment:
Money claims against the government is not within the jurisdiction of the Labor tribunals, despite the fact
that there is an law expressly waiving the immunity of suit of the government, nonetheless under CA 327
all money claims must still be filed with the Commission on audit.
Comment:
A person is estopped from questioning the lack of jurisdiction over the subject of the court which he
invoked and actively participated in the hearing thereof. The provision in the rules of court stating that
lack of jurisdiction over the subject matter may be question anytime during appeal, stating that
jurisdiction is conferred by law and not by the parties is of no moment since administrative bodies are not
bound with the strict rules of court but are at best merely supplementary. (delicates---- kasi un SC iba iba
yun decision)
Comment on damages:
Not all damages are covered by the jurisdiction of the LA. The test to apply is that which law is the party
seeking a remedy for if it is the civil law it should be the courts of general jurisdiction. In the case of
portillo vs lietz the SC has ruled that the liquidated damages sought by the employer arose from the
breach of the employee of the good will clause (non-compete clause) which necessarily meant that the
cause of action accrued post-employment of the employee and that the employer is seeking protection
under our civil laws and not under labor laws, hence the labor courts had no jurisdiction to allow legal
compensation to be effected.
There is no causal connection between the petitioner employees claim for unpaid wages and the
respondent employers claim for damages for the alleged "Goodwill Clause" violation. Portillos
claim for unpaid salaries did not have anything to do with her alleged violation of the
employment contract as, in fact, her separation from employment is not "rooted" in the alleged
contractual violation. She resigned from her employment. She was not dismissed. Portillos
entitlement to the unpaid salaries is not even contested. Indeed, Lietz Inc.s argument about legal
compensation necessarily admits that it owes the money claimed by Portillo.
The alleged contractual violation did not arise during the existence of the employer-employee
relationship. It was a post-employment matter, a post-employment violation. Reminders are apt.
That is provided by the fairly recent case of Yusen Air and Sea Services Phils., Inc. v. Villamor,31
which harked back to the previous rulings on the necessity of "reasonable causal connection"
between the tortious damage and the damage arising from the employer-employee relationship.
Yusen proceeded to pronounce that the absence of the connection results in the absence of
jurisdiction of the labor arbiter. Importantly, such absence of jurisdiction cannot be remedied by
raising before the labor tribunal the tortious damage as a defense. Thus:
When, as here, the cause of action is based on a quasi-delict or tort, which has no reasonable
causal connection with any of the claims provided for in Article 217, jurisdiction over the action
is with the regular courts. [citation omitted]
As it is, petitioner does not ask for any relief under the Labor Code. It merely seeks to recover
damages based on the parties contract of employment as redress for respondents breach thereof.
Such cause of action is within the realm of Civil Law, and jurisdiction over the controversy
belongs to the regular courts. More so must this be in the present case, what with the reality that
the stipulation refers to the postemployment relations of the parties.
(a) To promulgate rules and regulations governing the hearing and disposition of cases before it and its
regional branches, as well as those pertaining to its internal functions and such rules and regulations
as may be necessary to carry out the purposes of this Code; (As amended by Section 10, Republic Act
No. 6715, March 21, 1989).
(b) To administer oaths, summon the parties to a controversy, issue subpoenas requiring the attendance
and testimony of witnesses or the production of such books, papers, contracts, records, statement of
accounts, agreements, and others as may be material to a just determination of the matter under
investigation, and to testify in any investigation or hearing conducted in pursuance of this Code;
(c) To conduct investigation for the determination of a question, matter or controversy within its
jurisdiction, proceed to hear and determine the disputes in the absence of any party thereto who has
been summoned or served with notice to appear, conduct its proceedings or any part thereof in public
or in private, adjourn its hearings to any time and place, refer technical matters or accounts to an
expert and to accept his report as evidence after hearing of the parties upon due notice, direct parties
to be joined in or excluded from the proceedings, correct, amend, or waive any error, defect or
irregularity whether in substance or in form, give all such directions as it may deem necessary or
expedient in the determination of the dispute before it, and dismiss any matter or refrain from further
hearing or from determining the dispute or part thereof, where it is trivial or where further
proceedings by the Commission are not necessary or desirable; and
(d) To hold any person in contempt directly or indirectly and impose appropriate penalties therefor in
accordance with law.
A person guilty of misbehavior in the presence of or so near the Chairman or any member of the
Commission or any Labor Arbiter as to obstruct or interrupt the proceedings before the same,
including disrespect toward said officials, offensive personalities toward others, or refusal to be
sworn, or to answer as a witness or to subscribe an affidavit or deposition when lawfully required to
do so, may be summarily adjudged in direct contempt by said officials and punished by fine not
exceeding five hundred pesos (P500) or imprisonment not exceeding five (5) days, or both, if it be the
Commission, or a member thereof, or by a fine not exceeding one hundred pesos (P100) or
imprisonment not exceeding one (1) day, or both, if it be a Labor Arbiter. The person adjudged in
direct contempt by a Labor Arbiter may appeal to the Commission and the execution of the judgment
shall be suspended pending the resolution of the appeal upon the filing by such person of a bond on
condition that he will abide by and perform the judgment of the Commission should the appeal be
decided against him. Judgment of the Commission on direct contempt is immediately executory and
unappealable. Indirect contempt shall be dealt with by the Commission or Labor Arbiter in the
manner prescribed under Rule 71 of the Revised Rules of Court; and (As amended by Section 10,
Republic Act No. 6715, March 21, 1989).
(e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or
to require the performance of a particular act in any labor dispute which, if not restrained or
performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any
decision in favor of such party: Provided, That no temporary or permanent injunction in any case
involving or growing out of a labor dispute as defined in this Code shall be issued except after
hearing the testimony of witnesses, with opportunity for cross-examination, in support of the
allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only
after a finding of fact by the Commission, to the effect:
(1) That prohibited or unlawful acts have been threatened and will be committed and will be
continued unless restrained, but no injunction or temporary restraining order shall be issued on
account of any threat, prohibited or unlawful act, except against the person or persons, association
or organization making the threat or committing the prohibited or unlawful act or actually
authorizing or ratifying the same after actual knowledge thereof;
(2) That substantial and irreparable injury to complainants property will follow;
(3) That as to each item of relief to be granted, greater injury will be inflicted upon complainant by
the denial of relief than will be inflicted upon defendants by the granting of relief;
(4) That complainant has no adequate remedy at law; and
(5) That the public officers charged with the duty to protect complainants property are unable or
unwilling to furnish adequate protection.
Such hearing shall be held after due and personal notice thereof has been served, in such manner as
the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief
Executive and other public officials of the province or city within which the unlawful acts have been
threatened or committed, charged with the duty to protect complainants property: Provided, however,
that if a complainant shall also allege that, unless a temporary restraining order shall be issued
without notice, a substantial and irreparable injury to complainants property will be unavoidable,
such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained,
to justify the Commission in issuing a temporary injunction upon hearing after notice. Such a
temporary restraining order shall be effective for no longer than twenty (20) days and shall become
void at the expiration of said twenty (20) days. No such temporary restraining order or temporary
injunction shall be issued except on condition that complainant shall first file an undertaking with
adequate security in an amount to be fixed by the Commission sufficient to recompense those
enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such
order or injunction, including all reasonable costs, together with a reasonable attorneys fee, and
expense of defense against the order or against the granting of any injunctive relief sought in the same
proceeding and subsequently denied by the Commission.
The undertaking herein mentioned shall be understood to constitute an agreement entered into by the
complainant and the surety upon which an order may be rendered in the same suit or proceeding
against said complainant and surety, upon a hearing to assess damages, of which hearing, complainant
and surety shall have reasonable notice, the said complainant and surety submitting themselves to the
jurisdiction of the Commission for that purpose. But nothing herein contained shall deprive any party
having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary
remedy by suit at law or in equity: Provided, further, That the reception of evidence for the
application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters
who shall conduct such hearings in such places as he may determine to be accessible to the parties
and their witnesses and shall submit thereafter his recommendation to the Commission. (As amended
by Section 10, Republic Act No. 6715, March 21, 1989).
Before the power to grant injunctions was granted to LA via the NLRC rules of procedure, however due
to the revision of the rules the same was removed under the reasoning that the law only granted the NLRC
with such power hence the same cannot be extended by the NLRC by its promulgation of its new rules
Comment:
TRO should be issued only for extreme necessity.
An injury is considered irreparable if it is of such constant and frequent recurrence that no fair and
reasonable redress can be had therefor in a court of law or where there is no standard by which their
amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical
computation.
Injunction cannot be issued against unlawful acts, unless the local authorities whose duty is to keep the
peace has been first resorted to and have either:
1) Advised that they could not or would not keep it
2) Advised that they could not and would have failed through inability or unwillingness to do
The power to issue injunctions by the NLRC is limited only to those arising out of or in connection to a
labor dispute. The test here is if the petitioner is requesting protection under the civil code and not from
the labor code, the injunction requested is civil in nature and therefore outside the jurisdiction of the
NLRC
Duration of TRO
From the date of issuance, not from the date of receipt of the parties, and ipso facto rendered void at the
end of the 20 day period, including Saturdays and Sundays.
Before an injunction can be issued by the NLRC it requires that a complaint be first filed or instituted
under the reasoning:
1) That the NLRCs power to issue injunctions originates from a labor dispute, without having filed
a complaint there is no labor dispute to account for
2) Injunctions are only ancillary remedy in ordinary dispute
3) (double check in article 217) the NLRC has no original jurisdiction saved that in cases certified to
it, as such the complaint in seeking labor remedies must first be filed with the appropriate agency
and should not try to circumvent the law by trying to institute the complaint in the NLRC by
virtue of an injunction instead of seeking appropriate redress from the appropriate tribunal.
Comment:
An innocent bystander not being a party to the labor dispute can file an injunction in the civil courts.
Article. 221. Technical rules not binding and prior resort to amicable settlement.
In any proceeding before the Commission or any of the Labor Arbiters, the rules of evidence prevailing in
courts of law or equity shall not be controlling and it is the spirit and intention of this Code that the
Commission and its members and the Labor Arbiters shall use every and all reasonable means to ascertain
the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all
in the interest of due process. In any proceeding before the Commission or any Labor Arbiter, the parties
may be represented by legal counsel but it shall be the duty of the Chairman, any Presiding Commissioner
or Commissioner or any Labor Arbiter to exercise complete control of the proceedings at all stages.
Any provision of law to the contrary notwithstanding, the Labor Arbiter shall exert all efforts towards the
amicable settlement of a labor dispute within his jurisdiction on or before the first hearing. The same rule
shall apply to the Commission in the exercise of its original jurisdiction. (As amended by Section 11,
Republic Act No. 6715, March 21, 1989).
Prohibited pleadings:
1) Motion to dismiss, except on the ground of res judicata ground of lack of jurisdiction over the
subject matter, improper venue, prescription and forum shopping (litis pendentia)
2) Motion for bill of particulars
3) Motion for new trial
4) Petition for relief from judgment when filed with the NLRC
5) Petition for certiorari, mandamus, prohibition
6) Motion to declare respondent in default
7) MR or appeal from any interlocutory order
Comment:
1) Non-appearance of the complainant during the 2 settings for mandatory conciliation and
mediation conference scheduled in the summons, despite due notice thereof, shall be a ground for
the dismissal of the case without prejudice.
2) Failure of the respondent to appear in the mandatory conciliation and mediation conference for 2
of the scheduled sessions will result to the allowance by the LA to terminate such proceedings
and allow the complainant to submit evidence in support of his cause of action
3) Once a court has rendered a decision in a labor dispute and has become final and executory it is
no longer subject to amicable settlement since to allow the contrary would result to a mockery of
the judicial system (note: the SC has ruled that a compromise agreement is valid regardless if it
was entered into before, during or after the litigation of the issue provided it does not suffer any
of the vices of consent.
4) A motion to dismiss on the grounds above stated may be filed on or before the date set for
mandatory conciliation and mediation conference
5) The rule on the waiver of defences by failure to plead in the answer or motion to dismiss does not
apply when the ground thereof is apparent on its face of the complaint, specially when the
plaintiffs own allegation supports such finding. The labor arbiter may dismiss the case motu
proprio
6) All causes of action available during the period which is under litigation must be filed otherwise
the same shall be considered waived or barred
7) Suspension of proceedings due to the employers rehabilitation under PD 902-A is binding hence
all claims including those arising from labor disputes are also suspended since to allow otherwise
would defeat the very purpose of the statute allowing the employer corporation to rehabilitate
itself
8) Once a decision has been final and executory, the same cannot be amended nor altered even if the
purpose is to correct a perceived conclusion of fact or law. This is true regardless whether the
modification is to be made by the magistrate that rendered the judgment or by the appellate
magistrate that reviewed the same. This is anchored on the fact that all litigations must come to an
end however unjust the result of error may appear, otherwise litigation would even be more
intolerable than the wrong or injustice it is designed to correct.
(b) No attorneys fees, negotiation fees or similar charges of any kind arising from any collective
bargaining agreement shall be imposed on any individual member of the contracting union:
Provided, However, that attorneys fees may be charged against union funds in an amount to be
agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary
shall be null and void
(c) If the decision, order or award was secured through fraud or coercion, including graft and corruption;
(e) If serious errors in the findings of facts are raised which would cause grave or irreparable damage or
injury to the appellant.
In case of a judgment involving a monetary award, an appeal by the employer may be perfected only
upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by
the Commission in the amount equivalent to the monetary award in the judgment appealed from.
In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as
the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The
employee shall either be admitted back to work under the same terms and conditions prevailing prior to
his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting
of a bond by the employer shall not stay the execution for reinstatement provided herein.
To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable
penalty, including fines or censures, upon the erring parties.
In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall
file an answer not later than ten (10) calendar days from receipt thereof.
