LABOR STANDARDS TSN

2 MANRESA 2016

June 17, 2016

Febray Suico
1st Part of the lecture

The first labor legislation that came out was employees compensation, workmens compensation. Thats
the first labor law that came out. If you want to study further employees compensation you have to go to England
because that is where it begun. In the faculty we have a Masters in Social Security Law from the London School of
Economics Atty. Angeles.

So, does the US Constitution have social justice? It does not! And yet it has labor laws. Our labor laws are
copied from the US labor laws. The Labor Standards Law was copied from the US Labor Standards Laws. Our Labor
Relations Laws were copied from their Labor Relations Act. Our social security is copied from the US Social
Security. But there are certain features in our law that supersede their labor relation law, their labor standards
laws.

Why dont they have social justice in their Constitution? Because they assume that everyone in their
society stands on equal footing with everyone else.

In the United States, there is no such thing as security of tenure. They have employment at will. So if
your engagement is without a term, you can be fired at any time. You can also leave at anytime, with or without
cause. But for us, if your engagement is without a term, the employer can only terminate you or dismiss you if
there is cause; and cause can be just cause your fault or a neutral cause authorized cause. The obligation of the
employer is open-ended. There is no limit. The only limit is your retirement age. Why is that? Thats because of
Social Justice; to tilt the balance.

All of a sudden, the employer, who is not related to you, has the obligation to provide you with a job
without end. He has the obligation to keep you working. As long as, there is no just or authorized cause. It would
seem that he has a higher obligation to support you than the parents that brought you to this world. That is social
justice. Economists are saying that, necessarily a modern economy must be able to withstand a certain amount of
unemployment. Why? Because there are changes in the economy. The example Id like to give is cooking rice. The
original Filipino pot for cooking rice is the earthen pot made out of clay. That gave a job to so many potters.
Eventually that colon was replaced by the cauldron - kaldero. When the cauldron started to come into use, the
pot-makers ran out of job. Naa na may kaldero. When that kaldero was replaced by, unsa na man run? Rice cooker
na man. Kinahanglan na man tag electronics gamay ana. Aluminum, unsa na dinha. E di nawad-ag trabaho ang mga
mamuhat ug kaldero. Karon naa na gani pyrex, diba? Straight from the oven, right to the table. Mao manay
attraction anang pyrex. Special kind of glass. Now, they are saying that the usual unemployment which is called
frictional unemployment, because the movement of the economy, has now become structural unemployment. Why
has it become structural? Because there is a third revolution, there is a post-industrial revolution. Digitalization,
computerization. Those who can get those jobs are those who spend the longest time in school doing nothing, like
YOU. Those who do not have enough schooling will remain in the fringe of the economy. So, good to realize that
because this Constitution, subscribes _____ ideal, tenets full employment. That is a myth, you cannot have full
employment. No descent economist will tell you that the society can achieve full employment. There is always a
fraction of unemployed. If you are all fully employed, then you are the Soviet Union before it collapsed. The state
was the biggest employer and they just paid so many people. Until finally the burden was so heavy, it became
unbearable. They cannot maintain that.

Now you see the SC decisions coming out. Theyre exactly the opposite of what all the presidential
candidates promised. Remember? None of the candidates for president were in favor contract work. All of them
said Im going to abolish contractualization. From Mar Roxas to Digong to everybody, said they are against
contractualization. Regular work, Constitution, no termination or dismissal - that was the promised. To stick to
what, imprint, security of tenure, Article 13 Section 3 of the Constitution. Can they achieve? What is the biggest
contributor to the economy? The GDP? GNP? The biggest contributor is the OFW money that runs up to, todays
reckoning is about 27 Billion Dollars a year. All those people are contractual workers. Second? The BPO call
centers. They are already approaching 24 Billion a year. What are those people? Are they regular workers? They
are contractual workers. The call center agency contracts with the principal abroad, then hires people to meet
that contract. What happens when that principal abroads says no more, cut off? Wa ka sab. You will be
terminated. Its contractual. All those candidates were making promises they could not deliver.

Thats why there is a 2015 case, Fonterra vs Court of Appeals [Fonterra Brands vs Lagardo?]. It
overturned a 25 year old case - California manufacturing vs Paras. California Manufacturing said if you employ an
agency to do your promo marketing, launching of product, they are regular workers because they are made to
perform activities which are usual or necessary to the usual trade or business. Im jumping the gun ha? Because I
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2 MANRESA 2016

want you to feel the basic issues and what it is outside. Kanang mga special offer, promo, manuktok sa balay.
Palita ni ninyong bag-ong skin whitener. Suroy-suroy na sila. Unya lagom lagi ka kaayo, day? Unsaon mana nimo pag
baligya nang skin whitener? Ikaw ba, suroy daw ug di ba ka manglagom.

The ruling in California is REGULAR. That is despite what was written in the mother contract between the
indirect employer and the man-power agency. They said, employee-employer relationship with these people is
with _____ the man-power agency. A promotional is a temporary activity. The SC says there is no consumer
product that does not go into promotional merchandising marketing, therefore, it is usual and necessary to a trade
and business. That was the ruling in 1989, 26-27 years ago. Now there is Frontera. Frontera Branch vs Court of
Appeals, 2015 case. SC says its valid contractualization. The SC is moving towards legitimizing contract
employment despite a specific provision in our labor law on presumption of regularity of employment.

Kanang Corporations, that are purely for selling real property. Real property developers they go into
place, they buy piece of land, they develop it and then they enter into contract with a realty marketing ______. Is
that allowed? Royal House, 2014, SC now says that is bona fide contractual employment. They are not regular
employees. Normally, the reasoning what makes you regular is if you are engaged to perform activities which are
usual and necessary to the usual trade or business of the employer. If you are a developer, normal, usual to your
activity of developing lands is to sell the lands, otherwise, why do you go and develop it? So the selling of it is
usual and necessary. So, the SC now says, you can contract it out because it is not usual and necessary to trade or
business. Contract, if you terminate the contract then you can terminate the employees. So what does that tell
you? Work, the nature of work is changing. And sad to say, our laws have to catch up to the change. We have to
catch up.
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June 17, 2016

Manette Jaron
2nd part of the lecture

Social Justice begins as a mandate from the fundamental law to the legislator to pass laws that are geared to a
disadvantage, and the beneficiaries of society. Now, it is also a mandate to the executive and that the executive
has several arms: it has Department of Labor, it has Department of Agrarian Reform, DSWD, and so many. They
have different departments that execute these laws and then there also a mandate to the judicial. What is the
mandate to the judicial? As far as the social justice laws are concern, if there is a doubt, it must be interpreted in
favor of labor. Now, ____ you have seen from your political law all legislations necessarily involves classifications,
there is such a thing as undue classification where the classification has nothing to do with the purpose of the law.
Kanang dili muabot ug 5 feet and height dili mahimong bartender, unsa mana? Tingali pulis there is classification
with purpose because the classification is germane to the purpose. Below 5 feet ka dili ka mahimong pulis kung
Amerikano imong kalaban 68 ang height wa na gimudmud naka! There must be some connection to the purpose
of the law.

Because the classification is already made in the constitution before working women, subsistence fishermen,__.
Judicial discretion is no longer available to hold this legislation as products of undue classification. They cannot. It
is only fixed in the constitution. It cannot be challenged. So that is you think why it is in the fundamental law? And
yet all these things mentioned in the Article XIII Section 3 all the labor laws there: right to set up organizations,
right to a just and humane conditions at work, right to seek security of tenure, right to share in the goods of
production, etc. taas kaayo na, taas kaayo nang listahan ana.

In the SC sometimes say there are constitutional rights and there are unconstitutional rights. Just because it is
mention in the constitution they are constitutional right. The constitutional rights are the bill of rights, they are
there and they do not need any implementing legislation. All labor rights still need implementing legislation. They
are only constitutional rights in the secondary sense, in the sense that they are mention in the constitution but
they are not in the same level as the bill of rights because the bill of rights cannot even be repealed by Congress!
Precisely it is taken out of the discretion of the legislators because it is so precious. It cannot be touched. It is
essential to our form of government and the nature of our society: freedom of speech, freedom to assemble
peaceably and to petition government for grievance, rights of the accused. They cannot be touched.

So, it took the SC a while to come in the decision that the termination of an employee is not a violation of due
process. En banc decision, Serrano v NLRC, Justice Vicente Mendoza penned that is not a violation of due process.
That is a violation of the requirement of process in the Labor Code (LC) before you can terminate anybody you
must give him two notices, you must investigate, etc., that is a requirement in the LC because your right to due
process is vis--vis with the government it is not your right with the employer.

So, with respect to labor rights: security of tenure, the right to strike, the right to organize as a union, they are all
mentioned in the constitution. Suppose the legislator does not pass laws or repeals these laws, what happens? And
you are in the labor sector you want these rights restored, what is your remedy, if any? Can you go to the SC and
ask for an injunction to stop and request in amending this LC so that these rights will be remained sacrosanct __?
You have NO judicial remedy, your remedy is political in nature. Elect people who will be congressman and
senators who will pass laws that are implementing the various labor laws and rights that are mention in the
constitution, that is your remedy. So very important!

Social Justice is a thrust, it pronounced direction but it requires implementing legislation.

What is the difference between Social Justice and Parens Patriae? Parens Patriae is action by the State by way of
exceptions now and then if there are orphans and there are relatives taking care of the orphans, parens patriae is
not activated but social justice is a permanent posture of the state because the problems in the society is
structural, so many have so little and only a few who have so much more__.

Inequality is what social justice pushed __ but mind you there are serious reflections of the inequality. It is said
that if you begin with inequality you will always end with inequality. When we are born to this world, we are
unequal some are born tall some are born shortif we are born that way, what is the end product? Inequality lang
gihapon. There must necessarily be some inequality. So they say when is inequality glaring in economy? And they
say it is glaring inequality because for the first time in human history there is now enough means, enough
organization, enough resources to raise enough food for the entire 7 billion of the worlds population so that no
one, theoretically, should go hungry to bed every night and yet there are some go to bed hungry. They are
referring to those who are living below absolute poverty, those earning a dollar a day.
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Theoretically, no one should live on less than a dollar a day, we can raise enough food for everybody but because
of political obstructionism economic controls etc., there are a couple of billion people, 200M are refugees
uprooted from their lands

In your notes I have given examples of how social justice has been applied by our courts.

Almira v B.F. Goodrich Philippines This pronouncement the so-called compassionate justice was taken by the
entire labor tribunals to be very generous to the employees even if they have been terminated. The labor arbiter
will order the financial assistance. And that was for a long time, until finally the SC corrected it. When the SC put
an end to the financial assistance for dismissals to serious misconducts, the SC corrected it in the en banc decision
in PLDT v NLRC. Compassionate justice decision was finally overturned.

In spite of the 1988 decision (PLDT v NLRC), the labor arbiter still continued to order financial assistance for those
that were terminated.

Dismissal is for a cause while termination is because of a neutral cause, dili sayop ni employer because of
retrenchment, loss, labor lessening crisis. The employees are not at fault.

When it is authorized cause, there are benefits but in the labor arbiters sometimes awarded financial assistance
ON TOP of separation benefits when they were stop? In SolidBank v NLRC

From the private sector we go to the public sector.

With respect to erring employees in government, the decisions of the SC is erranting until you have this case of
Dumduma v Civil Service Commission en banc decision but a per curiam decision. What is a per curiam decision? It
is not signed by any justice. It is not authored. In that decision, Justice Drilon wrote a very strong dissenting
opinion. He is a member and officer of Philippine National Police who falsified his records and papers when he is
up for promotion for general. He submitted the papers under oath and not only under oath but verified! What is
the difference between under oath and verified? In oath, you signed, subscribed and sworn to but when you
verified, you execute an affidavit I verified that all that is contained in this petition is true and correct within my
OWN PERSONAL knowledge, not the best of my knowledge. You cannot escape, you can be held for perjury. The
court (in this case) in the name of social justice awarded him retirement benefits. Is he a hero? Pero malakas gud
tingali ni, kay ngano man? Per curiam gud, nauwaw ang mga huwes pero nigawas gihapon ang decision. One year
later, the minority dissenting of Drilon, became the majority opinion of the court en banc in the Civil Service
Commission v Veloso. Now if you are a government employee and you are dismissed for cause, no verdicts,
absolutely -___.

Is the length of your service not mitigating? No, it is not mitigating, it is aggravating according to the SC. The fact
that you have served the government you should have been faithful to the service because for a long time it is the
government that put food upon your table so you should have remained faithful and that what the SC said.

The fact that you have no record (of mistake), is that not mitigating? The SC says, NO it is not mitigating.

But I am afraid it took only just one year for the SC to move from financial assistance to no financial assistance it
might just take a couple of years, naa na sad bag-ong decisions na tagaan sa financial assistance.

Now, I put here this very famous case Cebu Royal Plant v Deputy Minister, penned by Justice Isagani Cruz, a
literature justice.

San Miguel requires medical examinations before you become regular, but here in this instance, San Miguel
administered an examination for this particular worker, in the eve of his last day for probationary period, he was
pull out from the assembly line. The result of his examinations was pulmonary tuberculosis minimal. (NOT
verbatim, just refer to handouts)
He filed an illegal dismissal on the strained of the provision of 281 now renumbered to 295 of the LC. Any
probationary worker who is made to work beyond the probationary period shall be ipso facto become regular. That
is what the law says. (Refer to the cited quotations of Isagani Cruz in the handouts).

***

The whole court is in favor of this single, solitary probationary worker who has been taken out from his job. Now
the dispositive portion of the case (Refer to handouts)
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Mao ra day gihapon, ug siga ra gihapon yahang baga kay x-rayhan man siya ug public health authority, city health
officer, dili siya kabalik. Shall be reinstated ONLY upon certification by a competent public health authority that
he is fit to return to work. What SC says is important, but what the SC does is more important than what it says.
Despite of the high language here, mao lang day gihapon. Kinahanglan lang gihapon tan-awon yahang baga kung
ubo-ubo gihapon siya.

Why is it important to have many cases (he is referring to the case list)? Because labor is very narrow. Most service
to another is free (eg. Nagaluto sa imong pagkaon sukad pagkabata wala nimo bayri). Now, as to those services
that are paid, gamay ra kaayo ang employer-employee relationship covered by LC. There is tenant and landlord,
bahin sila sa kita, he does not go to the labor arbiter in case there is controversy. So where does he go? To the DAR
Adjudicatory Board. What is use is not the LC.

There is quasi-contract, somebody takes over taking care of the house (in case of emergency), there was no
agreement as to compensation and yet you have to pay otherwise it is unjust enrichment. Do you go to labor
arbiter? NO.

That is why it is important to know whether or not it is the LC or whether it is an employer-employee. There are
many kinds of contract.

1. You need to know whether it is employer-employee relationship so that you will know what forum you will
resort to, where to file the action.
2. You need to know whether it is employer-employee relationship so that you will know what law is
applicable. Is it the LC, Civil Law, or CARL. What is it?

That is why the list of case is given.

Other examples:

Deep sea fishing sharing of the financier (tag-iya) ug mga tripulante. Ang share sa patron doble. Is that an
employer-employee relationship or an industrial partnership?

Mining sharing sa destinasyon (tag-iya) ug habantero (tig-basa sa mina) kauban ang mga kicker. Are latter
employees or industrial partners?

Industrial partners does not contribute money or property but only industry.

Jeepney drivers and operators? Lease or employer-employee relationship?

There is an old case which has now reaffirmed by a 2006 decision of the SC Villamaria v CA 19 April 2006. The SC
says, the boundary system is employer-employee relationship, so LC na! That is not lease. Daghan kaayo ang wala
kahibaw ana. Dili na lease!
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June 24, 2016

Shane Castro
1st Part of the Lecture

*NOTE: Word/s or phrase/s with yellow highlight- not so sure with the spelling and exact words na sinabi ni
father. Thank you.

I just came across the shortest decision I have ever read- 9 words. Decision by the US Supreme Court- came out on
June 23, 2016. Peculiar- the judgment is affirmed by an equally divided court, 4-4. Why is it peculiar? Because
there is no majority. Who will write the decision? Those against and those in favor of. Im going to give to you a
copy of the decision and the history and the analysis dictates because this is now a very 8:08. This is how the
United Kingdom government laws in the leave it or stay in the Euro vote- Brexit. That is the problem now in the
international labor, supposed to be no more borders. That was a big issue. The premiere of UK just resigned a
couple of hours ago because he lost the vote on whether or not the UK should stay or go. This one, I learn a new
phrase today which may be asked in the bar examination, the so called- take care clause. What is a take care
clause? In the Philippines I found in the Philippines Constitution it is the Insure Clause. The president of the
republic shall ensure the implementation and execution of the ___. That is the take care clause because in the
US Constitution, the President shall take care to implement and execute the laws. It was challenged in the
injunction case of Obamas executive order, the so called Gaka and Gapa. Gaka is the verb action for children
arrivals (10:10) ____. You are children, Obama said, you should not be deported because under national law
children are privileged. It should be (10:37) --____of the country where they are found. Obama ordered no no
deportation for children, what happened the number of children coming increased. Gapa. What is Gapa? The verb
action for parents of Americans. You are an illegal undocumented alien in the US and you are married lets say to
another illegal undocumented alien. You give birth to a son or daughter. That son or daughter is an American
citizen. The parents can no longer be deported. What happened? The republicans, 22 states that were controlled
by the Republican and 4 governors filed an injunction suit in the Texas Court and say that this executive order
should be nullified because this is against the duty of the president to take care that the laws are implemented
and to make our borders sacred. That there should be no unauthorized persons coming to the United States.

They go up to the district court- Court of Appeals. They also won. Now its the United States who goes up to
challenge the order. The first point to be challenged is procedural. Those who are suing if they have standing. The
question is a federal issue, which is a national issue. So therefore they have no standing that is the argument.
What is the argument of the States- we have standing. Why? Because the moment you are deferred from the
contention you are eligible to obtain drivers license and if you obtain a drivers license the fee that you pay in the
drivers license is not enough to pay the cost. The State subsidizes part of the cost of the drivers license so tax
payers money is spent on you- an illegal undocumented alien.

Read this case, a very good case. The Solicitor General of the United States says never, as the hopes of so many,
will crush by so few words. Its 9 words and the hopes of over 200,000 undocumented aliens have been crushed.
That sentence is a play of another very famous similar wording. And what is that? Never have the hopes of so many
be crushed by so few words. Where is that taken? Its taken from Winston Churchill 1944, Battle of London. For 48
hours bound London and the royal air force kept flying even if they were outnumbered. So many of them 48 hours
have no sleep and finally the Germans retreated and Churchills said never, in the history of human conflict, was
so much old by so many to supreme. Solicitor General says never, as the hopes of so many, be crushed by so few
words. Read more about it.

Now, let us go to the EMPLOYER-EMPLOYEE RELATIONSHIP

I would just like to point out to you the basics and then we move to the latest developments, some of which are
not contained in this list. But the landmark case of LVN vs Philippine Musicians Guild (1 SCRA 132, 1961) is the
most important labor case up to this point. So if there is only one labor case you have read, it should be this. You
cannot go to labor, true labor without having read this case. I have read this so many times because it is a
landmark case for employer-employee relationship. And it is a landmark case for labor relations which you will
later on take up in 3rd year.

This case is not (prior to this, father said na landmark daw pero diri ana siya na NOT. Just followed what he said) It
is a landmark case because of the enumeration of the requisites of the employer-employee relationship. It is a
landmark case because it gives the radical interpretation of understanding the 4 requisites of employer-employee
relationship. Earlier, in this case- in the case of Viana vs Al-labagan 1956, the SC enunciated the 4 requisites of
employer-employee relationship, you have employer-employee relationship, according to the SC, if you have:
1. Selection and hiring
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2. Payment of wages
3. Power to dismiss
4. Power to control

If you have those 4 then there is employer-employee relationship. Now, think about this question. Why is there
among the 4 no requirement of rendering of service? Why is there is no requirement of rendering of service? Can
you have employer-employee relationship even if no service is rendered? It seems yes because that is not required
in the 4 requisites. The 4 requisites only say selection and hiring, payment of wages, power to dismiss, and power
to control the needs and ___ not only the goal for the end to be achieved. Now, that is what Biana vs Al-labadan
case.

The SC in LVN says even if the first 3 are not complied with if you have the fulfillment of the 4th requisite there is
an employer-employee relationship. That is what is revolutionary about LVN vs Phil. Musicians Guild. They make
movies that is their business. In making a movie there is now music. Remember, even in the 1920s when there was
still no sound in movies there was only music that accompanied movies. (naa siya gi-murmur na example ata of
music). Unsa may music? Kanang movie dira na Charlie Chaplin nay babae na nagtugtug ug piano. Kay para dili
katulog ang tao.

Now, the appellants here, the LVN and premiere productions, they come a uniform way of drawing about making
movies. Lets say we will shoot this movie, in the shooting of movie they choose a musical director. And then they
pay him a lump sum amount because they agree as to what music should be appended to his movie. It could be an
original score which the musical director has to compose of the movie or the musical director just collects already
existing music and he will take care of paying the royalties because somebody owns this music already, nangawat
ka unya pagkadugay gi-compose adtong tag-iya sa music. So di ka kadawat ug movie, problema na sa musical
director.

Now, the musical director is the one who chooses the musicians. He chooses the composition of his musical ___
(24:01). How many wind instruments, how many string instruments, what kind of drums should be used, etc. It
depends on what kind of movie this. If it is a ____ movie what kind of instruments and music predominate. If it is a
____ (24:38) movie what kind of music. Its eerie sound (nag sound si father and nagkatawa ang class). Now, the
one who hires the musicians is not eminent of premiere productions. It is the musical director. The one who pays
them is not LVN or premiere production, it is the musical director. The one who dismissed them is not LVN or
premiere production, it is the musical director. The musical director is not an employee of LVN productions, he is
an independent contractor engaged to produce the music that is appended to the movie. So the first 3 requisites
are not present for LVN and premiere productions and yet the SC said that is employer-employee relationship.
That is why LVN and premiere productions have to allow a certification election because the musicians wanted to
form a labor union. A labor organization to intend to collective bargaining with LVN and premiere productions. The
SC says they must be allowed to go through a certification of election because there is employer-employee
relationship. And LVN says NO, they are not our employees. They are the employees of the independent contractor
that they have engaged. And in Viana vs Al-lagadan (not sure sa spelling) proceed out of the 4 requisites, 3 are not
clearly present.

Now, how is the 4th requisite- Power to Control, how is that shown? How is that shown? According to the decision,
that is shown:

In the so called call slips.

- When the musicians are gathered for parties or actual recording of the musics final version, they are called
by a system of slips. And the title of the slips is LVN Movie Productions and then puts down there the movie and
then it tells the musicians what time he will pick up and where he will be picked up and then he goes there making
two or three of them and then the LVN premiere productions comes to pick them up. Nganong special mani sila na
mga unggoya? (class laugh). Why are they picked up? Pangita ug jeepney na mo para nimo. Di ka pasakyon sa
jeepney. Maglisod man gani kag sulod ana wala man kay katupad ana. Miski taxi asa mana nimo ibutang sa atop? Di
ka magsilbi ana. Lets say you are a guitarist or violinist. Gamay mana so makasakay kag jeepney ana. If you are a
good violinist and then your violin is a Strapped, is there a danger to ride an ordinary jeepney? How much does an
ordinary Strapped cost? What is a Strapped? A violin that is a Strapped. Mr. Suy what is a Strapped? (Mr. Suy-te: its
a brand sir). It is a 18th century violin produces riches sound that can be produced by a violin. The cheapest
Strapped is around 50,000 US dollars. Unya isakay lang na nimo ug jeepney? Mao ng e-pickup sila.

In ____ (31:13) legislation once they meet an accident who is liable already? If they meet an accident and they are
sitting in the ___ (31:24) in truck. It is the LVN that will answer. Because the truck is an extension of the
workplace. It is owned and controlled by LVN. That is why they keep safe bringing their instruments to be picked
up by LVN. Now,when they are already in the LVN premises that is where they practice. If they reach a meal
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period. Naabtan sila ug paniudto. Unsa mana? Manglakaw sila? Sa Davao Famous sila mani-udto? Biyaan nila ilang
instruments? Di na mahimo. Adto na sila pakan-a didto. Who feeds them? LVN feeds them. They have the means.
So you can say the control of LVN. And by the way when we are recording the final version of the music that goes
with the movie, what happens? The musical director disappears from the scene. The movie director comes in and
dictates the tenor, the timing whatever of the music. It is now the movie director that intervenes. How slowly the
music is to be played, how fast it is to be played. And it ceases to be the work of the musical director. That is
control according to the SC. And because of that there is employer-employee relationship. If the control is meant
even if the 3 requisites are not meant there is employer-employee relationship. That is the novelty of the ruling of
LVN vs Phil. Musicians Guild.

Now, LVN and premiere productions recite the case, why the ruling of the SC should have been employer-employee
relationship. What is the place, also of the musicians? Tirso Cruz I vs Manila ___. Tirso Cruz I is the grandfather of
Tirso Cruz III. Who is Tirzo Cruz III? In your time he is an ____ actor who has ____ roles. He used to be the love
team of Nora Aunor. But we are not talking about him but his grandfather who used to have a band that was
engaged in Manila Hotel took play in the lobby of Manila Hotel. That was the job to entertain the customers and
visitors of the hotel. While playing there, he had a heart attack. He died and Vda. De Cruz filed an action to
correct from the workmans compensation. In the workmans compensation or work-related sickness or injury or
death, if you are in an employer-employee relationship. The issue is, is there employer-employee relationship
between Manila Hotel and Tirso Cruz I. The case went to the SC because Tirso Cruz was denied by the judgment of
the workmans compensation commission. So they appealed. The SC said, NO there is not. What is the difference
between Tirso Cruz I and his band and the musicians of LVN premiere productions? Both were engaged to play
music. SC said there is no control. The control test is not meant in the Tirso Cruz I vs Manila Hotel. Why? Tirso Cruz
I decided what to play, the sequence of the pieces that he is going to play. He did not have to submit the list of
pieces hell going to play. Because it is up to him. If he sees the reaction of the people that they dont like what
he is playing then he can change it. The goal and the object was to please of the visitors of Manila Hotel. No
employer-employee relationship, therefore you cannot collect a workmans compensation. Alright, the Control
Test. The control test. You google these cases it keeps coming back. The control cases that is the control test.
What is the control test? What is the extent of the control test?

Sterling Products vs Sol, we are talking here about an employee who was charge to listen to the radio and to take
note of when the advertisements of her employer is going to be played. Sterling Products is a pharmaceutical
company that sells pharmaceutical products over the counter. No need of prescription. Now, Sol a lady does not
have to report to the office, she just listens to the radio even at home. If she an employee or an independent
contractual employee? Because the reason why Sterling products denies employer-employee relationship states
that the control test can never be meant because he is not in the premises of the workplace. How can they control
somebody in their own home? That was the basic argument. So the issue therefore is, can the control test be
meant even if the so called putative employee is not in the workplace of the employer. Unsa na siya gatrabaho na
siya o ga-pasuso sa iyang anak? Makapaminaw man jud ka taga-adlaw miski magpasuso ka imong anak, magluto ka
maminaw ka gihapon. Unsa mana nagluto ka o nagtrabaho ka. What is the issue? The SC said that is not a
hindrance. Control test thats not a hindrance. You are controlled because the radio given to you only played the
radio stations with whom Sterling Products had a contract of advertisement. Then you have to fill out forms,
dates, specific dates to list down. What is the used of that? To later on go to the pager and say that on such date
you did not air the advertisement so therefore we should deduct that to our fee. That is radio monitor. Now, they
do not only have radio monitor but also TV monitor because advertisements on TV are much much works than
radio. So you have to make sure that youre TV advertisement comes out, very expensive. What is the most
expensive TV advertisement? The most expensive? (Inah: Superbowl). Superbowl is the most expensive. It is over a
million over 20 seconds in US dollars. It is 46 million plus pesos for 20 seconds. Wala gani moa bot ug minuto. Who
proved that that is powerful? That is worth-spending? Who proved that? Apple. The first advertisement of Apple
was that Steve Jobs took in the last money of Apple for his advertisement that his Apple was coming out. And sure
that, at the time they went to the market, people bought. The first time they knew that there was this apple PC is
through this advertisement. Naa kahay tao mo bantay ana when it comes out. The SC here says, that the form that
is given to you to ____ (45:26), the radio that was given to you ___ (45:31), those are the badges of control. You
do not have to be in the workplace to be controlled. You do not have to be. Again and again you see that in the
decision.

Dy Keh Beng vs Intl Labor

The putative employer here makes cuttings, huge baskets. The putative employee here have two people who
decide to join a union. When they file a petition for certification of election with the International Labor as their
petitioner. The employer says we do not know these two people. They are not our employees. We do not know
them. They just come around and show us their basket, we pay them and then they disappeared. They go back
home and they made the baskets and come back and sell to us. They are independent contractors because they
are paid on the piece rate basis. Is that correct? Is the piece rate basis of payment an index of the absence of
 LABOR STANDARDS TSN
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control? SC says, NO. Piece rate payment is only an index of payment it does not prove the character of the
relation. It will be _____ (47:50) and the one who pays. Now, what is the index of control? Because the SC says
these two people they can form a union vis--vis Dy Keh Beng. What is the index of control? The index of control is
specifics of the products. The dimensions of the products, the make of the products, the materials of the
products. Because they cannot deviate from that, that means they are under the control. So, this rate basis that is
not an index of the absence of control.

(Nag joke si father. Naa koy karpentero ni-adto gipabuhat nako ug cabinet. Ana siya father kulangan ug usa ka
pieces. Di nimo mapugngan nga maestro ka- dili lagi na pieces, piece lang kay usa raman na kabuok. Ana sya na
tag pieces diay na father so di diay ka kapalit ana ug piece kay pieces man. Pareha ra gud na sa SSS. An ordinary
worker never says SSS, SS rajud na kutob. Ang Coke, Cokes jud na. *hahaha class*)

And then we have RJL Martinez vs NLRC. We are talking here about the unskilled worker that loads and unloads
fishing boats, colored boats that they need to go out to the reed, to go fishing. How long do they say in the reed to
go fishing? Ni-adto (before), they stay as long as the ice lasts. Ice ang magbuot kung unsa ka kadugayon sa laod.
Wala na gani kag ice makaul naka. You cannot preserve your catch. What is the temperature needed to preserve
fish? What is the temperature needed? Its zero degrees. Its higher than meat, meat has to be lower. So kung naa
kay ice, kung gamay ng ice naglutaw-lutaw sa tubig preserved na imong imong fish kay zero mana. Naa man kay ice
na naglutaw-lutaw sa tubig unya naa diha imong fish kay zero mana. Pagkahurot na sa imong ice mag hinay-hinay
na ng saka. Its zero degrees.

Now, at the time that there was still no fish port in Navotas. Wala pa man port. The fish boats just run a jar to
them. The moment they can no longer proceed thats when they stop. And then kargadores, they ___ maybe up to
their waist or up to their neck. They bring it to shore and the refrigerated bands are waiting. The orders of the
fishing boat ___. Why do they seat there? Because the buyers come in and bid for it. How do they bid? They
whisper to the ears of the ____. Tagpila ang kilo. Ingana ang sistema sa Navotas. Ikaw nadaog kay highest ka. And
then, the ____ directed to the Sampaloc market, Quezon City market. That is how it is done before.

