U.P.

LAW BOC LABOR LAW

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TABLE OF CONTENTS

LABOR LAW 1 .......................................................... 1 III. LABOR STANDARDS ..........................

............ ....................
...... 26

I. FUNDAMENTAL PRINCIPLES ........................ 1 A. CONDITIONS OF EMPLOYMENT..........

EMPLOYMENT.......... 26
1. Hours of Work ..................................... 26
A. LEGAL BASIS ........................................... 1
2. Rest Periods ....................................... 37
1. 1987 Constitution .................................. 1
3. Service Charge ................................... 39
2. Civil Code ............................................. 2
3. Labor Code ........................................... 3 B. WAGES ................................................... 40
1. Definition, Components, and Exclusions
B. STATE POLICY
P OLICY TOWARDS LABOR ........ 3
40
1. Security of tenure .................................. 3
2. Principles ............................................ 49
2. Social justice ......................................... 4
3. Minimum Wage ................................... 50
3. Equal work opportunities ...................... 5
4. Payment of wages .............................. 51
4. Right to self-organization and collective
5. Prohibitions regarding wages ........................... . 52
bargaining .................................................... 5
6. Wage determination ...........................
............. ................ 54
5. Construction in favor of labor ................ 6
6. Burden of proof and quantum of evidence .. 7 C. LEAVES .................................................. 57
1. Labor Code ......................................... 57
II. RECRUITMENT AND PLACEMENT ............ 7
2. Special laws ........................................ 58
A. DEFINITION OF RECRUITMENT AND
D. SEXUAL HARASSMENT IN THE WORK
PLACEMENT .............................................. 7
ENVIRONMENT .................................................. 63
B. REGULATION OF RECRUITMENT AND 1. Definition ............................................. 63
PLACEMENT ACTIVITIES ................................ 9 2. Duties and Liabilities of Employers ..... 64
1. Regulatory Authorities .......................... 9 3. Applicable Laws .................................. 65
2. Ban on Direct Hiring ............................ 11
E. WORKING CONDITIONS FOR SPECIAL
3. Entities Prohibited from Recruiting ..... 11
GROUPS OF EMPLOYEES ............................ 66
4. Suspension or Cancellation of License or
1. Apprentices and Learners ...................
............. ...... 66
Authority .................................................... 12
2. Disabled Workers ............
..........................
....................
...... 69
5. Prohibited Practices ............................ 13
3. Gender ................................................ 72
C. ILLEGAL RECRUITMENT ...................... 15 4. Minors ................................................. 74
1. Elements ............................................. 15 5. Kasambahays ..................................... 77
2. Types .................................................. 17 6. Homeworkers ...................................... 80
3. Illegal Recruitment as Distinguished from 7. Solo Parents ....................................... 81
Estafa ........................................................ 18 8. Night Workers ..................................... 81
9. Migrant Workers ..............
............................
....................
...... 83
D. LIABILITY OF LOCAL RECRUITMENT
10. Security Guards .................................. 84
AGENCY AND FOREIGN EMPLOYER .......... 18
1. Solidary Liability .................................. 18 IV. POST-EMPLOYMENT
POST-EMPLOYMENT ........................
................................
........ 85
2. Theory of Imputed Knowledge ............ 20
A. EMPLOYER-EMPLOYEE RELATIONSHIP
E. TERMINATION OF CONTRACT OF MIGRANT ................................................................ 85
WORKER ........................................................ 21 1. Tests to Determine Existence ............. 86
2. Legitimate Subcontracting as
F. EMPLOYMENT OF NON-RESIDENT ALIENS 21
distinguished from Labor-Only
1. Coverage ............................................ 21
Contracting ...........................
............. ............................
................ 87
2. Conditions for Grant of Permit ............ 23
3. Kinds of Employment .......................... 91
3. Validity of AEP and Renewal .............. 24
4. Denial of Application ........................... 25 B. TERMINATION BY B Y EMPLOYER ............. 99
5. Revocation; Cancellation .................... 25 1. Requisites for Validity ....................... 100
6. Appeal ................................................. 25 2. Preventive Suspension ..................... 113
7. Penalty ................................................ 26 3. Illegal Dismissal ................................ 114
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4. Money Claims arising from Employer- F. BONA FIDE OCCUPATIONAL

Employee Relationship ............................ 121 QUALIFICATIONS ............................................. 195
5. When Not Deemed Dismissed; Employee on
G. POST-EMPLOYMENT RESTRICTIONS ....
Floating Status ........................................ 123
.............................................................. 195
C. TERMINATION BY EMPLOYEE ........... 124
H. MARRIAGE BETWEEN EMPLOYEES OF
1. With notice to the employer .............. 124
COMPETITOR-EMPLOYERS ................. 195
2. Without notice to the employer ......... 124
3. Distinguish voluntary resignation and VII. SOCIAL LEGISLATION .............
...........................
................ 196
constructive dismissal ............................. 124
A. SOCIAL SECURITY SYSTEM LAW ..... 196
D. RETIREMENT ....................................... 125 1. Coverage and Exclusions ................. 196
1. Eligibility and Coverage .................... 125 2. Dependents and Beneficiaries
Beneficiari es .......... 197
2. Amount of Retirement Pay ............. ................
... 126 3. Benefits ............................................. 197
3. Retirement Benefits for Workers Paid by
B. GOVERNMENT SERVICE INSURANCE
Results .................................................... 127
SYSTEM LAW ................................................... 200
4. Retirement Benefit of Part-Time Workers
1. Coverage and Exclusions ................. 200
.......................................................... 127
2. Dependents and Beneficiaries
Beneficiari es .......... 201
5. Non-Taxable ..................................... 127
3. Benefits ............................................. 201
LABOR LAW 2 ...................................................... 129
C. LIMITED PORTABILITY
PORTABILIT Y LAW ...............
.............. . 206
V. LABOR RELATIONS..........................
............ ....................
...... 130
D. DISABILITY AND DEATH BENEFITS .. 208
A. RIGHT TO SELF-ORGANIZATION ...... 130 1. Labor Code ....................................... 208
1. Who May or May Not Exercise the Right 2. Employees Compensation and State
.......................................................... 130 Insurance Fund ...........................
............. ...........................
............. 213
2. Commingling or Mixture of Membership . 3. Philippine Overseas Employment
.......................................................... 134 Administration-Standard Employment
3. Rights and Conditions of Membership .... Contract ................................................... 215
.......................................................... 134
E. SOLO PARENTS .................................. 218
B. BARGAINING UNIT .............................. 137
F. KASAMBAHAY ..................................... 219
C. BARGAINING REPRESENTATIVE
REPRESENTATI VE ...... 140
G. AGRARIAN RELATIONS ...................... 219
D. RIGHTS OF LABOR ORGANIZATIONS 1. Concept of Agrarian Reform ............. 219
158 2. Existence and Concept of Agricultural
1. Check off, Assessment, Agency Fees Tenancy ................................................... 219
158 3. Rights of Agricultural TenantsT enants ........... 220
2. Collective Bargaining ........................ 160 4. Concept of Farmworkers ................................
...... 221
E. UNFAIR LABOR PRACTICES ............. ............... 169 H. UNIVERSAL HEALTH
HEALT H CARE ................
............ .... 222
1. Nature, Aspects ................................ 169 1. Policy ................................................ 222
2. By Employers .................................... 170 2. Coverage .......................................... 222
3. By Labor Organizations .................... 176 3. National Health Insurance Program .. 223
F. PEACEFUL CONCERTED ACTIVITIES178 VIII. JURISDICTION AND REMEDIES ........ 224
1. By Labor Organization ...................... 178
A. LABOR ARBITER ................................. 224
2. By Employer ..................................... 188
1. Jurisdiction of the Labor Arbiter as
3. Assumption of Jurisdiction by Secretary
distinguished from
f rom the Regional Director . 224
of Labor and Employment ............................. 189
2. Requirements to perfect appeal to National
VI. MANAGEMENT PREROGATIVE ............. 191 Labor Relations Commission ............. ...................
...... 225
3. Reinstatement and/or execution pending
A. DISCIPLINE .......................................... 192
appeal ...................................................... 226
B. TRANSFER OF EMPLOYEES ............. 193
B. NATIONAL LABOR RELATIONS COMMISSION
C. PRODUCTIVITY STANDARDS ............ 194 226
D. BONUS ................................................. 194 1. Jurisdiction/Powers ........................... 226
2. Remedies .......................................... 227
E. CHANGE OF WORKING HOURS ........ 194
 U.P. LAW BOC LABOR LAW