The Commission shall decide all cases within twenty (20) calendar days from receipt of the answer of the
appellee. The decision of the Commission shall be final and executory after ten (10) calendar days from
receipt thereof by the parties.
Any law enforcement agency may be deputized by the Secretary of Labor and Employment or the
Commission in the enforcement of decisions, awards or orders.
SECTION 6. BOND
In case the decision of the Labor Arbiter or the Regional Director involves a monetary award, an appeal
by the employer may be perfected only upon the posting of a bond, which shall either be in the form of
cash deposit or surety bond equivalent in amount to the monetary award, exclusive of damages and
attorneys fees.
In case of surety bond, the same shall be issued by a reputable bonding company duly accredited by the
Commission or the Supreme Court, and shall be accompanied by original or certified true copies of the
following:
a) a joint declaration under oath by the employer, his/her counsel, and the bonding company, attesting
that the bond posted is genuine, and shall be in effect until final disposition of the case.
b) an indemnity agreement between the employer-appellant and bonding company;
c) proof of security deposit or collateral securing the bond: provided, that a check shall not be
considered as an acceptable security;
d) a certificate of authority from the Insurance Commission;
e) certificate of registration from the Securities and Exchange Commission;
f) certificate of accreditation and authority from the Supreme Court; and 12
g) notarized board resolution or secretarys certificate from the bonding company showing its authorized
signatories and their specimen signatures. The Commission through the Chairman may on justifiable
grounds blacklist a bonding company, notwithstanding its accreditation by the Supreme Court.
A cash or surety bond shall be valid and effective from the date of deposit or posting, until the case is
finally decided, resolved or terminated, or the award satisfied. This condition shall be deemed
incorporated in the terms and conditions of the surety bond, and shall be binding on the appellants and the
bonding company.
The appellant shall furnish the appellee with a certified true copy of the said surety bond with all the
above-mentioned supporting documents. The appellee shall verify the regularity and genuineness thereof
and immediately report any irregularity to the Commission.
Upon verification by the Commission that the bond is irregular or not genuine, the Commission shall
cause the immediate dismissal of the appeal, and censure the responsible parties and their counsels, or
subject them to reasonable fine or penalty, and the bonding company may be blacklisted.
No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the
posting of a bond in a reasonable amount in relation to the monetary award.
The mere filing of a motion to reduce bond without complying with the requisites in the preceding
paragraphs shall not stop the running of the period to perfect an appeal. (6a)
Comment:
No MR is allowed however if the MR filed complies with all the requirements of an appeal it will be
considered as a perfected appeal on the date of its submission
Failure to pay the appeal fee confers a directory not a mandatory power to dismiss the appeal. Further the
requirement to pay the appeal bond is not merely a procedural requirement but more importantly a
jurisdictional requirement, absent which the court should dismiss the appeal filed this is anchored under
the provisions of article 223 of the LLC which expressly requires that the appeal be perfected within 10
days from the receipt of the decision and only upon payment of the appeal bond will the appeal be
deemed perfected.
A motion to reduce bond shall not toll the appeal period unless the motion is based on meritorious
grounds and is accompanied by posting of a bond in a reasonable amount in relation to the monetary
award.
The computation of the appeal bond excludes the consideration of damages in its computation be it moral,
exemplary or Attys fees and only refers to the monetary award for Backwages separation pay and the
like.
Property bond is acceptable. The bond must be accepted unconditionally by the NLRC since if the
acceptance by the NLRC of the bond is subjected to conditions, the appellant must submit or complete the
aforesaid conditions prior to the expiration of the 10 day period otherwise he shall be deemed as not
having perfected his appeal.
NLRC rule 8
RULE VIII
CERTIFIED CASES
Comment:
The general banking law has expressly classified the banking industry as indispensable to the national
interest.
The certification of a labor dispute no longer requires the existence of a strike, hence a dispute may be
certified to the NLRC for compulsory arbitration even before the existence of a strike provided however
there exist a labor dispute.
A strike becomes illegal if it continuous despite the assumption of the SOL or certification of the latter to
the NLRC provided notice to the parties and their counsels were effectively given, is a prerequisite even if
the order stats that it is immediately executory.
Defiance of the AJO order will not only result to the disciplinary action of the union officers who did not
comply but shall extend to all those members who defied the AJO. However it must sufficiently proved
that the employees intentionally defied a AJO or RTWO in the sense it must be shown that they knew of
the order and despite its knowledge consciously and knowingly defied its mandate.
Where to appeal
St Martin case rules:
1) The way for review a decision of the NLRC is via the special civil action of certiorari under rule
65
2) The SC and the CA has concurrent original jurisdiction for the special civil action of certiorari
3) By virtue to the doctrine of hierarchy of courts, the petition for the special civil action of
certiorari must be initiated with the CA
(b) The Secretary of Labor and Employment, and the Chairman of the Commission may designate
special sheriffs and take any measure under existing laws to ensure compliance with their decisions,
orders or awards and those of the Labor Arbiters and voluntary arbitrators, including the imposition of
administrative fines which shall not be less than P500.00 nor more than P10,000.00.
Comment:
1) Both parties and their corresponding counsels, if any must be given notice to be considered as
valid notice.
2) A writ of execution may be issued Motu Proprio or upon motion of the parties within 5 years
from the date us becomes final and executory
3) Failure to execute a judgment that has become final and executory within five years thereof will
render the decision dormant which then will require the party seeking its enforcement to institute
an independent action for its execution within 10 years from the date the judgment or order
became final
4) Petition for certiorari either by the CA or SC shall not stay the execution unless an injunction or
TRO has been issued by the courts
5) In the event that the ownership over the property to be enjoined or executed by the sheriff belongs
to a third party not part of the labor dispute the 3rd party may:
a. Seek redress from the LA and the sheriff who must follow the process laid down by the
NLRC rules and appeal to the NLRC may also follow
b. Seek redress from the civil courts and follow the process laid down therein (terceria)
Note must be taken that the rules covering the Sheriff and the LA binds them to follow the same
however does not limit such party to seek redress in the labor courts noting that his concern does
not arise from a labor dispute.
Further note, must be taken that the above remedies is not alternative but cumulative in the sense
that he can pursue both claims as provided in rule 39 section 16 of the RRC, therefore will not
hold the 3rd party liable for forum shopping since the rules itself provides that nothing herein
contained shall prevent such claimant or any third party person from vindicating his claim to the
property
6) Power of the NLRC to execute its judgments extends only to properties unquestionably belonging
to the judgment debtor.
7) If the 3rd party sought redress from the labor courts, his filing may suspend the execution unless
an indemnity bond is submitted by the judgment creditor, the recourse of the party here is to
institute an independent reinvindicatory action.
The Bureau shall have fifteen (15) working days to act on labor cases before it, subject to extension by
agreement of the parties.
Comment:
Inter-union disputes
Refers to any conflict between and among legitimate labor unions involving representation questions for
purposes of collecting bargaining or to any other conflict or dispute between legitimate labor unions
Intra-union disputes
Refers to any conflict between and among union members, including grievances arising from any
violation union members right and conditions of memberships, violation of or disagreement over any
provision of the unions constitution and by-laws, or disputes arising from chartering or affiliation of
union.
RULE XI (D.O 40-03
INTER/INTRA-UNION DISPUTES AND OTHER RELATED
LABOR RELATIONS DISPUTES
Section 1. Coverage.
Inter/intra-union disputes shall include:
(a) cancellation of registration of a labor organization filed by its members or by another labor
organization;
(b) conduct of election of union and workers' association officers/nullification of election of union and
workers' association officers;
(c) audit/accounts examination of union or workers' association funds;
(d) deregistration of collective bargaining agreements;
(e) validity/invalidity of union affiliation or disaffiliation;
(f) validity/invalidity of acceptance/non-acceptance for union membership;
(g) validity/invalidity of impeachment/expulsion of union and workers association officers and members;
(h) validity/invalidity of voluntary recognition;
(i) opposition to application for union and CBA registration;
(j) violations of or disagreements over any provision in a union or workers' association constitution and
by-laws;
(k) disagreements over chartering or registration of labor organizations and collective bargaining
agreements;
(l) violations of the rights and conditions of union or workers' association membership;
(m) violations of the rights of legitimate labor organizations, except interpretation of collective bargaining
agreements;
(n) such other disputes or conflicts involving the rights to self-organization, union membership and
collective bargaining -
(1) between and among legitimate labor organizations;
(2) between and among members of a union or workers' association.
Section 2. Coverage.
Other related labor relations disputes shall include any conflict between a labor union and the employer or
any individual, entity or group that is not a labor organization or workers' association. This includes:
(1) cancellation of registration of unions and workers associations; and
(2) a petition for interpleader.
Section 3. Effects of the filing/pendency of inter/intra-union and other related labor relations
disputes.
The rights, relationships and obligations of the parties litigants against each other and other parties-in-
interest prior to the institution of the petition shall continue to remain during the pendency of the petition
and until the date of finality of the decision rendered therein. Thereafter, the rights, relationships and
obligations of the parties litigants against each other and other parties-in-interest shall be governed by the
decision so ordered.
The filing or pendency of any inter/intra-union dispute and other related labor relations dispute is not a
prejudicial question to any petition for certification election and shall not be a ground for the dismissal of
a petition for certification election or suspension of proceedings for certification election.
Comment:
When it comes to the individual benefits accruing to members of a union from favorable final judgment
of any court, the members themselves become the real parties in interest and it is for them, rather than the
union, to accept or rekect individually the fruits of litigation
Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit
copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and
Employment for registration, accompanied with verified proofs of its posting in two conspicuous places
in the place of work and ratification by the majority of all the workers in the bargaining unit. The Bureau
or Regional Offices shall act upon the application for registration of such Collective Bargaining
Agreement within five (5) calendar days from receipt thereof. The Regional Offices shall furnish the
Bureau with a copy of the Collective Bargaining Agreement within five (5) days from its submission.
The Bureau or Regional Office shall assess the employer for every Collective Bargaining Agreement a
registration fee of not less than one thousand pesos (P1,000.00) or in any other amount as may be deemed
appropriate and necessary by the Secretary of Labor and Employment for the effective and efficient
administration of the Voluntary Arbitration Program. Any amount collected under this provision shall
accrue to the Special Voluntary Arbitration Fund.
The Bureau shall also maintain a file and shall undertake or assist in the publication of all final decisions,
orders and awards of the Secretary of Labor and Employment, Regional Directors and the Commission.
(As amended by Section 15, Republic Act No. 6715, March 21, 1989).
Labor Organization
Article 234. Requirements of registration. - A federation, national union or industry or trade union
center or an independent union shall acquire legal personality and shall be entitled to the rights and
privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration
based on the following requirements:
(a) Fifty pesos (P50.00) registration fee;
(b) The names of its officers, their addresses, the principal address of the labor organization, the minutes
of the organizational meetings and the list of the workers who participated in such meetings;
(c) In case the applicant is an independent union, the names of all its members comprising at least twenty
percent (20%) of all the employees in the bargaining unit where it seeks to operate;
(d) If the applicant union has been in existence for one or more years, copies of its annual financial
reports; and
(e) Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or
ratification, and the list of the members who participated in it. (As amended by Batas Pambansa
Bilang 130, August 21, 1981 and Section 1, Republic Act No. 9481 which lapsed into law on May 25,
2007 and became effective on June 14, 2007).
The chapter shall be entitled to all other rights and privileges of a legitimate labor organization only upon
the submission of the following documents in addition to its charter certificate:
(a) The names of the chapters officers, their addresses, and the principal office of the chapter; and
(b) The chapters constitution and by-laws: Provided, That where the chapters constitution and by-laws
are the same as that of the federation or the national union, this fact shall be indicated accordingly.
The additional supporting requirements shall be certified under oath by the secretary or treasurer of the
chapter and attested by its president. (As inserted by Section 2, Republic Act No. 9481 which lapsed into
law on May 25, 2007 and became effective on June 14, 2007).
All requisite documents and papers shall be certified under oath by the secretary or the treasurer of the
organization, as the case may be, and attested to by its president.
Labor union
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, protection or other lawful purposes
Union
Refers to any labor organization in the private sector organized for collective bargaining and for other
legitimate purpose.
Comment
Registration confers legal personality
Workers association
Refers to an association of workers organized for the mutual aid and protection of its members or for any
legitimate purpose other than collective bargaining.
National union/Federation
Means any labor organization with at least 10 local chapters or affiliates each of which must be a duy
certified collective bargaining agent
Industry union
Any group of LLO operating within an identified industry, organized for collective bargaining or for
dealing with employers concerning terms and conditions of employment within an industry, or for
participating in the formulation of social and employment policies, standards and programs in such
industry, which us duly registered with DOLE.
Trade Center
May refer to a group of national unions or federations organized for the mutual aid and protection of its
members, for assisting such members in CB, or for participating in the formulation of social and
employment policies, standards and programs.
Alliance
Is an aggregation of unions existing in one line of industry, or in conglomerate, a group of franchise, a
geographic area, or industrial center. Each member union retains its own organization or structure and
independence. An alliance, though cannot represent its members unions in CBA negotiations
Company union
Is a labor organization which, in whole or in part, is employer-controlled or employer dominated.
Comment
A union may be independent or a chapter dependent upon its creation, independent if created by
independent registration or a chapter is created through chaptering.
Chartered local
Refers to a labor organization in the private sector operating at the enterprise level that acquired legal
personality, through the issuance of a charter certificate by a duly licensed federation or a national union
and registered with the BLR. The federation/National union must submit the following:
1) Local certificate issued by the Federation indicating the creation of the local chapter
2) Names of the local chapters officers, their addresses and their principal office
3) The local chapters constitution and by-laws, if the consti and by laws are the same with the
federation this fact shall be indicated accordingly
All the forgoing must be certified under oath ny the secretary or the treasurer and attested by the president
of the local chapter.
Comment:
The grant of a charter automatically grants the local chapter legal personality, however such personality is
limited only to the purpose of filing a petition for certification election.