The issue is, kining tig load and unload, are they the employees of RJL Martinez Fishing. Because RJL Martinez
when they failed to pay the 13th month, they say they are not our employees so they are not entitled to the 13th
month. They are independent contractors and our relationship is co-terminus with each loading and unloading.
They were asked, why is it co-terminus with the loading and unloading. Because after they unload RJL Fishing boat
they can go to another fishing boat of another company and also load and unload. But this kargadores, that RJL
Martinez is our priority. We do not unload the other boats unless we have loaded and unloaded RJL Martinez boats.
So the issue is, must the control test be continuous and unbroken in order to give the requirement of the
employer-employee relationship. That is the issue. Can it be broken? That is the issue. The SC says, it need not be
continuous, it can be broken. Why? Why is a broken control on the part of employer allowed? According to the SC,
since Martinez does not have ____to load and unload every day, you do not fault the unskilled kargador to find and
look another work to fill up his day because you are only paid by the hours you actually spent to load and unload
this fishing boat. If it takes you half day, one-half pay raka. Mag-unsa man ka sa other half of the day? You will just
sit down? You can go and find work. You should not be penalize for looking work. So, as to the question whether or
not our control test must be broken? It can be discontinuous. It can be, under the circumstances of RJL Martinez
Fishing. Now, that tells you the scope, the extent, the nature of the power of control test.

Here comes, the case of Corterap Brands vs CA (2015) (not sure sa spelling) Volume 753 SCRA 649, March 18
2015. This is the case of __ merchandisers. This is not the first time that the SC has met a case like this. There was
a ___ case, California Manufacturing vs Tabas (1989). The ruling in Tabas case is, merchandising special offer
employees of a man power agency that is the gage by a consumer product manufacturing company. They are
actually employees of the manufacturing company not the man power agency. Why? Because they are performing
activities which are usual unnecessary to the usual trait of business.
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June 24
Jazz Enfectana
2nd part of the lecture

And California Manufacturing is important because you have to find out where SC says that EEr-EE relationship is
question of fact. Then, there is a line of decisions that says it is a question of law.

How do you reconcile them because it is really a long line of decision?

My reconciliation of those two seemingly contradictory rulings is that if there is only one putative EEr then EEr-EE
relationship is a question of fact. You examine facts of case. You have requisites. How much of them are fulfilled?
Then that is a question of fact.

But if you have two or more putative EErs (you have an indirect EEr who enters into a contract with manpower
agency and this manpower agency hires individuals for the indirect employer) then EEr-EE relationship becomes
question of law.

SC says if there is Labor Only Contracting... Labor Only Contracting which is illegal. Why? Because manpower
agency let us say does not have sufficient investment or machinery or capital. In other words he is just a conduit
created by EEr. The law cancels it out. And his employees, the ones he selected and hires, the ones he pays wages
to, SC says they are employees for all purposes of labor and social legislation of the indirect employer.

Now what happens if the government is the indirect employer? Like the National Food Authority (NFA) Government
mana. It is government-owned-and-controlled corporation with original charter, and not covered by Labor Code
because they are covered by Civil Service. Are they still liable if they engage in Labor Only Contracting?

SC says yes. Why? Because it is their norm now that determines and imposes EEr-EE relationship. That is why in one
instance you can have question of law and then you have question of fact in another case.

Now, in Tabas vs California Manufacturing, they entered into an agreement. Agreement stipulates that no EEr-EE
rel will be understood between EEs of manpower agency and California. It is only the manpower agency that will
assume responsibility for underpayment or non-payment of wages and for those benefits under social legislation
like SSS, PhilHealth, Pag-ibig.
Is that binding on EEs? No. They did not give their consent. They were not there.
Therefore, California was the indirect employer of this set of workers selected and hired by manpower agency to
fulfil their agreement with California.

In other words, the contract cannot fix the legal characterization of the relationship of the parties. It is the law
that says so.

Now, Article 138 of Labor Code. Let me read it to you.

Article 138. Classification of certain women workers. Any woman who is permitted or suffered to work (Fr.
Gus: This is technical phrase ha? It is found in Labor Code in many places. It is very poor English but because
it is awkward it is easier to remember. It has technical meaning) with or without compensation (Fr. Gus: so
the second requisite of EEr-EE relationship may or may not be fulfilled) in any night club, cocktail lounge,
massage clinic, bar or similar establishment, 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 establishments for purposes of labor and social legislation.

That is a comprehensive EEr-EE relationship. They are talking about a night club, cocktail lounge. There is a
woman. She is just allowed to be there. Arrangement? She gets commission for every drink or food that her
customer orders from her. Hospitality girl man.

Now does she have to show up everyday? No. She shows up, that is alright. She does not, that is alright. She is
already working and she wants to go out because the customer wants to bring her out. Floor manager or supervisor
will just tell customer pay the bar fine. Bar fine is amount of money usually earned by the club on the average
every night. So you pay that bar fine and you can walk out.
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Does she have specific working hours? 8? 10? No. Probably she does not even have a record. But what is the
relationship of the girl and the night club? Law says it is EEr-EE for purposes of labor (Labor Standards, Labor Code)
and Social Legislation. They have to provide her SSS, Medi-Care, Pag-Ibig.

It is the law itself that imposes for the protection of these women. Classification of certain women workers. That
is EEr-EE relationship as a question of law.

If it is a bona-fide contracting out... what is this? You have this case of Kimberly Clark Independent Union vs
Drilon, SC En Banc: This Court takes judicial notice of contracting out security services, maintenance services,
janitorial services, and other technical services. The SC says This Court takes judicial notice What do you mean
by that? They would have to prove it. They would have to go through Rules of Court. There are items there of
judicial notice.

What are items of judicial notice? You do not know? The number of hours of a day. Number of days in a
year. You dont go to the Court for that. That is the basis of proof. You begin with that.

Why now? Why does the SC make it a matter of judicial notice of contracting out security services, janitorial
services, maintenance services, and other technical services? Why? Because the SC also contracts out its security
guard.

Tan-awa dira sa page ng SC website inviting bidders for security guards in district number such and such.
SC itself engages in contracting and subcontracting. That is why it is a matter of judicial notice.
When Duterte and all candidates said they would end contractual employment, hala pag-una sa
SC. Mahimo ba na nimo?
And the big issue, suppose, the SC contracts a security agency and agency does not pay even if SC paid.
Can those guards sue SC? Technically speaking, they cannot. They can go to Labor Arbiter and sue the
Court Administrator because it is he who signs in behalf of the Court.

That would be very interesting. Naa may security guard ana sa mga korte. Believe it or not, he is
underpaid. Sooner or later, muabot lang nang kasuha. Tan-awa ra gud. If you want to make a landmark,
take that case. Especially if you do that right after passing the bar.

You eliminate all jitters of appeal. Kaagi na kag SC tapos mahadlok pa ka mu-appear?

There is one graduate of AdMU who used to teach there and he was just teaching this two-unit
course, Agency. It was like 4-unit course! So many cases! Atty. Tan. When he took bar exam, SC
said From now on there would be no top ten. It would only be pass or fail. He took the bar
and he passed. But SC put down numbers 1, 2, 3. So he says You put out circular. So he
petitioned SC to take bar exam again. Imagine that?

Of course SC denied. He said, together with the other Davao classmate of his, he said Let us eliminate
all jitters in court appearances After this case, we will have no more fear. Then that is the case of Tan
vs Macapagal.

Macapagal was the presiding officer of 1973 Constitutional Convention and there was a petition asking
for Court Order to limit Macapagal in entertaining amendments to the Constitution.

The one who decided the case was Justice Enrique Fernando.

This guy brings this case that was just six-page petition. SC disregarded his petition. Six pages? Nah. The
Court chose not to entertain him. Whereupon, after a month, Tan came back with 60-page petition.

You read that case.

So...a matter of law.

If you engage, let us say security guards or janitorial services, then the manpower agency fails to pay, what will
happen? You are liable. You are indirect EEr to pay the underpayment or non-payment. You are not liable for their
SSS, medicare. It is a limited EEr-EE relationship imposed by law.
But if it is labor only contracting or if it is classification of certain women under 136, then it is a comprehensive
EEr-EE relationship not only to labor law, but also to SSS, Pag-IBIG, medi-care. You have to pay.
 LABOR STANDARDS TSN
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Now, let us go to California.

EEr in California says we contract this out because our promo is not a permanent program. The activity they had to
engage is not usual. We only do promos if there is a new product or if it is enhanced then we launch it.

All consumer products engage in promotional. Give me a product that is not being promoted. So it is usual and
necessary to consumer products. They always have a promo. There is no manufacturer of consumer product that
will not engage in promotional. If not, it will not be bought. SC says it is usual and necessary to trade or business.
Thus, permanent.

Now Fonterra says they are contractual workers, term workers, specific period workers even if they what they
perform are unusual and unnecessary. They are saying that there can be a term agreed upon by individuals. As long
as the worker engaged freely accepts that.

Why did SC say that the workers in Fonterra were free to accept the specific term? Because they were in another
manpower agency. Did they resign? (scoffs)

You know that particular datum is index of proof that you are regular worker. That is continuous. Ipasa-ipasa ba
naman ka ug walay agencies. That means it is usual and necessary for business.

But SC says that is not your petition. You freely resigned because you do not want to be assigned in any other
job. Therefore, you agreed with this new manpower agency, Sicat, to be engaged for a term with Fonterra.

The change in the thinking of SC.

If the ruling of SC were the other way around, then the Court would be flooded with so many contractual
cases. Promotionals. They are called by so many names special offers merchandiser.

In fact my first labor case kay merchandiser. Gi terminate siya. Pregnant man siya. Pagbalik
niya wala nay trabaho. Case took 8 years. Kalimot na gud ko sa case. On the 8th year,
nakakakuha na lang kog notice of execution. Three years after finding her, wala na lahi nang
iyahang trabaho. Manikyurista na. Ana pa siya Father, manikyuran na lang taka Nakadawat
naman na diay siya 50k, wala man ko kahibaw.
Of course pwede mo siya iraise administratively sa Labor Arbiter. Counsel should be informed if
may compromise agreement. Pero useless makig-away ka. May na lang sad, kadawat siya.

There are certain indirect employers that have grown in-house number of agencies. That is in the Circular of
Department of Labor. An in-house manpower agency supplies employees (janitorial and others) to establishments.

Circular of DOLE says that is an index that manpower agency is a labor contracting agency. So they are cancelled
out. So they are not bona fide EErs.

Because to be a bona fide contractor:

1. You must have sufficient capital
2. Sufficient investment and equipment
3. You must be registered with DOLE.
4. DOLE will ask every contract you entered into.

But now, if I ask you, kanang mga IT, kanang mutaod sa database engine and application, do they have
sufficient capital? No. Equipment they use is equipment of indirect employer. Do they have sufficient
investment and machinery? No same equipment of indirect employer. They have no investment at all.

They will not pass the test.

Naa man ni makakakita problema ana. Oracle charges US $300/hour. These people who resigned and
formed organization asked for 120 or 130. So una sila mahire. Naa nay leave. Then they form
corporation. They paid their own sick leave, health benefits. You should be able to pay if your per hour
rate is $100/hour. Dili na tingali magbuwag imong kalag ug lawas ana.

So that is the problem of this index. It is crucial. It does not take into consideration those industrial
revolution engineers.
 LABOR STANDARDS TSN
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Have you heard of Brexit decision? UK decides an out of European community. Then naa pay
resignation. He created a referendum. Then decision is leave.

There are so many people that are out of work. Mao bitaw nang popular si Trump. Kanang buhok
na puti na manginsulto maskin kinsa. Promise man gud niya kay jobs. There are so much activity
but people do not have jobs. Because ordinary jobs are replaced by digitalization, by computers.
Kita gacomputer na ta, ang lain dili pa kabalo magtype. Ang dili kabalo magtype, magtan-aw
lang sa keyboard. Unsaon ni? Kuhit-kuhiton?

That is the problem.

Let me bring to your attention Royale Homes Marketing Association vs Alcantara and the other case of
Manufacturers Life Insurance Company vs CA 622 scra 228 2010 En Banc.

One employer. It is a question of law. Why? Because what they entered into is agent-principal contract. Have you
taken Agency? No? Very important subject.

Agency. The basic principle is if you can legally do it, then somebody else can do it for you, unless law requires
you that you do it. Magminyo ka. SPA? Best friend kay best man nimo hatagan nimog SPA to say I DO with all
force and power you can muster, so he can do it too.

But no. Law requires you to do it.

Property to sell. You can ask somebody to sell it for you. Law does not require that you, yourself, would sell it.

Now agency contract is based on confidence. If you lose confidence, you can terminate with or without cause.

Manufacturers Life Insurance entered into agency contract with a natural person licensed to be an insurance
broker.

Many of the insurance brokers are not licensed. Dicer lang na sila. Pag-abot na nila, naa nay brokers. You
are taking up Insurance noh? Wala pa gihapon? Insurance.

They are the ones who sign because Manufacturers Life Insurance is a juridical person, one who exists
only in contemplation of law. It requires natural person to act for and in behalf of it. It cannot act w/o
natural person. Kinsa man mupirma?

Represented by its licensed agents, Juana Dela Cruz, with insurance number 1234, issued by Insurance
Commissioner... set to expire on such and such date. Mao na siya.
All those part-time insurance, kanang mamaligyag insurance na asawa, teacher, dili na siya agents.
Agents, mao na siya ang gikontranta. We will pay for rent of office. We will reimburse you. Hire people
to convince people. You get an overriding commission. You have to sell this much insurance.

Kanang mga insurance-insurance, you will see those when you learn Insurance.

Insurance Bottomry. Kanang sa boat. Ug dili gani na mabali dili ka makakubra sa imong insurance.
Insurance of Bottomry.

She signs it for and in behalf of Insular Manufacturers Life. Now, she says I am under EEr-EE relationship with
Manufacturers Life. They cannot terminate me

Why was she terminated? Overimbursement claims. Naay Christmas party, 3-5 lechons. Pero wala may
lechon. Items are listed down tapos wala.

Question: Do they not show that there is control on their part of Manufacturers Life Company over her? There is
EEr-EE relationship. So we should disregard that agreement. That is not agent-principal, but EEr-EE relationship.

Thus, question of law.

This agreement in this instrument is a nominate contract. Therefore, not under jurisdiction of Labor Arbter. It is
not EEr-EE relationship. There is detailed instruction that principal controls. Another kind of control. Ngano
control? Tan-awa na ninyo.
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Another very nice control kay Manila Golf Club v NLRC. Kana bang mga caddy sa Golf Club, employees gihapon na.
Dili man ka pwede naka-tsinelas, puruntong, shorts. Is that not control? Therefore, we can form union sa Manila
Golf Club.

SC said, if that is control, then all members na dayon kay employed sa Manil Golf. Kay one, they cannot also wear
t-shirt or ano. They have to be properly dressed. Governor Buenaventura was not served because she was in
spaghetti. Is that not control? No. That is just rule for club members.

Bantay ana.

Two members of SC did not inhibit themselves when they decided the case. Justice Padilla and Sarmiento were
members of Manila Golf Club.

So read these cases. They are very enjoyable cases.

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July 8, 2016
J Salem
1st part of the lecture

Book I Recruitment and Placement of Workers

From Article 12 of the Labor Code up to Article 39 Penalties. There has been several supplementary
or overriding legislation. The first of which is Republic Act 8042 or the Migrants Workers and Overseas Filipino Act
of 1995. Since then, that has been further amended and the provisions of the Labor Code from Article 13 to 39
has been amended by Republic Act 10022, which became effective March (8) 2010.

Now, I am giving you the official Question and Answer primer of the DOLE on RA 10022. (Hands out the
primer to the class president, Mr. Suy Te). And then, there is this revised rules and regulations governing this
Overseas Employment of Land-based Workers (recruitment agencies). The best way to know the Law (RA 10022) is
to go through the question an answer .

In the BAR exam, I will tell you a secret. The only thing they ask about this section is illegal recruitment.
The problem is, we are signatories to International Labor Protocol that there should no longer any restrictions as
to labor. So labor, internationally, should do cross-borders without any artificial control. In the same that money,
finance moves cross-border without any restrictions. Money now moves at the flip of a switch. So also, labor should
be allowed to move. In fact, the original provision in 8042 has this particular proviso that says that this licensing
and issuing permits to recruit and place workers will be gradually dissolved and there will be no more licensing
requirement. Because this is a form of controlling labor. But that was a long time ago 1995, until now, they are
still licensing. It shouldve been finished by year 2000. But it is still continuing. Why? According to the Philippines,
it has filed a request for exemption because they say that there is so much exploitation, especially of unskilled
labor. Unskilled labor is the problem.

So, if you go as a domestic worker, as semi-skilled as drivers, you are bound to be exploited. And so, the
government says, with the command of the Social Justice thrust in the Constitution, we have to protect our
workers. The way they protect the workers is general prohibition against a foreign employer from directly hiring or
recruiting Filipino workers. Why is that disallowed? No foreign employer can directly hire. If you have a foreign
employer that directly hires you, eventually you will land with the POEA. And then, they will consider that as
hiring through POEA. They will arrange it itself, because that is a violation against the law. Unless, you go the
nation as an immigrant as an immigrant, that is already a question of immigration. Then, you are hired. But even
then, youre still considered an OFW. Even if youre an immigrant, you will be made to attend these seminars with
the POEA. Of course, they will make you pay. Technically speaking, you are supposed to have privileges like you
dont have to pay the terminal fees in the Manila International Airport or any airport that you will fly from. That is
why there are many big protests right now of placement agencies because there is this law that was passed that
requires the terminal fee be incorporated in the plane ticket. So, if you are an OFW, how can you be exempt when
they charge you? Now, the main reason for that is to cut the lines the queuing lines in Manila airport. They want
to reduce the number of lines. Now, because of that, you are tax-free because youre an OFW and you form
another line to get a refund. So, that is one of the problems - illegal recruiting.

In what way is illegal recruiting committed? There is a long list. First, recruiting and placement. The
definition has not be changed, it is found in Article 13 (b), Recruitment and placement refers to any act of
canvassing, enlisting, contracting, transporting, utilising, hiring or procuring workers, and includes referrals,
contract services, promising or advertising for employment, locally or abroad, whether for profit or not:
Provided, That any person or entity which, in any manner, offers or promises for a free employment to two or
more persons shall be deemed engaged in recruitment and placement. So, if youre one of the employees of a
recruitment agency and the recruitment agencys license has expired. And you are driving these recruits to the
airport, you are transporting. So, you are involved in illegal recruitment because it is comprehensive.
Canvassing you only get names illegal recruitment. So the definition is comprehensive.

Now, two kinds of illegal recruitment, categorised as criminal: first is ordinary illegal recruitment.
Second is illegal recruitment that is considered as economic sabotage. What is the difference? Then, you have to
go to the latest law, which is 10022. The penalty of any illegal recruitment is (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). Very stiff. Now, if it is illegal recruitment
that is a form of economic sabotage, then the penalty is, 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. (Sec. 6, RA 10022).If the offender is an alien, he
 LABOR STANDARDS TSN
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or she, in addition to the penalties described, be deported without further proceedings. But you will first have to
serve.

Now, in the original law, it is only non-licensed or organisations, entities without permit to operate.
Licensed to Recruit, means you are licensed to recruit and charge fees. Permit to Recruit means you can place
workers without. In both cases, you get permit or the license from the POEA - you must apply and only Filipinos
can apply. Or, a partnership or corporation, seventy-five percent (75%) owned by Filipinos. Take note that it is
Qualified. Filipino corporation. Under the Constitution it is sixty percent (60%) filipino-owned corporation. Here it
is seventy-five percent Filipino.

Now, the license or the permit granted you is non-transferable and it specifies the number of offices and
locations where you can recruit. In other words, you cannot have a license and recruit throughout the breadth and
length of the Philippines. Your license to recruit is specific. Greater Manila or greater Cebu or Davao - you cannot
have it anywhere. So, immediately, you find a roving recruiter, thats a big problem. Chances are, that person has
no license. And he will say that, I am no recruiter. I am just a canvasser. That again is still included - illegal
recruiting and placement. Now, how does the Labor Code and labor legislation the worker. The worker or the OFW
is protected because the recruiter or placement agency is solidarily liable with the principal in case he violates the
OFW agreement. For one thing, the agreement must be registered with the POEA - the terms and everything. That
is registered with the POEA (Philippine Overseas Employment Administration). Now, if you violate, or the foreign
principal violates, for instance, he expatriates the OFW, without cause - a pre-termination. Immediately, he sues
the placement or recruitment agency, because the recruitment agencies is liable. The recruitment agency is for
land based (domestic, etc). Manning agency for seamen, sea cruise, those who are hired on ships. They sue, then
you have to look through the 10022 as to where can you sue. It use to be POEA. Now they have amended it and
made the labor arbiter as the forum of jurisdiction. Now, as to venue, labor arbiter of what? Compulsory
arbitration district. When? The OFW has the choice: he can sue (with) the labor arbiters who has the jurisdiction
over the place of residence or the labor arbiter who has the jurisdiction upon the place where any essential
ingredient of the crime was committed. If he was made to actually sign in Cebu and made to report in Manila, like
housed in Manila. He can sue in Manila, or in Cebu where he signed the agreement or in Davao, if he is from Davao.
The choice lies with the OFW where he would sue. Now, what makes the crime economic sabotage therefore
make it punishable for life imprisonment. Simple. If he recruits in places more than three or more. If there are 3
or more victims, that is economic sabotage, life imprisonment. Or, he only illegally recruits ONE but in Conspiracy
with three or more people, that becomes economic sabotage - that becomes life imprisonment. Now, unlike
money claims of ordinary workers in the Philippines who are illegally terminated, the worker in the Philippines can
also sue money claims and illegal termination with the Labor Arbiter. The OFW can also sue with the Labor Arbiter
for the Civil Aspect, like money claims and damages, etc. But, for illegal recruitment as a criminal offense, and
as to the penalty, he has to go the regular courts - it is the RTC, because the penalties is excessive, its very
high. It cannot be the municipal trial court. Besides the ordinary damages, the OFW can ask for refund of his
placement fee with interest of twelve percent (12%) annually from the time he gave it until the time decision
comes final and executory. Twelve percent annually, because you now in your Remedial Law, the annual interest
is how much? The legal interest now is six percent (6%) straight, whether it is forbearance of money or non-
forebeafance of money (from a 2014 case). But, since 10022, specifically specifies that it is 12%, then it is 12%.

Now, 10022 has made illegal recruitment very complicated because there is a long list of prohibited
practices not just illegal recruitment. And, 10022 that even a LICENSED recruitment or placement or manning
agency can be liable for illegal recruitment. Imagine that: before only non-license can commit that. Now, even
those who are licensed can commit Illegal Recruitment. One of the standard violations of illegal recruitment is
Substitution of Contract. What does it mean? You sign here with the manning agency where your salary is $400 per
month, for an ordinary seaman in a ship, lowest class. Youre armed with that (contract) and you procure a plane
ticket to catch up with the ship. When you arrive there at the ship, before you enter, the ship captain will tell you
that Heres the contract, sign this. And you say, I have already the contract. Where the contract will be a new
one, in stead of $400, it became $300 only. What will you do in Athens? No choice. What will you do? Go back to
Manila when you do not have a ticket and money? You sign. And you thought your problems are solved. Not yet.
From Athens, you go to Versailles, France. Upon docking, that is an ITF (international seamens union, and a very
strong union in Europe - like in Amsterdam, Odessa, London). They have minimum wage for crew. They go up the
ship and see the captain asking question. How much do your men are receiving? Contract!? Contract!? What
the captain will show is the contract where you signed for $400/month in Manila. That was the purpose of that
contract. They are all apprentice - $400. ITF will not believe it sometimes. They will see the faces of the
Filipinos, corner them and ask them for their pay were some Filipinos will tell the truth. They will then have an
automatic boycott - where the ship cannot be loaded or unloaded. ITF (is) very powerful. The only recourse the
captain has is cut-and-run. That is an idiom. The lowliest sailor he does not like will be told to cut off the ropes
holding the ship where it will allow it to move away from the port. They cut the rope and the boat tries to
negotiate it self - very difficult. The liability is with the captain because not even the harbor pilot will help you
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because the harbor pilot is under the ITF. And when they reach the next port, they will look for the Filipinos who
squealed. They will fire such person - repatriated. That is where cases arose. Substitution of contracts. It is
against 10022. File a case.

There is a very controversial provision in RA 10022. Which was actually taken from RA 8042. What is that?
It says that one who successfully sues for breach of his employers contract shall be entitled to the following:
full reimbursement of the deduction made with interest of twelve percent per annum and the salaries of the
unexpired portion of the employment contract or for three months for every year of the unexpired term,
whichever is less. That has been declared as unconstitutional. In the Sameer Case (Sameer Overseas Placement
Agency, Inc. vs Cabiles, G.R. No. 170139, August 05, 2014, En Banc, penned by Justice Leonen). The unlawful
termination of the seaman occurred still under RA 8042. But, RA 8042, the term entitled to the salaries for the
unexpired term or for three months for every year of the unexpired term, whichever is less has been declared as
unconstitutional. When they decided Sameer, 10022 was already in effect. But it was not yet applicable to the
case because it fell under RA 8042. Can they render again, as unconstitutional, the mere repeating of 8042 when it
was not applicable to the case? This is where (Justice) Leonen went out of his way, together with all the Court,
and rendered unconstitutional the provision of RA 10022 even if it was not yet applicable to the case.

When can the Supreme Court exercise Judicial Review? First, when there is an actual controversy. Second,
the provision in question must be the very lis mota. You cannot escape but you must reckon with this controversial
provision. You can decide the case, otherwise arrived at the same judicial determination that is just and according
to law without having to reckon with this particular provision. Is that the case with Sameer? No! Because it does
not apply. But why did the Supreme Court en banc render that salaries for the unexpired portion or for three
months of every year of the unexpired term, whichever is less unconstitutional. Why? Three months before there
was a similar case. A provision in 10022 was already there, but it was not applicable as it happened under 8042
and Justice Brion refused to render it unconstitutional the same provision that was reenacted in 10022. You read
this case because this is a land mark case. Sometimes, this August 5, 2014, way past the cut off date for the
responsibility of decided cases of the Supreme Court for the October, November BAR examination of 2014. And it
came out in the 2014 exam. Its a good thing that the night before, I brought this case out to our reviewees
because I had the feeling that it will come out. It is so weird the case that an examiner will be tempted - and it
came out. I think it was in the first two or three question. Thats why this year, you check and Ateneo is Number
One in Labor because this with two other cases that came out. Why did justice Leonen say that? One, this
provision was already declared unconstitutional under RA 8042, it does not become valid because just because
Congress reenacts it word for word. It is still arbitrary. If youre a Filipino, you are illegally dismissed here in the
Philippines, you have full back-wages! Why is it here, whichever is less? Is it because they are outside? NO, it
must be full. Second, Leonen says, If we do not render this as unconstitutional now, then the workers, overseas
workers, will continue to be placed unprotected and in danger because this is open to interpretationbecause it is
a new law. So, to close the door, we rendered it unconstitutional even if it is not the very lis mota of the case.
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July 8, 2016
Terrence Suy Te
2nd part of the lecture

When is there mandatory repatriation, the law says it is found in the foreign country.

In places where there is a considerate number of OFWs, the embassy must be manned 24 hours at the service of
the OFWs. There must be a skeletal force. With legal counsel, they must procure legal counsel (in places like HK,
Singapore and Korea).

People here study to learn Korean for one year before they can work there. What kind of jobs do they have there?
Jobs the Koreans do not want anymore. Once you have populations that have zero level growth that is a problem
for the population. Who will replace the hard jobs? Export jobs like factory workers are exported to China because
rates are too low for the locals. Filipinos go for these jobs. That is the lifeblood of the Philippines, not taxes.

There is this very famous case, actually 3 cases: Vir-jen Shipping v. NLRC 125 S 577 / Susanna v. NLRC 176 S 465
(1989) / Seagull MartimeCorp. v. Van 170 S 813 (1959). Why are these 3 cases important? All these 3 cases went to
the SC. The first case is this: Two contracts. First contract was signed in the Philippines (higher), when they get to
the employment place (lower). When they came back, they sued. So the issue is Which contract is valid? Both
contracts were registered and approved. The SC ruled that the contract that was last signed was considered an
amendment of the first contract, so it nullified the first contract. How about the circumstances that you were
already there when you signed it? The assumption is: You go there on your own, but you are many, therefore you
do not have to sign.

Second case. Two contracts. Both registered. First contract provides higher compensation. Second contract, lower
compensation. When they came back, they sued. It is clearly contrived. SC ruled that the OFW is being taken
advantage of. So the valid contract is the first one. Two similar cases of the SC are given different decisions.

Finally, the SC under the pen of Justice Hugo Guiterrez, the basic argument is: Do not kill the goose that lays the
golden egg. It used to be that the salary of an ordinary crew in the foreign vessels used to be $1000 a month, with
one free bottle of whiskey a week and one ream of cigarettes a week. Now, the wages are getting lower, because
there are more and more people who want to enter into the market coming from a much lower place than we are.
Sad to say, the darker your complexion, the lower your base pay is. Sri Lankans, Indians, Bhutans because they
are willing to accept less and less.

So, do we kill the goose that lays the golden egg? No, we protect the Filipino. The second contract is invalid, the
first contract is valid. That was the decision that was reached. Question, has that practice stopped? No. It has not.
That when you realize you can only legislate wages only up to a point. There is a limit to legislated wages. There is
a limit what the law can do.

Very interesting, some manning agencies and placement agencies deny culpability by saying we were agents of the
foreign principal at the time of the signing, but after the signing, we are no longer the agents, there is another
listing agent, we have broken our legal tie. You sue our substitute, you dont sue us. The substitute says, you
cannot sue me, I did not sign the contract. SC ruled, that these agencies are still liable for all the contracts that
were signed; liable for your principal that is no longer your principal. In other words, the law holds you liable for
as long as the contract obtains even if you are no longer the agent of the principal. If you are a placement agency
you have to put up a surety bond. Purpose: To pay liabilities. How do you get that surety bond: Find an insurance
company. Easiest way is the cash bond. (ex: 10 years = Php 100,000 bond). Go to the court or a bonding company
(who would use collateral). There is a new way: Time deposit w/ a memorandum not to withdraw. The certificate
is then given to the court as the bond. So that way, the money is still earning.

Placement agency cannot be at the same time have investments or run a travel agency. That is one of the
prohibitions (and one can be criminally charged).

Suppose the recruit says (that the placement agency) procures a ticket. So they buy a ticket from the travel
agency with the promise that the recruit will pay. Suppose they cannot pay. Can the travel agency sue the
placement agency and execute from the surety bond? NO. It cannot be. Because the surety bond is solely for the
liability of the agent arising from the OFW, does not arise from any other liability.

Another issue: DISABILITY. Suppose the OFW, the seaman, meets a work related accident (back pain). He is
entitled to disability pay. Who determines WON an OFW is in a total, permanent disability (or at risk)? Company
 LABOR STANDARDS TSN
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Accredited Physician. The OFW can seek a second opinion from another physician. If they disagree, a third
physician can find and declare WON there is permanent disability, and the court will respect that decision.

OFW can only be made to go to a particular doctor or physician, if the employer shoulders the medical fee. But if
there is not shouldering of fee by the principal, the OFW may go to any doctor or any medical institution with the
equivalent qualification.

Case: (Shipwreck! Abandon ship! Not a single crew member was to be found). Issue: Now for one month after this
report, the wife still receives the salary of the dead husband. (OFW opens an account to deposit his savings from
work. 70% for sea based; 50% for land based. These remittances are required by law.) This wife of the captain still
receives the salary, despite the total loss of the ship. The company says no more, we have to settle your death
benefits. They are dead! The wife tried to maximize the salary because there was no proof. (check Civil Code)

(Go over RA 10022)

EMPLOYMENT of NON RESIDENT ALIENS (922 art. 40) The working visa does not give you the authority to work; that
is separate and distinct from a work permit. You can apply for a working visa even if you still do not have the
working permit. But that does not give you the right to work. What gives you the right to work? Employment
permit. But if you are a resident alien, you do not need a work permit.
Case: TIM CONE v. NLRC (PBA coach w/o a work permit; only a working visa) It is the DOLE who issues a work
permit; requirements: a) reciprocation between the foreign country and the Philippines regarding work permit
(same privileges); b) it must be a position where there is a dearth of Filipinos taking that position. [but there are
many Filipinos who can coach; but he is here to upgrade coaching]; c) he must have two understudies to replace
him when he leaves.