C. COURT OF APPEALS .......................... 229

D. SUPREME COURT .............................. 230

E. BUREAU OF LABOR RELATIONS ...... 230

1. Jurisdiction ........................................ 230
2. Appeals ............................................. 232
3. Administrative Functions of the BLR . 232

F. NATIONAL CONCILIATION AND MEDIATION

BOARD .......................................................... 232
1. Jurisdiction ........................................ 232
2. Conciliation as distinguished from mediation
233
3. Preventive mediation ........................ 234

G. DEPARTMENT OF LABOR AND

EMPLOYMENT REGIONAL DIRECTORS ... 234
1. Jurisdiction ........................................ 234
2. Recovery and adjudicatory power .... 235

H. DEPARTMENT OF LABOR AND

EMPLOYMENT SECRETARY ...................... 236
1. Jurisdiction ........................................ 236
2. Visitorial and enforcement powers.... 243
3. Power to suspend effects of termination .
.......................................................... 244
4. Remedies .......................................... 244

I. VOLUNTARY ARBITRATOR .................... 244

1. Jurisdiction ........................................ 245
2. Remedies .......................................... 247
J. PRESCRIPTION OF ACTIONS ................ 248
1. Money claims .................................... 248
2. Illegal dismissal ................................. 248
3. Unfair labor practice .......................... 248
4. Offenses under the Labor Code ....... 249
5. Illegal recruitment ............................. 249

LAWS AND RULES OF PROCEDURE ................

............... . 249
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LABOR LAW 1
LABOR LAW

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Labor as Protected Class; Presumption of

I. FUNDAMENTAL Inherent Inequality
PRINCIPLES The presumption is that the employer and the
employee are on unequal footing, so the State
has the responsibility to protect the employee.
A. LEGAL BASIS This presumption, however, must be taken on
a case-to-case basis. In situations where
special qualifications are required for
1. 1987 Constitution employment, such as a Master's degree,
prospective employees are at a better position
ART. II: Declaration of Principles and State to bargain with the employer. Employees with
Policies special qualifications would be on equal footing
The State shall: with their employers, and thus, would need a
a. Promote full employment, a rising standard lesser degree of protection from the State than
of living, and an improved quality of life for an ordinary rank-and-file worker. [Perfecto
all [Sec. 9, Art. II] Pascua v. Bank Wise Inc., G.R. No. 191460 &
b. Promote social justice [Sec. 10, Art. II] 191464 (2018)].
c. Affirm labor as a primary social economic
force [Sec. 18, Art. II] SEC. 3, par. 3-4, ART. XIII: Social Justice
d. Protect rights of workers and promote their and Human Rights
welfare [Sec. 18, Art. II] The State shall:
e. Recognize the indispensable role of the a. Promote the principle of shared
private sector [Sec. 20, Art. II.] responsibility between workers and
f. Encourage private enterprise [Sec. 20, Art. employers
II.] b. Promote the preferential use of voluntary
g. Provide incentives to needed investments modes in settling disputes
[Sec. 20, Art. II.] c. Regulate the relations between workers
and employers,
SEC. 3, par. 1-2, ART. XIII: Social Justice d. Recognize the right of labor to its just share
and Human Rights in the fruits of production and the right of
The State shall: enterprises to reasonable returns to
a. Afford full protection to labor, local and investments, and to expansion and growth.
overseas, organized and unorganized
b. Promote full employmentand equality of Balancing of Interests
employment opportunitiesfor all. While labor laws should be construed liberally
c. Guarantee the rights (also known as the
“Cardinal Labor Rights”) of all workers to in
thisfavor
withofthe
labor, we must
equally be ableright
important to balance
of the
1. Self-organization [employer] to due process [Gagui v. Dejero,
2. Collective bargaining and negotiations G.R. No. 196036 (2013)]
3. Peaceful concerted activities
4. Strike in accordance with law Due Process [Sec. 1, Art. III, 1987
5. Security of tenure, Constitution]
6. Humane conditions of work Under the Labor Code, as amended, the
7. A living wage. requirements for the lawful dismissal of an
8. To participate in policy and decision- employee by his employer are two-fold: the
making processes affecting their rights substantive and the procedural.
and benefits as may be provided by
law. Substantive : two requisites must concur: (1)
the dismissal must be for a just or authorized

cause!and (2) the employee must be afforded

an opportunity to be heard and to defend

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himself. [Jeffrey Nacague v. Sulpicio Lines, different from that provided in its terms, is a law
Inc., G.R. No. 172589 (2010)] which impairs the obligation of a contract and
is null and void. [Clemens v. Nolting, G.R. No.
Procedural: an opportunity to be heard and to L-17959 (1922)]
defend oneself must be observed before an
employee may be dismissed [Metro Eye Vis-à-vis the freedom of contract
Security v. Salsona, G.R. No. 167367 (2007)] The prohibition to impair the obligation of
contracts is not absolute and unqualified. In
Labor as Property Right spite of the constitutional prohibition and the
One’s employment is a property right, and the fact that both parties are of full age and
wrongful interference therewith is an actionable competent to contract, it does not necessarily
wrong. The right is considered to be property deprive the State of the power to interfere
within the protection of the constitutional where the parties do not stand upon an
guarantee of due process of law. [Texon Texon equality, or where the public health demands
Manufacturing v. Millena, G.R. No. 141380 that one party to the contract shall be protected
(2004)] against himself. [Leyte Land Transportation
Co. v. Leyte Farmers & Workers Union, G.R.
The Right to Assemble No. L-1377 (1948)]