A labor organization acquires the status of an LLO and all the rights and privileges pertaining thereto
upon the issuance of its certificate of registration or certificate of creation of chartered local by the BLR
Recognition by the BLR is not a ministerial duty since they are clothed with the power to investigate the
veracity of the documents submitted to check if the same was acquired through fraud or otherwise and to
finally see that all the requirements of the law has been complied with.
The 20% requirement is not applicable to the federation since article 234-A specifically omitted such a
requirement in the instance of registering a local chapter. Hence the 20% requirement is applicable only to
independent labor organization requesting registration and the subsequent release of certification of
registration.
Note must be taken that the IRR NO09 specifically states that the legal personality of the an LLO is not
subject to collateral attack but needs to be assailed in an independent petition for cancelation of union
registration
The requirement of a bargaining unit is that the members must have common concerns or interest. The
only requirement is that a union seeking registration must comprise at least 20% of that bargaining unit
The constitution of the union and its by laws regulates and governs the relationship between and among
its members and the courts will enforce the same so long that it does not contravene the law, morals,
public policy, reason and does not foster discrimination.
Procedure of denial and appeal of registration, consolidation change of name affiliation merger and the
like:
1) The RO or BLR shall within 5 days from receipt of the application notify the applicant in writing
that their requirements are lacking and that they must complete the same within 10 days from
receipt
2) If the applicant fails to complete the same, the RO or BLR shall deny the application without
prejudice to the applicant to re-file the same
3) The denial must be in writing and expressing the reason for denial in clear terms
4) If appeal is warranted the process is:
a. RO BLR CA - SC
b. BLR SOL CA SC
Comment:
The right to affiliate has the corresponding right to disaffiliate however the terms and conditions agreed
upon the affiliation document is an obligation the parties needs to comply with. Finally the right to dis-
affiliate is subject to the provisions of the constitution and by-laws of the parties and absent any
prohibition therein a dismissal grounded upon disaffiliation is illegal.
Substitutionary doctrine:
The employees cannot revoke the validly executed CBA with their employers by the simply expedient of
changing their bargaining agent. The new agent must respect and comply with the CBA. The employees,
thru their new bargaining agent, cannot renege on the CBA, except to negotiate with management for the
shortening hereof. Note must be taken that the SC in the case of Benguet vs. BCI ruled that the no-strike
clause is not binding on the new representative since the substitutionary doctrine binds only the
employees and not the other LLO in the company and saving the instance they voluntarily assumed the
personal undertaking of the deposed LLO they are not bound thereby.
Comment:
The federation or national union can revoke the charter it has granted to a local chapter on grounds of
disloyalty or other grounds found in its constitution by a written notice to that effect sent to the local
chapter and the BLR. The revocation notice will result to the revocation of the legal personality of the
local chapter unless it has secured independent registration. However if the local chapter is covered by a
duly registered CBA there legal personality shall continue only until the expiration of the CBA unless
they have secured independent registration.
Requirements of a merger/consolidation
1) Notice of merger or consolidation
2) The minutes of m/c convention or general membership meeting/s of all the m/c labor
organizations, with the list of their respective members who approved the same
3) The amended constitution and by-laws and minutes of its ratification, unless ratification
transpired in the M/C convention, which fact shall be indicated accordingly
Certificate of registration of the merged labor organization
1) The new name of the m/c orgs
2) That fact that it is a m/c of two or more labor organization
3) The name of the LO that were merged or consolidated
4) The office or business address
The date when each of the m/c labor organizations acquired legitimate personality as stated in their
respective original certificate of registration
In case of cancellation, nothing herein shall restrict the right of the union to seek just and equitable
remedies in the appropriate courts. (As inserted by Section 4, Republic Act No. 9481 which lapsed into
law on May 25, 2007 and became effective on June 14, 2007).
Comment:
Reason or justification for the vote of dissolution by the members is not required by law
Administrative cancellation:
Authorizes the BLR to delist the registration of a LLO upon its failure to submit the following
requirements for 5 consecutive years:
1) Any amendment to its consti or by-laws and the minutes of adoption or ratification of such
amendments
2) Annual financial reports 30days from the close of the fiscal year
3) Updated list of newly-elected officers together with the appointive officers or agents who are
entrusted with the handling of funds within 30 days from such election
4) Updated list of individual members of chartered locals, independent unions and workers
association 30 days from the close of each fiscal year
5) Updated list of its chartered locals and affiliates or member organization, CBA executed and their
effective period, within 30 days from the close of the fiscal year. As well as the updated list of
their authorized representatives, agents or signatories in different regions of the country.
(a) No arbitrary or excessive initiation fees shall be required of the members of a legitimate labor
organization nor shall arbitrary, excessive or oppressive fine and forfeiture be imposed;
(b) The members shall be entitled to full and detailed reports from their officers and representatives of all
financial transactions as provided for in the constitution and by-laws of the organization;
(c) The members shall directly elect their officers, including those of the national union or federation to
which they or their union is affiliated, by secret ballot at intervals of five (5) years. No qualification
requirements for candidacy to any position shall be imposed other than membership in good
standing in subject labor organization. The secretary or any other responsible union officer shall
furnish the Secretary of Labor and Employment with a list of the newly-elected officers, together with
the appointive officers or agents who are entrusted with the handling of funds, within thirty (30)
calendar days after the election of officers or from the occurrence of any change in the list of officers
of the labor organization; (As amended by Section 16, Republic Act No. 6715, March 21, 1989).
(d) The members shall determine by secret ballot, after due deliberation, any question of major policy
affecting the entire membership of the organization, unless the nature of the organization or force
majeure renders such secret ballot impractical, in which case, the board of directors of the
organization may make the decision in behalf of the general membership;
(e) No labor organization shall knowingly admit as members or continue in membership any individual
who belongs to a subversive organization or who is engaged directly or indirectly in any subversive
activity;
(f) No person who has been convicted of a crime involving moral turpitude shall be eligible for election
as a union officer or for appointment to any position in the union;
(g) No officer, agent or member of a labor organization shall collect any fees, dues, or other contributions
in its behalf or make any disbursement of its money or funds unless he is duly authorized pursuant to
its constitution and by-laws;
(h) Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt
signed by the officer or agent making the collection and entered into the record of the organization to
be kept and maintained for the purpose;
(i) The funds of the organization shall not be applied for any purpose or object other than those expressly
provided by its constitution and by-laws or those expressly authorized by written resolution adopted
by the majority of the members at a general meeting duly called for the purpose;
(j) Every income or revenue of the organization shall be evidenced by a record showing its source, and
every expenditure of its funds shall be evidenced by a receipt from the person to whom the payment
is made, which shall state the date, place and purpose of such payment. Such record or receipt shall
form part of the financial records of the organization.
Any action involving the funds of the organization shall prescribe after three (3) years from the date
of submission of the annual financial report to the Department of Labor and Employment or from the
date the same should have been submitted as required by law, whichever comes earlier: Provided,
That this provision shall apply only to a legitimate labor organization which has submitted the
financial report requirements under this Code: Provided, further, that failure of any labor organization
to comply with the periodic financial reports required by law and such rules and regulations
promulgated thereunder six (6) months after the effectivity of this Act shall automatically result in the
cancellation of union registration of such labor organization; (As amended by Section 16, Republic
Act No. 6715, March 21, 1989).
(k) The officers of any labor organization shall not be paid any compensation other than the salaries and
expenses due to their positions as specifically provided for in its constitution and by-laws, or in a
written resolution duly authorized by a majority of all the members at a general membership meeting
duly called for the purpose. The minutes of the meeting and the list of participants and ballots cast
shall be subject to inspection by the Secretary of Labor or his duly authorized representatives. Any
irregularities in the approval of the resolutions shall be a ground for impeachment or expulsion from
the organization;
(l) The treasurer of any labor organization and every officer thereof who is responsible for the account of
such organization or for the collection, management, disbursement, custody or control of the funds,
moneys and other properties of the organization, shall render to the organization and to its members a
true and correct account of all moneys received and paid by him since he assumed office or since the
last day on which he rendered such account, and of all bonds, securities and other properties of the
organization entrusted to his custody or under his control. The rendering of such account shall be
made:
(1) At least once a year within thirty (30) days after the close of its fiscal year;
(2) At such other times as may be required by a resolution of the majority of the members of the
organization; and
(3) Upon vacating his office.
The account shall be duly audited and verified by affidavit and a copy thereof shall be furnished the
Secretary of Labor.
(m) The books of accounts and other records of the financial activities of any labor organization shall be
open to inspection by any officer or member thereof during office hours;
(n) No special assessment or other extraordinary fees may be levied upon the members of a labor
organization unless authorized by a written resolution of a majority of all the members in a general
membership meeting duly called for the purpose. The secretary of the organization shall record the
minutes of the meeting including the list of all members present, the votes cast, the purpose of the
special assessment or fees and the recipient of such assessment or fees. The record shall be attested to
by the president.
(o) Other than for mandatory activities under the Code, no special assessments, attorneys fees,
negotiation fees or any other extraordinary fees may be checked off from any amount due to an
employee without an individual written authorization duly signed by the employee. The authorization
should specifically state the amount, purpose and beneficiary of the deduction; and
(p) It shall be the duty of any labor organization and its officers to inform its members on the provisions
of its constitution and by-laws, collective bargaining agreement, the prevailing labor relations system
and all their rights and obligations under existing labor laws.
For this purpose, registered labor organizations may assess reasonable dues to finance labor relations
seminars and other labor education activities.
Any violation of the above rights and conditions of membership shall be a ground for cancellation of
union registration or expulsion of officers from office, whichever is appropriate. At least thirty
percent (30%) of the members of a union or any member or members specially concerned may report
such violation to the Bureau. The Bureau shall have the power to hear and decide any reported
violation to mete the appropriate penalty.
Criminal and civil liabilities arising from violations of above rights and conditions of membership
shall continue to be under the jurisdiction of ordinary courts.
Comment:
The right to be part of a union is given on the first day a person starts his employment however, the
conditions in joining a specific union is dependent on the constitution and by-laws of that specific union.
The manner and what positions will be elected is left by the law to the union in accordance with its consti
and by-laws however in the absence of a provision to that effect the IRR provides the following:
1) The president shall form an election committee within 60 days before expiration of the incumbent
officers term
2) In the event that the officers with expired terms do not call an election, the remedy according to
the rules is for at least 30% of the members file a petition with the DOLE for the holding of an
election.
Note should be taken that the provisions found in the consti or by-laws shall not be contrary to the
provisions of the law, such as the requirements of an officer save that of the term in good standing
Comment:
In no cases shall the union members violate the provisions of their constitution, assuming it is not invalid
as being contrary to law, morals, public order or public policy, they must even if they are in fear of the
result follow the provisions they have agreed upon in their CBL in election of their officers or any other
action governed by it.
The right to vote with respect to the election of officers may be regulated by the union so long as the
regulation is reasonable in no case however can the union completely withdraw this right to its members
permanently specially if they are in good standing.
No person shall be elected as an officer or appointed thereto without being a (employee) member in good
standing of the union he is seeking to be elected or appointed to.
Comment:
As a general rule a union officer, after his election may not be expelled from the union for past
malfeasance or misfeasance otherwise this would nullify the choice made by the member unions since the
court has noted that the members is voting for him is aware of his past grievances and forgave him
thereof. However if the malfeasance or misfeasance was committed during his term the remedy is union
expulsion and not a referendum. Such expulsion may be effected by following the rules set forth in their
CBL or at the least substantial compliance thereof, without validating the officers right to due process.
Comment:
As a general rule before redress can be availed of in the administrative or quasi-judicial bodies for intra-
union disputes the remedy provided in their CBL should be first availed of otherwise the said case shall
be considered as premature and thereby dismiss. However this rule is not absolute and subject to the
following exceptions:
1) If the exhaustion of the remedies found in the CBL would amount to denial of justice, such as the
case where the board or person who will adjudicate the claim are the very persons subject of the
complaint
2) Where the violation complained of is a violation of due process.
Comment:
Violation of the rights of the members is a ground for expulsion and may be a valid subject of a case filed
in the BLR however the 30% requirement is not essential where the members who filed the case are the
very members whose rights has been transgressed by virtue of the following provision:
Any violation of the above rights and conditions of membership shall be a ground for cancellation of
union registration or expulsion of officers from office, whichever is appropriate. At least thirty
percent (30%) of the members of a union or any member or members specially concerned may report
such violation to the Bureau. The Bureau shall have the power to hear and decide any reported
violation to mete the appropriate penalty.
Check-off
Is a method deducting from an employees wage at a prescribed period amounts due to the unions for
fees, fines or assessments validly made by the union.
Requirement for check off of special assessment, atty fee, negotiation fees or other extraordinary fees:
1) A written resolution must be made by the majority of the members present in the general meeting
authorizing the levy for special assessment
2) There must be individual authorizations signed and given by the employees concerned, specifying
the following:
a. Amount
b. Purpose
c. Beneficiary of the deduction
3) Secretarys record of the minutes of the meeting
Comment:
Per the labor code and the IRR no check off can be made except that authorized in writing by the
employee specifying the amount, purpose and beneficiary thereof.
The only instance where the law allows an automatic deduction of the winnings or the employee for
payment of not exceeding 10% for attys fees is where it went through a judicial or quasi-judicial
proceeding for recovery of wages
Mandatory activity:
mandatory activity has been defined as a judicial process of settling dispute laid down by the law. (Carlos
P. Galvadores, et al. vs. Cresenciano B. Trajano, Director of the Bureau of Labor Relations, et al., G.R.
No. L-70067)
Valid check-offs
1) Union dues
2) Agency fee
This is the amount nonunion members pays to the union because they benefit from the CBA
negotiations of the union. This amount is usually equivalent to union fees (248 (e))
Comment:
Illegal check-offs committed by the employer may result to a violation of article 113 (wage deduction).