How many aliens are working here in the Philippines? Look at Manila Standards or Manila Times every Saturday,
DOLE requires the publication of the positions and foreigners regarding their permits and permit requirements.

If you want to have an apprenticeship program, you can start anytime provided that you pay them minimum wage.
If you want to pay them less than the minimum wage, you have to apply, and the approval you need is from DOLE
and TESDA. (Mr. Tesda is one of the most ambitious monkeys around.) If approved, you can pay less than minimum
wage but only up to 75% of the minimum wage is the limt.

What is the difference between learnership and apprenticeship? Learnership has no technical component (No
lectures; ex: janitorial); but in apprenticeship, there is a theoretical part (lectures). Learnership (probational
period = 6 months); apprenticeship (probational period = not necessary if with the same employer).

Handicapped workers, who are considered? Your mental or physical disability affects the precise productivity of
your job. (ex: Polio victim, walking on crutches; and job is telephone operator; are you a handicap? NO!)

Trivia: In WW2, the Americans hired color-blind people to become bombardiers, they cannot be fooled by
camouflage.
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July 15, 2016

Confesor, Kristine
1st part of lecture

Get a copy of Labor Standards Official Handbook

Read Graduation Speech attached

Graduation Speech of Isaiah Paolo Atienza Lee

BS Molecular Biology and Biotechnology,
summa cum laude
UPJuly 1, 2016

My name is Isaiah Paolo Atienza Lee, and I am not your valedictorian. I am not the best, I am not the brightest,
and I am here speaking to you right now because all the other summas backed out. Im somehow supposed to talk
to you about honor and excellence, so let me start with my story.

When I was in first year, I almost got kicked out because of Chem 16. I wasnt even bad at the class. I just had a
habit of scribbling on my forearm during exams, which wasin hindsight, understandably interpreted as
cheating. After an unchecked exam and a lot of stress, I ended up with a diagnosis of Aspergers syndrome. On the
whole, it was a less than ideal way to get psychological support and an 1.00 in Chem 16, but I didnt fail the class,
I didnt get dismissed from UP, and I didnt jump off a bridge. I could have, but I didnt. That might not sound a
lot like honor and excellence to you, but thats the point.

The College of Science is made up of brilliant people. We cant deny that. The College of Science is also made up
of people who pretend to be engineering majors when questioned about their student numbers and people who
tasted their Chem 16 unknown analysis samples out of desperation. We cant deny that either. And we all
answered our exams on bluebooks that might have varied in paper quality and might have shown different scores,
but they all had the same message printed on the front: University of the Philippines, 1908, Bird, Honor,
Excellence.

Our valedictorian is Mao Leung. He has a weighted average of 1.0375 and a girlfriend. I do not have a weighted
average of 1.0375, and most of you wont either. Im not going to talk about who doesnt have a girlfriend,
because this is supposed to be a happy occasion. Mao Leung is a great guy, but we cant all be like him, and thats
okay.

Prodigies are a curse for those who need a curve on the exam to pass and a blessing for the general public; as a
whole, people tend to look at the people with the best averages and pin all the countrys hopes on them, leaving
the rest of us to wonder what were supposed to do. The truth people have difficulty wrangling with is that not
only do we not need a messiah, messiahs cannot solve our problems. This country just needs honor and excellence
from every single one of us, every single day. Whatever it is you do, do it well, and do it for the people.

Are you going into a career in science? There might be days when you have to run PCRs from 7 to 12. Thats 7 in
the morning to 12 midnight, by the way. Do it. There might be times that your graphs would be publication-worthy
if only you could get rid of one annoying data point. Dont do it. That is honor and excellence.

Are you going into medicine despite your teachers laments? You might end up spending most of your nights
running on adrenaline and Dunkin Donuts because you have to stay in the hospital. Stay. There might be an
occasional addict suffering from a shabu overdose that you have to tie down to a stretcher because he wont stop
kicking you. Treat him, and treat him again when he comes back. That is honor and excellence.

Are you going to get a girlfriend because studies first no longer applies? She might be angry at you for no easily
identifiable reason. Stay calm, listen, and talk things out rationally. After an argument about taking relationship
advice from some guy who was supposed to give a valedictory address, you might see a book she would like. Buy it
for her. That is honor and excellence.

Are you going to be a full-time parent because you had a successful relationship? You might proudly send your child
to UP only to learn that your precious iskolar ng bayan has turned into a class-cutting, DRP collecting, tuition-
burning machine despite your warnings. Wake them up in the morning, give them their allowance, and support
them without nagging. See to it that they march and that you get to be with them. That is honor and excellence.
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Are you just thinking of going to UPTown Center for a celebratory dinner after this is done? You might have a hard
time parking because, wow, that is a lot of people. Dont hog the disabled parking spaces. You might be hungry
because the ceremony was too long and parking was nigh impossible because you left the wheelchair spots alone.
Be nice to your waiters. They have names. Address them by name, follow up your orders without snapping at
them, and say thank you the way you would like to be thanked for doing a good job. That is honor and excellence.

Are you going to do anything at all in your life? Whatever it is, do it well, and do it for the people. Do it well if
doing it well is clocking in 70 hours a week at a world-class research institution. Do it well even if doing it well is
just staying awake for five more minutes to finish a chapter or a boring lecture. Do it well when it matters, and
do it well even when it doesnt. And do it for the people. Do it for the people even if you dont like the people.
Do it for the marginalized even when they dont appreciate it. Do it for the privileged even when they cause
Katipunan traffic. Do it for the people whether the person in question is a drug addict in the emergency room or
your waiter at UPTown Center or a stranger on the internet or even just yourself, because its not about the
gratitude, or the credit, or the reward, but about the people, and the work. That is honor and excellence.

The unphotogenic, non-headline-grabbing, narratively-unsupported fact is that large-scale change happens in fits
and bursts and stops, and often on a scale you cant see with an electron microscope. We hold ourselves up to
unreasonable standards and are subsequently disappointed most of the time, when what matters is the work we
do in increments, the lab hours that we log, and the people we encounter.

You might not make your own transgenic crops, but you can disabuse your family of any erroneous notions they
may have about Bt talong. You might not eradicate crime in 3 to 6 months, but you can avoid catcalling. You might
not make it to the newspapers front page, but you can make it to your moms proud parent Facebook post.

We often look to larger-than-life figures to celebrate honor and excellence, from Miss Universe to near-perfect-
GWA graduates. Im not saying its wrong to do so, but I believe the first place to seek it is within ourselves.

My name is Isaiah Paolo Atienza Lee. I am not the best, but I am good enough, I am not the brightest, but I am a
UP graduate, and I am not your valedictorian, but I am going to tell you all to go out there and show the world
what weve got.

Labor Standards Proper

Article 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.
Overseas Employment
Article 13. Definitions.(a) Worker means any member of the labor force, whether employed or unemployed.

Q: what does this tell you?

A: There is no need for the existence of an employer-employee relationship for coverage under Book I,
Title I, Chapter I because whether or not you are employed, you are a worker for purposes of placement
recruitment.

Book II, Title I, National Manpower Development Program

Title I, Book 2, Article 44, subparagraph (a) provides:
(a) Manpower shall mean that portion of the nation's population which has actual or potential capability to
contribute directly to the production of goods and services.

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:
1. government employees;
2. managerial employees;
3. field personnel;
4. members of the family of the employer who are dependent on him for support;
5. domestic helpers;
6. persons in the personal service of another;
7. workers who are paid by results as determined by the Labor Secretary in appropriate regulations.
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After you have decided the problem w/n there is an EER, if you are given a problem with respect to (i.e. salary,
compensability of hours work, 13th month pay, and all those benefits), you have already determined that there is
EER, then next you ask w/n this person falls under any of the excepted categories provided by law. Is he a
managerial employee? A domestic (by the way the new law says they are already called Kasambahay ). By the
way, when you say paid by results there is actually a provision which refers them as Pakyaw workers.

GOVERNMENT EMPLOYEES
(no EE in governments, they are excluded, NOT exempted)
Q: Who are government employees?
A: Government employees, there is no problem if you are employed in a Local Government, municipality,
province or city. But, if you are employed in a GOCC, that is the problem. Because you must ask, is it a
GOCC with original charter or a GOCC organized by a general enabling law, the corporation code.

Because the Constitution is now clear that it must be a GOCC with Original Charter. The articles of
incorporation and by-laws must be a law, not filed by incorporators submitted to the SEC and approved.
NO! It must be by Congress. That is the meaning of original charter, it must be filed in congress.

1999 case: Camporedondo v. NLRC 312 SCRA 47 reiterated in 2000. Baluyot v. Organza 342 SCRA 248 (2000).
The SC laid down the charter test. Does the Corporation have a charter? If it does, then it is a GOCC and the
employees there, even if it is an incorporation, are under the CSC not DOLE. Issue: w/n there is a charter.

BSP v. NLRC 196 SCRA 176. He was a carpenter in Mt. Makiling and he was transferred to Cebu. He went to the
Labor Arbiter and filed a case of constructive dismissal. This transfer according to him is equivalent to being
dismissed because he clearly cannot transfer to Cebu. LA took cognizance of the case and likewise the NLRC said
he was illegally dismissed. For the first time, jurisdiction was challenged before the SC. According to them, the
BSP has an original charter for it was created by an Act (by US Congress). The BSP is not an ordinary civic
corporation. It was created by an act. And according to Congress, look at this particular section the President of
the Philippines is himself the number one boy scout.

FACTS: In 1984, the Secretary-General of BSP issued five (5) special orders (SO) for the respondents who
were all rank-and-file employees. The SO mandates that they will be transferred to BSP Camp in
Asuncion, Davao del Norte from their camp in Makiling. Respondents averred that such order is prejudicial
not only to their economic stability but also to their families. Upon their filing of a complaint, they were
subsequently terminated. The LA dismissed the complaint for lack of jurisdiction. NLRC reversed the
decision ordering BSP to reinstate respondents with full back wages.

BSP contends that it is under the CS Law because it is an organization created under CA 111 (an Act to
Create a Public Corporation to be known as BSP) with obligation towards nation-building.

ISSUE: Who has jurisdiction?

HELD: CSC has jurisdiction. It is a GOCC with original charter. Considering its character and the purpose
of its function, the statutory designation of BSP as a public corporation, and the substantial
participation of the government in the selection of its members, there is no doubt that it falls under CS
Law LA TSN

***This case is even more queer

PSPCA V. COA 534 SCRA 112 (2007) En Banc, J. Austria-Martinez
It was also created by an act in 1903. How come Commission on Audit is here? The Phil. Branch of the SPA went
into the limelight because of the National Geographic coverage of the dogs in Baguio City. You know the gourmet
foods for the Igorots in Baguio are made of dog meat. So there are special sections in Baguio City where they only
sell dog meats. The National Geographic took pictures of that because to them it is unbelievable that somebody
can slaughter a dog and eat it. So they started sending money to purchase these dogs and take them away from
those who are slaughtering them. PSPCA began to have money. COA intervened and wanted to audit it, because it
belongs to the government. On the other hand, PSPCA claims that it is a private entity since it has never received
any government fund. The government invokes the charter test rule that is, if there is a charter, then it is
government. SC: The charter test rule applies prospectively, not retrospectively. It first appeared in the 1987
Constitution. SPCA is not GOCC even if it has an original charter.

*** the earlier case was penned by J. Abad

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LIBAN V. GORDON, 639 SCRA 709 Jan. 18, 2011, En Banc, 2nd Resolution by the SC, J. Leonardo de Castro
Gordon is a senator and at the same time a chairman of Phil. National Red Cross. Did he violate the rule that he
cannot hold any other office if he is at the same time a Senator, Congressman, or a President? Liban claims that is
has been violated since PNRCC is a GOCC with an original charter, created through an Act by US. SC has come up a
ruling equivalently saying that the PNRC is in the same category as the LGBT. It has no personality; it is neither
government nor private. What was the problem in the original decision? J. Abad asked Do you make yourself
private registered under the Corporation Code? If otherwise, ask another law/act to give you special features.

SC: PNRC does not have to choose because its juridical personality is derived from its International law. Why is it
neither private nor public corporation? According to PNRC, w/n they are private or public does not matter if they
respond to natural calamities. But when it involves manmade calamities like Internal Wars, rebellion, Abu Sayaff,
kidnapping, etc. When they intervene there, they are not representing government thats why they can go to the
belligerents. That is necessary as their last bastion for the protection of the victims. The government says, they
are also government because their purpose and activities are prime responsibilities of the government an agent
of the government (they use government facilities). Government must respond to natural calamities. You are both
government and both private. If that is the case, that you are neither government nor private. What happens to
the workers there? The SC in declaring the precise nature of the PNRC, it did not say where the workers would go
in case there would be labor problems. LA or CSC? They have to make another decision.

Phil. Veterans Federation v. Reyes 483 SCRA 526 (2000) En Banc (J. Chico Nazareno)
Issue: the Veterans organization has several charters, each province has a chapter. The presidents of these
charters formed a corporation Veterans Federation of the Philippines Inc. and registered it in the SEC. Is that
corporation private or GOCC?
SC: It is government! Even if you are a veteran, you are still under the Secretary of Defense. The Defense
Secretary can reactivate you in case of war.

Davao Water District: they have a CBA already there with the DOLE. Their increases are determined by
negotiation. So many decisions of the SC held that they are government because they are formed in accordance
with the Water Code. So the increases they get because of the Act of the corporate board. Sooner or later, they
have to be nullified. It has to go to the Sanggunian, because they are government. 2 of their presidents have
already been indicted in the Ombudsman/SB. Right now, there are two lawyers involved who have been convicted
of corruption. How can you be convicted of corruption if you are not a government employee?

General Rule: Charter Test

Exceptions:
Sec. 66 of the OEC: The moment a government employee files a certificate of candidacy, ipso facto, you are
deemed resigned. *** This applies to both GOCC with or without charter.

MANAGERIAL EMPLOYEES

- refers to those whose primary duty consists of the management of the establishment of which they are
employed or the department or subdivision thereof and to other officers or members of the managerial staff
1. Those who manage section subdivision
One is not a managerial employee because of title but because of what one does.
Paid not for the time that you put in but for the goal that you have achieved.
To achieve that goal, you have to have discretion. Your activities are characterized by the
exercise of an independent judgment.

Example of an independent judgment

Decision to hire or fire
Effective power to recommend (Supervisor and thus Managerial)

2. those who are members or officers of the managerial staff

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DISTINGUISH MANAGER IN RULE V (LabRel) vs BOOK III

RULE V BOOK III

they can form a union among themselves The supervisor in book 3 is not entitled to the
benefits here and overtime
not Managerial employees who are absolutely
prohibited from joining organizations.

BAR Q
Is a probationary employee entitled to minimum wage?
W/N or not you are entitled to minimum wage does not depend on w/n you are a probationary
employee, or you have EER. It does not matter.
If you are a time-worker, then you are entitled to minimum wage. Your maximum hours of work for a
full based pay cannot be more than 8hours.
Why did they use probationary? To mislead you. The term probationary has something to do with tenure
whether you are regular or not.
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July 15, 2016

2nd part (after 5 minute break)
Inah del Rosario

PNOC vs. NLRC

222 SCRA 231 (1993)
The pertinent section in the Omnibus Election Code is Section 66.

Managerial Employees are of 2 kinds:

1. Those who actually manage
2. Those who do not manage but are members of the managerial staff

Give an example of a member of the managerial staff who is a managerial employee:

Lets say a Cost Accountant. A cost accountant does not supervise anybody. It just has a
computer. The wonder of electronic recording now is that there are no more trial balance
sheet. The program itself generates the necessary financial statement. In the end of the day,
you can know your cost which before when things are manual, took them a year! It couldnt
determine the actual cost. Now you can know it. Whose job is it to be on top of the cost? The
cost accountant. He or she makes love to a computer.

Sometimes if there is a special project and he goes home late, is he paid overtime? No.
Why? He is not a time worker. He is a managerial employee.

What makes you managerial if youre part of the managerial staff? It is your duty to husband to
accumulate to store to safeguard strictly managerial information that is labor- relations
related. To know cost, that is still managerial information. So therefore, you are not an
ordinary rank and file. You are managerial. You are not entitled to the benefits that are listed
in Title I of Book III of the Labor Code.

FIELD PERSONNEL
Art. 82(3). 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.
3 ELEMENTS:
1. Non-agricultural
2. You are always out of the office
3. Hours of work outside the office cannot be determined with reasonable certainty

Question: You are a member of the emergency response crew of Davao Light and Power Company. (12
hour shifts) The one who is called to respond, must necessarily report. If he is not ready, sige na lang
Pokemon day. If someone calls, he jumps in the truck. When he reaches the guard, he will be given an
odometer. Just because your supervisor is away, does that mean that it is under hours of work
outside the office cannot be determined with reasonable certainty? There are many of checking! They
can be checked whether they are really doing their job. That is not the proper field personnel.
Emergency Repair Crew -- you can determine the job.

Who is that particular category worker? He has been identified in the landmark case of

Union of Filipro Employees vs. Vivar, Jr.

205 SCRA 200 (1992)
According to the Supreme Court, he is the salesman. His hours of work is outside the principal office. If
he does his work in the principal office, will he be unable to make a sale? He needs to go out. He is not
agricultural. He is an industrial or commercial worker.
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Why is his hours of work incapable of determination with certainty? Let me ask you. Suppose you are a drug
salesman of a pharmaceutical company and you are pushing antibiotics. You know how much competition there is
for antibiotics? So, you must distinguish yourself from the others who are your competitors. Suppose this particular
doctor, you know he has many patients, you want to get him -- then you suddenly find out that his daughter is
getting married. So you volunteer to pay for invitations, to give the cake, etc. When you are attending a wedding,
you dance, you eat there, are you attending a wedding or are you selling? Even if your supervisor is shadowing
you, he cannot tell! When you are eating, are you eating yourself or are you selling? You are a salesman you bring
your prospective customer out thats why the law says it cannot be determined with reasonable certainty.
Therefore they are excluded. Because their hours of work cannot be determined with reasonable certainty.

MEMBERS OF THE FAMILY OF THE EMPLOYER WHO ARE DEPENDENT ON HIM OR HER FOR SUPPORT.
ELEMENTS:
1. You hire the member of the family:
1) Mother
2) Father
3) Sister
4) Brother
2. The one you hire is dependent on your for support

That employee is exempted from labor standards provisions.

Why? Because there is an underlying relationship also covered by law which is more fundamental than the
employer-employee relationship. Like filiation.
What is your job? I dont know. There is no description of my job. What do you do? I wake up early, open
the store, etc. I also close the store. What? You dont have overtime? No. How much is your basic? I have
no basic. But you have a car! Where do you get your gas? I use the credit card to pay. How about your
children? Where do they go to school? Ateneo. How do you pay? With a credit card.

You are not covered by the Labor Code. Maybe you are getting more because you are filiated. You are covered by
Book I of the Family Relations in the Civil Code. Thats why you are not included. There is more fundamental
relationship.

DOMESTIC / KASAMBAHAY
Domestics are now kasambahay.

What is the definition of a Kasambahay? One who performs in the employers home services usually necessary and
desirable for the maintenance and the enjoyment thereof and includes ministering to the personal comfort and
convenience of the members of the employers household.

Now, family drivers are already excluded by the amendment of the law.

Remember, it is the employers household that you serve. Suppose the employer has no household. Why? He is
single. Can a single person have a kasambahay? The law says he cannot! So what happens to single people who
have the equivalent of a kasambahay? Are they covered by the provisions of the labor standards provision? No.
Why? Because they belong to the next category Persons in the personal service of another.

Why are the Kasambahay excluded from the provisions of the Labor Standards?
Because their existence ante-dates the industrial revolution. Remember labor laws were just born out of industrial
revolution. Even before the advent of of factories there were already domestics and they are covered by a
separate and elaborate protocol.

PERSONS IN THE PERSONAL SERVICE OF ANOTHER

I like to tell this story of this Negros teacher who was the nanny of Prince William. When Prince William, Pres.
Macagapal-Arroyo was dreaming to get an invitation. She couldnt be invited because she was not part of the
Commonwealth. But the maid who hails from Negros -- second row!! She even sat before the Members of the
Diplomatic Court. She is a member of the family. That is the protocol. When Prince William dies, there will be a
legacy in favor of his yaya.

The protocol for that kind of arrangement. You cannot pay for their service. It is so personal. It is so close.

Until Pope Francis, the popes had persons in the personal service of another -- That is by tradition.
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When youre a true royal, you sit down without looking whether the seat is there because you know the seat is
there. When Imelda went to London, she was the only one who looked for her seat. But all the other royals, sat
down without looking. Do you think that that is a privilege? Ako hindi. Because I want to be sure its there. I dont
want a broken spine.

Now question: What makes you a kasambahay? The activity for which you are engaged to perform? Is that what
makes you a kasambahay? When you wash your clothes, wash the dishes, fix the bed, are you a kasambahay? That
is the issue raised in
Apex Mining vs. NLRC
196 SCRA 251 (1991)
You had a staff house of expats of Japanese engineers. Apex Mining hired what they called domestics to maintain
the house, do the laundry of the Japanse, wash their plates, make their beds. They were paid domestic workers
rates. Then they demanded 13th month pay. Labor Arbiter says that they cannot be entitled to that 13th month
pay. NLRC overturned it. Thats why Apex had to go to the Supreme Court. SC says, they are not domestics.
Because their employer is a corporation.

So what makes you a domestic? Its your employer! Not what you do. If your employer is not a household/family,
you are not a domestic.

Under Art. 145 of the Labor Code, there is a provision against assigning a domestic, non-domestic household
chores. How does that happen? Lets say you are a domestic. If you are a cook or a labandera and the family you
work for owns a boutique in SM, then they make you a saleslady because the original saleslady in the store was
absent. What has happened? Youre a domestic that was assigned to do non-domestic chores.

What is the effect? You have been transformed into a commercial or industrial worker. You cease to become a
domestic. It only occurs one way! Only from domestic to commercial or industrial. Never to the opposite
direction.

Take note that once domestics salary reaches P1000, she must now be compulsory enrolled with the SSS. Is there
an employers counterpart? No. There is no employees counterpart. The registration and premium is paid entirely
by the employer until the salary reaches P5000. Now there is an employers counterpart.

What are the domestic rights?

1. Right to an original contract for not more than 2 years
a. cannot engage a domestic open-ended
b. Renewable for another 2 years
2. Right to minimum wage separate for Kasambahay
a. Minimum wage: First class municipality --
b. Second Class Municipality --
c. Kasambahay wages are the only kind of wages that always lags behind the market wage whereas
industrial commercial and agricultural workers -- the wages which are mandated are always
ahead of market wage
3. Right to just and humane treatment
4. Right to indemnity for unjust termination
a. It is a cap on back wages
5. Right to employment certification
a. Only employee who has a right of this kind
b. She is entitled for a certification
c. An industrial, commercial or agricultural workers dont have that right

*read more on the Kasambahay, its there in the handbook. Be sure you know it because it has become a favorite
source of questions in the bar examination

WORKERS THAT ARE PAID BY RESULTS AS DETERMINED BY THE SECRETARY

- Pakyaw workers
2 kinds:
1. Those paid on a piece rate basis
a. (output is the units that are uniform; paid per unit)
b. Buri hats; paid per buri hat for P1.20 per buri hat
c. At the end of the day you made 50 buri hats. What is your wage? 50 x P1.20.
2. Those paid on a results basis (completion of the task)
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Pakyaw workers are excluded here because they do not have hours of work. As long as they can work, they will, so
that they can get paid for how much they worked.

If you have working hours and given a quota, what does that make you? You are a time worker. You are not a
Pakyaw worker, you are not a piece rate worker.

Suppose you are given hours and also given a quote. What is that? What right does the worker have with respect to
the quota? Can he or she oppose to the quota because it is contrary to his or her being a time worker? The quota
may be given for purposes of disciplinary sanction.

Suppose you are in an assembly. You assemble Timex watches. Youre quota is 15 watches for your segment of
work. Timex in Mactan works 10 hours per shift. What happens if you do not finish 15 and passing the quality
control test? You are given a warning. The next time, within a month you cannot reach the quota, another
warning. The 3rd time, you are pulled out. Then you are subjected to training. You go back to being a trainee and
your salary is that of a trainee and not a regular worker. In other words, the quota is imposed for purposes of
disciplining. For purposes of keeping you at a level with other workers. Cannot have backlog in an assembly line.

Like a pilot of a plane who has a check ride every month. If he fails in the check-ride, he has major lapses. Then
he is taken off the regular roster and he goes back to training. You are not dismissed.

What is the difference of piece rate basis to task basis (results basis)?
I engage you cementing this whole floor. You prepare this floor, put the necessary layers then cement it. I pay you
P6000 for this full job. At the end of it, you get paid P6000 -- that is task basis.

What is the other application of task basis? You see those trucks Davao to any point in Mindanao. They are paid on
the distance -- not by time. Lets say you get there very late at night, do you get overtime? What if you get a flat
tire? No. Because you are paid on a task basis.

So be careful okay? These kinds of workers are not included in the minimum standards benefits of Book III, Title I.

RETAIL AND SERVICE ESTABLISHMENTS WITH NOT MORE THAN 5 EMPLOYEES ARE EXEMPT FROM THIS 1 BENEFIT
CALLED NIGHT-SHIFT DIFFERENTIAL
- At least 10% of your basic pay when one works between 10pm to 6am.

If you are a retail or service establishment employing not more than 5, this was suggested and asked by
Blas Ople (the original Department of labor Secretary who was the architect of the labor code) to save
sari-sari stores from paying overtime to their worker.
The moment you sell alcohol, you stand the risk of having to remain open up to the late hours of the
evening. The men cannot go home and drink at home when they have wives. More than 8 hours. There is a
study where it is says that 50% of sari-sari stores close within the 1st month they open.

Now, the bakery, that employs only 5 people, is that except from minimum wage, OT pay? When you know it is a
service establishment or retail establishment.. Beauty parlor? That is service establishment. You know, the late
Jose Diokno was made examiner in the bar examination of the civil code. That was the last time he was ever made
an examiner. One of his questions went like this: Here is a restaurant and here is a customer of a restaurant, and
he orders oyster soup. When the oyster soup was brought to the customer, the customer saw a pearl inside it.
Waiter says, that the pearl belongs to the restaurant. Is that owned by the restaurant? They went to court. Who
has a better right to the pearl found in the oyster soup in the restaurant.

Suggested answer: depends on whether the restaurant is a retail establishment or a service establishment. An
ordinary restaurant where the customers sit down and consumes the food, that is a service establishment. The
customer there does not own the pearl because the customer goes there for nutritional satisfaction.If it is retail,
you can take it out the food. In that case, even the non-edibles, you own.

Jose Diokno is the only one who took the bar exam who did not finish law school. Third year, he asked the SC that
he be allowed to take the exam. The SC made him take an exam to see whether he is ready. The SC gave him
exams for 8 days straight. After which the SC said that he is ready. Then he took the bar examination. There were
2 top notchers in that exam: Jovito Salonga and Jose Diokno.
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JULY 22, 2016 1ST HOUR

Jan Kristy Y. Pastor

Art. 110. Worker preference in case of bankruptcy. In the event of bankruptcy or

liquidation of an employer's business, his workers shall enjoy first preference as regards their
wages and other monetary claims, any provision of law to the contrary notwithstanding. Such
unpaid wages and monetary claims shall be paid in full before claims of government and other
creditors may be paid.

There are 4 or 5 cases already decided in this jurisdiction, and their ruling is still the same, and
surprisingly, they invoke, always, the Development Bank of the Philippines. Why? Because normally
when an employer is in trouble financially, the workers are not paid so the workers go up against the
bank who is a secured debtor because the money borrowed from the bank is secured by a mortgage,
and so the workers file their opposition in the foreclosure proceeding, thats why the court laid down
in the DBP v. CA, DBP V. NLRC-- the SC has made the number 1 pronouncement:this is not a labor
provision. What is this? This is a concurrence and preference of credits provision.

Concurrence and preference of credits are provisions of law which grant the rights of creditors. But
there are many provisions, there are a couple of them in the civil code and the SC said this is also a
concurrence and preference of credit issues. And it cannot be read in isolation.This must be read
together with all other concurrence and preference of credits. So, if a certain entity a person whether
juridical/natural goes bankrupt that means-- the simple way to remember bankruptcy or insolvency is
your liability exceeds your assets: You are worth P10, and it is not enough to satisfy your debts. Your
creditors who are worth 90 pesos are after your 10 pesos-- how will the court apportion P10? That is
when you have concurrence and preference of credits.

Concurrence- the provision might say they have the same right, they will divide equally. Preference-
this has a higher claim over the others. And you know very well there is always one claimant who is
superior to all other claimants. And who is that claimant? Its claim can never be compromised. Who is
that preferred claimant that can actually get the lion's share? He will get everything necessary to
satisfy his need. It is the government when the governments claim is taxes. SC says this is a
preference of credit provision, this is not a labor provision. What is the implication of that? This is not
interpreted in favor of the labor in case of doubt. So, disabuse yourself from thinking that everything in
this Labor Code is about labor. Then SC said, second, this provision applies only if there has been an in
rem proceeding declaring the employer as insolvent or bankrupt. With the very slight difference
bankruptcy and insolvency are about the same. Insolvency is the term used in continental law, in the
civil code because that is our pedigree. Bankruptcy is common law because its origin is in UK.
(Bancarote Spanish term.)

In rem proceeding - when the court declares you are bankrupt that is not a cause of sadness, that is
intended for your benefit. You are saved. All these creditors run after me, they can get everything, and
from then on I am discharged, the final order of the court in bankruptcy or insolvency is-- order of
discharge. You are now discharged from this court, you are discharged from your obligation, go your
away. Start business again. Because these creditors of yours, even if they are not fully satisfied, they
can no longer run after you. The bankruptcy law is created in your favor, the business man. But you
know what, 2010 when they replaced the insolvency law with nowrehabilitation act of 2010, nobody
made use of insolvency law. Covered bar examination but they are no decided case. Nobody really used
the insolvency law. Its because to be insolvent or bankrupt is a shame. So culturally it is not appealing
to us. And yet, many successful men in the U.S. have gone through bankruptcy, they went through
bankruptcy.

Can you imagine how many times Henry Ford was bankrupt? He ended up with a successful car but the
car was model T. He began with a, b, c.. until he reached t. He went though all these bankruptcies.
Precisely bankruptcy is there to save you, give you another chance. Its in favor of the debtor. Modern
day rule of law is in favor of debtors. Creditors are left with the risk. They say Lucio Tan was almost
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insolvent; Gokongwei has gone through almost an insolvency. (I dont know whether when you become
successful you try to lower your origins in your stories so your success will be even greater.) They love
to tell the stories that they went bankrupt, they became insolvent.

And as you already know, bankruptcy if it goes to court, it is an in rem proceeding-- binding against the
whole world. Now, if the creditor of a bankrupt person sells his credits and there is a guy stupid enough
to buy him, probably not knowing that the debtor is already bankrupt but then he succeeds in obtaining
a discharge order from the court, this third party comes around and says, pay me, I bought your credits
from this guy, pay me, and he cannot. Why? Because the order of discharge is binding the whole world,
that is the meaning of in rem proceeding. That is the reason why bankruptcy required publication.
Because publication is notice to the whole world if you have claim at all, come around, make it known.
Youre given a chance to collect and if you do not do so therefore you are waiving your right to. Thats
the third of the element. The provision applies only if there is an in rem proceeding declaring
bankruptcy.