Sec. 4, Art. III. No law shall be passed Labor Rights and Protection
abridging the right of the people peaceably All persons shall have the right to a speedy

to assemble
redress and petition the government for
of grievances. disposition of or
quasi-judicial, their cases before
administrative all judicial,
bodies. [Sec.
16, Art. III.]
Right to peaceably assemble and petition for
redress of grievances is, together with freedom No involuntary servitude in any form shall exist.
of speech, of expression, and of the press, a [Sec. 18 (2), Art. III.]
right that enjoys primacy in the realm of
constitutional protection. [BAYAN, et al. v. Except as a punishment for a crime whereof
Ermita, G.R. No. 169838, (2006)]. the party shall have been duly convicted. [Sec.
18 (2), Art. III.]
Wearing armbands and putting up placards to
express one’s views without violating the rights 2. Civil Code
of third parties, are legal per se and even
constitutionally protected. [Bascon v. CA, G.R. Relations between labor and capital
No. 144899 (2004)] The relations
not merely between capital
contractual. and labor are
[Art. 1700, CC]
The Right to Form Associations [Sec. 8, Art.
III, 1987 Constitution]
Constitution] They are impressed with public interest that
The right to form associations shall not be labor contracts:
impaired except through a valid exercise of a. Must yield to the common good
police power. [Bernas, The 1987 Philippine b. Are subject to special laws on
Constitution: A Comprehensive Reviewer] 1. Labor unions,
2. Collective bargaining,
Non-impairment of Contracts [Sec. 10, Art. 3. Strikes and lockouts,
III, 1987 Constitution]
Constitution] 4. Closed shop,
A law which changes the terms of a legal 5. Wages,
contract between parties, either in the time or 6. Working conditions,
mode or performance, or imposes new 7. Hours of labor; and
conditions, or dispenses
or authorizes with those expressed,
for its satisfaction something 8. Similar subjects

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Neither capital nor labor shall of their adoption in newspapers of general

a. Act oppressively against the other, or circulation. [Art. 5]
b. Impair the interest or convenience of the
public [Art. 1701, CC]. All rights and benefits granted to workers under
this Code shall, except as may otherwise be
No contract which practically amounts to provided herein, apply alike to all workers,
involuntary servitude, under any guise whether agricultural or non-agricultural. (As
whatsoever, shall be valid. [Art. 1702, CC] amended by Presidential Decree No. 570-A,
November 1, 1974) [Art. 6]
Provisions of applicable statutes are deemed
written into the contract. Hence, the parties are
not at liberty to insulate themselves and their B. STATE POLICY TOWARDS
relationships from the impact of labor laws and LABOR
regulations by simply contracting with each
other. [Innodata Philippines, Inc. v. Quejada- Labor Code Declaration of Basic Policy
Lopez, G.R. No. 162839 (2006)] [Art. 3, LC]
The State shall:
Courts cannot stipulate for the parties or a. Afford protection to labor,
amend the latter’s agreement, for to do so b. Promote full employment,
would be to alter the real intention of the c. Ensure equal work opportunities
contracting parties when the contrary function regardless of sex, race or creed, and
of courts is
intention of tothegive force and
parties. effect to
[Maynilad the
Water d. Regulate the relations between workers
and employers.
Supervisors Association v. Maynilad Water
Services, Inc., G.R. No. 198935 (2013)] The State shall assure the rights of workers to:
a. Self-organization,
3. Labor Code b. Collective bargaining,
c. Security of tenure, and
The State shall d. Just and humane conditions of work.
a. Afford protection to labor,
b. Promote full employment, 1. Security of tenure
c. Ensure equal work opportunities
regardless of sex, race or creed, and All workers shall be entitled to security of
d. Regulate the relations between workers tenure. [1987 Constitution,
Constitution, Art. XIII, Sec. 3, par.
and employers. 2]
The State shall assure the rights of
o f workers to Police power allows the State to regulate the
a. Self-organization, grant of the right to security of tenure. [St.
b. Collective bargaining, Luke’s Medical Center Employee’s
c. Security of tenure, and Association-AFW v. NLRC, G.R. No. 162053
d. Just and humane conditions of work. [Art. (2007)]
3] " Purpose:to safeguard the general welfare
of the public.
The Department of Labor and other " Example: Persons who desire to engage
government agencies charged with the in the learned professions may be required
administration and enforcement of this Code or to take an examination as a prerequisite to
any of its parts shall promulgate the necessary engaging in the same.
implementing rules and regulations.

Such rules and regulations shall become

effective fifteen (15) days after announcement

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2. Social justice Note: The welfare of the people should

be the supreme law.
Sec. 9, Art. II, 1987 Constitution: The State
shall promote a just and dynamic social order Limits of Social Justice
that will: Social justice should be used only to correct an
a. Ensure the prosperity and independence of injustice [Agabon v. NLRC, G.R. No. 158693
the nation; (2004)]. It is not intended to countenance
wrongdoing simply because it is committed by
b. Free the that
policies people from adequate
provide poverty through
social the underprivileged. It cannot be permitted to
services; and be a refuge of scoundrels any more than can
c. Promote: equity be an impediment to the punishment of
1. Full employment, the guilty. Those who invoke social justice may
2. A rising standard of living do so only if their hands are clean and their
3. Improved quality of life for all motives blameless and not simply because
they happen to be poor. [Tirazona v. Phil EDS
Sec. 10, Art. II, 1987 Constitution: The State Techno-Service, Inc., G.R. 169712 (2009)].
shall promote social justice in all phases of
national development. Tilting the scales [Rivera vs. Genesis
Transport Service, Inc., G.R. No. 215568
Social Justice as justification [Calalang v. (2015)]
Williams, G.R. No. 47800 (1940)] Labor laws are meant to implement and effect

Social justice
despotism, is neither
nor atomism, norcommunism,
anarchy BUT: nor social justice.
should be Thus,
taken into suchwhen
account considerations
dealing with
a. The humanization of laws; and labor cases.
b. The equalization of social and economic
forces by the State. The social justice suppositions underlying labor
So that justice in its rational and objectively laws require that the statutory grounds
secular conception may at least be justifying termination of employment should not
approximated. be read to justify the view that employees
should, in all cases, be free from any kind of
Social justice means: error.
a. The promotion of the welfare of all the
people, Not every improper act should be taken to
b. The adoption by the Government of justify the termination of employment. To infer
measures calculated to insure economic from a single error that an employee committed

stability
society –of all the competent elements of serious
employer’smisconduct
trust is graveor besmirched
abuse of discretion.his
It
1. through the maintenance of a proper is an inference that is arbitrary and capricious.
economic and social equilibrium in the It is contrary to the high regard for labor and
interrelations of the members of the social justice enshrined in our Constitution and
community, constitutionally; our labor laws.
2. through the adoption of measures
legally justifiable, or extra- Welfare State [Alalayan v. National Power
constitutionally; and Corporation, G.R. No. L-24396 (1968)]
3. through the exercise of powers The welfare state concept is found in the
underlying the existence of all constitutional clause on the promotion of social
governments on the time-honored justice.
principle of salus populi est suprema
lex. Purpose:

a. To ensure
security the
of all thewell-being and economic
people, and

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b. In the pledge of protection to labor with Sec. 3, par. 1, Art. XIII, 1987 Constitution.
specific authority to regulate the relations The State shall:
between landowners and tenants and a. Afford full protection to labor -
between labor and capital. 1. Local and overseas,
2. Organized and unorganized, and
Separation pay as measure of social justice b. Promote full employment and equality of
[PLDT v. NLRC, G.R. No. 80609 (1988)] employment opportunities for all.
The rule embodied in the Labor Code is that a
person dismissed for lawful cause is not Sec. 2, R.A. No. 10911. Declaration of
entitled to separation pay. Policies
The State shall promote equal opportunities in
Exception: Considerations of equity. Equity employment for everyone. To this end, it shall
has been defined as justice outside law, being be the policy of the State to:
ethical rather than jural and belonging to the a. Promote employment of individuals on the
sphere of morals than of law. basis of their –
1. Abilities,
Strictly speaking, however, it is not correct to 2. Knowledge,
say that there is no express justification for the 3. Skills, and
grant of separation pay to lawfully dismissed 4. Qualifications, rather than their age
employees other than the abstract b. Prohibit arbitrary age limitations in
consideration of equity. employment.