However its failure to collect union fees will not render it liable for its payment since the obligation to
pay devolves upon the individual employees. However its failure to collect and submit to the union, if
required by a CBA, may result to it being liable for an ULP for violating the provisions of the CBA.
Comment:
An LLO has the legal personality to sue in behalf of its members. Once a suit has been filed by the union
the members thereof can no longer intervene in the said case since their interest has been fully represented
the only instance where this can be allowed is where the intervening members prove:
a) That there is fraud or collusion between the union and the employer
b) Or the union will not act in good faith for the protection of all interest represented by the union
Comment:
As a general rule CBA agreements entered into by the union in favor of its members. Shall bind the
members of the union if ratified by majority of its members. However this presumption of authority does
not extend to compromise agreements or quitclaims concerning money claims of the individual members
since the law requires an express individual authorization of its members.
4 points in time where a union may ask to for financial statements of the company:
1) After the union has been recognized by the employer as the sole bargaining agent/representative
of the employees in the bargaining unit
2) After the union is certified by DOLE as such sole bargaining representative
3) Within the last 60 days of the life of the current CBA
4) During CB negotiations
The audited financial statements, including the balance sheet and the profit and loss statement, should be
provided by the employer within 30 calendars days after receipt of the unions request.
Comment:
The right of the union to collect dues is anchored in article 277
(a) Its constitution and by-laws, or amendments thereto, the minutes of ratification, and the list of
members who took part in the ratification of the constitution and by-laws within thirty (30) days from
adoption or ratification of the constitution and by-lam or amendments thereto;
(b) Its list of officers, minutes of the election of officers, and list of voters within thirty (30) days from
election;
(c) Its annual financial report within thirty (30) days after the close of every fiscal year; and
(d) Its list of members at least once a year or whenever required by the Bureau.
Failure to comply with the above requirements shall not be a ground for cancellation of union registration
but shall subject the erring officers or members to suspension, expulsion from membership, or any
appropriate penalty. (As inserted by Section 7, Republic Act No. 9481 which lapsed into law on May 25,
2007 and became effective on June 14, 2007).
Comment:
The right to form associations are granted to government employees however the right to strike is
withheld from them under the reasoning that under the 1987 constitution the right to strike has been
allowed provided it is in accordance with law and since there is a law prohibiting the government
employees to render strike they are not allowed to do this for several reasons.
They are still allowed to negotiate however they cannot negotiate terms and conditions of employment
requiring the appropriation of public funds nor those terms provided for by law.
Levels of position
Private Can join unions Public Can join unions
Managerial No High level: managerial No
or highly confidential
Supervisory Yes to a limit Rank and file Yes
Rank and file Yes n/a N/a
EO 180
I. Coverage
Sec. 1. This Executive Order applies to all employees of all branches, subdivisions, instrumentalities, and
agencies, of the Government, including government-owned or controlled corporations with original
charters. For this purpose, employees, covered by this Executive Order shall be referred to as
"government employees".
Sec. 2. 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.
Sec. 3. High-level employees whose functions are normally considered as policy-making or managerial
or whose duties are of a highly confidential nature shall not be eligible to join the organization of rank-
and-file government employees.
Sec. 4. The Executive Order shall not apply to the members of the Armed Forces of the Philippines,
including police officers, policemen, firemen and jail guards.
Comment:
Government Employees not capable of joining or forming unions:
1) High-level employees whose functions are normally considered as policy-making or managerial
or whose duties are of a highly confidential nature
2) Members of the Armed Forces of the Philippines, including police officers, policemen, firemen
and jail guards.
Sec. 5. 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.
Sec. 6. 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.
Sec. 7. Government employees' organizations shall register with the Civil Service Commission and the
Department of Labor and Employment. The application shall be filed with the Bureau of Labor Relations
of the Department which shall process the same in accordance with the provisions of the Labor Code of
the Philippines, as amended. Applications may also be filed with the Regional Offices of the Department
of Labor and Employment which shall immediately transmit the said applications to the Bureau of Labor
Relations within three (3) days from receipt thereof.
Sec. 8. Upon approval of the application, a registration certificate be issued to the organization
recognizing it as a legitimate employees' organization with the right to represent its members and
undertake activities to further and defend its interest. The corresponding certificates of registration shall
be jointly approved by the Chairman of the Civil Service Commission and Secretary of Labor and
Employment.
Sec. 9. The appropriate organizational unit shall be the employers unit consisting of rank-and-file
employees unless circumstances otherwise require.
Sec. 10.The 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.
Sec. 11. A duly registered employees' organization shall be accorded voluntary recognition upon a
showing that no other employees' organization is registered or is seeking registration, based on records of
the Bureau of Labor Relations, and that the said organizations has the majority support of the rank-and-
file employees in the organizational unit.
Sec. 12.Where there are two or more duly registered employees' organizations in the appropriate
organizational unit, the Bureau of Labor Relations shall, upon petition, order the conduct of a certification
election and shall certify the winner as the exclusive representative of the rank-and-file employees in said
organization unit.
Sec. 13.Terms and conditions of employment or improvements thereof, except those that are fixed
by law, may be the subject of negotiations between duly recognized employees' organizations and
appropriate government authorities.
Sec. 14.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.
Sec. 15.A Public Sector Labor Management Council, hereinafter referred to as the Council, is hereby
constituted to be composed of the following:
1) Chairman, Civil Service Commission Chairman
2) Secretary, Department of Labor and Employment Vice Chairman
3) Secretary, Department of Finance Member
4) Secretary, Department of Justice Member
5) Secretary, Department of Budget and Management Member
The Council shall implement and administer the provisions of this Executive Order. For this purpose, the
Council shall promulgate the necessary rules and regulations to implement this Executive Order.
Sec. 16.The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the
resolution of complaints, grievances and cases involving government employees. In case any dispute
remains unresolved after exhausting all the available remedies under existing laws and procedures, the
parties may jointly refer the dispute to the Council, for appropriate action.
Article 245. Ineligibility of managerial employees to join any labor organization; Right of
Supervisory Employees.
Managerial employees are not eligible to join, assist or form any labor organization. Supervisory
employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file
employees but may join, assist or form separate collective bargaining units and/or legitimate labor
organizations of their own. The rank-and-file union and the supervisors union operating within the same
establishment may join the same federation or national union. (As amended by Section 18, Republic Act
No. 6715, March 21, 1989 and Section 8, Republic Act No. 9481 which lapsed into law on May 25, 2007
and became effective on June 14, 2007).
Article 245-A. Effect of inclusion as members of employees outside the bargaining unit.
The inclusion as union members of employees outside the bargaining unit shall not be a ground for the
cancellation of the registration of the union. Said employees are automatically deemed removed from the
list of membership of said union. (Introduced as new provision by Section 9, Republic Act No. 9481
which lapsed into law on May 25, 2007 and became effective on June 14, 2007).
Managers
Those who have authority to devise, implement and control strategic and operational policies
Supervisors
Those whose task is simply to ensure that such policies are carried out by the rank and file employess.
Limited discretion.
Article 212
(m) "Managerial employee" is one who is vested with the powers or prerogatives to lay down and
execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or
discipline employees. Supervisory employees are 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 . All employees not falling within any of the above definitions
are considered rank-and-file employees for purposes of this Book.
The criterion that differentiates a manager and supervisor from the rank and file is the ability to take part
in policy making. The latter is only given readymade policies to execute and standards practices to
observe
Metrolab Ruling
Due to the sensitivity of information handled by the confidential employees which in turn effectively
creates a great conflict of interest between that of their position and receiving benefits from union
negotiations the court has decreed that confidential employees are not only excluded from the closed shop
agreement but more importantly cannot join any union.
Confidential Employees:
Are those employees who by reason of their positions or nature of work are required to assist or act in a
fiduciary manner to managerial employees and hence are likewise privy to sensitive and highly
confidential records. As such the rationale behind their ineligibility of managerial employees to form,
assist or join labor unions equally applies to them.
Art. 245 of the Labor Code11 does not directly prohibit confidential employees from engaging in union
activities. However, under the doctrine of necessary implication, the disqualification of managerial
employees equally applies to confidential employees. The confidential-employee rule justifies exclusion
of confidential employees because in the normal course of their duties they become aware of management
policies relating to labor relations. It must be stressed, however, that when the employee does not have
access to confidential labor relations information, there is no legal prohibition against confidential
employees from forming, assisting, or joining a union
Comment:
From the foregoing the recent definition of a confidential employee is an employee who in the normal
course of their duties they become aware of management policies relating to labor relations.
Article 247. Concept of unfair labor practice and procedure for prosecution thereof.
Unfair labor practices violate the constitutional right of workers and employees to self-organization, are
inimical to the legitimate interests of both labor and management, including their right to bargain
collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect, disrupt
industrial peace and hinder the promotion of healthy and stable labor-management relations.
Consequently, unfair labor practices are not only violations of the civil rights of both labor and
management but are also criminal offenses against the State which shall be subject to prosecution and
punishment as herein provided.
Subject to the exercise by the President or by the Secretary of Labor and Employment of the powers
vested in them by Articles 263 and 264 of this Code, the civil aspects of all cases involving unfair labor
practices, which may include claims for actual, moral, exemplary and other forms of damages, attorneys
fees and other affirmative relief, shall be under the jurisdiction of the Labor Arbiters. The Labor Arbiters
shall give utmost priority to the hearing and resolution of all cases involving unfair labor practices. They
shall resolve such cases within thirty (30) calendar days from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.
No criminal prosecution under this Title may be instituted without a final judgment finding that an unfair
labor practice was committed, having been first obtained in the preceding paragraph. During the
pendency of such administrative proceeding, the running of the period of prescription of the criminal
offense herein penalized shall be considered interrupted: Provided, however, that the final judgment in the
administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt
but merely as proof of compliance of the requirements therein set forth. (As amended by Batas Pambansa
Bilang 70, May 1, 1980 and later further amended by Section 19, Republic Act No. 6715, March 21,
1989).
Elements of ULP:
1) There is an E&E relationship
2) The act done is expressly defined in the code as an act of unfair labor practice
The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations,
associations or partnerships who have actually participated in, authorized or ratified unfair labor practices
shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981).
Yellow-Dog Contracts
A yellow dog contract is an employment contract which prohibits an employee from joing a labor
organization or which requires him to withdraw from one to which he belongs. Yellow dog contract is
prohibited under Article 248(b) of the Labor Code.
Comment:
HSBC employee union vs NLRC, the SC has stated that the ULP enumerated under the labor code is not
exhaustive rather it leaves sufficient discretion in applying the laws general prohibitory language in light
of infinite combinations of events which may be charged as violative of its term.
Examples of interference
1) Interrogations
2) Prohibiting organizing activities
3) Violence or intimidations
4) Espionage and surveillance
5) Economic inducement
6) Totality of conduct doctrine
Expression of opinion by an employer, though innocent in themselves, frequently were held to be
culpable because of the circumstances under which they were uttered, the history of the particular
employers labor relations or anti-union bias or because of their connection with an established
collateral plan of coercion or interference.
Stated differently, the culpability of an employers remarks has to be evaluated not only on the
basis of their implicit implications, but in conjunction with collateral circumstances.
Again, an act to be characterized as a ULP, should be viewed not in isolation but in connection
with collateral circumstances.
7) Mass layoff
8) Lockout or closure of business
As a rule lockout or closure is a valid management prerogative so long it is done in good faith,
however if it is proved that the actual purpose of the employer in employing this means is to
interfere or to coerced the employees not to join a union by circumstantial evidence the employer
can then be held that his conduct constitutes ULP.
Comment:
If the employer performs act although a valid management prerogative but for the purpose of interfering
with the employees right to self-organization or the exercise thereof will constitute ULP since it is marked
with bad faith.
Runaway shop
The employer moves its business to another location or it temporarily closes its business for anti-union
purposes. In a sense it is the relocation of a business motivated by anti-union animus rather than for
business reasons.
Discrimination as ULP
In order for discrimination to constitute as ULP the discrimination it must be in regard to the hire or
tenure of employment or any term or condition of employment to encourage or discourage membership in
any labor organization.
Types of discrimination
1) Discrimination in Work quota
2) Discrimination in bonus allocation
3) Discrimination in layoff or dismissal
4) Discrimination in regularization
5) Discrimination by blacklisting
6) Indirect discrimination
7) Constructive discharge
Where the employer prohibits employees from exercising their rights under the act, on pain of
discharge, and the employee quits as a result of the prohibition, a constructive discharge occurs.
Test of discrimination
To determine whether or not a discharge is discriminatory, it is necessary that the underlying reason for
the discharge be established. Hence the fact that a valid ground exist to discharge an employee is not
justifiable where the discharge was actually motivated by his union activities. Although substantial
evidence is required to prove such a statement and the mere uncorroborated testimony of the employee is
not sufficient to overcome a valid ground for dismissal.
Comment:
The reason why union security clause is not an ULP is simply because, although it is a form of
discrimination it is valid because it is a discrimination favoring unionism.
Comment:
In order for a union security clause to be fully effective its terms must be explicit and without ambiguity
stating:
1) That the employer can only employ members of the union in good standing
2) That the failure of the member to join and maintain membership in good standing will result to
the termination of his employment.
If the erroneous dismissal was due to the insistence of the union to comply with the union security clause,
as a rule the employee is not liable if it has followed the procedural requirements and in case the dismissal
is overturned by the courts the employer will just be commanded to reinstate the employee but the
payment of Backwages and allowances connected thereto will be charged against the union. However If
the employer failed to follow procedural due process and/or acted in bad faith he shall be liable for both.
Hence the basic rule is that if the employer acted in good faith in dismissing the employee per the union
security clause he will not be liable for payment of Backwages and the corresponding allowances.