4th element: This provision giving preference to uncollected salaries and benefits by the employees is
invoked only over or against free property. Property of the employer not otherwise encumbered. And
encumbrance is (for example) chattel, chattel mortgage, pledge, mechanics lien you bought
(machine) on installment, so it is not fully paid but already in your possession, and then you went
bankrupt. Employees come around and fight over that property. Who has a better right-- the seller who
has not yet been fully paid or the employees who have not been paid their wages which is necessary for
their living? It is the seller, because the property is not free property. Only so called free property
according to the SC can be open to this preference in Art. 110.

Finally, SC says it is said here that the claim of the employees monetary claims shall be paid in full
before claims of government and other creditors may be paid. Is this a declaration that claims of the
employees over free property are superior to the claim of the government for taxes? The SC says when
it says claims of government this are proprietary claims, not sovereignty claims. An example of a
sovereign claim is taxes. The power to tax is an inherent governmental sovereign power. The power to
tax cannot be set aside, waived, or taken exception to by any government official unless it is so
declared in the law. You will soon take up taxation. You will find out that the revenue dispute officer
has certain powers to compromise collectible taxes that is in part, partial waiver of tax--that is in
accordance with provisions of law. But no government official on his own forego the collection of taxes
because it is a sovereign power so even if it is free property, if it is a sovereign claim on taxes, it is still
superior over unpaid wages.

The only time that the employees claim is superior is if the claim of the government is proprietary.
What does it mean? When the government enters into a contract with the bankrupt employer, and the
basis of contract, they can exact payment because of contract. In other words the government has
descended as an ordinary (citizen) who has entered into a contact. So, this is the meaning of worker
preference in case of bankruptcy.

Bankruptcy, financial rehabilitation, insolvency retreat. You are trying to as they say control loss you
are trying to minimize loss. MBA is always maximizing profit. (If you study it you will be the expert of
retreat).

What is retreat? Have you not heard of Gen. Zhukov? (Story about retreating to win a war, of the
poverty of Russia saving Russia. Read more here: https://en.wikipedia.org/wiki/Georgy_Zhukov
https://en.wikipedia.org/wiki/Battle_of_Moscow)

That is 110. Sounds good. Very glorious statements, but they remain as statements.

Art. 111. Attorneys fees.

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(a) 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.
(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.

When they say 10% that is the ceiling. That is not the minimum. The court can lower it. And the court
made this pronouncement in the landmark case of Royal Bank v. NLRC, 269 SCRA 733, 1997. That is the
landmark case of art. 111.

The union here of the employees went into a contract with the lawyer, the contract had 2 main
divisions: 1.General Retainer, and
2. Special Retainer.

General retainer - the lawyer will be paid a certain amount every month for legal advice, for doing
notarial work for the members of the union , and for other forms of legal assistance. If the union had a
litigation or case, that would fall in the second part. The lawyers fees will be agreed upon according
to the gravity of the case, the number of issues.

The Union had several complains. 13th month pay, premium pay, holiday pay, and so many others. They
went to the lawyer and the lawyer said we will file this. (Special Retainer) When they went to the
labor arbiter, they lost all the causes of actions, except for the 13th month pay which they won. The
lawyer asked-- are we going appeal? And they said let's appeal, so they appealed to the NLRC. After
they made the appeal, the Union went to the lawyer and said we are replacing you.

What happens in court is secondary to what is filed. The judge wont even read the transcript. You
have to quote that in your memorandum to make sure that the judge remembers what happened. What
is important is the brief that you file.

The union dismissed the original counsel and got a new one and sure enough the decision of the labor
arbiter was affirmed. All the other claims were not granted. They went to SC. The same. Only the
13th month pay was granted, all the rest were still dismissed. The SC ordered remanding of the case to
the court a quo, so he filed a motion for his attorneys fees. The Union moved to dismiss. Why are you
asking when we are going execute it? The case went back to the SC because the labor arbiter wanted
to grant the attorney's fees -- grave abuse.

Issue and Ruling of the court: Is the motion for attorney's fees timely filed? After decision has become
final and executory? Yes. You can file 2 ways: separate case or you can within the case file a motion for
your attorneys fees for as long as the proceeds of the case have not yet been distributed. No actual
execution. Even if the decision has become final and executory as long as it has not been actually
distributed, you can file a case.

The SC said the first counsel has a right to demand his fees. But it cannot be 10 % because he did not
do the entire work. Its not 10 percent. What Art. 111 provides is that no matter what the agreement
is, it is not iron clad. The court can determine and correct it. 10% is the ceiling it is not the floor. So
court reduced it 5 %.

Traders Royal Bank Employees Union vs. NLRC (1997) G.R. 120592 ( Case Digest is taken from the net.)

Facts: Petitioner Traders Royal Bank Employees Union and private respondent Atty. Emmanuel Noel A. Cruz,
head of the E.N.A. Cruz and Associates law firm, entered into a retainer agreement on February 26, 1987
whereby the former obligated itself to pay the latter a monthly retainer fee of P3,000.00 in consideration of the
law firm's undertaking to render the services enumerated in their contract. During the existence of that
agreement, petitioner union referred to private respondent the claims of its members for holiday, mid-year and
year-end bonuses against their employer, Traders Royal Bank (TRB). These employees obtained favorable decision
from their complaint which went through the SC.
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The Supreme Court, in its decision promulgated on August 30, 1990, modified the decision of the NLRC by
deleting the award of mid-year and year-end bonus differentials while affirming the award of holiday pay
differential. The bank voluntarily complied with such final judgment and determined the holiday pay differential
to be in the amount of P175,794.32. Petitioner never contested the amount thus found by TRB. The latter duly
paid its concerned employees their respective entitlement in said sum through their payroll. After private
respondent received the above decision of the Supreme Court on September 18, 1990, he notified the petitioner
union, the TRB management and the NLRC of his right to exercise and enforce his attorney's lien over the award
of holiday pay differential through a letter dated October 8, 1990.

Thereafter, on July 2, 1991, private respondent filed a motion before Labor Arbiter Lorenzo for the
determination of his attorney's fees, praying that ten percent (10%) of the total award for holiday pay
differential computed by TRB at P175,794.32, or the amount of P17,579.43, be declared as his attorney's fees,
and that petitioner union be ordered to pay and remit said amount to him. The LA and the NLRC affirmed Atty.
Cruz motion.

Petitioner union filed a comment and opposition to said motion on July 15, 1991. Petitioner maintains that the
NLRC committed grave abuse of discretion amounting to lack of jurisdiction in upholding the award of attorney's
fees in the amount of P17,574.43, or ten percent (10%) of the P175,794.32 granted as holiday pay differential to
its members, in violation of the retainer agreement; and that the challenged resolution of the NLRC is null and
void, for the reasons hereunder stated.

Although petitioner union concedes that the NLRC has jurisdiction to decide claims for attorney's fees, it contends
that the award for attorney' s fees should have been incorporated in the main case and not after the Supreme
Court had already reviewed and passed upon the decision of the NLRC. Since the claim for attorney's fees by
private respondent was neither taken up nor approved by the Supreme Court, no attorney's fees should have been
allowed by the NLRC. Thus, petitioner posits that the NLRC acted without jurisdiction in making the award of
attorney's fees, as said act constituted a modification of a final and executory judgment of the Supreme Court
which did not award attorney's fees. It then cited decisions of the Court declaring that a decision which has
become final and executory can no longer be altered or modified even by the court which rendered the same.

Issue: Whether or not Atty. Cruz is entitled to 10 % of the judgment award as his attorneys fees even if it was
not taken up in the main decision of the SC.

Held: Yes, not in the concept contemplated in Article 111 of the Labor Code. The Labor Arbiter erroneously set
the amount of attorney's fees on the basis of Art. 111 of the Labor Code; a hearing should have been conducted
for the proper determination of attorney's fees.

There are two commonly accepted concepts of attorney's fees, the so-called ordinary and extraordinary. In its
ordinary concept, an attorney's fee is the reasonable compensation paid to a lawyer by his client for the legal
services he has rendered to the latter. The basis of this compensation is the fact of his employment by and his
agreement with the client.

In its extraordinary concept, an attorney's fee is an indemnity for damages ordered by the court to be paid by the
losing party in a litigation. The basis of this is any of the cases provided by law where such award can be made,
such as those authorized in Article 2208, Civil Code, and is payable not to the lawyer but to the client, unless
they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof.

It is the first type of attorney's fees which private respondent demanded before the labor arbiter. Also, the
present controversy stems from petitioner's apparent misperception that the NLRC has jurisdiction over claims for
attorney's fees only before its judgment is reviewed and ruled upon by the Supreme Court, and that thereafter
the former may no longer entertain claims for attorney's fees. It will be noted that no claim for attorney's fees
was filed by private respondent before the NLRC when it acted on the money claims of petitioner, nor before the
Supreme Court when it reviewed the decision of the NLRC. It was only after the High Tribunal modified the
judgment of the NLRC awarding the differentials that private respondent filed his claim before the NLRC for a
percentage thereof as attorney's fees.

It would obviously have been impossible, if not improper, for the NLRC in the first instance and for the Supreme
Court thereafter to make an award for attorney's fees when no claim therefore was pending before them. Courts
generally rule only on issues and claims presented to them for adjudication. Accordingly, when the labor arbiter
ordered the payment of attorney's fees, he did not in any way modify the judgment of the Supreme Court.
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A CLAIM FOR ATTORNEY'S FEES MAY BE ASSERTED EITHER IN THE VERY ACTION IN WHICH THE SERVICES OF A
LAWYER HAD BEEN RENDERED OR IN A SEPARATE ACTION - It is well settled that a claim for attorney's fees may be
asserted either in the very action in which the services of a lawyer had been rendered or in a separate action.
Attorney's fees cannot be determined until after the main litigation has been decided and the subject of the
recovery is at the disposition of the court. The issue over attorney's fees only arises when something has been
recovered from which the fee is to be paid. While a claim for attorney's fees may be filed before the judgment is
rendered, the determination as to the propriety of the fees or as to the amount thereof will have to be held in
abeyance until the main case from which the lawyer's claim for attorney's fees may arise has become final.
Otherwise, the determination to be made by the courts will be premature. Of course, a petition for attorney's
fees may be filed before the judgment in favor of the client is satisfied or the proceeds thereof delivered to the
client. It is apparent from the foregoing discussion that a lawyer has two options as to when to file his claim for
professional fees. Hence, private respondent was well within his rights when he made his claim and waited for
the finality of the judgment for holiday pay differential, instead of filing it ahead of the award's complete
resolution. To declare that a lawyer may file a claim for fees in the same action only before the judgment is
reviewed by a higher tribunal would deprive him of his aforestated options and render ineffective the foregoing
pronouncements of this Court.

The provisions of the contract entered into between petitioner and respondents are clear and need no further
interpretation; all that is required to be done in the instant controversy is its application. The P3,000.00 which
petitioner pays monthly to private respondent does not cover the services the latter actually rendered before the
labor arbiter and the NLRC in behalf of the former. As stipulated in Part C of the agreement, the monthly fee is
intended merely as a consideration for the law firm's commitment to render the services enumerated in Part A
(General Services) and Part B (Special Legal Services) of the retainer agreement.

The difference between a compensation for a commitment to render legal services and a remuneration for legal
services actually rendered can better be appreciated with a discussion of the two kinds of retainer fees a client
may pay his lawyer. These are a general retainer, or a retaining fee, and a special retainer.

RETAINER FEES, GENERAL RETAINER AND A SPECIAL RETAINER A general retainer, or retaining fee, is the fee
paid to a lawyer to secure his future services as general counsel for any ordinary legal problem that may arise in
the routinary business of the client and referred to him for legal action. The future services of the lawyer are
secured and committed to the retaining client. For this, the client pays the lawyer a fixed retainer fee which
could be monthly or otherwise, depending upon their arrangement. The fees are paid whether or not there are
cases referred to the lawyer. The reason for the remuneration is that the lawyer is deprived of the opportunity
of rendering services for a fee to the opposing party or other parties. In fine, it is a compensation for lost
opportunities. A special retainer is a fee for a specific case handled or special service rendered by the lawyer for
a client. A client may have several cases demanding special or individual attention. If for every case there is a
separate and independent contract for attorney's fees, each fee is considered a special retainer.

THE P3,000.00 MONTHLY FEE PROVIDED IN THE RETAINER AGREEMENT BETWEEN THE UNION AND THE LAW FIRM
REFERS TO A GENERAL RETAINER OR A RETAINING FEE. The P3,000.00 which petitioner pays monthly to private
respondent does not cover the services the latter actually rendered before the labor arbiter and the NLRC in
behalf of the former. As stipulated in Part C of the agreement, the monthly fee is intended merely as a
consideration for the law firm's commitment to render the services enumerated in Part A (General Services) and
Part B (Special Legal Services) of the retainer agreement. Evidently, the P3,000.00 monthly fee provided in the
retainer agreement between the union and the law firm refers to a general retainer, or a retaining fee, as said
monthly fee covers only the law firm's pledge, or as expressly stated therein, its "commitment to render the legal
services enumerated." The fee is not payment for private respondent's execution or performance of the services
listed in the contract, subject to some particular qualifications or permutations stated there. We have already
shown that the P3,000.00 is independent and different from the compensation which private respondent should
receive in payment for his services. While petitioner and private respondent were able to fix a fee for the latter's
promise to extend services, they were not able to come into agreement as to the law firm's actual performance of
services in favor of the union. Hence, the retainer agreement cannot control the measure of remuneration for
private respondent's services.

PRIVATE RESPONDENT'S ENTITLEMENT TO AN ADDITIONAL REMUNERATION FOR SPECIAL SERVICES RENDERED IN THE
INTEREST OF PETITIONER IS BASED ON QUASI-CONTRACT. The fact that petitioner and private respondent failed
to reach a meeting of the minds with regard to the payment of professional fees for special services will not
absolve the former of civil liability for the corresponding remuneration therefor in favor of the latter.
Obligations do not emanate only from contracts. One of the sources of extra-contractual obligations found in our
Civil Code is the quasi-contract premised on the Roman maxim that nemo cum alterius detrimento locupletari
protest. As embodied in our law, certain lawful, voluntary and unilateral acts give rise to the juridical relation of
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quasi-contract to the end that no one shall be unjustly enriched or benefited at the expense of another. A quasi-
contract between the parties in the case at bar arose from private respondent's lawful, voluntary and unilateral
prosecution of petitioner's cause without awaiting the latter's consent and approval. Petitioner cannot deny that
it did benefit from private respondent's efforts as the law firm was able to obtain an award of holiday pay
differential in favor of the union. It cannot even hide behind the cloak of the monthly retainer of P3,000.00 paid
to private respondent because, as demonstrated earlier, private respondent's actual rendition of legal services is
not compensable merely by said amount.

THE LABOR ARBITER ERRONEOUSLY SET THE AMOUNT OF ATTORNEY'S FEES ON THE BASIS OF ART. 111 OF THE
LABOR CODE; A HEARING SHOULD HAVE BEEN CONDUCTED FOR THE PROPER DETERMINATION OF ATTORNEY'S FEES.
- Here, then, is the flaw we find in the award for attorney's fees in favor of private respondent. Instead of
adopting the above guidelines, the labor arbiter forthwith but erroneously set the amount of attorney's fees on
the basis of Article 111 of the Labor Code. He completely relied on the operation of Article 111 when he fixed the
amount of attorney's fees at P17,574.43. As already stated, Article 111 of the Labor Code regulates the amount
recoverable as attorney's fees in the nature of damages sustained by and awarded to the prevailing party. It may
not be used therefore, as the lone standard in fixing the exact amount payable to the lawyer by his client for the
legal services he rendered. Also, while it limits the maximum allowable amount of attorney's fees, it does not
direct instantaneous and automatic award of attorney's fees in such maximum limit. It, therefore, behooves the
adjudicator in questions and circumstances similar to those in the case at bar, involving a conflict between lawyer
and client, to observe the above guidelines in cases calling for the operation of the principles of quasi-contract
and quantum meruit, and to conduct a hearing for the proper determination of attorney's fees. The criteria found
in the Code of Professional Responsibility are to be considered, and not disregarded, in assessing the proper
amount. Here, the records do not reveal that the parties were duly heard by the labor arbiter on the matter and
for the resolution of private respondent's fees.

As already stated, Article 111 of the Labor Code regulates the amount recoverable as attorney's fees in the
nature of damages sustained by and awarded to the prevailing party. It may not be used therefore, as the lone
standard in fixing the exact amount payable to the lawyer by his client for the legal services he rendered. Also,
while it limits the maximum allowable amount of attorney's fees, it does not direct the instantaneous and
automatic award of attorney's fees in such maximum limit.

It, therefore, behooves the adjudicator in questions and circumstances similar to those in the case at bar,
involving a conflict between lawyer and client, to observe the above guidelines in cases calling for the operation
of the principles of quasi-contract and quantum meruit, and to conduct a hearing for the proper determination of
attorney's fees. The criteria found in the Code of Professional Responsibility are to be considered, and not
disregarded, in assessing the proper amount. Here, the records do not reveal that the parties were duly heard by
the labor arbiter on the matter and for the resolution of private respondent's fees.

It is axiomatic that the reasonableness of attorney's fees is a question of fact. Ordinarily, therefore, we would
have remanded this case for further reception of evidence as to the extent and value of the services rendered by
private respondent to petitioner. However, so as not to needlessly prolong the resolution of a comparatively
simple controversy, we deem it just and equitable to fix in the present recourse a reasonable amount of
attorney's fees in favor of private respondent. For that purpose, we have duly taken into account the accepted
guidelines therefor and so much of the pertinent data as are extant in the records of this case which are assistive
in that regard. On such premises and in the exercise of our sound discretion, we hold that the amount of
P10,000.00 is a reasonable and fair compensation for the legal services rendered by private respondent to
petitioner before the labor arbiter and the NLRC.

Art. 120 to 127

This is the complete law. This is Republic Act No. 6727 - Wage Rationalization Act (AN ACT TO
RATIONALIZE WAGE POLICY DETERMINATION BY ESTABLISHING THE MECHANISM AND PROPER STANDARDS
THEREFOR, AMENDING FOR THE PURPOSE ARTICLE 99 OF, AND INCORPORATING ARTICLES 120, 121, 122,
123, 124, 126 AND 127 INTO, PRESIDENTIAL DECREE NO. 442, AS AMENDED, OTHERWISE KNOWN AS THE
LABOR CODE OF THE PHILIPPINES, FIXING NEW WAGE RATES, PROVIDING WAGE INCENTIVES FOR
INDUSTRIAL DISPERSAL TO THE COUNTRYSIDE, AND FOR OTHER PURPOSES

Art. 120 127 were amended by RA 6727 way back in June 1989.
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Let me tell you the reasoning behind the law. Before this was the law, it was congress that passed
minimum wage law. Because the power to change the law was with congress, Manila became the
battleground for labor. The problem is Manila is where the workers are concentrated. So if the workers
were organized, congress cannot do otherwise but to grant their wishes evne if it cannot be absorbed
by the ___. So what did congress do? Congress passed a law that ___Regional Tripartie Wages and
Productivity Board *(RPTPD). Then it gave the power to adjust minimum wage to this arbiter and their
wage orders will only be effective within the region. The thinking behind it is that the standard of
living is different according to region so it should be the regions that should determine the levels of
minimum wage. So congress escaped the pressure of labor ___ to have the wages adjusted.

This law leads two bodies, national wage and productivity commission, that s the bigger body but it
does not issue wage orders. The second body RTWPB It is the Regional Tri-partite Wage and
Productivity Board. It is the RTWPD that issues wage order covering the region.

Now, who composes the RTWPD? 2 representatives from labor, 2 representatives from the employers,
and 2 representatives from the government: the Regional Director of Labor is the chairperson, and the
Regional Director of NEDA, national Economic Authority. When it comes to the issue of adjusting
minimum wage of course the employees representative will always vote for increasing. The Employers
will always oppose. Whichever side the government goes, is the one that wins. Actually, it is the
government who decides whether the wage is adjusted or not.

The SC has said that there are 2 ways of adjusting the minimum wage:
ECOP v. NWPC, 201 scra 759, 1991
1. Floor Wage Method - involves the fixing of the determinate amount that will be added to the
prevailing statutorywage
2. Salary Ceiling Method - the wage adjustment is applied to employees receiving a certain
denominated salary

The Former method was used in the in earlier laws. The latter in the wage order following RA 6727,
and it is conceived that the second way reduces the occurrence of what is called wage distortion.

(Wage Distortion is a favorite in the Bar Examination.)

Wage Distortion is designed in the law.

Article 124 of the Labor Code defines wage distortion as a "situation where an increase in prescribed
wage rates results in the elimination or severe contraction of intentional quantitative differences in
wage and 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."

(1) There is a hierarchical difference in wages among the employees they are not receiving the same
salary. There is a hierarchy. The regular, the probationary, the apprentice-- there are several groups.

(2) There is a wage order issued but it didnt change in the minimum wage.

(3) This wage order does not apply to all in the hierarchy. It just applies only to one or a few. In which
case it results in an obliteration or severe contraction of wage differences.

Example: The regular welders in CCR Metal Fabricators are receiving P350/ day. A probationary is
receiving P300. There is a difference of 50. There is a new minimum wage. All those receiving
minimum are entitled to upward adjustment of P30. What happens-- there is a severe contraction
between the different between the regular and the probationary. The difference before is only 50, who
will complain?The regular. Wage distortion-- we are supposed to be higher, we are regular. There
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should be a difference; the cry is always restore the historical difference. But then the SC has ruled
that there is no obligation on the part of the employer to restore the historical difference if the
employee only ads 10 more pesos to the regular to make the difference 30 instead of just 20, if its in
good faith, the SC saidAlright.

All the probationary are now regular, I will add 20 more. Pareha na tanan. Suko ang mga regular.
Unfair. Sila pa natagaan. Is that a valid way to correct wage distortion? By what logic? It is the
employer and his managerial prerogative that created the hierarchy; it is also the prerogative of
management to remove hierarchy.

(not in discussion)
Prubankers Association v. Prudential Bank and Trust Company
Four elements of wage distortion:
(1.) An existing hierarchy of positions with corresponding salary rates;
(2) A significant change in the salary rate of a lower pay class without a concomitant increase in the
salary rate of a higher one;
(3) the elimination of the distinction between the two levels; and
(4) The existence of the distortion in the same region of the country.
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Labor Standards July 22, 2016 2ndhr

Emille Dane S. Viola

In the case of IBM(Ilaw at BuklodngmgaManggagawasa San Miguel Corporation) v NLRC, they

entered into an agreement and one of the items of the agreement is the regularization of over time.
Imagine that? The union agrees and has ratified the work of 10 hours. The argument in this is that
it increases you take-home pay. Now there was a wage distortion, the union complained but SMC
says, we are under heavy competition, we cannot yet attend to the wage distortion. The union
filed a notice of strike and then because SMC did not entertain their notice of strike, the union
went into a slowdown this means that the work is fast but production is slow, thus there is lower
output since there are many mistakes in production.

This is where the SC comes out with one of their most questionable ruling. The SC says
slowdown is a strike on installments and it is illegal per se, thus standing alone it is illegal, how
can you say that? I can understand people slowing down because of health and safety reasons in
the work place. You are mining underground and you are going deeper than seas-level and the air
that the company is giving you is not sufficient. But in the case at bar the actual ratio says, Wage
distortion cannot be a ground for strike.

Why is this removes as a ground for strike? According to the SC there are remedies provided by
the law, if there is no union you ask for the Natl Conciliation and Mediation Board (NCMB) to
mediate and conciliate, after 10 days if it cannot be resolved to the satisfaction of the parties then
you file a complaint with the labor arbiter and this goes tot the justice system of the NLRC-> CA ->
Supreme Court.

Now, what happens if there is a union? The law says that you file it as a grievance, it goes to the
grievance machinery that is outlined in the collective bargaining agreement, if the result is still
unsatisfactory to the parties then you go into VOLUNTARY ARBITRATION, you choose a
voluntary arbitrator and he will resolve the dispute and if you still do not agree, you go to the CA -
> SC. So there are remedies provided by law and SC says that because of this clear mark
remedies, there cannot be a strike because a strike is just another form of remedy.

There is another case which adds a new element to wage distortion, Pru Bankers Assoc. v
Prudential Bank 302 S 74 1990, this additional element is that the implementation of the wage
order causes distortion only in one Regional area, in other words you cannot have a wage
distortion in Naga Region and Metro Manila. In this case, because of a wage order they increased
the salary of the entry level employee in the bank because there was a complaint in Metro Manila,
they also raised the regular workers according to Manila standards. There was no such raising in
Naga for the regular workers, there was a raising of salaries of the entry level positions, so much
so that the supervisors in Naga were in very close difference to the regular worker in the NCR, and
they say that it is wage distortion.

SC says that there is no such thing as wage distortion in between regions, it is only with in one
region. There is really a difference in wages, because there are different costs of living per region
so if you want clear wage distortion talk about just one region and if theres a severe contraction
or elimination of wage differences it should only be in one region and not between regions.

Now here is a workforce, they are trying to get wielders but no one has applied for wielding
position, why? Because once you have a certification from TESDA, you already qualify to go to
Guam, Saipan, Saudi Arabia and other places, so what did management do? Management raised
the entry level salary of wielders, almost the same as the regulars, the latter complained of wage
distortion. Is this wage distortion when there is no wage order? This is called wage compression.
Wage compression is the severe contraction or elimination of wage differences between groups
of workers not because of a wage disorder but because of a unilateral act of management
increasing in one groups wages, without touching the other because of managerial necessity.
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For example, the cellular equipment in the Philippines, Smart and Globe is the same everywhere.
Its the same equipment they use in Minnesota or in Stockholm, so the moment our workforce, our
engineers have gained experience, they are open to be pirated to Europe= pounds compared to
peso, who else will apply? This is why they increase the entry level. That is one of the jobs in
telcom that is becoming more gender equal, ex. ECE women engineers.

NASIPIT INTEGRATED ARRASTRE AND STEVEDORING SERVICES, INC. (NIASSI) v NASIPIT

EMPLOYEES LABOR UNION (NELU)-ALU-TUCP, 2008 penned by bar chairman Justice Velasco.
The issue here is may the RTWPB issue a wage order which in effect grants an across the board
wage increase? The RTWPB says in a wage order that all workers- commercial, industrial,
agricultural- shall enjoy an upward adjustment of their wages by 10.00 a day. The SC says ultra
vires beyond your powers to grants because this is across the board grant, this is not an
adjustment of wage,
In the present case, the RTWPB did not determine or fix the minimum wage rate by the floor-
wage method or the salary-ceiling method in issuing the Wage Order. The RTWPB did not set a
wage level nor a range to which a wage adjustment or increase shall be added. Instead, it granted
an across-the-board wage increase of P15.00 to all employees and workers of Region 2.
You cannot do that.

There is another thing you have to remember about wage orders: no wage order can bring the
wages down instead of up, it is always UP. Wages as far as the RTWPB is concerned can only go
up because of this provision:

Art 127- Non diminution of benefits

No wage order issued by any regional board shall provide for wage rates lower than the statutory
minimum wage rates prescribed by Congress.

Question, how often can wage orders be issued? The law says unless there are extraordinary
inflationary conditions that create an emergency that it economic in nature, once a year As we
now know, they issue wage orders about 4-5 yrs once, thats the gap in wage orders.

Art. 128. Visitorial and enforcement power.

A. The Secretary of Labor and Employment or his duly authorized representatives, including labor
regulation officers, shall have access to employers records and premises at any time of the day
or night whenever work is being undertaken therein, and the right to copy therefrom, to question
any employee and investigate any fact, condition or matter which may be necessary to determine
violations or which may aid in the enforcement of this Code and of any labor law, wage order or
rules and regulations issued pursuant thereto.

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. (As amended by Republic Act No. 7730, June 2, 1994).

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
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the amount equivalent to the monetary award in the order appealed from. (As amended by
Republic Act No. 7730, June 2, 1994)

C. 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.

D. 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.

E. 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.

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.

Visitorial and enforcement power of the Regional Director of Labor who is the duly authorized
representative of the Secretary. How does his happen? The Regional Dirs office has several
inspectors, it could be a health and safety inspectors in which case engineers, or they could be
labor standards inspectors to find out if their work places are complying with the minimum wage.

Search warrant is not needed, this is visitorial power and for as long as the work place is open,
they can come in and inspect, at any time of the day and night if it is open. When they come in,
they can ask for the necessary documentations that you have to submit. For instance they will ask
you for the latest pay roll, if the point person is not present they can ask around the employees
about their job and whether or not their salaries match the minimum wage. The inspector then
would write down his findings since the objective of the visit is fact-finding, so in their inspection
report they put down findings of facts and then recommendations. This would be forwarded to the
RegDir of Labor and he will give a copy to the employer and then the law says that after 5 days if
there is no response from the employer, the next step is to issue and order of compliance, if there
is still no action an order of execution will be issued, and the employers bank account will be
attached to answer for the order to comply.

How can you overturn these findings? How can you neutralize this? You cannot, the documents
that should have been there subject to the inspection which you cannot produce, you can no
longer submit, because it says where the employer contest the finding of the labor employment
and enforcement officer and raises issues supported by documentary proofs which were not
considered in the course of inspection.

For health and safety, the inspectors will go in there to determine whether it is just and humane
conditions of work. The go to inspect not insurance companies but those that are considered
dangerous workplace. This includes work places that involve high temperature, example is
laundry shops, also those that involve chemical processes, underground mining. The law says If
there is grave and imminent danger to life and liberty, once that finding is made, the RegDir of
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Labor without need of any hearing can suspend operations of that employer. After suspension,
within 24 hrs, he will call a hearing. The hearing will be held and the only issue to be resolved is
whether or not the restraining order shall be continued or shall be lifted, this is the power of the
Reg Dir.

Art 128 (C). 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.

That is visitorialpowers,this is an enforcement of the law. Due process is not an issue.

The administration of the POEA has visitorial powers over recruitment and placement agencies,
they can go there anytime of the day or night as long as they are open. The Dept of Labor Bureau
of Labor Relations also has visitorial powers over unions, they can go in the office, inspect
records and books, this is enforcement power.

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.

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.

Adjudicatory powers of the Regional Director.

Jurisdiction: They are like the labor arbiter they can decide money claimswithout a prayer for
reinstatement- meaning there is no termination; its just a question of money that does not exceed
5000.00 individual aggregate claim. So what happens if there are 15 of you who filed a complaint
against your employer, the aggregate claim of th14 is just above 4k, but there is one whos
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complaint goes beyond 500k, beyond the jurisdictional amount. According to the SC, the whole
shebang, the one that is above 5k and the 14 others below, must go to the labor arbiter. Why? In
order to avoid conflict of decisions, so only one forum should decide.

Read Peoples Broadcasting Bombo Radio v Sec L-179652May 8 2009, 2ndDiv Justice Tinga
because the power of the Regional Office to decide issues on employer-employee relationship
was questioned and the SC had to come up with a resolution twice. 1 st the said mere incidental
power to decide employer-employee relationship, no jurisdiction, almost 2 years later another
pronouncement has been made on the same case. The SC says it has jurisdiction just like the
labor arbiter to determine employer-employee relationship that was because of the very strong
dissention opinion of Justice Brion.

Read the dissenting opinion of Justice Rionen in the Gloria Macapagal-Arroyo case. Rionen put it
out that the final decision that they signed is not the same as the one that they signed.
 LABOR STANDARDS TSN
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July 29, 2016

(1st hour before the 5 minutes break)
Jose Geralde

(inaudible pero konte lang ang hindi nasali) What is written in the law article 128 has been practically been suspended. Why?
Unilaterally the department of labor has stop all inspection of workplaces. They no longer inspect. What do they do? They have
department order 115-7 guidelines on the implementation of incentivizing compliance rule.