Reason: Our Constitution is replete with c. Promote the right ofof all
workers, regardless employees
age, and
to be treated
positive commands for the promotion of social equally in terms of –
justice, and particularly the protection of the 1. Compensation,
rights of the workers. 2. Benefits,
3. Promotion,
3. Equal work opportunities 4. Training, and
5. Other employment opportunities.
Declaration of Basic Policy [Art. 4, LC]
The State shall: 4. Right to self-organization and
a. Afford protection to labor, collective bargaining
b. Promote full employment,
c. Ensure equal work opportunities 1987 Constitution
regardless of: The State shall guarantee:
1. Sex, a. The right of the people, including those
2. Race, or employed in the public and private sectors,
3. Creed, to form unions, associations, or societies
d. Regulate the relations between workers for purposes not contrary to law. [Sec. 8,
and employers. Art. III.]
b. The rights of all workers to –
The State shall assure the rights of workers to: 1. Self-organization [Sec. 3, Art. XIII]
a. Self-organization, 2. Collective bargaining and negotiations
b. Collective bargaining, [Sec. 3, Art. XIII]
c. Security of tenure, and 3. Peaceful concerted activities [Sec. 3,
d. Just and humane conditions of work. Art. XIII]
4. Strike in accordance with law. [Sec. 3,
Note: Art. 4 of the Labor Code must be read in Art. XIII]
relation to the 1987 Constitution since this is
still based on the 1973 Constitution.

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Art. 253, Labor Code one. [Heritage Hotel Manila v. PIGLAS-

All persons employed: Heritage, G.R. No. 177024 (2009)]
a. In commercial, industrial and agricultural 4. The right to form or join a labor organization
enterprises, and necessarily includes the right to refuse or
b. In religious, charitable, medical or refrain from exercising said right. It is
educational institutions, whether operating self-evident that just as no one should be
for profit or not, denied the exercise of a right granted by
shall have the right to – law, so also, no one should be compelled
a. Self-organization, to exercise such a conferred right. [Reyes
b. Form, join, or assist labor organization of v. Trajano, G.R. No. 84433 (1992)]
their own choosing for purposes of 5. The right of the employees to self-
collective bargaining. organization is a compelling reason why
their withdrawal from the cooperative
Ambulant, intermittent and itinerant workers, must be allowed. As pointed out by the
self-employed people, rural workers and those union, the resignation of the member-
without any definite employers may form labor employees is an expression of their
organizations for their mutual aid and preference for union membership over that
protection. of membership in the cooperative. [Central
Central
Negros Electric Cooperative v. SOLE, G.R.
Art. 254, Labor Code No. 94045 (1991)]
Employees of government corporations 6. Their freedom to form organizations would

established under
have the right to: the corporation code shall be rendered
choose their nugatory if they
own leaders could on
to speak not
a. Organize, and their behalf and to bargain for them. [Pan-
Pan-
b. Bargain collectively with their respective American World Airways, Inc v. Pan-
employers. American Employees Association, G.R.
No. L-25094 (1969)]
All other employees in the civil service shall
have the right to form associations for 5. Construction in favor of labor
purposes not contrary to law.
All doubts in the implementation and
Infringement of the right to self- interpretation of the provisions of this Code,
organization including its implementing rules and
It shall be unlawful for any person to restrain, regulations, shall be resolved in favor of
coerce, discriminate against or unduly interfere labor. [Art. 4, Labor Code]
with
of theemployees and workers in
right to self-organization their
[Art. exercise
257, LC] In case of doubt, all legislation and all labor
contracts shall be construed in favor of the
Scope of right to self-organization safety and decent living for the laborer. [Art.
1. Right to form, join or assist labor 1702, Civil Code]
organizations of their own choosing for
the purpose of collective bargaining Liberal Construction
through representatives of their own Of the laws
choosing [Art. 257]; Art. 4 of the Labor Code mandates that all
2. Right to engage in lawful concerted doubts in the implementation and interpretation
activities for the same purpose (collective of the provisions thereof shall be resolved in
bargaining) or for their mutual aid and favor of labor. This is merely in keeping with
protection [Art. 257] the spirit of our Constitution and laws which
3. The right of any person to join an lean over backwards in favor of the working
organization also includes
leave that organization join right
and the to
another class, and mandate that every doubt must be
resolved in their favor. [Hocheng Philippines

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U.P. LAW BOC LABOR 1 LABOR LAW

Corporation v. Farrales, G.R. No. 211497 ER has burden of proving valid dismissal
(2015)] Unsubstantiated accusations or baseless
conclusions of the employer are insufficient
Of labor contracts legal justifications to dismiss an employee. The
A CBA, as a labor contract within the unflinching rule in illegal dismissal cases is that
contemplation of Art. 1700 of the Civil Code of the employer bears the burden of proof.
the Philippines which governs the relations [Garza v. Coca-Cola Bottlers Philippines, Inc.,
between labor and capital, is not merely G.R. No. 180972 (2014)]
contractual in nature but impressed with public
interest, thus, it must yield to the common Penalty must be commensurate with gravity
good. As such, it must be construed liberally of offense
rather than narrowly and technically, and the Not every case of insubordination or willful
courts must place a practical and realistic disobedience by an employee reasonably
construction upon it, giving due consideration deserves the penalty of dismissal. The penalty
to the context in which it is negotiated and to be imposed on an erring employee must be
purpose which it is intended to serve. [Cirtek commensurate with the gravity of his offense.
Employees Labor Union-FFW v. Cirtek [Joel Montallana v. La Consolacion College
Electronics, G.R. No. 190515 (2010)] Manila, G.R. No. 208890 (2014)]

Mutual obligation
The employer's obligation to give his workers II. RECRUITMENT AND

just corollary
the compensation and
right to treatment
expect fromcarries with
with it
the workers PLACEMENT
adequate work, diligence and good conduct. A. DEFINITION OF RECRUITMENT
[Judy Philippines, Inc. v NLRC, G.R. No. AND PLACEMENT
111934 (1998)]

6. Burden of proof and quantum of “Recruitment and placement" refers to any

evidence act of: [CETCHUP-R-CPA]
1. Canvassing,
2. Enlisting,
Summary on Burden of Proof
1. Existence of ER-EE Relationship: 3. Contracting,
Employee 4. Transporting,
2. Fact of dismissal: Employee 5. Utilizing
3. Validity of Dismissal: Employer 6. Hiring, or