Comment:
Absent any provision to the contrary a CSA in a CBA applies only to persons to be hired or to employees
who are not yet members of any labor organization and that said provisions of the agreement are not
applicable to those already in the service at the time of execution.
Note must be taken that a provision in a CSA requiring non-member to quit all their affiliations with other
union/s and become members of the union in the CSA is null and void for being contrary to the
constitutional right of all employees to form, join or assist labor organizations of their own choosing.
It is a well settled rule that the retaliation against an employee for her refusal to testify in behalf of the
employer is an ULP since this act is a form of coercion by the employer preventing the employee to
exercise her right to concerted activity of her choosing. Further this prevents the employee from seeking
better terms of employment by concerted activity. Lastly the court has ruled that this situation is
analogous to the prohibit under article 248 against discrimination due to the giving of testimony.
Comment:
As a general rule violation of labor standards is not a strikeable offense however if the employer retaliates
against the complaining employees the same will constitute a ULP which is a strikeable offense under
article 263 of the LC.
Disestablishment order
Is an order by the court against the employer who has instituted a company dominated union, ordering the
employer to withdraw its recognition over the said union in such a manner where the employees of the
company shall know and understand the withdrawal of recognition. The employer is not however ordered
to liquidate the organization.
Comment:
ULP is not generally susceptible to compromise agreements since the relation between capital and labor is
not merely contractual but is impressed with public policy. However the SC has in case allowed such a
compromise under the reasoning that the agreement was voluntarily entered into and contained reasonable
provisions.
A suit for ULP must contain all ULP acts committed during the period at issue otherwise the union will be
held to be splitting their causes of action thereby giving justification for the dismissal of the subsequent
complaint.
Instances where the subordinates ULP acts can be imputed to the employer:
1) Knowledge by the employer of the employees acts and his failure to prevent continuation of
course of conduct or failure to renounce any connection or affinity therewith.
2) Continuity of open and improper conduct by an employee creates a presumption that the
employer knows of such infraction and allows its continuity
3) Employers past policy and attitude
The past policy and attitude of the employer taken together with the supervisors ULP acts is an
indication of a concert of effort between the two.
The provisions of the preceding paragraph notwithstanding, only the officers, members of governing
boards, representatives or agents or members of labor associations or organizations who have actually
participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended
by Batas Pambansa Bilang 130, August 21, 1981).
Comment:
The omission of the word interference in the definition of the ULP acts committed by the union is
purposefully made in order to allow the unions to interfere with the employees right to self organization
however such interference must not be in such a manner or such an extent to be considered as restraint or
coercion since this in turn would constitute ULP. (campaigning, union security clause)
Samples of coercion
1) Threats of bodily harm in the event that the employee refuses to join a strike.
Comment:
The union may not exercise its union security clause in an arbitrary manner as the same will constitute
ULP on the union and thereby hold it liable exclusively for payment of Backwages and the applicable
allowances if the union has succeeded in having the employee terminated. Note however this is plausible
only when the owner is free from bad faith and has complied with procedural due process.
SCB vs SOLE
Surface bargaining
Is defined as going through the motions of negotiating without any legal intent to reach an agreement
Surface bargaining is defined as "going through the motions of negotiating" without any legal
intent to reach an agreement.50 The resolution of surface bargaining allegations never presents an
easy issue. The determination of whether a party has engaged in unlawful surface bargaining is
usually a difficult one because it involves, at bottom, a question of the intent of the party in
question, and usually such intent can only be inferred from the totality of the challenged partys
conduct both at and away from the bargaining table.51 It involves the question of whether an
employers conduct demonstrates an unwillingness to bargain in good faith or is merely hard
bargaining.
Blue-sky bargainaing
Means making exaggerated or unreasonable proposals
We, likewise, do not agree that the Union is guilty of ULP for engaging in blue-sky bargaining or
making exaggerated or unreasonable proposals. The Bank failed to show that the economic
demands made by the Union were exaggerated or unreasonable. The minutes of the meeting show
that the Union based its economic proposals on data of rank and file employees and the prevailing
economic benefits received by bank employees from other foreign banks doing business in the
Philippines and other branches of the Bank in the Asian region.
Note:
The refusal of the employer to furnish financial data in instance specified by the code constitutes as ulp
for refusal to bargain. However such a situation is not applicable in instances where the request of the
union was never reduced in writing as required by the law.
Note:
In ULP cases the union has the burden of proof in proving that the acts of the employer is a ulp under the
code.
Article 251. Duty to bargain collectively in the absence of collective bargaining agreements.
In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner
of collective bargaining, it shall be the duty of employer and the representatives of the employees to
bargain collectively in accordance with the provisions of this Code.
4 stages/process of CB
1) Negotiations between representative of the management and the union over wages, hours and
other terms of employment
2) Execution of a written contract embodying the terms agreed upon
3) Negotiations of any questions arising as to the interpretation or application of the contract
4) Negotiations over the terms of a new contract or proposed modifications, when an existing
agreement is validly opened for negotiations.
Comment:
The parties to a CBA are the employer and the employees, the latter is usually represented by their
bargaining agent (which must be an LLO) which in turn acts through its agents, who does not need to be
an employee of the other, the only requirement is that the latter is duly authorized by the employees.
Comment:
The employer is not under legal duty to initiate contact bargaining. The duty to bargain only arises upon
the written demand of the bargaining representative to bargain with the employer, who in turn must
respond within 10 days.
Comment:
The employer has the right to demand the union to provide proof of its majority representation and unless
the union submits, the employer cannot be made to bargain. Note that the demand by the employer must
be made in good faith and not a dilatory act, otherwise it would constitute as an ULP for refusal to
bargain.
The same rule applies when the employer decides to bargain with a minority union despite the existence
of a majority union.
Certification year
The period in time when all the jurisdiction preconditions of a CBA is present
Article 253. Duty to bargain collectively when there exists a collective bargaining agreement.
When there is a collective bargaining agreement, the duty to bargain collectively shall also mean that
neither party shall terminate nor modify such agreement during its lifetime. However, either party can
serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration
date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the
terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is
reached by the parties.
Comment:
Absent any notice to terminate or to renegotiate the CBA within the 60 day period prior to the expiration
of the term of the CBA, the law dictates that the said CBA shall automatically be renewed. The renewal
covers all the provisions of the CBA since the law itself does not provide exceptions or qualifications.
Comment:
The filing of a petition to cancel the certification of the union is not a prejudicial question which must be
settled before bargaining may commence since unless an order of revocation of certification or
registration is issued the LLOs status as the certified bargaining agent subsist and the corresponding duty
of the employer to bargain corollary subsists.
Comment:
A request by the employer to remove any of the panel of negotiators of the union is not necessarily a ULP
act however when such request constitutes as coercion for the purpose of securing adverse agreements
with the union supported by substantial evidence, the facts constitutes as ULP. But where the request is
merely a request without pain of reprisals or refusal to bargain until accommodates, does not by itself
constitute a ULP act but a part of normal friendly negotiations.
Comment:
The SC has held in several decisions that the employers failure to reply to a demand for collective
bargaining done in bad faith is sufficient grounds for the court to impose upon the employer the CBA
proposal submitted by the union, assuming arguendo that all jurisdictional precondition of collective
bargaining has been complied with.
Comment:
With the second kind of ULP of refusal to bargain, the employer and the union is statutorily bound to
bargain over matters concerning employment terms and conditions and neither party can refuse to tackle
the same when requested by the other. However with respect to the other terms, either parties can lawfully
refuse to agree or altogether refuse to bargain over such matters.
Note must be taken in order for an issue become a mandatory subject of bargaining it must be shown that
the issue must materially or significantly affect the terms and conditions of employment and not a mere
incidental effect.
Bargaining impasse
Exist where good faith bargaining on both parties has failed to resolve the issue and there are no definite
plans for further efforts to break the dead lock such as in situations where a substantial change in the
bargaining position of one party is necessary to break an existing impasse so as to render the other partys
subsequent refusal to meet and bargain unlawful.
Comment:
The failure to respond to the counter-proposal of the union within the time prescribed by law is an
indication of bad faith
Steps in bargaining:
1) Demand to negotiate
2) Negotiation
3) Ratification
4) Execution
5) Registration
6) Implementation
Ratification
The proper ratifying group is not just the majority union but the majority of all workers in the bargaining
unit represented in the negotiation.
Requirements of a valid ratification
1) Posting of the CBA in 2 conspicuous places for five days
2) Ratification by at least majority members of the bargaining unit of the proposed CBA
3) Submission of 5 signed copies to the BLR accompanied by proofs of compliance of the first two
requisites by a statement certified under oath by the secretary to that effect and attested to by the
president.
Comment:
Failure to register the CBA with the BLR does not render it invalid or unenforceable, its non-registration,
however, renders the contract bar rule inoperative. Hence a union security clause of an unregistered CBA
is binding, thus an employee may be dismissed for acts of disloyalty despite the laws allowance of a
certification election even outside the freedom period.
Comment:
Ratification of the CBA by the BU is not required where the CBA is a product of voluntary arbitration or
as a result of mandatory arbitration by the NLRC as certified by the SOLE. However the posting
requirement still subsist in order to appraise the employees of its content and not for appropriate
ratification.
If the CBA was validly ratified by the employees the fact that the appropriate union officers fail to sign it
was declared by the court to be of no moment since the actual signing thereof is a mere mechanical act
and its absence shall not invalidate the voluntary agreement of the parties as ratified by the bargaining
unit concerned.
If the CBA was not duly ratified but was implemented and the employees covered enjoyed its benefits,
the same employees are already estopped from questioning its validity since it would be an iniquitous that
they have already enjoyed its benefits and later question its validity.
Zipper clause
A zipper clause is a clause in an employment agreement or in the CBA in which both parties waive the
right to demand bargaining on any matter not dealt with in the contract, regardless of whether that matter
was contemplated when the contract/CBA was negotiated or signed.
Comment:
Rules regarding effectivity date of a CBA
1) If it is the first CBA, the effectivity date is the date agreed upon by the parties
2) If is a subsequent CBA:
a. If the new CBA was finalized within 6 months from the expiration date of the previous
CBA, the law provides that the effective date shall retroact to the date after the last day of
effectivity of the previous CBA
b. If the new CBA was finalized after 6 months from the expiration date of the previous
CBA the law grants the parties to negotiate as to the retroactivity and duration thereof.
3) The date of conclusion or the operative date is the date the parties actually agreed upon the
provisions of the CBA and not the date of signature.
4) A resulting CBA issued as a result of a mandatory or voluntary arbitration, the effective date of
which absent any agreement by the parties to the contrary may be decided upon by the arbitrator
or the SOL since the provision of law granting discretion is not a limitation of the powers of the
arbitrators.
Rules as to durations
1) The majority status of the union who secured the CBA shall be for a period of 5 years and no
certification election or challenge to its status shall be allowed except during the freedom period
of 60 days before the expiration of the 5 year term
2) The other provisions except that of the representative aspect shall last for a period of 3 years only.
Comment:
1) A spun off of a division to a new separate corporation or entity if done in good faith will sever the
relation of the employees from the bargaining unit they were once part of, thereby giving them a
right to form or join a new union or maintain their membership ambit form part of a different
bargaining unit.
Comment:
The five year period is applicable only when there is an existing CBA.
Comment:
In the event that neutral employers seeks protection from the regular courts to protects its employees
from coming in to work from employees of other employers whose property is situated in the same area is
appropriate since there is in fact no labor dispute between the neutral employer and the striking emloyees.
Article 255. Exclusive bargaining representation and workers participation in policy and decision-
making.
The labor organization designated or selected by the majority of the employees in an appropriate
collective bargaining unit shall be the exclusive representative of the employees in such unit for the
purpose of collective bargaining. However, an individual employee or group of employees shall have the
right at any time to present grievances to their employer.
Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such rules
and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy and
decision-making processes of the establishment where they are employed insofar as said processes will
directly affect their rights, benefits and welfare. For this purpose, workers and employers may form labor-
management councils: Provided, That the representatives of the workers in such labor-management
councils shall be elected by at least the majority of all employees in said establishment. (As amended by
Section 22, Republic Act No. 6715, March 21, 1989).
CBU vs Union:
1) In certification elections, the voters are the CBU whether unionized or not.
2) In ratification of the CBA, the voters are the entire CBU not just the union
3) In strike voters, the voters are the member of the union, not all of the unit
At the expiration of the freedom period, the employer shall continue to recognize the majority status of
the incumbent bargaining agent where no petition for certification election is filed. (As amended by
Section 23, Republic Act No. 6715, March 21, 1989 and Section 10, Republic Act No. 9481 which lapsed
into law on May 25, 2007 and became effective on June 14, 2007).
All certification cases shall be decided within twenty (20) working days.
The Bureau shall conduct a certification election within twenty (20) days in accordance with the rules and
regulations prescribed by the Secretary of Labor.
(2) submitting the list of employees during the pre-election conference should the Med-Arbiter act
favorably on the petition. (As amended by Section 12, Republic Act No. 9481 which lapsed into law on
May 25, 2007 and became effective on June 14, 2007).
Comment:
In order for the LLO to ask for a certification election the petition must have the written support of at
least 25% of the the employees in the bargaining unit concerned.
Organized establishment
Refers to an enterprise where there exists a recognized or certified sole and exclusive bargaining agent
Unorganized establishment
Refers to an establishment where no union has yet been recognized or certified as the bargaining
representative.
Conditions of a valid VR
1) The establishment is unorganized establishment since in an organized establishment the employer
is required by article 256 to continue to recognize the current bargaining agent until it has been
properly replaced according to law.
2) Only one union is asking for recognition
3) The union voluntarily recognized should be the majority union.
DO 40-03
RULE VII
VOLUNTARY RECOGNITION
Section 1. When and where to file.
In unorganized establishments with only one legitimate labor organization, the employer may voluntarily
recognize the representation status of such a union. Within thirty (30) days from such recognition, the
employer and union shall submit a notice of voluntary recognition with the Regional Office which issued
the recognized labor union's certificate of registration or certificate of creation of a chartered local.