In other words they are now asking, if you are an employer you come to the department of labor and ask for an inspection and
then we will go there and if they find out that you are complying with the labor standards law they will give you a compliance
certification. So for 3 years you will not be inspected. You will be presumed to be in compliance with the labor standard.

So this department order 115-11 is called incentivizing compliance program. Now these certifications is not just for compliance
of labor standards. They are now several kinds of certifications for compliance. I dont know whether you have notice when you
walk around, they have this sign, the university is child labor free. That is one of the compliance it means that there are no
children working here. There are no children in employer-employee relationship, they are made to work for pay. That is another
compliance certification. Then there is also the certification of health and safety. This workplace complies with work safety
requirements. In the US it is call OSHA, Occupational safety and health administration.

We classify (inaudible) whether you are hazardous workplace or nonhazardous workplace. If you are a hazardous workplace you
have to comply with so many requirements and the OSHA rules for unsafe workplaces. They even regulate the heights of steps
and rails as well as the corridors. That is why it no longer pays in the united states to be a safe workplace(?). The rules, they
have stock manufacturing asbestos insulators thats so many requirements. Where has it gone now? It has gone to china where
there are no OSHA requirements.

You know if you work with asbestos, they are microscopic particles that stay afloat in the air and you injest it and it is
cummulative and it is carcinogenic it causes cancer. So if you ever work with asbestos, one of the requirements of OSHA is you
put airfilters stronger that air conditioner. It is now in china, where is asbestos use? Tanawa ng waterpipes kanang puti na
giputos mao ng asbestos.

The moment a certain occupation has a death rate of more than 3 deaths per thousand, you are belonging to a dangerous
occupation. Now if you have that in your workplace what is your workplace you are in ship building and repair. In other words, as
a first class shipbuilder, it is possible for you to do underwater without dry docking. So you can weld underwater. Workers who
are divers, the deaths are more than 3 per thousand so its a dangerous occupation, divers. Mu welding gani ka then diver ka
dangerous occupation ka.

What is the consequence? The consequence is their employees compensation is safety rated. Mu saka imong contribution in
proportion to the number of deaths or injuries in your workplace. Sa pilipinas, wala mana. Mamatay or way mamatay bayente
pesos ra ghapon ang imong icontribute sa employees compensation per worker. 20 pesos per month paid entirely by the
employer. So it is not experience rated.

Now they are trying to approach that by system of voluntary compliance. What is your incentive if youre not compliant, you will
be given time allowance to correct your deficiency. Not only allowance but help. So you have incentive to comply. Its that a
good policy or not? What is embodied in DO 115-11? They even have contests, GAWAD KALIGTASAN at KALUSUGAN- refers to the
national award given by the DOLE in recognition of the outstanding achievements of establishment or individual in terms of
responding to the safety and health needs of its workers, workplaces and communities. Then they have established tax
incentives. If you try to improve workplace and introduce safety devises then this will be deducted from your taxable income to
improve your workplace.

Now, if your in violation, then you go to the program of remediation. Remediation in this guideline refers to the process of
facilitative and collaborative protection of compliance, laps and improvements of working conditions through implementation of
appropriate programs or services for labor laws compliance. But the whole idea is the DOLE help you comply.

So what are these areas that you can comply with? Labor standards, minimum wage, after you get compliance you get a
compliance certificate and you are found to be serving labor compliant workplace. Health and safety is another compliance.

Third, by special endorsement of the international labor organization being a child free workplace is also a compliance
certification. Youre not employing any children.

What is the particular industry now that employs children and they are paid wages? SHOWBIZ? Nintendo, xbox. They are
employing children to play. Child working there playing games, they like to be there. Suppose you are a maker of ice cream and
you hire children to taste your ice cream.

These are the problems of the present labor process.

Trafficking is also one of the compliance programs, but its all in 115-11 and is a committee. The certificated awarded
establishment SHALL NOT be exempt from inspection should there be complaint for violation of labor standards, occupational
safety or disputes in labor process. However the findings of violations are subject to a remediation phase and compliance of
corrective actions should be process through the single mending approach 30 day mandatory conciliation and mediation services.
 LABOR STANDARDS TSN
2 MANRESA 2016

So that is the incentive that is in section 17 of circular 115-11. Now there is a new labor secretary, hes from davao. Who is the
new labor secretary? Bello.

So, he will decide if this will continue or not. But as of now no extension of DO 115-11

So, they have particular terminologies like the TCC tripartite certification committee. They have Gawad kaligtasan at
kalusugan. Outstanding award for LMC labor management conciliation and so on.

Now, items of pay. The items of pay.

I used to have matrix to that.

Now in one column, you can have the items of pay. So in one column, you can have the items of pay.

Number one, basic pay, and then here in the rows you have the different computations like INCOME TAX computation. Is basic
pay included in the computation of the INCOME tax or withholding tax from compensation. It is taken at source. Technically
speaking they cannot do it, thats confiscation but because there is a law therefore it is legal. Now, income taxation, the basic
pay is included in the computation.

In the computation of overtime pay, or premium pay, remember? What is overtime pay? It is additional compensation for work
done in excess of 8 hours. Premium pay is additional compensation on work done on days you need not work like rest days or
regular holiday. If you work on that day not in excess of 8 hours, then it is purely premium pay. If excess of 8 hours during a
regular holiday, then as to the excess of 8 hours it is called overtime and premium pay. Now, is basic pay used included in the
overtime or premium pay? YES.

In 13th month pay, your basic pay for the entire year divided by 12 then that is your 13 th month pay. If youre a part time worker,
you still have 13th month pay. Now basic pay is the basis for 13th month pay, basic you compute it divided by 12 that is 13th month
pay.

Now, retirement computation, retirement benefit computation, is basic pay included? YES it is included. Multiple employers. If
you have more than one employer, is your basic pay used in the computation of your multiple employers? Of course yes! Now,
second item of pay is overtime pay and or premium pay. Is it included in the computation of your INCOME tax? No? It is included.

Overtime pay? Included in 13th month pay? NO! what happens if it is included and you do it for considerable period of time? Then
it becomes a matter of right. That is what happened to davao fruits, you cannot take it back anymore. It tells you that the labor
code is not kind to generous employers. Now is it included in computation of retirement benefits? Statutory retirement benefits?
No, because it is one half month of basic salary for every year of service. Fraction of at least six months is considered one year.

Multiple employers, overtime pay yes! If you really work even if you have multiple employers. Is that possible? Overtime diri
overtime didto. That is what happens in US, the Filipino workers to buy Mercedez Benz SLS AMG (J)

Thirteenth month. Is 13th month pay included in the computation of your income tax? It is not included as long as it is not in
excess of 82,000 pesos combined 13th month and other bonuses. That is the latest law signed by PNoy. 13th month included in
overtime? No. Is 13th month included in the computation of the retirement benefit? YES! For every year of service you included 5
days service incentive leave plus 1/12 of 13th month for every year. So that when the law says month for every year of service
its actually 22.5 days of salary per year of service, retirement benefit shall be statutory. 1/12 of 13 th month is included in the
computation per year.

Multiple employers are you entitled to 13th month? Yes! What entitles you is at least you work for a month with an employer.
That one month divide by 12, that is your 13th month. Now you have been fired, 13th month has already accrued, even if you are
dismissed you can still asked for your accrued 13th month because the person who has worked for at least one month is entitled
to 13th month.

ECOLA? Emergency cost of living allowance. This is a devise used in the Regional tripartite wage productivity board. When the
animosity between the employer and employee is so fierce. Mu ingon ang employees, kinahanglan ang increase. As a
compromise, instead of increasing a basic pay. COLA or pantawid helps in meeting the cost of living. But it is not a burden of the
employer, because COLA is not part of overtime because it is distinct and separate from basic pay. The COLA will not be part in
the determination of the 13th month. COLA will not be part in the computation of the retirement benefit. That is why in the next
increase, the employer will say we cannot make any increase but we can integrate COLA into the basic pay. Thats actually out
of the pocket of the employer. But then is COLA part of computation of income tax? This is where the government is always the
winner because it is part of the income tax law. The NIRC says, all incomes monetary denominated is included in the
computation of the income tax.

ECOLA is not part of overtime pay, as well as 13th month and also retirement benefits and multiple employers yes it is part. That
is only for full time multiple employers not part time. Orayt we have a break for 5 minutes.
 LABOR STANDARDS TSN
2 MANRESA 2016

JULY 29, 2016

2ND HOUR
Transcribed by: BehniceTesiorna

*please refer to the chart

ECOLA is Emergency Cost of Living Allowance. Now, this is a device used in the Regional Tripartite Wage and
Productivity Board (RTWPB), when animosity between the employer and employee is so fierce. Dililagi mi
muhatagugincrease, As a compromise, instead of increasing the basic pay, dungagannalangnatonag ECOLA.
This is a burden on the employer. Why? Because ECOLA will not be part of overtime pay, since it is a distinct
and separate from basic pay.
COLA will not be part of the determination of 13th month. COLA will not be part of the computation of
retirement benefits. That is why in the next increase or adjustment of minimum wage, the workers who fight
will now agree that instead of increasing their basic pay, the COLA which the employer is already giving will
now be INTERGRATED into the basic pay.
COLA will now be removed. This is actually lighter for the pockets of the employer. But as to the roll-up costs,
musakananailang roll-up cost kaymudakona man ang basic pay. That is how the very bitter oppositions
between ER-EEs are compromised, are settled by the RTWPB.
Now then, is ECOLA a part of the computation of income tax? This is where the Government is always the
winner. The BIR says ALL income monetarily denominated and capable of monetary expression, is included in
the computation of income tax. Interest of the bank(?); that is denominated as income, that is called passive
income(?) which is also subject to Withholding Tax. Although, that Withholding Tax is still (inaudible)..you do
not have to declare that anymore in your Annual Income.
So now, ECOLA is NOT part of Overtime, 13th month, Retirement Benefits. But, for Multiple Employers, YES. It
is a part of having multiple employers. That is only for FULL TIME ha. FULL TIME multiple employers.

DOLE Dept. Order No. 18-02

Section 6 Prohibitions
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 of splitting of the bargaining unit;

Contracting out a job done by regular workers really depends on whether or not the activity is usual or
necessary to the trade or business of the employer. For instance, the landmark case of contracting out regular
workers jobs which is not in violation of the Labor Code isShellpoint v Secretary.
What happened is Shell Refinery had its own security guards way back in the 1960s. The company, Shell
decided to go into engaging with a security agency. So what happened? They offered the security guards early
retirement. Those that had accumulated years of service accepted the requirement. But those who were still
newly engaged to be hired did not accept. Now, since they were part of the union of regular workers, they
convinced the union to file a Notice of Strike. And so, they went on strike on what they call was unfairness
of sharing. Not to replace the retired security guards with regular employees, but with security agency
guards. So that was in court.

So if you lay-off people, who are regular workers, but they are not performing jobs that are usual or
necessary to the trade or business of the employer, then you do NOT commit any irregularity or you do NOT
violate the Labor Code if you fill up those same positions with contract workers.

Coca-Cola Bottling.Those that stand on the bottling line. You hire contractual workers. Why? Because there is
need for an increase of workers. You are running the lines 24 hours now of instead of just in a two-shift basis.
Why? Because nagkaduolna man angpasko. By the end of October, you must have excess in the (?) to meet the
special demands of the Christmas season.
Butangannimonadihaog contractual workers, but then those positions are usual and necessary to the trade or
business.
 LABOR STANDARDS TSN
2 MANRESA 2016

Now, as I told you, this system of cabo is prevalent in the industries where you hire so many unskilled
workers. Constructions, alastre (?), agriculture.
There you have cabos. The cabos are needed. Why? Because the people they bring cannot read nor write.
Because they cannot read nor write, they are willing to suffer the heat of the sun out in the fields. Wala man
silay lain trabahomakit-an. (anecdote about farmers)
Now, its the cabo who tells them O dirika, and then naamay pan dinha. Mao na, sign nasya.
Kadawatnasyasaiyangkumbilog (?). Mao naimongsweldo. Thats the job of the cabo. And then, it becomes a
social abuse because in exchange for the services of the cabo, he will ask a portion of the pay. The workers
cannot do anything. They depend on the cabo. So, they will give him a share to ensure he hires them. Lain
kaayo if youre from an illiterate background. Your opportunities are narrowed down.
So now, kungcaboka, muingon man kadiakoy 18 katao. Then San Miguel will give you the money.Ikawmay mu-
distribute ana. Ikawmayingnansa San Miguel, O kaningmga NPs tanan, amoning i-kamada.
Kuhaonnanamoglatagaw (?). There is stocking. Kamada. You stock the NPs.
How many of you here are in Accounting? San Miguel has in its [inaudible], part of its assets inventory the so
called NPs. of it is not in its physical possession, it is in the possession of its distributors. And yet, you
could see it in its books as assets which it has. Why? Why can they do that? Can you put assets there which are
not in your control? Ah, that is by industry practice. They know that the bottles life is four times: it goes out
then it comes back. That is the life of the bottles. So, you put it there in your balance sheet.
Now, the trouble us if your stcoks are not moving. In other words, there are bottles which you have forced
upon your distributor, and the distributor has not sold it and its there and is already expired. And you still
record it there as your asset. Nyautangantohnimokaywa man syakabayadsakotse. That is what happened to RC
Cola. Thats why RC Cola is sold. Wana man mulihok.Daghankaayonabilindiha, naay RC
Cola.Wanaysipaangsud, wanay sizzle. Thats why you can no longer trust their balance sheet. Mao
nangnapurdoyang RC Cola.
Thats the job of the unskilled workers. Put up the inventory, loading, unloading. You can mechanize it only
up to a certain point. But beyond that certain point, you cannot mechanize it, you just work
it.Kinsamaymutrabahoana?Usually, the cabos.

Alright, another prohibition.

DOLE Dept. Order No. 18-02

Section 6 Prohibitions
(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 provision 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;
Where do you find this? You find this in the supermarket. Merchandisers of Alaska milk. They are supposed to
be employees of Alaska, and yet they are given chores by the department store owner or the supermarket
owner to do supermarket chores. Adtomog NCCC alas 6 sagabii. Adtuongyudninyo alas 6.Ngano man nang
merchandiser sakuan, mu-apil man nagsayawsamga regular workers? Ngano man? Kay kung di nasila mu-
apilugsayaw, report nasilasakuan, tangtang man nasila! That is not a chore, but that is an indication that they
are merely being taken advantage of.
In the supermarket, everything is for sale. That is all determined by the product owner, distributor and the
supermarket owner. You pay something to be on eye-level shelf. You pay something if you have a big display
of Palmolive shampoo there. Those who take care of that are employees of Palmolive. They are employees
and yet they are made to do chores by the indirect employer. That is PROHIBITED. But have they been able to
 LABOR STANDARDS TSN
2 MANRESA 2016

stop it? No. It is still going on.

DOLE Dept. Order No. 18-02
Section 6 Prohibitions
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;

Does this occur? Yes, it stills occurs, and it happens in the highest level. You do not become a director of JG
Summit if you do not sign an antedated letter of resignation. You sign that letter. You do not become a Board
Member of PLDT unless you sign an undated letter of resignation. That means you have nefarious plans. You
sign because you serve at the pleasure of the controlling stockholder.
So, if that happens even in the board of directors, how about the lowly, single, defenseless worker? He also
signs.
DOLE Dept. Order No. 18-02
Section 6 Prohibitions
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 the engagement;

When does this happen? For instance this is usual when the contractor provides as to [inaudible]. You have a
contract to field the hotel of Marco Polo. You are engineering equipment incorporated. Youre the work force
in building that building. At the time you set that contract, its practically zero. Now, after you get approval,
then you build your work force. You hire carpenters, plumbers, masons. Mangabotnasila. Then, in one week,
all of a sudden you have 2,000 workers. From zero to 2,000.

DIVISIBLE BY PHASES
Okay, lets take a look at carpenters. Klase-klase man nasila. Naay outside carpenters, naasay finishing
carpenters.Now, this is what is meant that the contract is divisible by phases. A carpenter, who is an outside,
rough carpenter, cannot complain that the finishing carpenters are still working and he is already discharged,
when rough carpentry is already finished.
DOLE Dept. Order No. 18-02
Section 6 Prohibitions
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.
You have a manpower agency and for only one company or group of companies. The assumption of the law is
because these are the only companies that you service, therefore you are owned by these companies. That is
the conclusion of law; which is not necessarily the truth. It could be that these companies require such a high
standard that they can commission somebody who works according to their standards; and because it so
demanding, they stay with this manpower agency.
Whats an example? An example is IT. There are certain IT jobs that you cant get from anywhere. What?
When you come do very delicate IT jobs, like upgrading of a system. Kanang coding-coding man
naminsankinsa. But if it is upgrading of a system, lisodna. You will just not get anybody. Then you are big
conglomerate, you have several companies, then you ask somebody, We will be partners and you will
upgrade anytime we have an upgrading, you will be called. So, heres what have to do.
Then the law will interpret that as in-house contracting. That is the problem with this provision.
DOLE Dept. Order No. 18-02
Section 6 Prohibitions
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;

I already explained to you why this is [?]

DOLE Dept. Order No. 18-02

Section 6 Prohibitions
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.
 LABOR STANDARDS TSN
2 MANRESA 2016

DOLE??Dept??Order??No?? ??
??
Section??????
??Rights??of??Contractual??EmployeesConsistent??with??Section??????of??these??Rules??the??contractual??emp
loyee??shall??be??entitled??to??all??the??rights??and??privileges??due??a??regular??employee??as??provided??f
or??in??the??Labor??Code??as??amended??to??include??the??following??
a????Safe??and??healthful??working??conditions?? skipped??
b????Labor??standards??such??as??service??incentive??leave??rest??days??overtime??pay??holiday??pay?? ??th
??month??pay??and??separation??pay??

This??separation??pay??is??questionable??because??when??a??contractual??employee??reaches??the??end??
of??his??contract??he??is??NOT??separated??His??contract??expires??and??there??are??no??benefits
Now??if??you??say??that??he??is??a??contract??employee??for??three??years??does??he??have??retirement??be
nefits??at??the??end??of??the??year???The??law??says??to??be??entitled??to??compulsory??retirement??benefit
s??you??must??
??reach??the??age??of??retirement??according??to??company??policy??If??there??is??no??company??policy??y
ou??must??reach??the??age??of????
??
????must??have??worked??at??least??????years??for??the??company
and??then??you??are??entitled??to??retirement??benefits
But??then??this??is??the??Labor??Dept??extending??its??rulemaking??powers??to??add??benefits??to??the??con
tractual??worker??When??it??says?? may??nagubo????the??employees??of??the??contractor??are??entitled??to
??separation??benefits??at??the??end??of??the??contract

DOLE??Dept??Order??No?? ??
??
Section????????Contract??between??contractor??or??subcontractor??and??contractual??employee
Notwithstanding??oral??or??written??stipulations??to??the??contrary??the??contract??between??the??contracto
r??or??subcontractor??and??the??contractual??employee??which??shall??be??in??writing??shall??include??the??
following??terms??and??conditions???? shortcut??ni??father??
a????the??description??of??the??job??
b????statement??of??the??wage??rate????and
c??????duration??of??employment
which??must??be??coextensive??with??contract??of??principal??and??contractor

There??is??now??a??requirement??for??a??WRITTEN??contract??
How??do??the??manpower??agencies??fulfill??this??contract???They??have??a??contract??but??then??you??just
??sign??and??its??a??group??contract??You??put??down??the??names??you??sign??You??have??there??IDs??and
??residence??certificates??The??DOLE??says??that??that??is??already??substantial??compliance??because??the
??problem??is??if??you??have??illiterates

[Father??only??skimmed??Sections?? ?? ???? ????of??the??DO??Please??read??the??sections??in??full??for??r

eference]
Section?? ????Requirement??of??registration??of??the??contract??or??subcontract??with??the??DOLE
Section?? ????
??Duty??to??produce??copy??of??the??contract??between??the??principal??and??the??contractor??or??subcontr
actor

No??more??submission??and??[?]??of??contracts??but??the??duty??to??PRODUCE??it??once??it??is??demanded

Section?? ??????Annual??reporting??of??registered??contractors

You??must??register??yourself??as??a??contractor??then??at??the??end??of??the??year??you??must??register??t
he??projects??that??have??terminated??during??that??year
Effect??of??failure??to??submit??annual??report??
??If??you??failed??to??do??that??then??those??workers??are??presumed??to??be??regular??workers??and??not??
contractual
So??many??requirements??from??the??DOLE??Whether??it??does??really??any??good??I??am??not??in??a??positi
on??to??say??But??they??require??that??hoping??to??stop??the??irregularities??yet??it??is??still??occurring
 LABOR STANDARDS TSN
2 MANRESA 2016

ITEMS Income Overtime 13th Retirement Multiple

OF PAY Tax Computation Pay Month Benefit Employers
Pay Computation

Basic Pay YES YES YES YES YES

Overtime/ YES YES NO NO YES

Premium Pay

13th Month P82,000.00 - NO YES YES YES

Pay exempted

ECOLA YES NO NO NO YES

 LABOR STANDARDS TSN
2 MANRESA 2016

August 5, 2016
Amparo, Nestle M.
st
1 part
Working conditions for special groups of employees.
Employment of women. It is now politically correct to ask questions about employment of
women. So for the past 5-6 bar exams, there has always been question about working women.
So the questions will come from this particular section of the Labor Code, employment of
women. They belong to working conditions for special groups: women, domestics or now they
are called kasambahay but in the Labor Code they are still called house helpers, and then
employment of minors. So those groups of workers.
About women.
Article 130 (132) requires the Secretary of Labor shall establish standards that will insure safety
and health of women employees in appropriate cases, he shall by regulations require employers
to:
1. Provide seats proper for women and permit them to use such seats when they are
free from work and during working hours provided they can perform their duties in this position
without detriment to efficiency.
Women should have seats, only when it is not detrimental to the job. I challenge you, look for
the seats of the SM sales girls. There are none. Whole day they are on their feet and that is not
a violation of this provision. If you have been to Manila, you will notice that some buses have
lady conductresses. They do not have a special seat. Otherwise they cannot collect the fares.
All of them in their thumbs they wear condoms, you do not notice? Its the change and the paper
money. They are not provided special seats because it is detrimental to efficiency. So you
notice our security guards here in the parking area, the women security guards do not only have
seats, they have a desk, huh can you imagine that.
2. Establish separate toilet rooms and lavatories for men and women and provide at
least a dressing room for women.
This is outdated. Why? Because the controversy now is: what toilets will accommodate
the transgenders, that is now the issue. They have to decide that in the State of Michigan by
referendum. Will they allow the transgenders to go to the toilets of women? That is the issue.
But that is a gender issue, not a labor issue.
3. To establish a nursery in the workplace for the benefit of the woman employees therein.
The labor issue is: women who are nursing mothers, can an employer be required to provide for
nursing stations? Daycare. That is the issue. And there is still a debate going on that some
employers would say that it added cost to have a daycare center. It you are nursing an infant,
should that detract from your earning capacity? Or should be able to go to work, and park your
baby in the daycare center to where you can periodically report to nurse your baby. Those are
workplace issues, those are not gender issues. But, as to whether the transgender employee
can use the ladies toilet, that is a gender issue, not a labor one. Transgender, is the letter T of
LGBT. Why are you a transgender? Because you have undergone a medical procedure by
which you can, after the procedure shout to the whole world that you are now of a gender
different from a gender you are registered with the civil registrar when you were born. Youre
male, now you are female after this procedure. Now, can you go to the female comfort room?
That is the gender issue. If youre given a problem like that, cite it that it is not a labor issue, but
a gender issue. Because there is so much confusion about it. Matauhan na ang examiner if he
does not know it.
To determine appropriate minimum age and other standards for retirement, for termination in
special occupations such as those of flight attendants and the like. Again, that is a gender issue
as to flight attendants that it not a workplace issue. They say flight attendant has to bring two
separate pairs of shoes, one is one size smaller than the other. When you are on land, after a
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few minutes or an hour at 39,000 ft. you cannot use it anymore because your feet expand. So
you use the one size bigger. You ask flight attendants. That is the workplace or labor issue.
Now, can they have a special retirement age?
Special retirement age for underground miners is provided by law: 55 instead of 60. That is a
workplace issue. But as to flight attendant, I dont think it is a purely workplace issue.
Article 131(133) Maternity benefits. Know that working women have maternity benefits. Now
transgenders do not have maternity benefits because there is as yet no medical procedure that
can change your gender and at the same time enable you to bear children. That is not yet
possible. No matter how many movies you have seen.
131 says any pregnant woman employee, whether married or unmarried. If you become
pregnant, then you are entitled to maternity leave credits. What is it? It is 68_____ 2 weeks prior
to the expected date of delivery and another four weeks after normal delivery or abortion with
full pay based on her regular or average weekly wages. Actually what happens is the employer
advances the amount and the pregnant employee signs a waiver that she waives the maternity
benefits she will receive from the SSS in favor of the employer because the employer has
advanced the benefits already. The employee actually receives more than what the law requires
because the maternity leave credits daily basis is lower than your salary. That is called the co-
efficient of insurance. For example: you insure your car but then the first let us say P1000 is
charged to you always. What is that meant to be? To prevent abuse. Because if it is not there,
what will prevent you from backing it up against the post? And say oops! And go to the
insurance and report it as an accident. So to prevent that, there is a co-efficient of insurance.
So also with health insurance, there is a minimum first payment borne by the insured. First
P1000. Now, the more expensive the insurance, the bigger the co-efficient. Why is that? To
prevent you from abusing. Kay gisip-on ka lang gamay, niadto ka na sa ___. nangayo ka na
dayon ug antibiotics. Sige kag antibiotics, dili ka na nuon dutlan ug antibiotics. Too much
antibiotics. So that is the reason.
Now, in the SSS, there is called average daily credit which is lower than your average wage, it is
lower. Why is it lower? To discourage you from going on leave. Because if you are replaced the
full amount, there is no difference between you working and you not working, you will be
encouraged to avail of not working because you will get the same benefit.
With the system of advancing by the employer of the maternity benefits, you end up getting
more because the employer just gets the average daily credit but you get your salary. Most
employers do not bother anymore to compute, they just put the salary. This is the common
mistaken practice of employers and it's too late for them to correct. Why? Because it becomes a
source of right. Since it was practiced, it cannot be changed anymore.
Now, if you undergo cesarean operation. Your maternity benefits are higher. It is 60 days if it is
ordinary birth, but it is 78 days in case of cesarean operation because of an amendment of RA
1161 section 14-A. So 60 days versus 78 days. When do you have a right to maternity benefits?
If you have rendered an aggregate service of at least 6 months for the last 12 months. And
before you availed of it, you must report your pregnancy the moment you are medically certain
that you are pregnant and it is recorded in the SSS book provided for, that is where workplace
accidents are recorded, pregnancies recorded. Why is the notice necessary? To prevent so-
called simulated pregnancies. Single ka, naa kay igsuon na walay trabaho, naminyo, nimagdos
na, walay trabaho ang bana, wala sad syay trabaho. Ingnan ka sa imung inahan, tabangi ang
imuhang igsuon, gireport nimo na ikaw na ang nanganak. Wa ka mimagdos pero nanganak ka
na dayon. What happens? You enjoy the benefits. Ipasa dayon nimo ang benefits ngadto sa
imung sister. Kaingon ka sayang man akong benefits, wala man koy gamit gamit sa akoang
maternity benefits because I am single. Of course now that does not prevent the use of the
benefit, because the law says any pregnant woman employee.
Article 132 (134). Family planning services, incentives for family planning.
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Article 133 (135). Discrimination prohibited. It shall be unlawful for an employer to discriminate
against any woman employee with respect to terms and conditions of employment solely on
account of her sex. This is wrong use of terminology. On account of her sex?, on account of her
gender. Sex is action. It should be gender.
The ff. are acts of discrimination: in the states, this is called equal pay for equal work.
1. 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;
There is a very famous case in the united states. The issue is about male and female
jackhammer operators. You know what is it? This hammer that excavates cements or asphalt
down the road. We associate that as operated by males. Now in the states, there are also
females now who operate that. It has been the practice of the construction company that at the
end of the day, females need help bringing the jackhammer back to the truck or the
maintenance vehicle. And that is pointed out as the cause why the women jackhammer
operators are paid less than the males. And the females have been complaining to the union but
the union does not bring it up to the construction company. So finally the females themselves
bring the grieve up. So is the pay differentials justified by that difference? Or is it basically
discriminatory based on gender? That is the issue. And the ruling of the court is that is not
enough to justify the wage difference. Because the difference it at all there is, is not substantial.
It is merely incidental. That's a very famous case. You know what the evidence that the women
presented in the court a quo, they also presented instances where sometimes the male, in his
bad day, he also needed help to transport the jackhammer from the workside to the vehicle. So
it can happen with the male and if does happen with the female even though a little more often
than the maled, that is not substantial difference as to justify the wage difference. So equal work
for equal pay. That is the message here.
2. Favouring a male employee over a female employee with respect to promotion,
training
opportunity, study and scholarship grants, solely on account of their gender (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 (now 302) and 289 (303) 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.
This is very special because the law itself allows for separation of criminal liability from the civil
liability and both can proceed independently and it is not a violation of forum-shopping. Many
have called this dangerous becase it is possible that the civil proceeding will come up a different
judgement from the criminal proceeding. So there might be a conflict. But then those who
discussed this, they said, there could be a difference because in the civil proceeding, the
quantum of evidence is just preponderance of evidence whereas the quantum of evidence in a
criminal case is proof beyond reasonable doubt. So there could be a difference. ___Simson,
criminal case acquitted. Civil case, he wasn't liable (sic), so he pays. ___ here, he could____
the employer is absolved criminally, but in civil action, there could be penalties.
Article 134 (135). Stipulation against marriage. It shall be unlawful for an employer to require as
a condition of employment or continuation of employment that a woman employee shall not get
married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall
be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise
prejudice a woman employee merely by reason of her marriage.
Two decided cases here, very very interesting. You should read:
1. DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, vs.
GLAXO WELLCOME PHILIPPINES, INC., 438 S 158 , 2004 case.
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2. STAR PAPER CORPORATION, JOSEPHINE ONGSITCO & SEBASTIAN CHUA, vs.