7. Procuring workers
EE has burden of proving fact of
employment and of dismissal And includes –
Before a case for illegal dismissal can prosper, 1. Referrals,
an employer-employee relationship must first act of passing along or forwarding of an
be established by the employee. [Javier v. Fly applicant for employment after an initial
Ace Corp., G.R. No. 192558 (2012)] interview of a selected applicant for
employment to a selected employer,
The employee must first establish by placement officer or bureau." [Rodolfo v.
substantial evidence the fact of his dismissal People, G.R. No. 146964 (2006)]
from service. If there is no dismissal, then there 2. Contract services,
can be no question as to the legality or illegality 3. Promising, or
thereof. [MZR Industries v. Colambot, G.R. No. 4. Advertising for employment, locally or
179001 (2013)] abroad, whether for profit or not

Page 7 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

Provided , That any person or entity which, in License and Authority [Art. 13(d) and (f); Sec.
any manner, offers or promises for a fee 3 (h)(g), DO 141-14]
employment to two or more persons shall be
License Authority
deemed engaged in recruitment and
placement. [Art. 13 (b), Labor Code] document issued by the Department of
Labor and Employment (DOLE)
The proviso provides for a presumption that a
person or entity so described engages in
recruitment and placement. [People v. Panis, Authorize
to operatean
asentity
a Authorize
to operatean
asentity
a
G.R. No. 58674 (1988)] private employment private recruitment
agency entity
Number of persons: not essential
The number of persons dealt with is not an When a license is Does not entitle a
essential ingredient of the act of recruitment given, one is also private recruitment
and placement of workers. Any of the acts authorized to collect entity to collect fees.
mentioned in Art. 13(b) will constitute fees
recruitment and placement even if only one
prospective worker is involved. [People v. Private employment agency (PEA) v.
Panis, supra.] Private recruitment entity (PRE) [Art. 13 (c),
(e)]
Worker – any member of the labor force,
Private Private
whether employed or unemployed. [Art.13 (a)] Employment Recruitment
Overseas Filipino Worker/Migrant Worker – Agency Entity
a person who is to be engaged, is engaged, or
has been engaged in a remunerated activity: Definition Any person Any person or
1. in a state of which he or she is not a citizen, or entity association
or engaged in engaged in the
2. on board a vessel navigating the foreign recruitment recruitment
seas other than a government ship used for and and placement
military or non-commercial purposes, or placement of of workers,
3. on an installation located offshore or on the workers for a locally or
high seas. [Sec. 2 (a), RA 8042, as fee which is overseas,
amended] charged, without
directly or charging,
indirectly, directly or
from the indirectly,
workers or any fee
employers or
both

Require- License Authority

ment

Policy of Close Government Regulation

RA 9422 or the Act to Strengthen the
Regulatory Functions of the Philippine
Overseas Employment Administration of 2007
expressly repealed Sections 29 and 30 of RA

8042, whichactivities.
recruitment provided for the deregulation of

Page 8 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

Recruitment of Local and Migrant Workers: with internationally-accepted standards. [Sec.

Policy of Selective Deployment 3, RA 8042, as amended]
The State shall allow the deployment of
overseas Filipino workers only in countries
B. REGULATION OF RECRUITMENT
where the rights of Filipino migrant workers are
protected. The government recognizes any of AND PLACEMENT ACTIVITIES
the following as a guarantee on the part of the
receiving country for the protection of the rights
of overseas Filipino workers: 1. Regulatory Authorities
1. It has existing labor and social laws
a. Philippine Overseas
protecting the rights of workers, including
Employment Administration
migrant workers;
2. It is a signatory to and/or a ratifier of
POEA supersedes OEDB and NSB
multilateral conventions, declarations or
Executive Order 797, Reorganizing the
resolutions relating to the protection of
Ministry of Labor and Employment, Creating
workers, including migrant workers; and
the Philippine Overseas Employment
3. It has concluded a bilateral agreement or
Administration (POEA), and for other
arrangement with the government on the
purposes, has superseded Art. 17 and 20, and
protection of the rights of overseas Filipino
provides for the POEA to take over the
Workers:
functions of the Overseas Employment
Development Board (OEDB) and the National
Provided,concrete
positive, That the receiving
measurescountry is taking
to protect the Seamen Board (NSB).
rights of migrant workers in furtherance of any
POEA Powers and Functions
of the guarantees under subparagraphs (a), (b)
a. Regulateprivate sector participation in the
and (c) hereof. [Sec. 3, RA 8042, as amended]
recruitment and overseas placement of
workers by setting up a licensing and
[..] The Department of Foreign Affairs, through
registration system;
its foreign posts, shall issue a certification to
b. Formulate and implement, in
the POEA, specifying therein the pertinent
coordination with appropriate entities
provisions of the receiving country's labor/
concerned, when necessary, a system for
social law, or the convention/ declaration/
promoting and monitoring the overseas
resolution, or the bilateral agreement/
employment of Filipino workers taking into
arrangement which protect the rights of migrant
consideration their welfare and the
workers.
domestic manpower requirements;
The State shall also allow the deployment of c. Protect the rights of Filipino workers for
overseas employment to fair and equitable
overseas Filipino workers to vessels navigating
recruitment and employment practices and
the foreign seas or to installations located
ensure their welfare;
offshore or on high seas, whose
d. Exercise original and exclusive
owners/employers are compliant with
jurisdiction to hear and decide all claims
international laws and standards that protect
arising out of an employer-employee
the rights of migrant workers.
relationship or by virtue of any law or
contract involving Filipino workers for
The State shall likewise allow the deployment
overseas employment including the
of overseas Filipino workers to companies and
disciplinary cases; and all pre employment
contractors with international operations:
cases which are administrative in character
Provided, That they are compliant with
involving or arising out of violation or
standards, conditions and requirements, as
requirement laws, rules and regulations
embodied in the
prescribed by thePOEA
employment contracts
and in accordance including money claims arising therefrom,

Page 9 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

or violation of the conditions for issuance of The Administration shall also establish and
license or authority to recruit workers. All maintain joint projects with private
prohibited recruitment. activities and organizations, domestic or foreign, in the
practices which are penal in character as furtherance of its objectives. [Sec. 3, EO 247]
enumerated and defined under and by
virtue of existing laws, shall be prosecuted POEA Standard Contract Deemed
in the regular courts in close coordination Integrated in every Employment Contract
with the appropriate Departments and While the seafarers and their employers are
agencies concerned; governed by their mutual agreements, the
e. Maintain a registry of skills for overseas POEA rules and regulations require that the
placement; POEA SEC, which contains the standard terms
f. Recruit and place workers to service the and conditions of the seafarers' employment in
requirements for trained and competent foreign ocean-going vessels, be integrated in
Filipino workers by foreign governments every seafarer's contract. [Wallem Maritime
and their instrumentalities and such other Services, Inc. v. Tanawan, G.R. No. 160444,
employers as public interest may require; (2012)]
g. Promote the development of skills and
careful selection of Filipino workers; POEA Jurisdiction vis-a-vis NLRC and RTC
h. Undertake overseas market development
Administrative Disciplinary
activities for placement of Filipino workers;
cases arising action cases
i. Secure the best terms and conditions of
out of and other
employment of Filipinotherewith;
and ensure compliance contract workers violations of special
rules and cases,
j. Promote and protect the well-being of
regulations involving
Filipino workers overseas;
relating to employers,
k. Develop and implementprograms for the
licensing and principals,
effective monitoring of returning contract
registration of contracting
workers, promoting their re-training and re- POEA
recruitment partners, and
employment or their smooth re-integration
and Filipino
into the mainstream of national economy in
employment migrant
coordination with other government agencies and workers
agencies;
entities. [Sec. [Sec. 28(b),
l. Institute a system for ensuring fair and 28(a), Omb. Omb. Rules
speedy disposition of cases involving
Rules Implementing
violation or recruitment rules and
Implementing RA 8042]
regulations asoverseas
conditions of well as violation of terms and
employment; RA 8042]
m. Establish a system for speedy and Claims arising out of an ER-
efficient enforcement of decisions laid EE relationship or by virtue of
down through the exercise of its any law or contract involving
adjudicatory function; Filipino workers for overseas
n. Establish and maintainclose relationship NLRC
deployment including actual,
and enter into joint projects with the moral, and exemplary and
Department of Foreign Affairs, Philippine other forms of damage. [Sec.
Tourism Authority, Manila International 10, RA 8042]
Airport Authority, Department of Justice,
Department of Budget and Management Criminal actions arising from
and other relevant government entities, in illegal recruitment [Sec. 9, RA
RTC
the pursuit of its objectives. 8042]