All accompanying documents of the notice for voluntary recognition shall be certified under oath by the
employer representative and president of the recognized labor union.
Where the notice of voluntary recognition is insufficient in form, number and substance, the Regional
Office shall, within the same period, notify the labor union of its findings and advise it to comply with the
necessary requirements. Where neither the employer nor the labor union failed to complete the
requirements for voluntary recognition under Section 2 of this Rule within thirty (30) days from receipt of
the advisory, the Regional Office shall return the notice for voluntary recognition together with all its
accompanying documents without prejudice to its re-submission.
Certification Election
Certification election
Is the process of determining through secret ballot the sole and exclusive representative of the employees
in an appropriate bargaining unit, for purpose of collective bargaining or negotiation.
12 month bar
No PCE may be filed within 12 months from the date of a valid certification, consent, or run-off election
or from the date of entry of a voluntary recognition of the union by the employer. Note that this
prohibition applies even if no union won the CE since the prohibition is with respect to the holding of an
CE.
Union elections
Is an election held to determine who shall be the officers of the union concerned in accordance with its
by-laws and constitution, hence if the CBL allows non-members may be allowed to vote. Unlike in CE
non-union members so long as they are part of the CBU are always allowed to vote.
Comment:
The amendment of article 257 has the effect of proscribing direct certification where there are competing
unions, the correct manner in determining the BR is via certification election or consent elections
Comment:
Once a PCE has been filed the other unions seeking certification may file an intervention provided that
they comply with the same requirements of that union who filed the PCE.
Comment:
In a PCE the order or decision granting the PCE must be rendered after the freedom period to allow any
other qualified union to file a PCE or an intervention. The decision of the med-arbiter to allow or deny a
CE is appealable to the SOLE. Note must be taken that an order granting a PCE in an ununionized
enterprise is not appealable save that of rule 65.
Comment:
With respect to ground number 2, the mere filing of a petition to cancel the certification of an LLO is not
sufficient ground to suspend or dismiss a PCE since it is not a prejudicial question as the name entails.
The only instance where the law allows dismissal is if the certification of the union has been revoked or
cancelled with finality
Comment:
Once a union has been elected to be the CB agent it must conclude a CBA within the 12 month period
otherwise it may be considered as a tool of management. However when the failure to conclude a CBA is
not due to the unions fault but on the employer, the same shall not be a ground to institute another PCE
since this form constitute a analogous situation with a deadlock bar.
Comment:
In order for the deadlock bar to come into play the deadlock must be genuine and not a drama. Deadlock
is a question of fact
Comment:
The med-arbiter and the SOLE in deciding the PCE has adequate authority to determine the existence of a
E&E relationship since it is an integral part thereof.
Comment:
The EO may rule on matters pertinent to the elections on the same time however he has no authority to
rule on the acceptability of the challenged votes which shall be decided upon by the med-arbiter provided
that the number of votes will materially alter the results of the election
Comment:
Failure of election shall result when less than majority of the eligible voters cast their votes in the
election.
Proclamation
Within 24 hours from the final canvass of votes, there being a valid election, the EO shall transmit the
records of the case to the Med-Arbiter who shaoll, within the period from receipt of the minutes and
results of the election, issue an order proclaiming the results of the election certifying the union which
obtained a majority of the valid votes casts as the sole bargaining representative under the following
conditions:
1. No valid or perfected protest was filed
2. No challenge or eligibility issue was raised. Even if there was if the said issue is not sufficient to alter
the result of the election.
Comment
If all the above is present the EO shall Motu Proprio conduct a run-off election within 10 days from the
close of the election proceedings between the labor unions receiving the 2 highest number of votes. No
Union shall not be a choice in the run-off election. The notice of run-off election shall be made at least 5
days before the actual run-off election.
Comment:
In case there is a tie between the second highest votes all of them as well as the highest voted union shall
participate in the run-off election since the contest is not between 2 unions but between the 2 highest
votes received.
Consent Election
Is an election to determine who is the appropriate bargaining unit via election voluntarily agreed upon by
the contending unions without the intervention of the department. In this situation:
1. Upon filing of the CE, the parties subsequently agreed to hold a consent election. The Med-
Arbiter concerned shall enter into the minutes of the hearing or preliminary conference the fact of
agreement and then cause the immediate scheduling of the pre-election conference. The minutes
should be signed by the unions attested to by the MA.
2. Without filing a CE but upon agreement between the parties seeking intercession by the regional
office
The MA shall immediately transmit the record to the director or his authorized representative for the
purpose of determination of the EO by raffle in the presence of the unions of they so desire. Then the
process shall be the same with a CE.
Comment:
Retired members may still be represented by the Union in litigation if the basis of their cause of action is
the rights given by their CBA or by law during their employment. The SC deems them an employee
entitled to the protection of the labor code, for the purpose of prosecuting their claim
GRIEVANCE MACHINERY
AND VOLUNTARY ARBITRATION
All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days
from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the
Collective Bargaining Agreement.
For this purpose, parties to a Collective Bargaining Agreement shall name and designate in advance a
Voluntary Arbitrator or panel of Voluntary Arbitrators, or include in the agreement a procedure for the
selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of
qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary
Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of
Voluntary Arbitrators, as may be necessary, pursuant to the selection procedure agreed upon in the
Collective Bargaining Agreement, which shall act with the same force and effect as if the Arbitrator or
panel of Arbitrators has been selected by the parties as described above.
Comment:
The benefits secured via CBA shall enure to the benefit of all the members of the CBU. If otherwise, there
must be a valid reason therefore otherwise it would result to discrimination
General Rule:
A bona fide purchaser of assets of an employer is not bound by the CBA and the latter is not enforceable
against it since labor contracts are in personam hence binding only between the parties. Further, a labor
contract at best only creates an action in personam and does not create any real rights which should be
respected by third parties.
Exceptions:
1. When the sale is clothed in bad faith
2. When there there are grounds to pierce the corporate veil
3. When the act constitutes ULP
Note:
VA is a master procedure, meaning all labor disputes may be submitted to it for resolution subject to the
consent of the parties save for the following which must be resolved by the VA:
1) All unresolved grievances arising from interpretation or implementation of the Collective
Bargaining Agreement
2) Unresolved grievances arising from the interpretation or enforcement of company personnel
policies
3) CBA violations not constituting ULP
4) interpretation or implementation of the productivity incentives program (RA 6971)
5) all other matters voluntarily agreed upon by the parties in the CBA or subsequently thereof.
Note:
The submission of the parties to a VA removes the jurisdiction of the LA or NLRC even if certified to the
latter by the SOLE.
Temporary Arbitrator
Is a VA which has been chosen to settle a dispute already in existence with no requirement to re-appoint
him in future conflicts.
Permanent arbitrator
Is selected before a dispute arises, usually during the CBA negotiations. He is to serve for a period of time
usually during the lifetime of the CBA rather than a single controversy.
Article. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators.
The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to
hear and decide all unresolved grievances arising from the interpretation or implementation of the
Collective Bargaining Agreement and those arising from the interpretation or enforcement of company
personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective
Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair
labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For
purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or
malicious refusal to comply with the economic provisions of such agreement.
The Commission, its Regional Offices and the Regional Directors of the Department of Labor and
Employment shall not entertain disputes, grievances or matters under the exclusive and original
jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose
and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective
Bargaining Agreement.
Comment:
In order for the LA be ousted from jurisdiction to hear an illegal termination clause by reason of a CBA
provision, the CBA must unequivocally or explicitly state that terminations should be submitted to the
grievance machinery.
Further, by the language of article 260, the parties to the dispute has to be the Union and the employer
hence in situations where the complainant or the other party is not a member of the union in such a degree
that the employer and the union stands united against the employee the grievance machinery should not
be availed of since the same is a creation and the parties therein are appointed by the employer and the
union, hence to submit the dispute to them would violate the due process right of the employee since the
union and employer would be the judge and prosecutor at the same time.
Finally, only unresolved grievances can be subject of the grievance machinery, the termination of an
employee is no longer an unresolved grievance since he has been terminated already hence he can secure
assistance of the LA.
Other cases covered by the VA (RA 6971)- sabi ni azucena pati wage orders
Section 9. Disputes and Grievances.
Whenever disputes, grievances, or other matters arise from the interpretation or implementation of the
productivity incentives program, the labor-management committee shall meet to resolve the dispute, and
may seek the assistance of the National Conciliation and Mediation Board of the Department of Labor
and Employment for such purpose. Any dispute which remains unresolved within twenty (20) days from
the time of its submission to the labor-management committee shall be submitted for voluntary arbitration
in line with the pertinent of the Labor Code, as amended.
The productivity incentives program shall include the name(s) of the voluntary arbitrator or panel of
voluntary arbitrators previously chosen and agreed upon by the labor-management committee.
Note:
That NLRC, its regional branches and regional directors of the DOLE shall not entertain disputes,
grievances or matters under the exclusive and original jurisdiction of the VA provided in the CBA.
2 ways to initiate VA
1) Submission
It is where there is no previous agreement to arbitrate. It must be signed by both parties
describing the facts of the controversy, stating the VA and enumerating his powers or the limts
thereof.
2) By demand or notice
This is a unilateral act by a party by serving a written notice of intent to arbitrate, seeking to
enforce an arbitration clause found in the CBA regarding the present dispute falling under those
mentioned in the arbitration clause, if any.
Comment:
The VA has authority to determine the limits of his power based on the submission provided. He may
deem to determine issues that are necessarily included in the issues framed by the parties subject only to
reason and thereafter certiorari. Note must be taken that the purpose of the VA is fully settle the dispute or
controversy.
There is unauthorized amendment or alteration of the CBA by the VA in any of the following
1. It is so unfounded in reason and fact
2. It is so unconnected with the wording and purpose of the agreement
3. It is without factual support in view of its language, its context, and any other indicia of the
parties intention
4. It ignores or abandons the plain language of the contract
5. It is mistakenly based on crucial assumption which concededly is non fact
6. It is unlawful, arbitrary or capricious
7. It is contrary to public policy
Note:
When a CBA is expected to speak on a matter, but it does not or its sentences imports ambiguity on the
subject the VA may look into extrinsic aids to determine the intention of the parties, using the history of
the company, the contemporaneous and subsequent acts of the parties or past practices. His decision must
be supported by reason, further a CBA should be liberally construed rather than narrowly and technically
and the VA must make Practical and realistic construction upon it.
All parties to the dispute shall be entitled to attend the arbitration proceedings. The attendance of any
third party or the exclusion of any witness from the proceedings shall be determined by the Voluntary
Arbitrator or panel of Voluntary Arbitrators. Hearing may be adjourned for cause or upon agreement by
the parties.
Unless the parties agree otherwise, it shall be mandatory for the Voluntary Arbitrator or panel of
Voluntary Arbitrators to render an award or decision within twenty (20) calendar days from the date of
submission of the dispute to voluntary arbitration.
The award or decision of the Voluntary Arbitrator or panel of Voluntary Arbitrators shall contain the facts
and the law on which it is based. It shall be final and executory after ten (10) calendar days from receipt
of the copy of the award or decision by the parties.
Upon motion of any interested party, the Voluntary Arbitrator or panel of Voluntary Arbitrators or the
Labor Arbiter in the region where the movant resides, in case of the absence or incapacity of the
Voluntary Arbitrator or panel of Voluntary Arbitrators, for any reason, may issue a writ of execution
requiring either the sheriff of the Commission or regular courts or any public official whom the parties
may designate in the submission agreement to execute the final decision, order or award.
Comment:
Failure of the VA to render an award within the prescribed time, absent a contrary stipulation, shall, upon
complain of a party, be a sufficient ground for the Board to discipline said VA, pursuant to the guidelines
issued by the secretary. In cases where the recommended sanction is de-listing, it shall be unlawful for the
VA to refuse or fail to turn over to the BLR, for its further disposition, the records of the case within 10
calendars from the demand thereof.
Mode of appeal:
To the CA rule 43 section 1
Samahan ng mga mangagawa VS VA Froilan
Petitioner union argues that the proper remedy to assail a decision of a voluntary arbitrator is a special civil
action for certiorari under Rule 65 of the Rules of Court and not an appeal via a petition for review under
Rule 43. Petitioner unions theory is based on the following ratiocinations: first, the decision of the
voluntary arbitrator is similar to the decisions rendered by the National Labor Relations Commission
(NLRC) and the Secretary of Labor and Employment, which become final and executory after ten (10)
calendar days from receipt of notice, in that the Labor Code expressly disallows an appeal from their
judgment or final order; second, Section 2 of Rule 43, which exempts judgments or final orders issued
under the Labor Code from an appeal via Rule 43, should apply with equal force to decisions of labor
voluntary arbitrators.
The question on the proper recourse to assail a decision of a voluntary arbitrator has already been settled in
Luzon Development Bank v. Association of Luzon Development Bank Employees,12 where the Court held
that the decision or award of the voluntary arbitrator or panel of arbitrators should likewise be appealable to
the Court of Appeals, in line with the procedure outlines in Revised Administrative Circular No. 1-95 (now
embodied in Rule 43 of the 1997 Rules of Civil Procedure), just like those of the quasi-judicial agencies,
boards and commissions enumerated therein, and consistent with the original purpose to provide a uniform
procedure for the appellate review of adjudications of all quasi-judicial entities.13
Subsequently, in Alcantara, Jr. v. Court of Appeals,14 and Nippon Paint Employees Union v. Court of
Appeals,15 the Court reiterated the aforequoted ruling. In Alcantara, the Court held that notwithstanding
Section 2 of Rule 43, the ruling in Luzon Development Bank still stands. The Court explained, thus:
The provisions may be new to the Rules of Court but it is far from being a new law. Section 2, Rules 42 of
the 1997 Rules of Civil Procedure, as presently worded, is nothing more but a reiteration of the exception
to the exclusive appellate jurisdiction of the Court of Appeals, as provided for in Section 9, Batas Pambansa
Blg. 129, as amended by Republic Act No. 7902:
(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including the
Securities and Exchange Commission, the Employees Compensation Commission and the Civil Service
Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with
the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the
provisions of this Act and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth
paragraph of Section 17 of the Judiciary Act of 1948.