RONALDO D. SIMBOL, WILFREDA N. COMIA & LORNA E. ESTRELLA 487 S 228, 2006 case.
DUNCAN v. GLAXO WELLCOME has an __exogamy policy. What does that policy say? If you
are employee of Glaxo wellcome, and you marry someone who is a competitor of Glaxo
wellcome, you agree to resign or you agree to make you ___ from the competition. That's what
you sign when you enter the service sales department of glaxo wellcome because the nature of
the pharmaceutical business is very competitive. So it is a matter of self-defense that you keep
your secrets, not the formula of your product ha, but your strategy, your aim, your programs,
you keep it secret and you do not make it available to competitors.
Now, this guy in Glaxo wellcome, falls in love with the sales manager of the competitor.
When management found out that he was already in a relationship, as they say in facebook,
he's given a warning you know what the consequence is. you know what happened? He
continued. And finally he got married. After they got married. He was sort of suspended but with
pay. In other words, he was no longer made to attend the sales strategy meetings, they took
away his samples, board, etc. Then they propose a transfer to the infant formula division. That
did not work. So finally, they moved him to Butuan, from Legaspi in Albay. That is when he said
no. Because he was disobedient, the company terminate him. Is that valid? The Supreme
Court said it is valid.
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August 5, 2016
(2nd Hour)
Majeerah Sinarimbo

So, the decision of the Supreme Court

It is a matter of self-defense for an employer as a valid business endeavor to protect its sales strategy,
its target, its way of doing business. Therefore, it is justified. The employer there was seen as
implementing this policy in good faith. It took them about a year to decide to terminate the employee.
They gave him so many chances.
STARK LABOR CASE
In the Stark case is you also have a written policy which you agreed to when you are engaged in a
company. The policy is if you marry anyone also employed in the same company, then either one of you
has to resign. That is the policy.
Now, what happens is these two people, both employees of Stark Paper, they both signed their
engagement papers knowing this policy and still they got married and when they were asked to resign,
they filed an illegal dismissal complaint. This time, the SC says that the dismissal is ILLEGAL.
What did the SC say? Discrimination against marriage. Just because you got married, you receive a
different treatment. It is a violation of this provision. And there the court says, it is not just a general
fear of collusion between married employees that is sufficient to ban the marriage between two
people. It must be a strong, substantial, compelling reason.
There is now a pending case with the SC, the case of two ONE NETWORK BANK employees. One is a
loans officer and the other is a manager. They got married and there is an exogamy policy of co-living
(?). One of them must resign. Now, what is the reason for that? The reason for that is ONB is highly
computerized and each employee has password. And there are various access levels to the one and the
same system database. When these two (manager and loans officer) collude, it could mean
considerable loss to the bank. That is why there is this policy.Now, that was brought up. This defense is
the same with the other banks???? what makes ONBs defense special? That is difficult to answer. That
is with the SC. Well just wait for the resolution. It should resolve the apparent conflict between the
Glaxon case and the star paper. But really, it is not simple at all. This whole question of discrimination
on marriage, etc. there are many cases in the US although it does not go all the way to the SC because
the SC in the US really choose their cases. But they go as far as the Equal Rights Administration (ERA).
They also do not have uniform decision-making.
Theres one famous case though of SEXUAL HARASSMENT which we are taking up.
Anti-Sexual Harassment Act of 1995 RA 7877 became a law on Feb. 14, 1995. It is concerned with
sexual harassment in three (3) situations:
(1) The work place;
(2) Educational level; and
(3) Training-related sexual harassment (so it includes military)
When is Sexual Harassment committed?
It is committed in a work-related or employment environment when:
(1) The sexual favor is made acondition in the hiring or employment, re-employment or continued
employment of saidindividual, or in granting the individual favorable compensation, terms of
conditions, promotions or privileges; or the refusal to grant the sexual favor results in limiting,
segregating, or classifying the employee which in any way would discriminate, deprive or diminish
employment opportunities or otherwise adversely affect said employee;
This is the easier part of these modes of commission of sexual harassment.Sexual favor, positive, you
get advance. You deny it, you are made to suffer.
(2) The above acts would impair the employees rights and privileges under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or offensive environment for the
employee.
What is an example? You are the manager of the SM Sales Personnel. 90% of them are women. You
called a saleswoman into your office. You scolded her for making a mistake. There is no problem with
scolding her. The problem is youre scolding her in your office and your office is full of these calendars
scantily clad women and your desktop is filled with these playboy magazines. So, you are putting her in
an intimidating, hostile, and offensive environment. That is sexual harassment.
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US Case. Involved Stanford Medical Center and the caser is brought by a resident physician whos
training to be a surgeon. That physician is a she. Shes complaining that shes being placed in an
intimidating, hostile and offensive environment because in the operating room, all those who are
assisting in the room (since shes still training), theyall address her as honey.She alleged that she is
being placed in an intimidating, hostile and offensive environment because of her gender.So she
brought the case and she won. That is sexual harassment. Addressing an employee in a workplace
situation can place somebody in an intimidating, hostile and offensive employee. So pagbantay mo.
(Inday as a term for endearment and a term for respect.)
Now, duties of the employer in case of sexual harassment. This is in RA 7877.
(1) The employer has the duty to promulgate appropriate rules and regulations in consultation with
and jointly approved by the employees through their duly designated representatives prescribing the
procedure for the investigation of sexual harassment cases and the admnistrative sanctions therefore.
The said rules and regulations issued shall include among others guidelines on proper decorum in the
workplace.
So, if you want certification that you are free from sexual harassment from the Department of Labor,
you must produce these rule book with respect to sexual harassment. You have your committee for
investigating ready at hand, then you will provide ways for dealing with reported cases.
Now, you will also have rules for decorum. You must specify what are the attire that is forbidden in
this workplace, what is the attire that is allowable, and what is the attire that is desired. If theres a
uniform, thats easily solved. Now, when it is not uniform day, what is allowed, what is not allowed
and then what is theideal.
(2) Create a committee on decorum and investigation of cases of sexual harassment. The
committee shall conduct meetings as the case maybe with officers and employees to increase
understanding and prevent incidents of sexual harassment. It shall also conduct investigation of alleged
cases constituting sexual harassment.
In case of work-related environment, the committee shall be composed of at least 1 representative
each from the management, the union if any, the employees from supervisory rank and from rank and
file employees.
Another very important provision in Section 5 of the law, solidary liability for damages
of employer or head of office if the employer or head of office is informed of such acts by the offended
party and no immediate action is taken thereof. Please take note, the victim of sexual harassment does
not have to file a complaint. If the head of office knows that there is this incident and the head of
office does not take immediate action thereon, then the employer can be held solidarily liable for the
damages that the victim sustains.
Now, the victim of sexual harassment is not precluded from instituting separate and
independent action for damages and other affirmative reliefs. Penalties and prescriptions.
Imprisonment of not less than 1 month or more than 6 months. A fine of not less than 10k or more than
20k. The right of action prescribes in 3 years from and after the commission of the sexual harassment.
Prohibited acts for any employer:
(1) To deny any employee the benefits provided for in this chapter;or
(2) To discharge any woman employed by him for the purpose of preventing her fromenjoying any
of the benefits mentioned here. 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.Discrimination by reason of pregnancy.
But supposed it is the pregnancy that makes you counter-productive. You are asked to leave because
you are pregnant. Is that discrimination? I dont think so. Supposed you are a security guard. And then
you become pregnant. Is it discriminatory if you were asked to take a leave? Maybe the employer
should try to find a testjob for you. But if there is no test job, then you will be asked to take an early
leave before your maternity leave.Supposed you are a belly dancer on a restaurant then you become
pregnant. Its your pregnancy that makes you counter-productive. Can you imagine a pregnant belly
dancer? That is not discrimination.
Now, Article 136, we have taken that up. Classification of certain women. These are hospitality
women, in nightclubs, cocktail lounge, massage clinic, bar or similar establishments and their special
treatment under the law is there is an employer-employee relationship imposed by law.
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The next group of special workers are MINORS. What is the lowest age that a person maybe employed?
15 years. No child below 15 years of age shall be employed except when he works directly under the
sole responsibility of his parents or guardians. And his employment does not, in any way, interfere with
his schooling. So, if you are working with your parents directly, then you can be employed even if
youre young, younger than 15. Then it says any person between 15 and 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. The foregoing provisions shall, in no case, allow the employment of a person below 18 years of
age in an undertaking which is hazardous in nature as determined by the Secretary.Any exception to
that rule? The exception is if you are with your parents. So, even if it is dangerous or hazardous nature
of work, you are allowed.
Example, supposed your parents are high wire-walking artists in a circus.And here is their main
attraction, their 6-year old kid who rides with his grandpa crossing, walking in the high wire. Does the
parents break the law? Are you liable for your grandson for putting him in danger? That is the issue.
Hazardous workplaces are those involved with high temperature, chemicals, underground mining,
underwater work. You cannot expose children, minors to those kind of work.
Now, there is a specific law. Section 1, RA 7658 which amended Section 12, Article 8, RA 7610. What
does 7658 amend?
Section 12. Employment of Children. - Children below 15 years of age shall not be employed except:
(1) When the child directly works under the sole responsibility of his parents or legal guardians and
where only membersof the employers family are employed: Provided, however, that his employment
neither endangers his life, safety, health and morals, nor impairs his normal development; Provided,
further, that the parent or legal guardian shall provide the said minor child with the prescribed primary
and/or secondary education; or
(2) When the childs employment or participation in public and entertainment or information
through cinema, theater, radio or television is essential: Provided, the employment contract is
concluded by the childs parents or legal guardian, with the express agreement of the child concerned,
if possible, and the approval of the Department of Labor and Employment: and Provided, 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 childs 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.The Department of Labor and Employment shall
promulgate rules and regulations necessary for the effective implementation of this Section.
And then, the employment of child models in all commercials or advertisements promoting alcoholic
beverages, intoxicating drinks, tobacco and its by-products and violence. No child can be made to
portray scenes involving alcoholic beverages, etc.
It seems here the thesis is the Department of Labor is sufficient for your protection. They participate in
signing your contract. To check on whether your parents are looking after you. So, those are the
special laws for minors who are special workers.
Now, the third group of special group of workers are Kasambahay. And then you have homeworkers
those who stay in their own home. A Kasambahay is a sort of a homeworker but they stay in the home
of their employer. The homeworkers, on the other hand, stay in their own home. They are supplied
with materials by their employer. Let us say to make buri hats. After a sample and then the
employer comes around and collects the finished products. Pays them less the cost of the raw
materials. That is a homeworker.
Remember, the homeworkers have a right to form labor organizations but a kasambahay is not provided
with the right to forma labor organization. The implementing rules though of a new law says that the
kasambahay may form a labor organization but that, I believe, is ultra vires because the red letter of
the law is silent as to whether they can form a labor organization.
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The homeworkers, if they make a mistake, can be made to undo their work to conform to the
standards agreed upon at the inception. And the undoing of the work is no longer with pay. That is
allowed.
The Secretary of Labor shall provide for special regulations for the homeworkers.
Night workers.This is the amendment of the provision before prohibiting women from doing night
work.Article 154-161. These provisions are for call center workers, BPO workers. They are not really
given any specific rights except for health checkup.Before they are engaged, when they are
transferred, or whenever they ask for a medical checkup. The medical checkup is not called medical
checkup. It is called health assessment. At their request, workers shall have the right to undergo health
assessment without charge and to receive advice on how to reduce or avoid health problems associated
with their work.
(1) Before taking up an assignment as a night worker;
(2) At regular intervals during such anassignment;
(3) If they experience health problems during such an assignment which are not caused by factors
other than the performance of nightwork.
Mandatory Facilities. They must have beds or place to retire so that you do not have to go home at 2
oclock in the morning. That is required now.Or if you are made to go home on such an unholy hour,
you should be provided with transportation and you should be delivered to the nearest place of your
residence.
If you are a woman night worker, you should be with a medical certificate that allows you to work if
youare pregnant, and during a specified time beyond the period of the child birth. And if you are
nursing, you should also provide for a medical certificate. In other words, the disputable presumption
is if you are pregnant, you are assumed to be in the position to be a night worker.
Now, health and safety. Book 4.
Every employer has the obligation to maintain health and safety in the workplace. If its an ordinary
workplace, under Article 163(a), when the number of employees exceeds 50 but not more than 200
then the employer must see to it that one of the employees is trained in first aid. You know how to
rescue someone who is choking, you must know how to do CPR, etc. Where do you go to get the
training? You go to the red cross. Then you get a certificate that the employer has complied with his
duty.
And then there are these other cases, if its a hazardous workplace, there must be a part time nurse,
or a full time physician (500 workers), as the case may be. the SC has held that the full time physician
demanded by the Labor Code is not a regular employee. It is the service that is full time. But not the
tenure, according to the SC in the Eskasinas vs. CA. This case involves the Shangri-La Hotel in
Mactan.The doctor must have like it there and he wanted to be permanent. According to the doctor, he
is a permanent because the Labor Code says full time. The SC says, as to the service you are full time
but youre engagement cannot be permanent. Why cant he be permanent? Because the hotel, the
usual and necessary occupation of the hotel is not medical. How can you be made permanent? The
moment youre a permanent there, the following year you are already irrelevant. You have lost your
training unlike in a hospital, theres a continuous training. That is why he cannot be made permanent.
The same applies to nurses.
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AUGUST 12, 2016

M. Bessadel Dulay

Book 6. Post-Employment Termination

It has the most number of cases because termination according to Chief Justice Enrique Fernando is the capital
punishment of labor. Once you terminate somebody thats when he really *inaudible then he files a case.
(Father gives out notes for termination)

But these are basically causes of termination that are not found in the Labor code. So you have to read a standard
commentary to know the decided cases on termination based on what is found in labor code.

The list of causes for termination are found in Articles 296 and 297.

Art. 296. [281]. Probationary employment. Probationary employment shall not exceed six (6) months from
the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a
longer period. The services of an employee who has been engaged on a probationary basis may be terminated
for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards
made known by the employer to the employee at the time of his engagement. An employee who is allowed to
work after a probationary period shall be considered a regular employee.

Art. 297. [282]. Termination by employer. An employer may terminate an employment for any of the
following causes:

1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or
representative in connection with his work;
2. Gross and habitual neglect by the employee of his duties;
3. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized
representative;
4. 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
Other causes analogous to the foregoing.

So for the cases that can be found in standard commentaries like Azucena, Chan, all those different
commentaries what they give you a list and cases of termination causes not found in the labor code.

Termination Law, we begin with the definition of security of tenure. What is the definition of security of tenure?

Art. 294. [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 backwages, inclusive of allowances, and to his other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
(As amended by Section 34, Republic Act No. 6715, March 21, 1989)

Security of tenure- Is the right of an employee who is engaged for an indefinite term to continue an
employment indefinitely subject to the condition that no just or authorized cause supervenes.

Just cause is cause attributable to the employee. Ex. Nangawat siya (he stole), nag inefficient siya, sala na niya
(his fault). So it is a just cause.

Authorized cause, you have retrenchment, redundancy, labor saving devices that are introduced, loss on the
part of the employer.

These are beyond the control and responsibility of the employee and yet it causes the end of his employment. For
this type of cause there is separation benefit. For the previous kind of causes, just causes, there are only
separation benefits.
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The term for the cessation of employment due to just cause is dismissal.
The correct term for the termination of employment due to authorized cause is termination.

Ordinary pedestrian language, the term for cessation of employment due to just cause is football. Na football
ako. Na sipa ako. Napapahawa ko.

The term for cessation of employment due to authorized cause, not the fault of employee, outside, is
terminate. Na unsa ka? Na terminate. That is the language outside, right? (Pareha yan sa aha mo? Ma makwit
mi. bakwit. Thats not an original word in our language that is evacuate.)

So even the ordinary person knows the difference between dismissal and termination.

Dismissal- your own fault.

Termination- not thru your own fault but through a sufficient neutral cause.

Now we are one of the few countries in the world that has strict security of tenure right.
In the US they do not follow Security of Tenure, what do they follow? They follow the so called doctrine of
Employment at Will. What is this doctrine?

Employment at Will- it is common law rule that an employment contract of indefinite duration may be
terminated by either the employer or the employee at any time, for any reason, with or without cause.
Thats why in cartoon depictions of termination is the US you have this fellow on the opposite side of the desk
representing the employer who is so flustered and shouts You are fired! and the employee on the opposite side
of the desk also shouts back You dont gave to fire me. I quit! So you see that shows you that they have equal
rights with respect to the termination of the engagement.

Is Security of Tenure, good or bad as a policy?

If you are weak, if you have no skills, if you have little education, it is good for you. But if you have skills, you are
educated and training, its bad for you.

In Cuba, there is no firing because the biggest employer there is the government. Everybody is employed but the
wages and the remuneration are a pittance. They dont have much by way of wages but if there is a calamity or
storm where loss of life practically nil, very little. They can move very fast. Why? Because people can vacate their
homes right away, they dont have much in their homes. So they move right away and the government comes.
Many of them pray that the storm will wash away their homes so that the government will give them a new home.
Thats why they say, if you were born without resources, below average, no natural gifts like Michael Jordan, its
good for you to be born in a communist state where you share equally you share poverty equally. But if you have
had training, you are quick to assimilate things, you better not be born in Russia because you will suffer unless you
are a real genius who loves to stay poor.

You have not heard of this mathematician in Russia, Gregori Perelman? 5 years ago, he discovered the solution to
this 200 year old mathematical problem, the Poincar conjecture. (This Poincare thing is one of the Millenium
Prize Problems, if you can solve this problem, you are given $1M by Princeton University. Gregori solved it and he
put his solution in the internet. He was invited to explain his solution but turned down the money and went back
to Russia. He solved the problem for the love of mathematics.)

Frictional unemployment, is the terminology used by economists. An economy has a minimum of

unemployment which can never be erased. Why? Because it is the very premise of the improvement of an
economy. If you do not have it, then you are not improving.

The usual example of this is the receptacle for cooking rice. Time was when it was used to be an earthen pot.
When it was earthen pot, the potters had a hay day. They had a job because everybody was using an earthen pot.
Then came the kaldero, the cast-iron cauldron. It replaced the earthen pot. What happened to all those potters
whose skill was making those earthen pots? They were unemployed. They cannot be employed in the making of
kaldero because the latter now involves heat. Now things moved to the aluminum pot. Which is now used in an
oven. And then again it moved to rice cooker which is more complicated. What happened to those previous
workers? They were out of work. Finally you have this wonder material known as Pyrex. You can use it for cooking
and at the same time it becomes decent enough to become tableware, straight from the pot to the table. That is
more complicated to produce.

Now that is the progress of society. In every stage it creates its own frictional unemployment as it moves, as an
economy moves. So there is always unemployment. Only fools like the author of the labor code who says that it is
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the policy of the state to pursue full employment. Who has discovered that? Who has succeeded in that? If you did,
then you stagnate the whole society. Full unemployment which is the labor policy is a myth because of frictional
unemployment. But frictional unemployment has been overshadowed by what is called structural unemployment.
What is that? Structural Unemployment is more revolutionary, that comes with a radical revolution such as
what digitalization brings.

If you became a lawyer, in the 60s or 70s by now, if you have not learned how to use a word processor you will
be largely considered as unproductive. Can you imagine writing an appeal brief of 70 pages using a typewriter, 7
copies? I went through that. If you make one mistake but now in between letters you can insert a whole book!
People of my generation we are digital migrants, while you are digital natives.

If you were an architect, you got a license in the 60s or the 70s, if you do not know how to use CAD or an
accountant, when you had this long trial balance, this long yellow sheet you have to know spread sheets. And if
you dont, what happens to you? You become unemployed. And that goes through all professions and skills. This
can be largely responsible for the increase of productivity and also increase of unemployment. And it is not yet
over. So unless you begin to make a fundamental correction in your role approach then you will think you can fight
unemployment by surface measures. But in the end, it is basically education. You dont know how lucky you are.
There are children who go to school and all they do is copy what the teacher writes on the board. Why? Because
there are no books. You are already concerned by the problem of digitalization, they are still trying to learn how
to read and write. That explains unemployment.

Then you add the fundamentally faulty approach to education, teaching Filipino. What happens? You have a bunch
incompetents because they make language a question of nationalism. Language is neutral. There are so many great
countries who do not have their own language. You are not tested of your Filipino when youre applying for a job,
you are tested on your English.

(Father tells his experience when he went to Manila when he was 16 years old, teaching Catechism to those people
in a correctional then he found out that majority of people there were Bisaya. J Father then tells about this Boy
Golden, who was a great pick pocket. Father was wearing Sutana but he was still able to get his wallet. Father
became an admirer because of his skill. He jokes that hes never unemployed. He always has employment.)

If you have a skill that never goes out of date, that is security of employability not security of employment. That is
what labor should work for not security of tenure.

In the Philippines the regular worker is secured in his employment because it is guaranteed by the Constitution and
it is implemented by Book 6. You cannot end the engagement unless there is a cause, whether just or authorized.

DOUBLE SECURITY OF TENURE

Now there is an employee which that Supreme Court says that employee enjoys double security of tenure, not just
one but double security of tenure. Who is that employee? That employee is named by Justice Enrique Fernando in
1997 in the celebrated case of Montemayor v Araneta University Foundation 77 SCRA 321, 1997.

Who is that employee? It is the professor or teacher of the tertiary level educational institution. If you teach in
college or higher you enjoy double security of tenure.

The FIRST security of tenure is the security of tenure of the Labor Code.
The SECOND is the security of tenure that arises from Academic freedom. It is the freedom to pursue his studies in
his particular specialty and thereafter to make known or publish the result of his endeavors without fear that
retribution would be visited on him in the event that his conclusions is found distasteful or objectionable to the
powers that be whether political, economic, or academic establishments.

Tenure is the essence of such freedom. Without tenure that assures a faculty member "against dismissal or
professional penalization on grounds other than professional incompetence or conduct that in the judgment of his
colleagues renders him unfit" for membership in the faculty, the academic right becomes non-existent

Good example here is Galileo. Galileo made adjustments to the telescope and observed the planets with more
accuracy than anybody else. At that time the cosmology principles hold that the earth was the center of the
universe. But from his observations that it was the contrary, that the earth was not the center. He put it out on
paper and when he did that all the scholars of the Catholic Church attacked him because it was contrary to the
Bible according to them. Of course it was a wrong reading of the Bible. So he was banned from the universities
because what he was teaching was not in consonance with was generally accepted and it was not until just maybe
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less than 10 years ago that the Catholic Church apologized for banning Galileo. Thats a little late isnt it? Who
knows, that it might have been great progress in science if he was allowed to freely disseminate what he had
found. So that is why there is no this academic freedom.

So if you are teaching in the tertiary you are supposed to be free to conduct your research no matter where it
leads you and you are free to disseminate it even if it is against what the establishment or the particular stage of
that field of knowledge holds.

Now to the question as to who will be your corrective. How will you be measured if the establishment doctrine is
not enough measure? The answer is, your colleagues- the same people in your field will be your correctors. If you
say that you can reach this by the experiment they should be free to conduct the same experiment and if the
results are not the same you will be corrected.

(Father discusses Einstein when he proved that light has a finite speed through observing the eclipse)

That is the reason why academic freedom is the source of security of tenure. To get people to be encouraged to
look for the advancement and the furthering of the boundaries of science and human knowledge without fear of
losing your livelihood, your work. So technically speaking where I sit on the other side of the desk, I should be free
to speak about what I have found on whatever research I do even if it is contrary to standing doctrine. But that is
not the same with high school or grade school teachers. It is the tertiary level educational institution.

So who enjoys Security of tenure? All workers? Is there a uniform enjoyment of security of tenure by
everyone?

There is only one who enjoys full security of tenure and that is the regular worker. The others either enjoy a
limited or qualified security of tenure.

It is the regular worker that enjoys the full security of tenure and the regular worker is defined in Article 294, is
one who is engaged to perform activities that are usual and necessary to the usual trade or business of the
employer.

Art. 295. [280]. Regular and casual employment. The provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be
regular where the employee has been engaged to perform activities which are usually necessary or desirable in
the usual business or trade of the employer, except where the 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.

An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That
any employee who has rendered at least one year of service, whether such service is continuous or broken,
shall be considered a regular employee with respect to the activity in which he is employed and his
employment shall continue while such activity exists.

End of 1st Hour

AUGUST 12, 2016 2ND HOUR

Naf Kuit
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BOOK 6 POST-EMPLOYMENT

Security of tenure as a legal concept has decreased and its firmness is enjoyed by
regular workers. Others, enjoy it to a lesser degree. We classify workers according to
their enjoyment of security of tenure.

We have managerial employees, to appreciate the security of tenure of managerial

employees, read MGG Marine Services vs NLRC (259 SCRA 664, En banc decision,
written by Justice Artemio Panganiban)

MGG Marine Service vs NLRC

This MGG case is the story of a controller. MGG Marine Services is family
corporation. The officers are all family members, except for the controller,
who is an outsider. These officers one day had to take a trip abroad. They met
this controller and encharged with specific instructions.

These instructions were: we have this much money available in the bank for
the account of the corporation. Here is a check book. Since our account
requires two signatories for withdrawing from the account by check. We have
pre-signed the checks. Now, it only needs one more signature and that is your
signature. You pay only theses accounts because our cash is limited. When they
were gone, here comes a very persistent list that is not on the list. The account
was very persistent and the collector gave in and issued full payment, contrary
to the instruction. As a result, cash is now lacking for the other account. When
they came back, they found out. They had to obtain an emergency loan to be
able to keep the company to work because the collector failed to hold off the
other accounts were just and valid obligations of the corporation.

Question, should the controller be penalized for her actions? The board decided to
fire her and she was fired. She filed an illegal dismissal complaint. Her contention was
that an employee may only be dismissed if there is a just cause mentioned under 296
(note: 286 in the book) of the LC. What they did does not fall in any of those
mentioned in the said article. I disobeyed orders but it was in paying an obligation
that had become due and demandable. If in so doing I disobeyed, it was not a willful
and serious disobedience as would qualify as just cause under 296. And yet, the
majority of the court, upheld her dismissal.

This what the court said: the leeway of wrongdoing of management is wider than that
of regular employee. You can be dismissed not for wrongdoing but for impropriety.
You can be dismissed for falling short of a committed goal. In this case, you are
dismissed for disobeying specific instructions.
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So, let us say in a sales meeting the sales manager stands up and commits to a certain
sales contribution or profit, and then he fails to reach it, it could be a valid ground
for dismissal. Why? Because he is a manager and he committed himself to it. It has
consequences for the rest of the troops. It is not alright if the leader cannot reach a
goal which he says hes going to do and there is no extraordinary circumstances
preventing it.

Regular employment

The measurement of regular employment is not time. It depends on the chore or

duties. If you are made to perform duties which are usual and useful to the trade or
business of the employer, then you are regular, as a general rule. Unless, you are
probationary and they tell that you are on a trial basis and these are the goals you
must achieve or the certain standards you must meet in order to be regular. But when
the time comes, and they do not tell you whether you met the standards but they
continue your employment beyond your probationary period, you become regular. The
burden of the doubt is resolved in your favor. Because that is how labor standards
provisions are interpreted in case of doubt.

Casual employment

The labor code says that all other employment is casual. You are not made to perform
activities which are not usual and necessary to the trade or useful to the business of
the employer.

Project employment

Fegurin vs NLRC (written by Melencio-Herrera)

This case will helps you distinguish project employee from pool employee. This
is in a construction industry. Because the two do the same thing. Let us say,
you are a civil engineer engaged in a project constructing Marco Polo. But you
also have, being a construction company, an engineer who goes around the
projects, measuring the extent of completion, what are to be corrected, etc.
He is engaged regardless of any project. So, he belongs to the pool of
employees. He is regular. In other words, you can now distinguish as to the
chore because what they do is usual and necessary to the trade and business of
a construction company. But one who is specifically referred to in a project is
project employee. At the end of the project, he goes. He is not dismissed nor
terminated, his term just expired.

Does he have any benefits? No benefits.

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A cousin to the project employee is the

Seasonal employee

A seasonal employee can be seasonal as to a natural season. Or seasonal as to

commercial or industrial season.

Natural Season

1) Sugar milling season normally 10mo/year, unless it is a bumper crop. There

is so much sugarcane to be milled and cannot possibly milled in 10 mos. If the single
mill is greedy and insists to mill all of them, he has to pass it on to other mill.
Because sugar canes standing there and not milled, is an organic matter. It decays
and loses the sugar. But then, some sugar mills dont want to share their harvest.

Commercial Season --- lets say, December (Christmas) to Valentines Day, the peak
of retail industry. That is a commercial season.

What is the rule with respect to commercial season? If you have been a seasonal
employee, and the sum total of your indichment (??) has reached one year, so you
have been four times hired, then you become permanent as to the season. That is the
ruling in Manila Hotel vs CIR (9 SCRA 184, 1962). It is now enshrined in Article 294
second paragraph (note: 280 in the Labor Code).

Art. 280. Art. 280. Regular and casual employment. The provisions of written
agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be deemed to be regular where
the employee has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer, except
where the 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.

An employment shall be deemed to be casual if it is not covered by the

preceding paragraph: Provided, That any employee who has rendered at
least one year of service, whether such service is continuous or broken,
shall be considered a regular employee with respect to the activity in which
he is employed and his employment shall continue while such activity
exists.

That is considered as qualified security of tenure.

Term Employment
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This is exemplified in Brent School vs Zamora (181 SCRA 701, 1990). This was the old
labor code where from Labor Arbiter you need to appeal to NLRC and from NLRC to
Sec. of Labor to Office of the President. Zamora here is the acting executive
secretary at the time of Marcos.

Brent School vs Zamora

Brent School is that school in Baguio, an international school. They hired an

athletic director for 3 years. At the end of 3 years, he was asked to go because
his contract was concluded, expired. When he found our that there was
another person hired as an athletic director in his stead, he said he was
illegally dismissed. He said that he was already a regular worker because he
was engaged to perform activities which are usual to the trainer business of the
employer. What is the trainer business of the employer? Educating the youth,
not just in mind and skills but also in sports. He also said that the definition
regular employment puts an end to term contracts.

Supreme Court said that that is not the intention of the law because there are
certain industries, certain business that is on a term basis. One of them is
educational institutions. Department heads, school heads, deans, etc, those
who have departments in educational institutions always have a term because a
department or schools continually needs fresh blood, fresh ideas. You may
renew your term but your term ends.

UST Faculty Union vs NLRC a rehired employee who has just retired will never
reach regularity of status. He does not have security of tenure.

Let us say hes around 60 and his job is a telephone operator, so mandatory
retirement. But then, everyday he still comes around and reports for work. So, he
begs the head of the school to allow him to work. So the school rehires him on a
contract basis. Will he achieve regularity of status? No more. 60 is the retirement age,
if you are rehired until 65, it is the decision of the president, if above 65 and rehired,
it is the decision of the board. But if you teach in law school, you are not regular, you
dont have a tenure. Those teaching in the law school are part-time teachers.
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Jan Claros TSN September 7, 2016

Once there is a ruling in the labor arbiter that there has been illegal dismissal and the
employer appealings there is reinstatement. and this reinstatement is not supposed
to be askfor via execution. in other words the notice of the decision already contains
a warning from the court that within 10 days from the receipt of the decision the
employer is suppose to inform the court as to what choice he makes for the
reinstatement. because under the labor code jurisdiction of the labor arbiter
he(employer) has 2 choices: art. 229 (now article 223):

Art. 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are final and
executory unless appealed to the Commission by any or both parties within ten (10)
calendar days from receipt of such decisions, awards, or orders. Such appeal may be
entertained only on any of the following grounds:

If there is prima facie evidence of abuse of discretion on the part of the Labor
Arbiter;

If the decision, order or award was secured through fraud or coercion, including graft
and corruption;

If made purely on questions of law; and

If serious errors in the findings of facts are raised which would cause grave or
irreparable damage or injury to the appellant.
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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. (As
amended by Section 12, Republic Act No. 6715, March 21, 1989)

Now, the letter of the law states that tell you that it is the decision of the labor
arbiter. suppose, it the voluntary arbitrator who decides on the issue of the dismissal
of the employer is the choice of the parties brought to voluntary arbitration.
Voluntary arbitration is prefered by the constitution rather than compulsory arbiration
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because in voluntary arbitration the parties agree to present it to an adjudicator

acceptable to both parties.

Now, in their 2015 decision the SC says that this immediate reinstatement also applies
in voluntary arbitrator besides a separate finding that there is illegal dismissal and
there has to be reinstatement. Now, many are saying that that's judicial legislation.
because the law is specific to provide that it is the labor arbiter it does not include
the voluntary arbitrator. but you have the decision of the supreme court that if it is
the voluntary arbitrator that decides then there must also be reinstatement pending
appeal.

There's a conflict because under the labor code the decision of the voluntary
arbitrator becomes final and executory in 10 days from receipt of the copy of the
decision. That sec. 1 rule 43 ROC (appeals) grants the parties 15 days to appeal a
decision of the voluntary arbitratior or the offices or the lower courts other offices
(sss, gsis etc) you have 15 days to appeal to the court of appeals.