Page 10 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

2. Ban on Direct Hiring

b. Regulatory and Visitorial
Powers of the Department of General Rule: No employer may hire a Filipino
Labor and Employment worker for overseas employment except
Secretary through the Boards and entities authorized by
the Secretary of Labor. [Art. 18]
Reports on Employment Status

Whenever
Secretary ofthe public
Labor mayinterest requires,
direct all personsthe
or No employer
Filipino shallfordirectly
Worker hire an
overseas Overseas
employment.
entities within the coverage of this Title to [Sec. 123, 2016 Revised POEA Rules and
submit a report on the status of employment, Regulations]
including job vacancies, details of job
requisitions, separation from jobs, wages, Exemptions:
other terms and conditions and other a. Members of the diplomatic corps;
employment data. [Art. 33] b. International organizations;
c. Heads of state and government officials
SOLE’s regulatory Power with the rank of at least deputy
dep uty minister;
The SOLE shall have the power: d. Other employers as may be allowed by the
a. To restrict and regulate the recruitment and Secretary of Labor and Employment, such
placement activities of all agencies within as:
the coverage of this Title. [Title 1, 1. Those provided in (a), (b) and (c) who

b. Recruitment and and

To issue orders Placement of Workers]
promulgate rules and bear a lesser
Philippine rank, if endorsed
Overseas Labor by the
Office
regulations to carry out the objectives and (POLO), or Head of Mission in the
implement the provisions of this Title. [Art. absence of the POLO;
36] 2. Professionals and skilled workers with
duly executed/authenticated contracts
SOLE’s visitorial Power containing terms and conditions over
The SOLE or his duly authorized and above the standards set by the
representatives may, at any time, inspect the POEA. The number of professional and
premises, books of accounts and records of skilled Overseas Filipino Workers hired
any person or entity covered by this Title, for the first time by the employer shall
require it to submit reports regularly on not exceed five (5). For the purpose of
prescribed forms, and act on violation of any determining the number, workers hired
provisions of this Title. [Art. 37] as a group shall be counted as one; OR

SOLE’s arrest and seizure power declared 3. Workers hired by a relative/family

member who is a permanent resident
unconstitutional of the host country. [Sec. 124, 2016
After the promulgation of the 1987 Constitution, Revised POEA Rules and Regulations]
only judges may issue search and arrest
warrants. The Secretary of Labor, not being a 3. Entities Prohibited from
judge, may no longer issue search of arrest Recruiting
warrants. Article 38(c) of the Labor Code is
declared unconstitutional and of no force or
Entities disqualified from Engaging in the
effect. [Salazar v. Achacoso, G.R. No. 81510, Business of Recruitment and Placement of
(1990)]
Workers for Local Employment
1. Travel agencies and sales agencies of
airline companies, whether for profit or not.
[Art. 26]

Page 11 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

2. Those who are convicted of illegal propose or provide an insurance contract

recruitment, trafficking in persons, anti- under the compulsory insurance coverage
child labor violation, or crimes involving for agency-hired OFWs;
moral turpitude; 5. Sole proprietors, partners or officers and
3. Those against whom probable cause or members of the board with derogatory
prima facie finding of guilt for illegal records, such as, but not limited to the ff:
recruitment or other related cases exist a. Those convicted or against whom

particularly who
agencies to owners or directors
have committed of
illegal probable
guilt cause or prima
is determined by facie finding of
a competent
recruitment or other related cases. authority for illegal recruitment or for
4. Those agencies whose licenses have been other related crimes or offenses
previously revoked or cancelled by the committed in the course of, related to,
Department under Sec. 54 of these rules. or resulting from, illegal recruitment, or
5. Cooperatives whether registered or not for crimes involving moral turpitude;
under the Cooperative Act of the b. Those agencies whose licenses have
Philippines. been revoked for violation of RA 8042,
6. Law enforcers and any official and PD 442, RA 9208, and their IRRs;
employee of the Department of Labor and c. Those agencies whose licenses have
Employment (DOLE). been cancelled, or those who, pursuant
7. Sole proprietors of duly licensed agencies to the order of the Administrator, were
are prohibited from securing another included in the list of persons with

license
placement.to engage in recruitment and derogatory record
recruitment laws for violation of
and regulations;
8. Sole proprietors, partnerships or 6. Any official employee of the DOLE, POEA,
corporations licensed to engage in private OWWA, DFA, DOJ, DOH, BI, IC, NLRC,
recruitment and placement for local TESDA, CFO, NBI, PNP, Civil Aviation
employment are prohibited from engaging Authority of the Philippines, international
in job contracting or subcontracting airport authorities, and other government
activities. [Sec. 5, DO 141-14, Revised agencies directly involved in the
Rules and Regulations Governing implementation of RA 8042, as amended,
Recruitment and Placement for Local and/or any of his/her relatives within the
Employment] fourth civil degree of consanguinity or
affinity. [Part II, Rule I, Sec. 3, 2016
Entities disqualified from Engaging or Revised POEA Rules and Regulations]
Participating in the Business of
Recruitment and Placement of Workers for
Overseas Employment 4. Suspension or Cancellation of
License or Authority
1. Travel agencies and sales agencies of
airline companies, whether for profit or not. The Secretary of Labor shall have the power to
[Art. 26] suspend or cancel any license or authority to
2. Officers or members of the Board of any recruit employees for overseas employment
corporation or partners in a partnership for:
engaged in the business of a travel agency; a. violation of rules and regulations issued by
3. Corporations and partnerships, where any the Department of Labor, the Overseas
of its officers, members of the board or Employment Development Board, and the
partners is also an officer, member of the National Seamen Board;
board or partner of a corporation or b. violation of the provisions of this and other
partnership engaged in the business of a applicable laws, General Orders and
travel agency; Letters of Instructions. [Art. 35]
4. Individuals, partners, officers, or directors
of an insurance company who make,