The Court took into account this exception in Luzon Development Bank but, nevertheless, held that the
decisions of voluntary arbitrators issued pursuant to the Labor Code do not come within its ambit x x x16
On some occasions, rules of procedure may be relaxed and on that basis the Court of Appeals could have
treated the petition for certiorari as a petition for review under Rule 43. However, as correctly pointed out
by the Court of Appeals, the petition was filed beyond the reglementary period for filing a petition for
review under Rule 43. It is elementary in remedial law that the use of an erroneous mode of appeal is a
cause for dismissal of the petition for certiorari and it has been repeatedly stressed that a petition for
certiorari is not a substitute for a lost appeal.17
Chapter I
STRIKES AND LOCKOUTS
Article. 263. Strikes, picketing and lockouts
(a) It is the policy of the State to encourage free trade unionism and free collective bargaining.
(b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or
for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket
and of employers to lockout, consistent with the national interest, shall continue to be recognized and
respected. However, no labor union may strike and no employer may declare a lockout on grounds
involving inter-union and intra-union disputes.
(c) In case of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of
strike or the employer may file a notice of lockout with the Ministry at least 30 day before the
intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the
absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any
legitimate labor organization in behalf of its members. However, in case of dismissal from
employment of union officers duly elected in accordance with the union constitution and by-laws,
which may constitute union busting, where the existence of the union is threatened, the 15-day
cooling-off period shall not apply and the union may take action immediately. (As amended by
Executive Order No. 111, December 24, 1986).
(d) The notice must be in accordance with such implementing rules and regulations as the Minister of
Labor and Employment may promulgate.
(e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and
conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the
requisite number of days from the mandatory filing of the notice, the labor union may strike or the
employer may declare a lockout.
(f) A decision to declare a strike must be approved by a majority of the total union membership in the
bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose.
A decision to declare a lockout must be approved by a majority of the board of directors of the
corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting
called for that purpose. The decision shall be valid for the duration of the dispute based on
substantially the same grounds considered when the strike or lockout vote was taken. The Ministry
may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret
balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting
at least seven days before the intended strike or lockout, subject to the cooling-off period herein
provided. (As amended by Batas Pambansa Bilang 130, August 21, 1981 and further amended by
Executive Order No. 111, December 24, 1986).
(g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, the Secretary of Labor and Employment may assume
jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory
arbitration. Such assumption or certification shall have the effect of automatically enjoining 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 and the employer shall immediately resume operations and readmit
all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary
of Labor and Employment or the Commission may seek the assistance of law enforcement agencies
to ensure compliance with this provision as well as with such orders as he may issue to enforce the
same.
In line with the national concern for and the highest respect accorded to the right of patients to life
and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every
extent possible, be avoided, and all serious efforts, not only by labor and management but
government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on
such life and health, through the exercise, however legitimate, by labor of its right to strike and by
management to lockout. In labor disputes adversely affecting the continued operation of such
hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out
employer to provide and maintain an effective skeletal workforce of medical and other health
personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to
insure the proper and adequate protection of the life and health of its patients, most especially
emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of
Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of
the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission
for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply
with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and
Employment or the Commission, under pain of immediate disciplinary action, including dismissal or
loss of employment status or payment by the locking-out employer of backwages, damages and other
affirmative relief, even criminal prosecution against either or both of them.
The foregoing notwithstanding, the President of the Philippines shall not be precluded from
determining the industries that, in his opinion, are indispensable to the national interest, and from
intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or
terminate the same.
(h) Before or at any stage of the compulsory arbitration process, the parties may opt to submit their
dispute to voluntary arbitration.
(i) The Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall decide or
resolve the dispute, as the case may be. The decision of the President, the Secretary of Labor and
Employment, the Commission or the voluntary arbitrator shall be final and executory ten (10)
calendar days after receipt thereof by the parties. (As amended by Section 27, Republic Act No.
6715, March 21, 1989).
Article. 264. Prohibited activities. - (a) No labor organization or employer shall declare a strike or lockout
without first having bargained collectively in accordance with Title VII of this Book or without first
having filed the notice required in the preceding Article or without the necessary strike or lockout vote
first having been obtained and reported to the Ministry.
No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister 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 or lockout.
Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be
entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal
strike and any worker or union officer who knowingly participates in the commission of illegal acts
during a strike may be declared to have lost his employment status: Provided, That mere participation of a
worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a
replacement had been hired by the employer during such lawful strike.
(b) No 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 to self-organization or collective bargaining, or shall aid or abet such obstruction or interference.
(c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-
breaker.
(d) No public official or employee, including officers and personnel of the New Armed Forces of the
Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any
manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area,
or work in place of the strikers. The police force shall keep out of the picket lines unless actual violence
or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any
public officer from taking any measure necessary to maintain peace and order, protect life and property,
and/or enforce the law and legal order. (As amended by Executive Order No. 111, December 24, 1986).
(e) No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct
the free ingress to or egress from the employers premises for lawful purposes, or obstruct public
thoroughfares. (As amended by Batas Pambansa Bilang 227, June 1, 1982).
Article. 265. Improved offer balloting.
In an effort to settle a strike, the Department of Labor and Employment shall conduct a referendum by
secret ballot on the improved offer of the employer on or before the 30th day of the strike. When at least a
majority of the union members vote to accept the improved offer the striking workers shall immediately
return to work and the employer shall thereupon readmit them upon the signing of the agreement.
In case of a lockout, the Department of Labor and Employment shall also conduct a referendum by secret
balloting on the reduced offer of the union on or before the 30th day of the lockout. When at least a
majority of the board of directors or trustees or the partners holding the controlling interest in the case of
a partnership vote to accept the reduced offer, the workers shall immediately return to work and the
employer shall thereupon readmit them upon the signing of the agreement. (Incorporated by Sect ion 28,
Republic Act No. 6715, March 21, 1989).
Section 16. Effects on Existing Wage Structure. Where the application of the wage increase prescribed
herein results in distortions in the wage structure within an establishment which gives rise to a dispute
therein, such dispute shall first be settled voluntarily between the parties. In the event of a deadlock, such
dispute shall be finally resolved through compulsory arbitration by the regional arbitration branch of the
National Labor Relations Commission (NLRC) having jurisdiction over the workplace.
The NLRC shall conduct continuous hearings and decide any dispute arising from wage distortions within
twenty calendar days from the time said dispute is formally submitted to it for arbitration.
The pendency of a dispute arising from a wage distortion shall not in any way delay the applicability of the
increases in the wage rates prescribed under the Act.
Any issue involving wage distortion shall not be a ground for a strike/lockout.
Periods of notice
1) Bargaining deadlock (30)
2) ULP (15)
3) Union busting (immediately)
Concerted activity
Is one undertaken by two or more employees, or by one on behalf of others.
Strike
Is a cessation of work by employees in an effort to get more favorable terms for themselves, or as a concerted
refusal by the employees to do any work for their employer, or to work at their customary rate of speed, until the
object of the strike is attained by the employers granting the demanded concession.
Means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor
dispute (212 0)
Characteristics a strike
1. There must be an established relationship between the strikers and the person or persons against whom the
strike is called
2. The relationship must be one of E&E
3. 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 mens demands.
4. The contention advanced by the workers that although work ceases the employment relation is deemed to
continue albeit in a state of belligerent suspension
5. There is work stoppage which stoppage is temporary
6. The work stoppage is a legitimate labor organization and, in case of bargaining deadlock, is the employees
sole bargaining representative.
Lock out
Is the temporary refusal of any employer to furnish work as a result of an industrial or labor dispute; it is an
employers act excluding employees who are union members from the plant. It may affect all or less than all of the
employee-union members. It is an act directed at the union itself rather than at the individual employee-members of
the union.
Whipsaw strike
Also called a selective strike is a strike by a trade union against only one or a few employers in an industry or a
multi-employer association at a time. The strike is often of a short duration, and usually recurs during the labor
dispute or contract negotiations.
Examples of a valid lockout
1. In anticipation of a threatened strike, where motivated by economic considerations
2. In response to unprotected strike or walk out
3. In response to a whipsaw strike
Comment
A lockout must be for a lawful purpose and carried out through lawful means.
Kinds of strike
1. Extent
a. General
b. Local or particular
2. Nature of the act
a. Strike proper
b. Sit-down
c. Partial or quickie strike
3. Degree of employee interest
a. Primary
b. Secondary
c. Sympathetic
4. Purpose or nature of employee interest
a. Economic strike
b. Unfair labor practice strike
General strike
Extends over a community, province, state or country. It is an extended form of sympathetic strike, involving many
workers who cease to work in sympathy with the workers of another employer, or in order to put pressure upon the
government or in order to paralyze the present economic systems
Lock down
Is one undertaken by workers in a particular enterprise, locality, or occupation; it usually involves only one union or
only one industry
Sit-down strike
Is a method of a prosecuting a strike in which the stiking employees of the offending employer remain on the
employers business premises, and, without working themselves, retain such dominion over the plants facilities so
as to prevent access to and the continued operation of these facilities.
Slow down
Is a willful reduction in the rate of work by a group of employees for the purpose of restrincting the output of the
employer. Otherwise stated, is a method by which ones employees, without seeking a complete stoppage of work,
retard production and distribution in an effort to compel compliance by the employer with the labor demands made
upon him.
Wildcat strike
Us a work stoppage that violates the labor contract and is not authorized by the union.
Secondary strike
Refers to a coercive measure adopted by workers against an employer connected by a product or employment with
alleged unfair labor conditions or practices. It occurs when a group of employees refuse in concert to remain at work
for an employer, not because of any complaint over their labor standards under him, but because he persists in
dealing with a third person against whom they have a grievance.
Sympathetic strike
Is stoppage of work to make common cause with other strikers in other establishments or companies, without the
existence of any labor dispute between the striking employees and their own employer. It is deemed to be anlawful
infliction of damage, aimless and unjustifiable because of the absence of any direct economic advantages to the
group of workers participating in it.
Economic strike
Is intended to force wage and other concessions from the employer, which he is not required by law to grant. It is
declared for the purpose of securing higher wages and for their immediate conditions of labor as a shorter work day,
higher rate OT pay, and such other economic benefits as are usually included in a collective bargaining contract.
ULP strike
Is called against the ULP of the employer, usually for the purpose of making him desist from further committing
such practices.
Note:
A valid strike requires a labor dispute between the parties. Hence when there is no dispute or the dispute has nothing
to do with the terms and conditions of employment in the establishment, the stoppage of work but its employees has
no basis in labor laws and the employees who engage in the work stoppage actually commit an illegal strike and take
the risk and consequences of such an illegal act.
Comment:
1. Pacific measures must first be exhausted by the employees before they stage a strike otherwise the strike
may be held as premature and rendered invalid.
2. Issues pending resolution in arbitration proceedings, whether compulsory or voluntary, cannot serve as
basis of a strike. To resort to strike despite ongoing arbitration is an act amounting to sabotage of a peaceful
conciliatory process.
Strike-breaker
Is a person who obstructs, impedes or interferes with by force, violence coercion, threats or intimidation any
peaceful picketing by employees during any labor controversy affecting wages, hours, or conditions of work or in
the exercise of the right of self-organization or collective bargaining.
Comment:
The right to strike includes the right to use peaceable and lawful means to induce present and expectant employees
to join the ranks of the strikers.
During a strike the E&E relationship is not terminated but merely suspended as the work stoppage is not permanent
but only temporary hence the employer is required to reinstate the striking employees to their positions once the
lawful strike has terminated. Also, since the employee relationship has been suspended the workers who went on
strike is not entitled to payment of wages.
Comment:
Once a labor dispute has been decided as appropriate for preventive mediation, the effect of that declaration by the
NCMB is the dropping of the case from the docket of notice of strikes, as provided in its rules. Hence the effect is as
if there was no notice of strike ever filed therefore during the pendency of the preventive mediation proceedings no
strike could be legally declared.
Comment:
If the ground relied upon for the strike is bargaining deadlock, notice must be given to whether the bargaining or
negotiations were conducted during the notice period (60 days), prior to the expiration date of the existing CBA.
Comment:
the assumption of the SOLE of jurisdiction over a labor dispute which is causing or likely to cause a strike or
lockout in an industry indispensable to the national interest, the law grants the SOLE the jurisdiction to decide the
labor dispute but not the legality of the strike if done.
PAL vs SOLE
Under Art. 263 of the Labor Code, the Labor Secretary's authority to resolve a labor dispute within 30 days from the
date of assumption of jurisdiction, encompasses only the issues in the dispute, not the legality or illegality of any
strike that may have been resorted to in the meantine (Binamira vs. Ogan-Occena, 148 SCRA 677, 685 [1987]).
Indeed, as found by the Labor Secretary in his Order of January 21, 1989, the only issues involved in the dispute
were:
The legality or illegality of the strike was not submitted to the Secretary of Labor for resolution.
The jurisdiction to decide the legality of strikes and lock-outs is vested in Labor Arbiters, not in the Secretary of
Labor.
Note:
The 7 day period must be added to the cooling of period.
Purpose of periods:
1. 30 and 15 day period to allow the parties to calm down
2. 7 day period to allow the NCMB to determine the veracity of the strike report
3. 24 hour period, to allow the NCMB to determine if there is a need to supervise the voting.
Comment:
The non-observance of the procedural requirements will render the strike illegal.
Conversion doctrine
Refers to instances where the strike begun as a strike over bargaining demands which subsequently
became an unfair labor practice when the employer refused to bargain.