The issue is that is that just a procedural a procedural right or a substantive right? In
practice, what you do is that once you receive the decision of the voluntary arbitrator
if you want to appeal you serve a notice to the voluntary arbitrator that you are
appealing so that it wil not enter in the judgment entry book after 10 days that the
judgment has become final and executory. and you inform the voluntary arbitrator
that you are appealing and you are making use of the 15 days granted by the rules of
court.
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There is a statutory right to appeal and there is appeal which is discretionary. let's
you have a case in the lower court mtc you appeal to the rtc. that is statutory. that is
a right.here in article 229 (now art 223) the appeal is very narrow.

Art. 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are final and
executory unless appealed to the Commission by any or both parties within ten (10)
calendar days from receipt of such decisions, awards, or orders. uch appeal may be
entertained only on any of the following grounds:

In other words, if its a simple error there is no appeal it will not be entertained. it
must be on any of these grounds:

a. If there is prima facie evidence of abuse of discretion on the part of the Labor
Arbiter;

example: dismissal is already more than 5 years and that is brought out by the
employer so the action has prescribe and yet the labor arbiter issues a decision
making a finding that there has been illegal dismisal and therefore ordering for
reinstatement. Is that prima facie? yes. You can take a look at it. you see the dates
on first looking prima facie. Just for the first looking, you already know. That is a
ground for appeal.

b. If the decision, order or award was secured through fraud or coercion, including
graft and corruption;

-this is the most difficult because this is another case.

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c. If made purely on questions of law; and

just like the case of cheryll santos vs St. Scholastica's college. Refer to the handout.

Cheryll Santos Leus (petitioner) was hired by St. Scholastica's College Westgrove
(SSCW), a Catholic educational institution, as a non-teaching personnel, engaged in
pre-marital sexual relations, got pregnant out of wedlock, married the father of her
child, and was dismissed by SSCW, in that order.

Issue: Whether pregnancy out of wedlock by an employee of a catholic institution is a

cause for termination.

That is a question of law. When you enter you abide by the tenets and moral
standards of the catholic faith, you signed.

now you get pregnant out of wedlock, is that sufficient?

Decision of the SC (from the fulltext)

The respondent, St. Scholasticas College Westgrove, is hereby declared guilty of

illegal dismissal and is hereby ORDERED to pay the petitioner, Cheryll Santos Leus xxx

d. If serious errors in the findings of facts are raised which would cause grave or
irreparable damage or injury to the appellant.

-This is a more common ground that is raised. very rare that you see prima facie
evidence of the grave abuse of discretion, collusion, graft coercion, corruption or you
raise purely on question of law.
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So normally you cite serious errors, not just simple errors. Serious errors which if not
raised would cause grave and irreparable injury.

Now, when you recieve that decision there is a note that you have to inform the judge
the decision that you are appealing from within 10 days how you will reinstate the
employee that has been found to have been illegally dismissed. actual reinstatement
or so called payroll reinstatement. 15-20. Just make him open an account and the it
goes there and then wait 15 to 20th pending the appeal. and continues to receive his
salary.

Now, this return to work in Labor Relations just omit that. You are not yet in labor
relations.

How about a project employee who is hired for the duration of the project?

-Certainly he does not have security of tenure like a regular worker.

Case in point: FILIPINAS PRE-FABRICATED BUILDING SYSTEMS (FILSYSTEMS), INC., and

FELIPE A. CRUZ JR., petitioners, vs. ROGER D. PUENTE

a 2005 case.

We said that it is the regular employee that enjoys security of tenure right. How
about a project employee? According to the SC the project employee hired for a
specific task enjoys security of tenure during the duration of the project employment.
In the project or in the phase of the contract the project employee is working on has
not yet been completed his services are terminated without just or authorized cause
and there is no showing that his services are unsatisfactory the project employee is
entitled to reinstatement with back wages to his former position or substantial
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equivalent position. If the reinstatement is no longer possible, the employee is

entitled to his salaries for the unexpired portion of the agreed term.

so you can see the reinstament of the project employee who is illegally dismissed is
different because by the time the case is decided, no more project. He just give them
the salary which he lost because he was dismissed.

Now, there was pronouncement by the supreme court that the project employee
enjoys security of tenure for the duration of the project. This is a correction. Because
you might be hired for a project but for only a specific task within the project. Let's
say, you are a rough carpenter, you are hired for a construction project . The
construction project is supposed to be 1 year let's say 2 years like marco polo. 1 or 2
years. you're hired as a carpenter for a specific project, the construction of the Marco
Polo Building. It takes 2 years for that project to continue before it is finally declared
over and turned over to the owner of the project.

Now, it does not mean that for the entire period of the project they need carpenters
specifically you, you are just rough carpenter. You are for the construction. Now, as
soon as your particular phase of the project is over then that is the extent of your
tenure then you are laid off.

If you are let go earlier and there is no ground to let you go and in just or authorized
cause then there is a violation of your security of tenure. that is the ruling in Filipinas
case.
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Again, as to project employee: Failure of the employer to file termination reports

following department order no. 9, April 1, 1993 after you finish your project you file a
report with the Dept. of Labor these are the people associated with the project and
they are no longer working because the project is over. If you do not file that report
and later on he files a case on termination what is the prima facie ruling that is open
to be overturned by the superior evidence? The prima facie ruling is that he is a
regular worker because he was not reported as among the workers that whose
engagement ended with the end of the project. Very important requirement: Failure
of the employer to file termination reports after every completion of the project of
any phase thereof with nearest public employment office of the DOLE is an indication
that the employee is not a project employee.

Equipment technical services vs CA, oct. 8, 2008.

Again, seasonal employee, remember, there are 2 kinds of seasonal employees.

Remember we talked about 2 types of season: The natural season and the industrial
or commercial season.

Abasolo vs. NLRC, 2000 There is such a thing as regular seasonal employee. What is a
regular seasonal employee? Once he has been hired as to a season and is hiring
whether it is continuous or broken adds up to one year he has become a regular as to
that seasonal employment that's why he is called a regular seasonal employee.
Regular seasonla workers are called to work from time to time mostly during certain
seasons. The nature of the relationship with the employeer is such that during the off
season they are temporarily laid off but they are reemployed during the seasonor
when their service is needed. They are not strictly speaking separated from service
but are reconsidered as on leave of absence without pay until they are reemployed.

Their employment relationship is never severed but only suspended as such they can
be considered as being in the regular employment of the employer.
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The seasonal employee is free not to comeback to the employer. But the employer is
not free not to re-hire their seasonal employee during the season. That's the
difference the obligations of the two.

How about security guards? Security guards of an agency, it is the agency that enters
into a contract with the indirect employer. Normally, what the employer does is they
conduct a bidding. The bidding is good for atleast (let us say) 2 years. So they engage
the services of the security guard to the indirect employer in case they win the bid.
At the end of the 2 years, what happens? the security agency let's say its no longer the
contractor of security service he has to pull out his guards. Where will he plays his
guards? He will try to look for a another contract. that's why the law says that the
guards who were pulled out maybe on what is called floating status for six months.
that is the rule. The security agency is given 6 months to look for another assignment
for them. 6 months suspension of operation of the security service is not considered
as termination.

That is the same ruling as let us say the employer is a supermarket. The supermarket
catches fire. The employees are out of work. Can they go to the employer and say we
are terminated give us termination pay. they cannot. The provision in the labor code
says: you are allowed 6 months of suspension of operations for temporary closure
Article 300.ART.

300 [Renumbered 286]. WHEN EMPLOYMENT NOT DEEMED TERMINATIONED

The bona fide suspension of the operation of a business or undertaking for a period
not exceeding six (6) months, or the fulfillment by the employee of a military or civic
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duty shall not terminate employment. In all such cases, the employer shall reinstate
the employee to his former position without loss of seniority of rights if he indicates
his desire to resume his work not later than one (1) month from the resumption of
operations of his employer or from his relief from the military or civic duty.

so, there's a fire, there is no right to termination benefits yet. If within 6 months
these supermarket is rebuild and business is going on then all those former employees
can go back and say we have a right to be reengaged. If at the end of the 6 months,
there is no resumption of operations that is when the employee can say you have to
give us termination benefits because you are presumed to have undertaken a closure.
Suppose he said lost, nasunog man? unsa man akoang ikabayad ninyo? once again,
remember loss is not proven by pictures. What is proof of loss? Audited income and
financial statements. Because serious loss exempts the employer from payment of
separation benefits. What is the separation benefit if there is closure due to loss?
(memorize daw according to father) 1 month salary or 1/2 month salary for every year
of service in fraction of atleast 6 months is considered 1 year whichever is greater.
(possible bar question in the future)

So, that tells you that no one receives separation benefits lesser than 1 month salary
due to loss not serious loss. 2 ka ka tuig nag trabaho pila imung separation benefits? 1
month salary, 1 half month man per every year of service. 1 year lang ka nag trabaho,
pila man? it cannot be half month because 1 month or 1/2 month salary for every
year of service whichever is greater. 1 month lang gihapon ang imung madawat. Now,
if the separation is not due to loss. But is due to redundancy? (redundancy means
excess) It could happen because they hire more than they needed in the first place or
they have introduced labor ceiling indices or they have reduced the sized of their
operations so you are redundant. There is no issue of loss. There is no loss. No
 LABOR STANDARDS TSN
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impending loss. No actual loss. What is the separation benefit? 1 month salary for
every year of service or 1 month salary for every year of service fraction of atleast 6
months considered 1 year whichever is lower.
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August 23, 2016

Charmaine Jalapeno

Two openings in the Supreme Court. This December, Justice Brion is retiring and there
is another one, Perez, and they are already beginning with the process. Theyre saying
it will be somebody from Davao because its Duterte whos going to appoint. God help
us with those legal opinions now that are scattering around. Can you imagine? The
president can declare Martial Law due to the traffic emergency? You have read the
constitution. The grounds are limited - when public safety and security are concerned- it
has nothing to do with traffic. As they say, ignorance and stupidity is widely shared
commodity, but although widely shared, it is found in greater concentration in some
rather than in others. And the higher you climb the totem pole of human organization,
the greater the degree of the concentration. That is a tragedy.

Alright, lets go to more mundane subjects such as Dismissals and Terminations.

Dismissal is for just cause, enumerated in Art.296. Is 296 exhaustive of the grounds for
dismissal? The answer is no. There are other grounds. Supreme Court has already held
that a valid just cause for dismissal is Sexual Harassment. It is not found in the Labor
Code. That is a special law. So, 296 is not exhaustive. So are the so called authorized
causes for termination under Art.297.

Under 297, all you have is retrenchment to prevent loss; cessation of operation of
closing due to loss; installation of labor saving devices; and so called redundancy.

Many economists were saying that computerization has not yet played out its complete
consequence in the area of employment. If the unemployment rate has remained 7% in
 LABOR STANDARDS TSN
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the Europe and in the U.S. that is because computerization has not really played out.
Less and less people are needed in the data recording function of a business unit.
Why? Because of computerization. And so many developed countries are experiencing
high levels of unemployment. Its a good thing most of them have unemployment
insurance. But it has not yet played out completely.

Pretty soon, there will be a new way. Can you imagine when they start implementing
driverless vehicles? What will happen to the drivers? Makaluluoy ka. Driving ray imong
mahibaw-an. That is not even considered as highly skilled. That is just considered
ordinary skilled. Tangtangon pagyud na. They are already beginning. The one who is
really going out of its way to implement it is Uber. Uber has implemented a thousand
driverless vehicles in Pittsburgh where they begun. Wa na. Wa nay driver. They are
saying that vehicles should begin to be in contact with each other. Right now, vehicles
are in contact with each other because of the drivers. If you remove the driver and it is
just vehicles reacting to each other, its safer and its faster and its more accurate. That
is what they are saying now. Now you remove that. They will go the way of kutcheros-
the carriage horse driver. The makers of coaches survived longer. thats why the
jeepneys always have kalesa motif, horse motif in their decorations because they were
originally the makers of coaches. What happened to them? They went to Sarao and
started building jeepneys. That is what happened.

So, the law says that if the closure of an establishment is due to serious loss,
theres no more separation benefit. If it is due to serious loss- you read 297 because it
says retrenchment to prevent loss or due to loss which are not serious- that means it is
serious loss. You will later on learn in 3rd year when you study the latest Financial
Rehabilitation and Insolvency Act of 2010 that when a corporation seeks refuge to
FRIA.
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In the U.S. its called Chapter 11, mudagan naka sa Chapter 11, Bankrupcy, then
theres a stay order. All your creditors cannot sue you anymore. They have to process it
in that particular court where they file a voluntary petition for insolvency. So its
processed there. All your unpaid claims, because the workers are creditors as to their
salaries. So they file their claims there. And they are one of the junior creditors. Lupig
man sila sa mga mortgage, chattel mortgage, all those so-called secured creditors.

When the employer is already experiencing serious loss so much so as its assets are
less than its liabilities, you cannot ask for separation benefits. All you can ask for are so
called accrued salaries which have not yet been paid. Accrued salaries fall into what is
called mechanics lien. If you are producing goods, part of the value of those goods and
the labor that you apply, and if that labor has not been paid, its a lien that goes with.
But as to separation benefits, no more. Because somebody who takes refuge in FRIA is
already in serious financial loss.

There is more law - FRIA. Very few like to study that. But if you know it, especially if you
are an accountant already to begin with, you can read balance sheets, profits and
losses. You will have a good practice. Paita sad anang praktisa oi. Masulob-on man
kayo na. puro nangahapay na nang imong giatiman.

Now the procedure for dismissals is different from the procedure of termination. What
are the procedural requisites for a valid termination on grounds of redundancy? The
latest General Milling Corporation v. Viajar, a 2013 case holds Lopez Sugar
Corporation v. Franco, 2005 case, it is imperative that the employer must comply with
the requisites for a valid implementation of the companys redundancy program to wit:
 LABOR STANDARDS TSN
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a. The employer must serve a written notice to the affected employees and to
the DOLE at least one month before the intended date of the retrenchment.

Now, please be careful when you start reading cases about this, there are some
cases, old ones, which you can do away with the one month notice by just paying the
one month salary. That is no longer the rule. That was the rule on the old termination
law.

Why is that no longer allowed? Because you will give notice to the employee one month
from now, you will be terminated due to redundancy or due to loss, closure of your
department. And then you serve a copy with the Dept. of Labor. Why can you not just
pay him his one month salary and consider him informed. And then you tell the
Department of Labor that here is his waiver and salary.

That is not allowed because according to the Supreme Court, that one month gives the
employee concerned a chance to question the ground of termination. Because if he
succeeds in questioning the ground for termination, then the old 277, which is now 291
will apply. 291 (b) second paragraph of letter b, why is that? Take a look at that, the
paragraph says

the Secretary of the Dept. of Labor and Employment may suspend the effects of
termination pending resolution of the dispute in the event of a prima facie finding
by the appropriate official of the Dept. 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 labor.
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Those are the grounds by which the Secretary of Labor may exercise in effect an
injunction, stopping the employer from terminating. And he has one month to decide
that. That is at stake. So its not just under the old termination law. We call that the
MENSA- the one month salary. Youve just given it, human na. We satisfied the one
month. Now, no longer allowed because the employees in question may file a complaint
with the Regional Director of Labor and then the Secretary may restrain the
implementation of the termination. What are the grounds? If the termination will cause a
serious labor dispute strike, or is in implementation of a mass lay-off. This has
something to do with the statistics in the government. In other words, the DOLE does
not want to feed the NEDA with negative statistics that affects our economic standing.

You know, countries right now are being monitored by credit rating agencies. And if you
are not favorable in the credit ratings, what happens? The cost of credit of this country
grows. And the Philippines is one of those which borrows. And if you have a poor rating
from the ratings agency like Moodys thats very moody about their ratings then the
custom follow him. Then, it follows that whatever bonds are issued from the Philippines,
it has a country risk, and then it has a 1 or 2% added to its interest rate. Imbes 4 or 5%
lang unta ang interest rate because this is a sure ball, this is issued by a utility
company, the countrys risks adds another 1 or 2%, increases the cost of money. Very
few appreciate the cost of money.

Many people, the pedestrian thinks the more money you have the better, when you run
a business. No. The ideal is to have just enough money. Why? If you have more money
than you really need to do that business and you are listed in the stock market, the
market will punish you. What are you doing with those idle resources? Why do you have
excess money? You should put it to work- make it productive. Now if you have less
money than you need to run your business, so you borrow. When you borrow, you pay
interest- thats additional cost. So, the important thing is just to have enough money.
 LABOR STANDARDS TSN
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The pedestrian does not understand that. They do not know that the role of the chief
finance officer is closer to the role of a race car Formula 1 driver than a bagman. Why?
Because a Formula1 driver who sits in his car and his ass is just 3 inches from the
pavement, the car is kept low so it will go over 200km/h. All he does is he makes the
turns at maximum. If that turn is taken at 100, take it at 100. If you take it at 90,
somebody else will come along and take it at 100 and overtake you. If you take it at
120, then youre off the road. Mao na ang car driver. Simple lang kayo ang kinabuhi
nila. Just keep it, you go to the turn, this is taken at 100, this at 120. They have a
memory of a law student. Very good memory! When do I start to apply the brakes?
What is my marker for this corner? Kaingon ninyo lisod na inyong ginahimo sigeg
memorya, you try being a race care driver. Sige pa kag tay-og diha. Gasige kag recall
sa imong memory. Thats the talent. And remember, your ass is 3 inches away from the
pavement that you are scraping at 200+mph.

So this is an economic provision. The Secretary can order you to stop the
termination. Notice that 277, which is now 291, is before Book 6 which is Post
Employment-Termination of Employment. Now this is proof that this law, is confused.
So you have two, the employer must serve a written notice to the affected employees
and to the Dole at least one month before the intended date of the retrenchment.

b. Second the employer must pay the employees separation pay the
equivalent to at least 1 month pay or at least 1 month pay for every year of
service whichever is higher. Or if it is due to loss, it is 1 month pay or month
pay for every year of service, a fraction of at least 6 months is considered 1 year.

What is the meaning of that? That means that a person who has been employed
only for one month and the person who is employed for two years and they are both
 LABOR STANDARDS TSN
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terminated due to loss, they receive the same separation benefit. Because it says the
lowest benefit is 1 month or month for every year of service if it is due to loss.

1 year ka nag serve, month. 2 years, 1 month. 1 month lang ka nag serve, 1 month
lang guihapon ihatag nila. So pareho ra. Tan-awa ra gud. Basaha ra gud nagma-ayo. Id
like to point that out because only a few commentators only point that out. Very few
know that there is a very little known rule under the NLRC Rules that just before
judgment that you can ask by the supplementary pleading that the Labor Arbiter really
computes the exact amount that is awarded. Because now the Labor Arbiter is
supposed to give the amount. Many of them do not give the amount. They do not
compute anymore. That is very important because if you appeal that becomes the basis
of the bond. The bond that you post.

You talk about a bond. Then actually, when you avail of it, you can post a bond
that constitutes a special time deposit in the court. It continues- its earning interest! You
can actually do that. But there is just a lot of paperwork. The bank where you put the
time deposit will be subject to the freeze order of the court. The instrument that
evidences the time deposit is submitted to the court so that at least it earns interest. If
your bond is a property bond, no problem. If you wish, you submit it to the court. Or you
submit it to the bondsman and the bondman submits the bond. Ang walay pilde kanang
butang nimo sa bangko. Because your asset is not actually frozen. It continues to gain
interest.

c. The employer must abolish the redundant position in good faith.

What is an example of the abolition of a position done in bad faith? An example

is this. Decided cases. Suppose there is a particular production line that is proven to be
 LABOR STANDARDS TSN
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no longer economical. A company continues to register loss because of that line. So

management decides to close that particular department. But then all these different
lines are unionized. They know that the union cannot contest the closure because they
have the figures to prove it- Audited Financial Statements.

Now, as we learned before, loss is proven not by photographs, not by statements. It is

proven by Audited Financial Statements. Okay, you can prove these departments but
management says, manangtang na man lang ta og tao, tangtangon na lang nato tong
opisyal sa union kay mga militante kayo. So you start abolishing positions which are not
in the division that is being close. That is closure in bad faith. The real reason why you
have abolished the position is to cripple the union. You are trying to influence the
exercise of their right to self organization. You cannot do that. How do you do that
legally? If you want to do it legally, paliton nimo ang tao. Ingnon nimo na we will abolish
your position for this amount. Mao ra ni imong pirmahan pero 5x imong dawaton.
Dautan ba na? dili man na dautan kay gipalit man nimo ang tao. There is consideration

d. Employer must set fair and reasonable criteria in ascertaining which

positions are redundant and may be abolished.

The rule in seniority is first in, last out. Ako man ang naka una dini, ako ang
katapusang tigbason. Mao man nay kasagarang rule. First in, last out. But sometimes,
a company says, this guy is first in but his efficiency is only going down. Kahoy pa ni
sya, gahi na ni kayo. Dili na mabawg-bawg. You cannot teach old dogs new tricks. So
kani nay unahon nato. Karun magkuha ta anang bag-o nga unsa na, computer literate
na. Kini siya mahadlok ug computer. Makita lag computer mudagan. So if that is the
situation then you put down the criteria of what is necessary for the company. How
many of these kinds of workers is necessary? What kind of skills? Therefore they are
made redundant.
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Aug 26 part II

has been drastically affected by this en banc ruling of 2009, Perez

andDoria v. PT and Tet.al., one of the landmark decisions penned by CJ Renato
Corona. The pertinent ratio decidendi is quoted in your notes. We note and mark the
difference in the standards of due process to be followed as prescribed in the Labor
Code, and its implementing rules. The Labor Code on the one hand provides that an
employer must provide an employee ample opportunity to be heard and to defend
himself, with the assistance of his representative if he so desires. The Omnibus Rules
implementing the Labor Code on the other hand, require a hearing and conference
during which the employee concerned is given the opportunity to respond to the charge,
present his evidence or rebut the evidence presented against him.

Now, while the phrase ample opportunity to be heard may in fact

include an actual hearing, it is not limited to a formal hearing only. In other words, the
existence of an actual formal trial type hearing although preferred is not absolutely
necessary to satisfy the employees right to be heard.

This is a big change because before, most decisions require some sort of
investigation that is hearing type. Whenever an employee is in jeopardy of being either
suspended or dismissed, then his right to the process outlined in the Labor Code is
activated.

So, decisions of the Supreme Court have said, the erring employee is
entitled to two notices. The first notice is charging him. What is sufficient notice?
According to the Supreme Court, the notices of the dismissal must enumerate the acts
or omissions which constitute the offense. How detailed must be the acts or omissions?
 LABOR STANDARDS TSN
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It must be such as to enable the erring employee to prepare for his defense- almost like
an information. What is the sufficiency of the information? It is the recital of the acts or
omissions and the characterization of the offense is not definitive as to the charge. It is
the recitation of the acts or omissions. So, that is the first notice that you give the
employee. Normally, the personnel director or his assistant writes to the erring
employee. Dear Mr. So and So, these letter formally informs you that you are under
investigation for the following charges: 1) For the loss of the following equipment under
your charge and custody and responsibility. One forklift (detailed)--- that these
equipments, part of your responsibility was last seen on such a date and was no longer
seen on the warehouse on such a date

You are hereby directed to answer these charges within 48 hours---

Before it is only 48 hours, now there is this decision which says 48 hours is not
sufficient. Two days is not sufficient. It is now 72 hours. The moment you have given
that to the erring employee, you should retain a copy that you receive it. What happens
if he does not want to receive it? Naa may buang-buangdilisilamudawat. They think
that they can escape. So you bring along an ordinary employee to sign after an
annotation served but not received on such and such a date in such and such a time,
where it is particulary and then signed by that fellow witness. Thats the first notice.

The second notice is the superior of the erring employee now sending a
notice after the investigation because the head of the investigation will make a report
as to their findings of fact and recommendation. So he will write a letter, this is the
second notice.

Dear Mr. So and So,

 LABOR STANDARDS TSN
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Attached is the report of the investigating committee reciting its

findings of fact and recommendations. This office is adopting the investigation
committees report in toto for it is found to be reasonable and can stand the test of a
court litigation. Therefore, you are informed that Monday, Aug. 31, is your last day of
work. You are hereby directed to turn over the following property which is under your
custody but belongs to the company. (mgayabi) And you are directed to report to the
finance office to receive your accrued 13th month pay and your accrued regular wage.

In between that, is an investigation, but now, Chief Justice Corona,

imagine that? 2009! And the Labor Code became effective when? Nov. 01, 1974!
Hapitna ma 30 years, una pa ni-gawasang Supreme Court explaining that there need
not be a hearing that is equivalent to an adversarial trial type hearing.

According to Justice Corona, while the phrase ample opportunity to be heard

may in fact include an actual hearing, it is not limited to a formal hearing only. In other
words the existence of an actual formal trial type hearing although preferred is not
absolutely necessary to satisfy the employees right to be heard. In some, the following
are the guiding principles:

a. Ample opportunity to be heard means any meaningful opportunity, verbal or written,

given to an employee to answer the charges against him and submit evidence in
support of his defense whether in a hearing, conference, or some other fair, just and
reasonable way.

So it would have been enough you give your first notice and you direct him
to answer it in writing.You are hereby directed to answer in writing within 72 hours the
following charges: loss this an equipment in your custody, etc. Kay tubagonkaniya.
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Kung angtubagniya sapagkatinuod, sir, nag basolnakosaakongmgabinuhat.

Pasayluaintawnko. Ayawlangkoiputbol, sir. What is the effect of that? Admission. What
is the effect of admission? The effect of admission is to render trial no longer necessary.
That is when you do not need the procedure anymore. But remember, the admission
must be made by the employee. There is a decided case. Nawalaangmga fertilizer, mga
insecticides sa agri-business. Gi-lusobnilaangbalaykitasiladidtomga empty cansna
lang.Naadidtoangasawa. Gahilakangasawa. Pasayluaintawonangakongbana kay
natintalangakongbana.

Pasayluaangakongbana. Is that an admission? No, thats the wife. You can consider
that in the investigation and since the investigation is not governed by the technical
rules of evidence that can be used as an indication, as an index, but that is not the
admission that renders an investigation superfluous because admission must be
personal.

So a formal hearing or conference becomes mandatory only when requested by the

employee in writing or substantial evidenciary dispute exists, or a company rule
or practice requires it or when similar circumstance justify. So these are the
exceptions. As a rule now, no hearing is required-just the equivalent. Patubagonnimo in
writing. But if the employee requests it in writing, you may be compelled to do the
hearing- or substantial evidenciary disputes. What is substantial evidenciary disputes?
Muingonang security guard kitagyudkoniya. Nagdalanasyaog pila kasakong fertilizer.
Nigawasnasyasa warehouse unyagikandaduhanniyaogbalik. Unyanaa man sad syay
witness. parehoming foreman. Niadtonghigayunabunyagsaakonganak. Didto mi
saakongbalay. Walasyanakatindog kay
napalabiansakanangilimnonnganaayanghelnganagdalaogbunal. Nabunalansya.
Walasyakatindog.Unsaon man na? duhakabuok witness. Kinahanglannakaog hearing.
 LABOR STANDARDS TSN
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Cross examination naYou need a hearing because you have evidence and counter
evidence. That is what is meant by Justice Coronas substantial evidence dispute

or a company rule requires it.If your company rule requires really an investigation, a
formation of a committee, then you have no choice but to go through that procedure.

or when similar circumstances justify it. Whats an example of similar

circumstances? Kanang TADECO, lapadkaayo. The workplace is very wide. And dont
think there are only male fieldworkers. There are also female and one of the complaints
there is rape. That a fieldworker is raped because its so wide and isolated.

Now, supposed there is already a preliminary investigation conducted by the

prosecutors office. Question, do you still have to conduct an investigation or can you
not adopt the investigation? If you say you no longer have to adopt, then you rely on the
investigation of the prosecutors office, thinking that its a criminal investigation that it is
more strict, that the quantum of evidence is higher and here it is only substantial
evidence- is it preferred that way or if you say we still need to conduct our own
investigation?

If you say you still need to conduct our own investigation, then you are saying you are
better than the prosecutors office. What is the correct ruling? There are two lines in
decided cases. One line says, the SC says, it is sufficient to rely on the investigation of
the prosecutors office. That is indicative of the guilt or innocence of the erring
employee.
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The other line of decided cases, SC says, it is not sufficient. The employer is not bound
by the investigation of the prosecutors office especially if there is no finding of the non-
existence of the offense, there is just desistance on the part of the complainant.

So what is the proper? If you are the personnel manager, something like this happens,
then it becomes the subject of a criminal complaint. If there is a prosecutors inquest,
then actual examination. If it is thorough, when the prosecution really sits down and
calls for a hearing in order to determine whether or not a prima facie case occurs and
there is a transcript because the same transcript would be used for the fixing of the bail.
So that is the key.

If it is merely cursory, it should not substitute the duty of the employer to make an
investigation. If it is thorough, then it can be used. In other words, the parties have a
chance to air out not just the main issue but all the other ancillary underlying issues.
And then, of course, the employer can conduct his investigation and may not be bound
by the contrary finding of the prosecutor especially when the prosecutor relies on an
affidavit of desistance. Dili na man kunoipadayuna ng sumbongsa rape, sir.
Angginikanansatagtungod kay nagdrivena man og bag-ongmulticab.Gitagaanna man og
bag-ongmulticabsa supervisor namaoygisumbongnanang rape. Once that thing happen,
thats not always the first. There have been other cases in the past probably just kept
quiet. Or if that is the first,if the guy continues in the service of the company, other
incidents will follow. These kinds of offense, they have a way of repeating themselves.
So you must deal with it. Thats why there is a special law. Sexual harassment. The
thing about sexual harassment is once it occurs, it is always subject to investigation
because the law on sexual harassment requires a committee to be already in existence,
which must investigate the moment they know. They dont need a complaint. They just
need news. They just need to know, and then they can conduct an investigation. It is the
exception to the Corona ruling in the Perez Case.
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Now, the 3rd rule that Corona says, is the ample opportunity to be heard
standard in the Labor Code prevails over the hearing or conference requirement in the
implementing rules and regulations.

Now, let me ask you. Is the erring employee entitled to cross examination? Muingonsya
kinsa man nangnagsumbongnako? Gusto nakosya ma-atubang kana gyungmagharap-
harapan mi. There is a list of cases. Its in your notes. Cases held that the personal
confrontation and cross-examination cannot be invoked as a matter of right in the
procedural due process of employee dismissal cases. The right of cross-examination
belongs to the accused only in criminal prosecution by the people, by the state. This
what Manggagawa ng Komunikasyon v. NLRC 1992 case says.

Actual adversarial proceedings may be necessary for clarification purposes or when

there is a need to propound searching questions to unclear witnesses. That has to do
with the duty of the trier of facts, usually the Labor Arbiter, to ascertain whether or not
there is substantial evidence supporting.

If you conduct an investigation that is adversarial, remember in 292 to 77 before, the

law says that the erring employee has the right to bring counsel during the investigation.
291, first paragraph, 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 assistance of his representative if he so desires.

So he is allowed to bring a representative and it could be a lawyer. Now what happens

when he brings a lawyer but the investigating committee is composed of the personnel
manager, a representative from the union, a representative from the supervisors? Lets
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say there are 5 of them in the committee and none of them are lawyers.Lupigonsilasa
lawyer. That is when the committee can control the lawyer. The committee can say,
Okay, Atty. So and so, you can serve your client. Before he answers the question, we
allow you to confer with him. But you cannot directly intervene. If you have a question,
write it down, give it to us. But we are not giving you a voice in this investigation. You
can participate. You can tell your client, do not answer that question or answer that. Its
up to you.

In other words, the committee can lay down the rules and control the
investigation. Alright, this is as to procedure. Procedure in dismissals.

Now, when an illegal dismissal or illegal termination is brought before the

labor arbiter and the labor arbiter makes a decision. Illegal dismissal. What is the
consequence of that ruling? The law now says that there should be an immediate
reinstatement pending appeal. And that rule is found inArt. 229. Appeals from the
Labor Arbiters Decision. Take a look at the 4th paragraph which begins with in any
event.