Page 12 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

Acts prohibited under Art. 34 are grounds for g. To obstruct or attempt to obstruct
suspension or cancellation of license. Note that inspection by the Secretary of Labor or by
these acts likewise constitute illegal his duly authorized representatives;
recruitment under RA 8042 as amended by RA h. To fail to file reports on the status of
10022. employment, placement vacancies,
remittance of foreign exchange earnings,
Who can suspend or cancel the license? separation from jobs, departures and such

1. POEA
2. DOLE Secretary
Administrator other matters
required by theor information,
Secretary as may be
of Labor;
i. To substitute or alter employment contracts
The power to suspend or cancel any license or approved and verified by the Department of
authority to recruit employees for overseas Labor from the time of actual signing
employment is concurrently vested with the thereof by the parties up to and including
POEA and the Secretary of Labor. [People v. the periods of expiration of the same
Diaz, G.R. 112175 (1996)] without the approval of the Secretary of
Labor;
5. Prohibited Practices j. To become an officer or member of the
Board of any corporation engaged in travel
Recruitment of Local Workers: Prohibited agency or to be engaged directly or
Practices under Art. 34 indirectly in the management of a travel
a. To charge or accept, directly or indirectly, agency; and

any amount greater than that specified in k. To withholdworkers

applicant or deny travel
beforedocuments
departurefrom
for
the schedule of allowable fees prescribed
by the Secretary of Labor, or to make a monetary or financial considerations other
worker pay any amount greater than that than those authorized under this Code and
actually received by him as a loan or its implementing rules and regulations.
advance;
b. To furnish or publish any false notice or Recruitment of Migrant Workers: Prohibited
information or document in relation to Acts under Sec. 6, R.A. No. 8042
recruitment or employment; a. To charge or accept directly or indirectly
c. To give any false notice, testimony, any amount greater than that specified in
information or document or commit any act the schedule of allowable fees prescribed
of misrepresentation for the purpose of by the Secretary of Labor and
securing a license or authority under this Employment, or to make a worker pay or
Code; acknowledge any amount greater than that
d. To induce or attempt to induce a worker actually
advance;received by him as a loan or
already employed to quit his employment in
order to offer him to another, unless the b. To furnish or publish any false notice or
transfer is designed to liberate the worker information or document in relation to
from oppressive terms and conditions of recruitment or employment;
employment; c. To give any false notice, testimony,
e. To influence or to attempt to influence any information or document or commit any act
person or entity not to employ any worker of misrepresentation for the purpose of
who has not applied for employment securing a license or authority under the
through his agency; Labor Code, or for the purpose of
f. To engage in the recruitment or placement documenting hired workers with the
of workers in jobs harmful to public health POEA, which include the act of
or morality or to the dignity of the Republic reprocessing workers through a job
of the Philippines; order that pertains to nonexistent work,
work different from the actual overseas
work, or work with a different employer

Page 13 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

whether registered or not with the l. Failure to actually deploy a contracted

POEA; worker without valid reason as determined
d. To include or attempt to induce a worker by the Department of Labor and
already employed to quit his employment in Employment;
order to offer him another, unless the m. Failure to reimburse expenses incurred by
transfer is designed to liberate a worker the worker in connection with his
from oppressive terms and conditions of documentation and processing for

e. employment;
To influence or attempt to influence any purposes of deployment,
the deployment does notin actually
cases where
take
person or entity not to employ any worker place without the worker's fault. Illegal
who has not applied for employment recruitment when committed by a
through his agency or who has formed, syndicate or in large scale shall be
joined or supported, or has contacted or considered an offense involving economic
is supported by any union or workers' sabotage; and
organization; n. To allow a non-Filipino citizen to head or
f. To engage in the recruitment or placement manage a licensed recruitment/manning
of workers in jobs harmful to public health agency. [Sec. 6, R.A. No. 8042]
or morality or to the dignity of the Republic
of the Philippines; Note: Bold parts differ from those stated in the
g. To obstruct or attempt to obstruct prohibited practices under Art. 34.
inspection by the Secretary of Labor and

Employment
representativeor by his duly authorized Prohibited
a. Grant a Acts Added
loan to by Amendment
an overseas Filipino worker
h. To fail to submit reports on the status of with interest exceeding eight percent (8%)
employment, placement vacancies, per annum, which will be used for payment
remittance of foreign exchange earnings, of legal and allowable placement fees and
separation from jobs, departures and such make the migrant worker issue, either
other matters or information as may be personally or through a guarantor or
required by the Secretary of Labor and accommodation party, postdated checks in
Employment; relation to the said loan;
i. To substitute or alter to the prejudice of b. Impose a compulsory and exclusive
the worker, employment contracts arrangement whereby an overseas Filipino
approved and verified by the Department of worker is required to avail of a loan only
Labor and Employment from the time of from specifically designated institutions,
actual signing thereof by the parties up to entities or persons;
and
the including the period
same without the ofapproval
the expiration
of theof c. Refuse
incurredtobycondone or renegotiate
an overseas a loan
Filipino worker
Department of Labor and Employment; after the latter's employment contract has
j. For an officer or agent of a recruitment been prematurely terminated through no
or placement agency to become an fault of his or her own;
officer or member of the Board of any d. Impose a compulsory and exclusive
corporation engaged in travel agency or to arrangement whereby an overseas Filipino
be engaged directly or indirectly in the worker is required to undergo health
management of travel agency; examinations only from specifically
k. To withhold or deny travel documents from designated medical clinics, institutions,
applicant workers before departure for entities or persons, except in the case of a
monetary or financial considerations, or for seafarer whose medical examination cost
any other reasons, other than those is shouldered by the principal/shipowner;
authorized under the Labor Code and its e. Impose a compulsory and exclusive
implementing rules and regulations; arrangement whereby an overseas Filipino
worker is required to undergo training,

Page 14 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

seminar, instruction or schooling of any 1. Any activity within the meaning of

kind only from specifically designated recruitment and placement under
institutions, entities or persons, except for Art. 13(b)
recommendatory trainings mandated by 2. Any of the prohibited practices
principals/shipowners where the latter under Art. 34. [Art. 34 and 38]
shoulder the cost of such trainings;
f. For a suspended recruitment/manning Profit Immaterial

agency to engage
recruitment activity in including
any kind theof Recruitment may be "for
lack of the necessary profitororauthority,
license not." It is and
the
processing of pending workers' not the fact of payment, that renders
applications; and recruitment illegal. [Sharp v. Espanol, G.R. No.
g. For a recruitment/manning agency or a 155903 (2007)]
foreign principal/employer to pass on the
overseas Filipino worker or deduct from his b. Illegal Recruitment of Migrant Workers
or her salary the payment of the cost of
insurance fees, premium or other “Illegal Recruitment” Defined
insurance related charges, as provided Any act of canvassing, enlisting, contracting,
under the compulsory worker's insurance transporting, utilizing, hiring, or procuring
coverage. [Sec. 6, R.A. No. 8042 as workers and includes referring, contract
amended by R.A. No. 10022] services, promising or advertising for
employment abroad, whether for profit or not,