Comment:
The effect is that the employees permanently replaced during the economic phase of the strike are not
entitled to immediate reinstatement whereas those permanently replaced after the date of conversion are
entitled to immediate reinstatement
Note:
The inability of the employer to grant the demands of the union, even if real, will not render the strike
illegal, since the ability to grant and the right of the individual to strike are different matter. Hence the
option given to the employer is to reject the proposal and bargain with the employee.
Note:
Good faith is insufficient, the good faith must be based on a rational basis.
Comment:
The SC ruled that the no strike clause is applicable only to economic strikes and not to ULP. However
Comment:
General rule:
A strike for union recognition is not a lawful purpose and rendering it illegal. The appropriate remedy is
to seek for certification election specially when its majority status has not been proven since there are
several unions present in the bargaining unit, it takes the form of a intra-union dispute.
Exception:
The SC considered a strike legal despite the fact that the initial purpose of the strike is to compel
recognition by the employer of the union under the reason that the majority status has in fact been proved
despite absence of certification election and that the employer employed dilatory tactics as it did not
attend conciliatory and mediatory proceedings plus the fact that the certification election has been
pending for 6 years already, this situation falls under the ULP of refusal to bargain.
Note:
If new policies are executed or laid down by the employer by virtue of its management prerogative and
the union believes such is discriminatory or unreasonable, they must follow the grievance procedure they
have laid down and negotiate within the terms thereof. Until the said policies has been declared either by
a competent authority or by their mutual assent, the said employees are bound to comply with said
management prerogatives.
Prohibited activities:
1. Commit any act of violence, coercion or intimidation
2. Obstruct the free ingress to or egress from the employers premises for lawful puposes
3. Obstruct public thoroughfares.
Note:
The commission of an illegal act by an employee during a strike is sufficient ground to dismiss an
employee however, the employer must before dismissing the employee conduct an investigation on the
same and provide the employee the right to strike otherwise it may be subject to nominal damages.
Comment:
Strike held for a valid purpose shall remain valid even if there are isolated acts of violence, only the
perpetrators would be accountable for those acts however when the perpetration of the unlawful acts are
pervasive and widespread, the same will constitute the strike illegal, however there must be sufficient
proof of actual authorization or ratification of such acts after actual knowledge thereof, the dismissal of
all active participants of the strike will be justified (read pp597).
Note:
The general banking law, explicitly classifies banking an industry indispensable to the national interest.
Note:
The assumption or notification is immediately executory even if there is no return to work order, the
parties are enjoined to return to work upon receipt of the assumption or certification order by the SOLE.
Refusal to receive the assumption or certification order amounts to defiance of the said order from then on
the strike became unlawful.
Comment:
Defiance of a RTWO (return to work order) is considered an illegal act, thereby not only the officers who
knowingly took part in the illegal act can be dismissed but also the employees who knowingly took part
in the illegal act, hence article 264 (3)
No strike or lockout shall be declared after assumption of jurisdiction by the President or the
Minister 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 or lockout.
Comment: reason why the defiance of the RTWO is a prohibited act therefore illegal act.
The effect of which is the succeeding paragraph
Any worker whose employment has been terminated as a consequence of any unlawful lockout
shall be entitled to reinstatement with full backwages. Any union officer who knowingly
participates in an illegal strike and any worker or union officer who knowingly participates in the
commission of illegal acts during a strike may be declared to have lost his employment status:
Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient
ground for termination of his employment, even if a replacement had been hired by the employer
during such lawful strike.
Section 6 Rule IX, of the New Rules of Procedure of the NLRC, which provides the penalties for
defying a certification order of the Secretary of Labor or a return-to-work order of the
Commission, also reiterates the same penalty. It specifically states that non-compliance with the
aforesaid orders, which is considered an illegal act, "shall authorize the Secretary of Labor and
Employment or the Commission . . . to enforce the same under pain of loss of employment status."
Under the Labor Code, assumption and/or certification orders are similarly treated.
Note:
In order for the refusal to constitute defiance there must be proof of unjustifiable refusal to retrun to work
despite knowledge over the same. Hence it must be accompanied by overt acts unerringly pointing to the
fact that the employee simply refused to comply with the order.
The issuance of the RTWO or assumption or certification order has the effect of enjoining all acts of
protest from both side hence the parties are ordered to return to work under the conditions prevalent prior
to the strike. Therefore the employer may be compelled to readmit the employees despite pendency of
criminal prosecution of their acts since the provision of law requiring such is not for the protection of
neither the employees nor the employer but of the states interest in having the industry continue its work.
Note must be taken that under special circumstances the same may be allowed to readmit them to the
payroll.
The readmission must be actual and not merely for purposes of payroll otherwise the purpose of the
assumption/certification, to protect national interest, will be defeated.
Note:
All issues involved in the labor dispute must be heard and determined by the NLRC branch to which the
certification by the SOLE referred to.
Comment:
The determination of the legality or illegality of a strike and the corresponding dismissals thereon is as a
general rule not covered by the authority of the SOLE when it assumed jurisdiction however if the same
has been submitted to him for resolution the same will be within his jurisdiction to determine.
Picketing
Refers to the pacing of back and forth and voicing their grievances with or without stoppage of work. If
without, the picketing is not accompanied by a strike and shall be governed by the rules of right of
expression. The same must be in constant motion since if they are they are covered by the right of the
general public to the right of passage, easement of passage. If they are not moving and may be considered
as squatting they would exceed the public easement and would constitute an enjoinable trespass.
Comment:
Picketing the home of the employer is not allowed unless the home itself is the place of business of the
employer since the law requires that the same must be conducted in the enterprise
Note:
Shop stewards, due to their positions as the first line of assistance in addressing grievances of their
members with the employers are considered union officers. Therefore if they knowingly participated in an
illegal strike they will be deemed to have forfeited their employment.
Note:
As a general rule, the striking employees who voluntarily went on strike cannot secure payment of wages
under the principle of fair days wage. However if the following circumstance concur and the ground of
the strike is for ULP, they are subject to the discretion of the court entitled to back pay:
1. The strike was legal
2. There was an unconditional offer to return to work
3. That the strikers were refused reinstatement.
2 types of Boycott:
1. Primary boycott
Where the union refuses to use or purchase the product/s of the employer and peacefully persuade
third parties to do the same
2. Secondary boycott
Is committed when the union through force, violence or intimidation coerce third parties to
remove their patronage from the employer, commission of such will render the perpetrators liable
for damages.
Damages incurred during strikes
General rules:
The LLO as well as its members are not liable to damages incurred by reason of a lawful strike
conducted by lawful means since such damages are deemed incidental and damnum absque
injuria.
Only those who committed unlawful or prohibited acts will be liable for their acts unless they
were authorized and/or ratified by another party, the other party will also therefor be liable.
Union officers are liable for damages resulting from unlawful acts if they participated in it or that
there was conspiracy to perpetrate it.
Members are not liable for damages for acts of their unions except:
o Where they authorized or ratified the act
o They participated in its commission
o They directed its commission.
Chapter II
ASSISTANCE TO
LABOR ORGANIZATIONS
Article. 267. Assistance by the Department of Labor.
The Department of Labor, at the initiative of the Secretary of Labor, shall extend special assistance to the
organization, for purposes of collective bargaining, of the most underprivileged workers who, for reasons
of occupation, organizational structure or insufficient incomes, are not normally covered by major labor
organizations or federations.
Chapter III
FOREIGN ACTIVITIES
Article. 269. Prohibition against aliens; exceptions.
All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging
directly or indirectly in all forms of trade union activities without prejudice to normal contacts between
Philippine labor unions and recognized international labor centers: Provided, however, That aliens
working in the country with valid permits issued by the Department of Labor and Employment, may
exercise the right to self-organization and join or assist labor organizations of their own choosing for
purposes of collective bargaining: Provided, further, That said aliens are nationals of a country which
grants the same or similar rights to Filipino workers. (As amended by Section 29, Republic Act No. 6715,
March 21, 1989).
(b) This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in cash
or in kind, given directly or indirectly to any employer or employers organization to support any
activity or activities affecting trade unions.
(c) The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and
receiving of such donations, grants, or other forms of assistance, including the mandatory reporting of
the amounts of the donations or grants, the specific recipients thereof, the projects or activities
proposed to be supported, and their duration.
(b) Upon the recommendation of the Minister of Labor and Employment and the Minister of National
Defense, foreigners who violate the provisions of this Title shall be subject to immediate and
summary deportation by the Commission on Immigration and Deportation and shall be permanently
barred from re-entering the country without the special permission of the President of the Philippines.
(As amended by Section 16, Batas Pambansa Bilang 130 and Section 7, Batas Pambansa Bilang 227).
The Secretary of Labor shall also inquire into the causes of industrial unrest and take all the necessary
steps within his power as may be prescribed by law to alleviate the same, and shall from time to time
recommend the enactment of such remedial legislation as in his judgment may be desirable for the
maintenance and promotion of industrial peace.
(b) The Secretary of Labor and Employment or his duly authorized representatives may, from time to
time, call a national, regional, or industrial tripartite conference of representatives of government,
workers and employers for the consideration and adoption of voluntary codes of principles designed
to promote industrial peace based on social justice or to align labor movement relations with
established priorities in economic and social development. In calling such conference, the Secretary
of Labor and Employment may consult with accredited representatives of workers and employers.
(As amended by Section 32, Republic Act No. 6715, March 21, 1989).
Tripartism
Is representation of the three sectors (governemnet, employer, employee) in policy making bodies of the
government.
(b) Subject to the constitutional right of workers to security of tenure and their right to be protected
against dismissal except for a just and authorized cause and without prejudice to the requirement of
notice under Article 283 of this Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the causes for termination and
shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and regulations promulgated
pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the
employer shall be without prejudice to the right of the worker to contest the validity or legality of his
dismissal by filing a complaint with the regional branch of the National Labor Relations Commission.
The burden of proving that the termination was for a valid or authorized cause shall rest on the
employer. The Secretary of the Department of Labor and Employment may suspend the effects of the
termination pending resolution of the dispute in the event of a prima facie finding by the appropriate
official of the Department of Labor and Employment before whom such dispute is pending that the
termination may cause a serious labor dispute or is in implementation of a mass lay-off. (As amended
by Section 33, Republic Act No. 6715, March 21, 1989).
(c) Any employee, whether employed for a definite period or not, shall, beginning on his first day of
service, be considered as an employee for purposes of membership in any labor union. (As amended
by Section 33, Republic Act No. 6715).
(d) No docket fee shall be assessed in labor standards disputes. In all other disputes, docket fees may be
assessed against the filing party, provided that in bargaining deadlock, such fees shall be shared
equally by the negotiating parties.
(e) The Minister of Labor and Employment and the Minister of the Budget shall cause to be created or
reclassified in accordance with law such positions as may be necessary to carry out the objectives of
this Code and cause the upgrading of the salaries of the personnel involved in the Labor Relations
System of the Ministry. Funds needed for this purpose shall be provided out of the Special Activities
Fund appropriated by Batas Pambansa Blg. 80 and from annual appropriations thereafter.
(Incorporated by Batas Pambansa Bilang 130, August 21, 1981).
(f) A special Voluntary Arbitration Fund is hereby established in the Board to subsidize the cost of
voluntary arbitration in cases involving the interpretation and implementation of the Collective
Bargaining Agreement, including the Arbitrators fees, and for such other related purposes to promote
and develop voluntary arbitration. The Board shall administer the Special Voluntary Arbitration Fund
in accordance with the guidelines it may adopt upon the recommendation of the Council, which
guidelines shall be subject to the approval of the Secretary of Labor and Employment. Continuing
funds needed for this purpose in the initial yearly amount of fifteen million pesos (P15,000,000.00)
shall be provided in the 1989 annual general appropriations acts.
The amount of subsidy in appropriate cases shall be determined by the Board in accordance with
established guidelines issued by it upon the recommendation of the Council.
The Fund shall also be utilized for the operation of the Council, the training and education of
Voluntary Arbitrators, and the Voluntary Arbitration Program. (As amended by Section 33, Republic
Act No. 6715, March 21, 1989).
(g) The Ministry shall help promote and gradually develop, with the agreement of labor organizations
and employers, labor-management cooperation programs at appropriate levels of the enterprise based
on the shared responsibility and mutual respect in order to ensure industrial peace and improvement
in productivity, working conditions and the quality of working life. (Incorporated by Batas Pambansa
Bilang 130, August 21, 1981).
(h) In establishments where no legitimate labor organization exists, labor-management committees may
be formed voluntarily by workers and employers for the purpose of promoting industrial peace. The
Department of Labor and Employment shall endeavor to enlighten and educate the workers and
employers on their rights and responsibilities through labor education with emphasis on the policy
thrusts of this Code. (As amended by Section 33, Republic Act No. 6715, March 21, 1989).
(i) To ensure speedy labor justice, the periods provided in this Code within which decisions or
resolutions of labor relations cases or matters should be rendered shall be mandatory. For this
purpose, a case or matter shall be deemed submitted for decision or resolution upon the filing of the
last pleading or memorandum required by the rules of the Commission or by the Commission itself,
or the Labor Arbiter, or the Director of the Bureau of Labor Relations or Med-Arbiter, or the Regional
Director.
Upon expiration of the corresponding period, a certification stating why a decision or resolution has
not been rendered within the said period shall be issued forthwith by the Chairman of the
Commission, the Executive Labor Arbiter, or the Director of the Bureau of Labor Relations or Med-
Arbiter, or the Regional Director, as the case may be, and a copy thereof served upon the parties.
Despite the expiration of the applicable mandatory period, the aforesaid officials shall, without
prejudice to any liability which may have been incurred as a consequence thereof, see to it that the
case or matter shall be decided or resolved without any further delay. (Incorporated by Section 33,
Republic Act No. 6715, March 21, 1989).