In any event, the decision of the Labor Arbiter, reinstating a dismissed employee
insofar as the reinstatement aspect is concerned, shall immediately be executory even
pending appeal. So the employer, while he appeals, must already reinstate the
employee. Now, it says, 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,

So there are two kinds of immediate reinstatement- actual reinstatement,

patrabahuhonsiya or he is just reinstated in the payroll. Ingnanalangsiyapag-
 LABOR STANDARDS TSN
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abrenalangug account. Kadakinseugtrienta, parehokasamgatrabahantesa city hall, 15-

30. Adtokalangsaimo account, withdraw kasaimong salary because you are reinstated
payroll wise.

The posting of the bond by the employer shall not stay the execution for reinstatement
provided herein. So there is now this rule called immediate reinstatement pending
appeal.

Now, in the landmark case of Pioneer Texturizing Corp. v. NLRC 345

PHIL 1057 (1997), the court established the doctrine that an order or award for
reinstatement from the labor arbiter is self executory. You do not file a motion for
immediate reinstatement pending appeal because it is self-executory.

How is it self-executory? The labor arbiter, when he renders decision, illegally

dismissed, therefore he is entitled to immediate reinstatement. Then the decision that
accompanies the notice of decision that accompanies the decision itself, it says there
You are hereby directed to report (the employer) to the labor arbiter within 15 days as
to the reinstatement of the respondent. So you must inform the court, are you actually
reinstating him or are you just reinstating him payroll wise? Without need of motion for
execution of the reinstatement. Meaning, that it does not require a writ of execution
much less a motion for its issuance.

This is the basis of the current NLRC rules that leaves the enforcement and
reinstatement order to the employer who is given the duty to submit a compliance report
within ten days of receipt of the decision. The labor arbiter issues a writ of execution
only when the employer disobeys the above directive or refuses to reinstate the
dismissed employer. That is Rule 9, Sec.6 of the NLRC Rules.
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Now here comes another, what happens (he is reinstated), the employer appeals to the
NLRC. What happens when the NLRC overturns the LA and say there is no illegal
dismissal? There was one decision that said the dismissed employee must pay back the
wages that he received pending appeal when he was reinstated. That was quickly
overturned by another decision En Banc, Genuino v. NLRC, which ordered the
reimbursement. It was later on overturned by Garcia et.al. v. Philippine Airlines, EN
BANC, 2009, penned by Justice Carpio-Morales. This decision even says, the labor
arbiter said, you are illegally dismissed so therefore you are reinstated. The employer
appeals to the NLRC. For some reason or another, the immediate reinstatement was
never carried out. Actual or payroll wise, it was never carried out. Then the NLRC
reverses the labor arbiter. So the employer said, dilinakomubayadniya. Dba? Reversed
naman.

SC says No, you have to pay. The object of the law is to put the employee to an equal
footing with the employer. A dismissed employee does not have where with all to last a
litigation battle that stretches for years. Thats why the moment he is found to be illegally
dismissed, right away, he is given the benefit. So he can last. It is his by right,
according to the SC. So for some reason or another you did not institute that immediate
reinstatement that is something you owe to the erring worker even if ultimately he is
found to have been legally dismissed. So that is now the ruling. There is no refund as
erroneously enforced by the Genuino doctrine. The Garcia et.al. v. PAL has reversed
that ruling.

Now as to the bond. The rule says you have 15 days to appeal from the
labor arbiter to the NLRC. You must post a bond if there is a money judgment. Within
what time must you comply with the money. Also within the period to appeal. And the
appeal is 10 calendar days, not fifteen. 10 calendar days from receipt of such decision,
award or forbearance. Within that period of time, you must comply with the bond.
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Now, what is the amount of the bond? The LA, according to the NLRC rules must
already state the actual computation of the money award because that is the basis for
the bond. It could not be less than the aggregate amount of the money award.

Let us say there is an award for the underpayment of wages. There is an award for
nonpayment of 13th month pay. There is an award of separation benefits. That is all
added up and that constitutes the bond.

Suppose the bond is so huge that the company cannot afford. What will the company
do? Lets say 1000 workers and there is a bond and it runs into the millions. What will
the company do? Is he excused from fulfilling the bond within 10 days because he files
for a motion for reduction of bond? The SC now says, Before you can file for a motion
of reduction of the bond, you must at least post 10% of the amount declared. Only then
will the appellate forum entertain your petition for a reduction of the bond. There must
first be dies porsyento.

Now, suppose the LA orders payment of overtime, 13 th month, separation

benefits and then moral damages for the manner of the dismissal because the manner
of dismissal is malevolent, arbitrary, whimsical, malicious. It orders payment of
attorneys fees.

This is where the SC says, moral damages and attorneys fees are not included in the
computation of the bond. So if you appeal the case without appealing the money award,
but just the award of moral damages and attorneys fees, you do not have to file a bond
because that is not included in the computation of the bond.
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But you will find that out, if you work in legal aid.Muaso-aso man nangkasosa
termination. In your sleep you can write a position paper of termination.

I hope you go over the notes. You go over the cases.

If there is a failure in procedure, it does not make the dismissal illegal. You could pay
the fine. If it is failure of procedure in dismissals, ten thousand. If it is failure of
procedure in authorized dismissal, it is higher- twenty thousand! Why? Because, if you
fail in the procedure in authorized causes, the employee is deprived of his benefits.
Whereas in dismissal, if there is failure in procedure, there is no benefit that he
receives.

Only the absence of substantial cause will make the dismissal illegal. If there is no just
cause. No misconduct. No disobedience. No violation of trust and confidence. Then he
is illegally dismissed. He must be reinstated. There has to be full back wages. So also in
the authorized cause. If there is no loss and the redundancy is contrived- reinstated.
Backwages. Full backwages.

So now, it is not advantageous for the employer to prolong the case. Because if you
prolong the case and you lose it, the back wages that you have to pay, can you
imagine? Muabotogkinsekatuigunyapildiang employer then he is adjudged to pay back
wages, 15 years ofwages. Bayranninimongtawhana. And now, 100 nasilakabuok.
Pertekadaghanana.
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Thats what happened to Divine Word University of Tacloban. Bayadsilaog mayo.

Bayadsakaso. Bati man ogabogadoangmgaparididto. Pildisila. 14 million pesos
monetary award. Pero malditodiayning SVD (Society of the Divine Word). Ana sila,
walana man mi kwarta, bahalana mo. They will execute. Theyre going to execute the
land and sell the land of the university.

When they sought to execute it, the SVD did not own the land. Who was the owner of
the land? The Archdiocese of Palo, Leyte. At the time the university was founded the
Divine Word Congregation were composed of Germans. The Germans, unlike the
Americans, does not have parity rights equal to the Filipinos. The Americans could own
a land thats why Ateneo was owned by the Jesuits even if 90% of the Jesuits at the
time were Americans, because Americans have parity rights under 1935 Constitutions.
So, empty victory. Naalagi kay 3M diha, unsaon man nimopagexcuteanaang tag-
iyadiaysayuta Archdiocese of Palo. Roman Catholic Archbishop of Palo.

Who owns the building? The owner of the land owns the building. You cannot even get
a single galvanized sheet from the roof of the building because the building is an
accessory to the land. So the workers finally said, re-open nalangang school. But what
did the SVD father say? We are tired. No more. The school is still closed. Theres only
one department thats open. You know what department that is? The College of Law
supported by Romualdez. We still meet each other in the BAR examinations.
Naagihaponsilaymga candidate. Padayongihaponangilang law school with the special
funding of the brother of the great Imelda Marcos. So, empty victory. The bigger the
employer, the more security there is to execute. So the lesson is multi-nationals are the
best respondents in a labor case.
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Jan Claros TSN

Once there is a ruling in the labor arbiter that there has been illegal dismissal and the employer appealings
there is reinstatement. and this reinstatement is not supposed to be askfor via execution. in other words the
notice of the decision already contains a warning from the court that within 10 days from the receipt of the
decision the employer is suppose to inform the court as to what choice he makes for the reinstatement.
because under the labor code jurisdiction of the labor arbiter he(employer) has 2 choices: art. 229 (now
article 223):

Art. 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to
the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards,
or orders. Such appeal may be entertained only on any of the following grounds:
If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;

If the decision, order or award was secured through fraud or coercion, including graft and corruption;

If made purely on questions of law; and

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. (As amended by Section 12, Republic Act No. 6715, March
21, 1989)

Now, the letter of the law states that tell you that it is the decision of the labor arbiter. suppose, it the
voluntary arbitrator who decides on the issue of the dismissal of the employer is the choice of the parties
brought to voluntary arbitration. Voluntary arbitration is prefered by the constitution rather than compulsory
arbiration because in voluntary arbitration the parties agree to present it to an adjudicator acceptable to both
parties.

Now, in their 2015 decision the SC says that this immediate reinstatement also applies in voluntary arbitrator
besides a separate finding that there is illegal dismissal and there has to be reinstatement. Now, many are
saying that that's judicial legislation. because the law is specific to provide that it is the labor arbiter it does
not include the voluntary arbitrator. but you have the decision of the supreme court that if it is the voluntary
arbitrator that decides then there must also be reinstatement pending appeal.
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There's a conflict because under the labor code the decision of the voluntary arbitrator becomes final and
executory in 10 days from receipt of the copy of the decision. That sec. 1 rule 43 ROC (appeals) grants the
parties 15 days to appeal a decision of the voluntary arbitratior or the offices or the lower courts other offices
(sss, gsisetc) you have 15 days to appeal to the court of appeals.

The issue is that is that just a procedural a procedural right or a substantive right? In practice, what you do is
that once you receive the decision of the voluntary arbitrator if you want to appeal you serve a notice to the
voluntary arbitrator that you are appealing so that it wil not enter in the judgment entry book after 10 days
that the judgment has become final and executory. and you inform the voluntary arbitrator that you are
appealing and you are making use of the 15 days granted by the rules of court.

There is a statutory right to appeal and there is appeal which is discretionary. let's you have a case in the
lower court mtc you appeal to the rtc. that is statutory. that is a right.here in article 229 (now art 223) the
appeal is very narrow.
Art. 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to
the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards,
or orders. uch appeal may be entertained only on any of the following grounds:

In other words, if its a simple error there is no appeal it will not be entertained. it must be on any of these
grounds:

a. If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;

example: dismissal is already more than 5 years and that is brought out by the employer so the action has
prescribe and yet the labor arbiter issues a decision making a finding that there has been illegal dismisal and
therefore ordering for reinstatement. Is that prima facie? yes. You can take a look at it. you see the dates on
first looking prima facie. Just for the first looking, you already know. That is a ground for appeal.

b. If the decision, order or award was secured through fraud or coercion, including graft and corruption;
-this is the most difficult because this is another case.

c. If made purely on questions of law; and

just like the case of cheryllsantos vs St. Scholastica's college. Refer to the handout.
Cheryll Santos Leus (petitioner) was hired by St. Scholastica's College Westgrove (SSCW), a Catholic
educational institution, as a non-teaching personnel, engaged in pre-marital sexual relations, got pregnant out
of wedlock, married the father of her child, and was dismissed by SSCW, in that order.
Issue: Whether pregnancy out of wedlock by an employee of a catholic institution is a cause for termination.
That is a question of law. When you enter you abide by the tenets and moral standards of the catholic faith,
you signed.
now you get pregnant out of wedlock, is that sufficient?

Decision of the SC (from the fulltext)

The respondent, St. Scholasticas College Westgrove, is hereby declared guilty of illegal dismissal and is
hereby ORDERED to pay the petitioner, Cheryll Santos Leus xxx

d. If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury
to the appellant.
-This is a more common ground that is raised. very rare that you see prima facie evidence of the grave abuse
of discretion, collusion, graft coercion, corruption or you raise purely on question of law.

So normally you cite serious errors, not just simple errors. Serious errors which if not raised would cause
grave and irreparable injury.

Now, when you recieve that decision there is a note that you have to inform the judge the decision that you
are appealing from within 10 days how you will reinstate the employee that has been found to have been
illegally dismissed. actual reinstatement or so called payroll reinstatement. 15-20. Just make him open an
account and the it goes there and then wait 15 to 20th pending the appeal. and continues to receive his
salary.

Now, this return to work in Labor Relations just omit that. You are not yet in labor relations.
 LABOR STANDARDS TSN
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How about a project employee who is hired for the duration of the project?
-Certainly he does not have security of tenure like a regular worker.
Case in point: FILIPINAS PRE-FABRICATED BUILDING SYSTEMS (FILSYSTEMS), INC., and FELIPE A. CRUZ JR.,
petitioners, vs. ROGER D. PUENTE
a 2005 case.

We said that it is the regular employee that enjoys security of tenure right. How about a project employee?
According to the SC the project employee hired for a specific task enjoys security of tenure during the
duration of the project employment. In the project or in the phase of the contract the project employee is
working on has not yet been completed his services are terminated without just or authorized cause and
there is no showing that his services are unsatisfactory the project employee is entitled to reinstatement with
back wages to his former position or substantial equivalent position. If the reinstatement is no longer
possible, the employee is entitled to his salaries for the unexpired portion of the agreed term.

so you can see the reinstament of the project employee who is illegally dismissed is different because by the
time the case is decided, no more project. He just give them the salary which he lost because he was
dismissed.

Now, there was pronouncement by the supreme court that the project employee enjoys security of tenure for
the duration of the project. This is a correction. Because you might be hired for a project but for only a
specific task within the project. Let's say, you are a rough carpenter, you are hired for a construction project
. The construction project is supposed to be 1 year let's say 2 years like marco polo. 1 or 2 years. you're hired
as a carpenter for a specific project, the construction of the Marco Polo Building. It takes 2 years for that
project to continue before it is finally declared over and turned over to the owner of the project.

Now, it does not mean that for the entire period of the project they need carpenters specifically you, you are
just rough carpenter. You are for the construction. Now, as soon as your particular phase of the project is
over then that is the extent of your tenure then you are laid off.

If you are let go earlier and there is no ground to let you go and in just or authorized cause then there is a
violation of your security of tenure. that is the ruling in Filipinas case.

Again, as to project employee: Failure of the employer to file termination reports following department order
no. 9, April 1, 1993 after you finish your project you file a report with the Dept. of Labor these are the
people associated with the project and they are no longer working because the project is over. If you do not
file that report and later on he files a case on termination what is the prima facie ruling that is open to be
overturned by the superior evidence? The prima facie ruling is that he is a regular worker because he was
not reported as among the workers that whose engagement ended with the end of the project. Very
important requirement: Failure of the employer to file termination reports after every completion of the
project of any phase thereof with nearest public employment office of the DOLE is an indication that the
employee is not a project employee.
Equipment technical services vs CA, oct. 8, 2008.

Again, seasonal employee, remember, there are 2 kinds of seasonal employees. Remember we talked about 2
types of season: The natural season and the industrial or commercial season.

Abasolo vs. NLRC, 2000 There is such a thing as regular seasonal employee. What is a regular seasonal
employee? Once he has been hired as to a season and is hiring whether it is continuous or broken adds up to
one year he has become a regular as to that seasonal employment that's why he is called a regular seasonal
employee. Regular seasonla workers are called to work from time to time mostly during certain seasons. The
nature of the relationship with the employeer is such that during the off season they are temporarily laid off
but they are reemployed during the seasonor when their service is needed. They are not strictly speaking
separated from service but are reconsidered as on leave of absence without pay until they are reemployed.
Their employment relationship is never severed but only suspended as such they can be considered as being
in the regular employment of the employer.

The seasonal employee is free not to comeback to the employer. But the employer is not free not to re-hire
their seasonal employee during the season. That's the difference the obligations of the two.

How about security guards? Security guards of an agency, it is the agency that enters into a contract with the
indirect employer. Normally, what the employer does is they conduct a bidding. The bidding is good for
 LABOR STANDARDS TSN
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atleast (let us say) 2 years. So they engage the services of the security guard to the indirect employer in case
they win the bid. At the end of the 2 years, what happens? the security agency let's say its no longer the
contractor of security service he has to pull out his guards. Where will he plays his guards? He will try to look
for a another contract. that's why the law says that the guards who were pulled out maybe on what is called
floating status for six months. that is the rule. The security agency is given 6 months to look for another
assignment for them. 6 months suspension of operation of the security service is not considered as
termination.

That is the same ruling as let us say the employer is a supermarket. The supermarket catches fire. The
employees are out of work. Can they go to the employer and say we are terminated give us termination pay.
they cannot. The provision in the labor code says: you are allowed 6 months of suspension of operations for
temporary closure Article 300.ART.

300 [Renumbered 286]. WHEN EMPLOYMENT NOT DEEMED TERMINATIONED

The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6)
months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all
such cases, the employer shall reinstate the employee to his former position without loss of seniority of rights
if he indicates his desire to resume his work not later than one (1) month from the resumption of operations
of his employer or from his relief from the military or civic duty.

so, there's a fire, there is no right to termination benefits yet. If within 6 months these supermarket is rebuild
and business is going on then all those former employees can go back and say we have a right to be
reengaged. If at the end of the 6 months, there is no resumption of operations that is when the employee can
say you have to give us termination benefits because you are presumed to have undertaken a closure.
Suppose he said lost, nasunog man? unsa man akoangikabayadninyo? once again, remember loss is not proven
by pictures. What is proof of loss? Audited income and financial statements. Because serious loss exempts the
employer from payment of separation benefits. What is the separation benefit if there is closure due to loss?
(memorize daw according to father) 1 month salary or 1/2 month salary for every year of service in fraction of
atleast 6 months is considered 1 year whichever is greater. (possible bar question in the future)

So, that tells you that no one receives separation benefits lesser than 1 month salary due to loss not serious
loss. 2 ka katuig nag trabaho pila imung separation benefits? 1 month salary, 1 half month man per every year
of service. 1 year lang ka nag trabaho, pila man? it cannot be half month because 1 month or 1/2 month
salary for every year of service whichever is greater. 1 month langgihaponangimungmadawat. Now, if the
separation is not due to loss. But is due to redundancy? (redundancy means excess) It could happen because
they hire more than they needed in the first place or they have introduced labor ceiling indices or they have
reduced the sized of their operations so you are redundant. There is no issue of loss. There is no loss. No
impending loss. No actual loss. What is the separation benefit? 1 month salary for every year of service or 1
month salary for every year of service fraction of atleast 6 months considered 1 year whichever is lower.
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2ndHr Laborsept 9, 2016 (Neko Rin)

(Chika about easement) no check and balance daw if it is the same company.
Ateneo made almost a fatal mistake pag construct sa Finster. AdDU hired a crane
operator whose rate is 1000 per hour. Iyang sanina intawon makaluluoy. Naunsa
maning tawhana nganong 1000 pesos per hour mani. Sayo kayo sa buntag musaka
sa crane

I am recommending that u read this 2013 case of Abbot laboratories v Alcaraz

(G.R. No. 192571 )It went to the SC twice. All en banc ruling, ponente is
Perlasbernabe. Now to put it in context,If the dismissal or the termination of an
ee is not attended w/ the proper due process required the LC, There is no illegal
dismissal provided there is substantial cause. I other words there is really just or
authorized cause. If the Procedure is missing, it not an illegal dismissal but u have
to pay a fine. When the just cause procedure is missing, you pay 20,000 as a
general rule. If it is authorized cause and the procedure is missing, the fine is
higher, Sometimes 30 or 50 thousand per worker. That is the rule now.
Now, in this case Abbot lab, they followed the procedure because this was a case
is a probationary worker, middle management. Now, the old ruling on the SC, the
list of long cases longer than my arm, that the standard of the er must be known
to the probationary ee at the time of the engagement.
Now, it might not be wrong or malicious, but if u do not comply with the
standards, the u are not made permanent. In other words, that is an additional
cause for the probationary . There is no Due process there, u are just confronted
with your performance evaluation and reminded of the standards of w/ch u are
informed at the time of the engagement.
Now here, there was no spelling out of the standards. And the company said that
how can we spell out he standards when there is so many because you are a
managerial ee. You cannot get along, u must get along with same level mgrlees.
That is standard. If u cannot get along, then u cannot be made permanent. That
was not told to her in the beginning but the er said that it was understood. Is that
correct?
The SC says yes. There are many many positions where u cannot possibly spell out
the higher standards of the company. And this is one of them. alright
Now, the er has this written policy in its blue book. That a probationary ee, lets
say 6 mo, half way through his probation, he must be evaluated and informed of
the results of the evaluation, Abbot Labs did not do it. And then the SC says its a
violation of procedure. So therefore Abbot has to pay the fine. Is that good? The
SC says there is no escaping that. That is what the sc issued on MR, another
lengthy discussion of this. Because the old rulings of agabong, ________it was
called deficiencies of procedures that are outlined in the LC, here it was a
deficiency of a procedure of the company itself. Even if the court held that there
is casue, noptto make this particular ee permanent.
Abbot had satisfied its statutory duty to serve a written notice of termination. The
fact that it violated its own company procedure renders the termination of
Alcaraz, procedurally infirm (analangmnangscna infirm. It is infirmed. Warranting
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the pmt of nominal damages. So the 1st decision is in 701 S 682 2013 the 2nd
resolution is in april 22, 2014. Again still by Bernabe. Alright?
Then if you want this Endo endo, the decided case here is Purefoods corporation v
nlrc, 1997 case. The high ______ of 555 or endo workers. This exquisitely
prohibited by the dept of labor under Department order 18-a series of 2011.
Kung 5 months, 5 months maongginatawagna 555 naendo sa dept of labor.
(chika about the staff who is working in Busan. Naa daw 555 nasardinasnabaligya
sa busan. Tag 150 daw)
Now, 2004 case, PhilippsSemi Conductor v FadriquelaG.R. No. 141717. April 14, 2004. The
SC held that a collective bargaining agreement had not provided for casual or
probationary status of ee who is 17 mos before he or she can be regularized.
Although the SC in many cases has said that the particular provision on
probationary employment, reaches that probationary period shall not exceed 6
mos is directory rather than mandatory.
Art 295 Probationary employment shall not exceed six (6) months from the date the employee started
working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an
employee who has been engaged on a probationary basis may be terminated for a just cause or when he
fails to qualify as a regular employee in accordance with reasonable standards made known by the employer
to the employee at the time of his engagement. An employee who is allowed to work after a probationary
period shall be considered a regular employee.
Now there have been many cases where the SC says that this shall not exceed 6
mos is not considered as mandatory it is directory. Now if it is ordinary work,
semi-skilled or un-skilled then you cannot extend it for more than 6 mo. If it is
skilled work, and this was brought out in an old case of Philippine directories, u
know the thick book of PLDT that sells yellow pages. The salesmen of this
directories because they solicit advertising space there, their probationary period
is 1 year. And that was upheld by the SC because there are many intricacies that
you have to consider. That was allowed by the SC
Now the SC validated the special circumstances surroundingthe teaching
profession. Teaching profession, the probationary period is 3 yrs. 3yrs before you
become a regular teacher. This is in primary and secondary education. Higher, its
even longer. When u have a system of being in tenure, There are publication
requirements, higher degrees needed, the probationary period may be longer.
And u may not be able to advance if you do not have the qualifications. Tenure
structure and what they do in US, tenure begins with assistant prof, then you
become an associate, then full professor. From associate to full that is the most
difficult transition because theres so much, the publication requirement to
difficult to achieve it is not enough to just publish, esp now that they can keep
track w/r your article is being referred to. In the various ____. U may publish but
you are not referred to, you are not cited in other researches, you are not
qualified, so that is the requirement w/c the SC says is a valid requirement. Its
not shop-floor requirement. It is required by the academic institution itself.
So, now, authorized causes, I strongly urge you to read Manila polo club employees union v Manila Club, G.R.
No. 172846, July 24, 2013.Here the SC summarizes the rules w/ respect to closure. SC says based on the
above cases and of similar import: 1. Closure or cessation of operations of establishment or undertaking may
either be partial or total.
2. Closure or cessation of operations of establishment or undertaking may or may not be due to serious business losses or
financial reverses. However, in both instances, proof must be shown that:
 LABOR STANDARDS TSN
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(1) it was done in good faith to advance the employer's interest and not for the purpose of defeating or circumventing the
rights of employees under the law or a valid agreement; and
(2) a written notice on the affected employees and the DOLE is served at least one month before the intended date of
termination of employment.
3. The employer can lawfully close shop even if not due to serious business losses or financial reverses but separation pay,
which is equivalent to at least one month pay as provided for by Article 297 of the Labor Code, as amended, must be given to
all the affected employees. (so there is no cause, and you have to close down, you
have to pay the max separation benefit)
4. If the closure or cessation of operations of establishment or undertaking is due to serious business losses or financial
reverses, the employer must prove such allegation in order to avoid the payment of separation pay. Otherwise, the affected
employees are entitled to separation pay. (so, no separation pay if it is due to serious business loses)
5. The burden of proving compliance with all the above-stated falls upon the employer.( so the ee merely just files a
complaint for illegal termination, just alleges, proving that he was an ee. Then the er must prove that the termination was in
accordance to due process. There has been payment of the required separation benefit if applicable, or there has been an
investigation, everything must be the work of the er. Why is that? because the bias of the Constitution is security of tenure.
Our regime is a security of tenure. Once u are engaged for an indefinite period of time, you must be made to continue in
your work with compensation unless there is just or authorized causes that supervenes. That is the normal ____.
Exception to the so-called priocedure for just cause dismissals.Diba investigation, you give the ee an ample opportunity to be
heard, give him a chance to adduce evidence to prove his defense and he can be accompanied by his lawyer or
representative but are some of the exemptions.
There are three cases here. Where the ee admits his responsibility of the act he was accused off w/c renders informal
hearing no longer necessary. Now what if the confession or alleged admission of guilt is made by a co-conspirator? The same
rule in crim law. You are charged w/ robbery in bank. Ni-Admit ang co-conspirator nakamoangnangawat. For him, trial is no
longer necessary kayni admit man siya. katoiyangkaubannaiyanggiapil is not covered by the admission. The same thing with
labor. The unilateral confession made by an alleged co-conspirator cannot be the basis for terminating an ee such confession
must be corroborated by other competent of convincing evidence. Absence of the corroboration, the confession must be
received w/ considerable caution. That is a 1988 case, Century textile mills inc v NLRC. In prior consultation with the union of
w/c the deceased ee is a member is not sufficient compliance w/ the due process required. SC says if century textile works, it
is important to stress that the rights off an ee whose services are sought to be terminated shall be informed beforehand of
his proposed dismissal or suspension as well as the reasons therefore. And to be afforded adequate opportunity to defend
himself from the charges leveled against him are rights personal to the ee. The union cannot waive those rights for the ee.
Those rights were not satisfied by ptr corporation obtaining the consent, or the consultation w the labor union. Only the ee
can waive those rights. Again, confrontation of witnesses is not a matter of right in company investigations. Many decided
cases here. 1997- 2006 cases.
Tuazon v Wenphilcorporation Gr no 162447 dec 27, 2006. Actual adversarial proceedings become necessary only for
clarification, when there is a need to profound searching questions to witnesses who give vague testimonies. This is not an
______ right and in company investigation, summary proceedings may be conducted
Nay nakasalanaee. Ikawang in house-counsel, ingnonkasa manager na to fulfill the requirements. Buhatkag
committee.Padalagsuwat, maoning charges nimo. Ibutangugtarong.Presentation of the acts or omissions of w/c he is
charged. Andamnakag exhibits sa imong position paper. So hatagnanimo, unsaiyangtubag? Iyang tubag, _____ gusto nimo
ma klaroparama pin down mi nimo, investigation. Peroang investigation dilisila mag tagbo. You can hold it
perowalaylabotang defense. Kay di mani court, summary man. 1st the one who charges angmga witnesses, asa mani,
sultidiri,cross examine, record. Sunod, tawagonangee charged. Give him a chance, you will have a basis to ask him from the
testimony of those who are charging. After that, you may ple decision. The decision is basically 2 parts. 1. Findings of fact,
maoningnahitabo, why the charge? Mao ning evidence. And then based on the findings of fact, is the recommendation.
Pwede dismissal or suspension or fine.Depende sa blue book , red book or whatever color that book is. That is your
disciplinary book. So, that is how, magdalaganig lawyer, inform him of the rules. You cannot directly address the court. You
talk to your client. He can confirm with you before the answers are presented. But you cannot directly question. Why? This is
summary. Taas2 pa ka, modiskursopaka, tindog, just to justify your attys fees madugay ta ani. Hilding hands nalang mo.
Keep your client re-assured, handholding, di holding hands. Alright
Now, what happens when you serve the 1st written notice and the ee refuses to accept service.Di
siyamodawatugmotambong.Unsa man? The investigation continues w/o his participation. Prosecution presents evidence.
Then you inform him again. Send him notice. Pls appear on this time or place, 2 or 3 times notice. If dili pa gane, thats where
the committee will make an ex parte decision. Of course written in the decision is the fact that he was served notice 3 times
that he should appear and such he refused. So ready kana saimong position paper. That is your evidence that you have tried
to give him due process. What did the SC say? The essence of due process is opportunity to be heard, if the person does not
take advantage of that opportunity, it is the fault of the ee. But that does not mean that he has waived due process, only his
part of due process. That is why you still continue with the investigation, this time w/o his intervention.
 LABOR STANDARDS TSN
2 MANRESA 2016

Kasagarannaginaingonkayahhwamotambong sad.an juddiay. Pero what is the basis?Wa man nimodunggaangmga witnesses?
You have to hear the witnesses so that their testimony is not contested. He has waived his right to contest the evidence.
So what we are left with are grounds for dismissals that are not in the labor code. They are listed in your old notes.
Other causes because normally they are not treated in the regular commentaries. There are 18 grounds this has one case w/c
is failure to comply with the drug test. It is accepted as a ground but this how not to conduct a drug test. Sayopang company
ani.Kaduhapajudgikuhaan. So, that is planation bill resort v dubrico 2009 case gr 182216. These are very interesting cases.
There is a Davao case, KMU rajudmakahunahunaani. An employee is employed in the plantation. Then na subject to land
reform. Nangayosilasailangseparation benefits bisansilaang beneficiary. Kuyawa.Gikasopajudnilaabotpajug SC. What is their
ground? Closure of business. We were working with this farm and now the farm is closed because of the land reform
implementation. We will be the beneficiaries. Ana silaTagai mi ug separation benefits. And it is not because of loss, so 1
month salary for every year of service. Lalimanka. What did the SC say? This is not termination. Your er did not terminate
you. We terminated you. The govt terminated the operation because it is put under land reform. So it is not governed by the
labor code. All the terminations here and dismissal, is er initiated. If the govt closes you down because of the
implementation of the law, it is not covered by the labor code. But it took 9 year. Dugaykaayongkaso.
Constructive dismissal. What is it? Review your property. What is constructive delivery.Longamano et al. mga basic concepts.
Delivery is the physical transfer with the intent of making the transferee an owner thereof.
Dismissal.Walakapapahawaa, giassignraka sa Manila. Niakadinhiimongpamilyanaadiriwalana sa imongkontrata.
Gilabaykadidto.Doble pa imongbayadsabalay. Hangtodsaimongkaguolugkalisodnakaingonnakanadilinanimahimomo-resign
nalangko. Mura rag gipahawaka,that is constructive dismissal. Mind you the SC says kinahanglannamo resign ka, dilikamaka-
file ug constructive dismissal kung tuakadidtogasilbiraghaponkagakalisodnaka. Constructively dismissed nako, hain may
dismissed na nag sigi pa kagtrabaho. Resign sausakamaka file ug constructive dismissal.
Merger and consolidation.Daghanni. Read this cases. Masdaghannakasonamabasa, the more you predict the thinking of the
SC on how to decide the cases.
So we are ready for another exam. :D