when
holder undertaken
of authoritybycontemplated
a non-licensee or non-
under Art.
C. ILLEGAL RECRUITMENT
13(f), P.D. No. 442 or LC. [Sec. 5, R.A. No.
10022]
1. Elements
Note: The Migrant Workers’ Act (R.A. No.
8042) expanded the concept of illegal
FIRST MAIN TYPE: Simple Illegal
recruitment found in the LC and provided stiffer
Recruitment
penalties, especially for when it constitutes
economic sabotage. [People v. Ocden, G.R.
a. Illegal Recruitment of Local Workers
No. 173198 (2011)]
Two Types Accdg. to the Kind of Offender
Two Types Accdg. to the Offense(Elements)
The following are the types of illegal
1. Undertakes any recruitment activity
recruitment of local workers and the elements
for each type: defined in Art. 13(b), LC without a valid
license/authority
1. By a licensee/holder of authority
a. Offender has a valid license or
Note: Can only be committed by one who has
authority required by law to enable one
no valid license or authority to engage in
to lawfully engage in the recruitment
recruitment and placement
and placement of workers;
2. Commits any of the prohibited acts in
b. Offender undertakes any of the
Sec. 6, R.A. No. 8042, as amended by R.A.
prohibited acts under Art. 34
10022
2. By a non-licensee/non-holder of authority
a. Note: Immaterial whether an offender
a. Offender has no valid license or
is a holder or a non-holder of a license
authority required by law to enable one
or authority
to lawfully engage in the recruitment
and placement of workers;
Contract Substitution = Illegal Recruitment
b. Offender undertakes either –
The reduced salaries and employment period
in the new employment contract contradicted

Page 15 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

the POEA-approved employment contract. By

Non-
this act of contract substitution, respondents
Licensee/ licensee/
committed a prohibited practice; consequently,
MIGRANT holder of non-
engaged in illegal recruitment. [PERT/CPM
authority holder of
Manpower Exponent Co. v. Vinuya, G.R. No.
authority
197528 (2012)]
Recruitment Allowed Not
Possible
Even the Liability
employeeofofEmployee
a company engaged in and placement allowed
[Sec. 6,
illegal recruitment can be held liable (along with R.A. No.
the employer) as a principal once it is shown 8042, as
that he had actively and consciously amended]
participated in the illegal recruitment. [People
People
v. Bayker, G.R. No. 170192 (2016)] Prohibited Not allowed [Sec. 6, R.A.
practices No. 8042, as amended]
Accused must give the impression of ability
to send complainant abroad for work Prohibited Not allowed [7 acts under
It must be shown that the accused gave acts Sec. 6, R.A. No. 8042 as
complainants the distinct impression that she amended by R.A. No.
had the power or ability to send them abroad 10022]
for worksuch that the latter were convinced to

part withv.their
[People Ochoamoney inNo.
, G.R. order to be (2011)]
173792 employed. SECOND MAIN TYPE: Illegal Recruitment
as Economic Sabotage
Lack of Receipts Not Fatal Two Types Accdg. to Qualifying
Mere failure of the complainant to present Circumstance
written receipts for money paid for acts Illegal recruitment is considered economic
constituting recruitment activities is not fatal to sabotage when attended by the ff. qualifying
the prosecution, provided payment can be circumstances:
proved by clear and convincing testimonies of 1. By a syndicate- carried out bya group of
credible witnesses. [People v. Alvarez, G.R. 3 or more persons conspiring and
142981 (2002)] confederating with one another;
2. In large scale - committed against 3 or
c. Comparison of Local and Migrant more persons individually or as a group.
[Art. 38(b), LC; Sec. 6 of R.A. No. 8042 as
Non- amended]
Licensee/ licensee/
LOCAL holder of non- Note re: In Large Scale –
authority holder of 3+ complainants must be in a single case
authority “Committed against 3 or more persons
individually or as a group” must be understood
Recruitment Allowed Not as referring to the number of complainants in
and placement allowed each case; otherwise, prosecutions for single
[Art. 13(b); crimes of illegal recruitment can be cumulated
Art. 38] to make it in large scale .[People v. Reyes,
G.R. No. 105204 (1995)].
Prohibited Not allowed [Art. 34; 38,]
practices

Page 16 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

Number of victims must be alleged 3. Illegal recruitment is carried out by a group

The information for illegal recruitment done in of 3 or more persons conspiring and/or
large scale must allege the number of victims. confederating with one another in carrying
[People v. Fernandez, 725 SCRA 152 (2014)] out any unlawful or illegal transaction,
enterprise or scheme. [People v. Sison,
a. For Local Workers (Elements) G.R. No. 187160 (2017)]

By aOffender
1. Syndicate
undertakes either: In
1. Large Scale
Offender undertook any recruitment activity
a. Any activity within the meaning of as defined under Sec. 6 of R.A. No. 8042
"recruitment and placement" defined 2. Offender did not have the license or the
under Art. 13(b) authority to lawfully engage in the
b. Any of the prohibited practices under recruitment of workers
Art. 34 3. Offender committed the same against 3 or
2. Offender has no valid license or authority more persons individually or as a group.
required by law to enable one to lawfully [People v. De los Reyes , G.R. No. 198795
engage in recruitment and placement of (2017)]
workers
3. Illegal recruitment is committed by a group 2. Types
of 3 or more persons conspiring or
confederating with one another. [People
People v. Summary of Types & Elements
Gallo, G.R. No. 187730 (2010)] There are at least 4 kinds of illegal recruitment.
[People v. Sadiosa[G.R. No. 107084 (1998)]
In Large Scale
1. Offender undertakes either:
a. Any activity within the meaning of Simple Illegal Recruitment
"recruitment and placement" defined
1. Licensed/ 1. Licensee/Holder of
under Art. 13(b)
Authorized authority
b. Any of the prohibited practices under
2. Undertakes prohibited
Art. 34
practices under Art. 34,
2. Offender has not complied with the LC (Local) or Sec. 6 of
guidelines issued by the SOLE, particularly
R.A. No. 8042 as
with respect to the securing of license or an amended (Migrant)
authority to recruit and deploy workers,
either locally or overseas 2.Unlicensed/ 1. Non-licensee/-holder of
3. Offender commits the unlawful actsoragainst Unauthorized authority
3 or more persons individually as a 2. Undertakes either:
group [Art. 38 (b)] a. Recruitment and
placement under
b. For Migrant Workers (Elements) Art. 13(b)
b. Prohibited
By a Syndicate practices/activities
1. Offender does not have the valid license or under Art. 34, LC
authority required by law to engage in (Local) or Sec. 6,
recruitment and placement of workers R.A. No. 8042
2. Offender undertakes either: (Migrant)
a. Any of the "recruitment and placement"
activities defined in Art. 13(b) Economic Sabotage
b. Any of the prohibited practices under
Sec. 6 of R.A. No. 8042 3. In a large 1. Undertakes either:
scale

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U.P. LAW BOC LABOR 1 LABOR LAW

criminal intent of the accused is not necessary

a. Recruitment and
for conviction, while estafa is malum in se
placement under
where the criminal intent of the accused is
Art. 13(b)
crucial for conviction. Conviction for offenses
b. Prohibited
under the LC does not bar conviction for
practices/activities
offenses punishable by other laws. Conversely,
under Art. 34
conviction for estafa does not bar a conviction
(Local) or Sec. 6 of
R.A. No. 8042 for illegal
crime recruitment.
of estafa One's acquittal
will not necessarily resultofin the
his
(Migrant)
acquittal of the crime of illegal recruitment in
2. No valid license or an
large scale, and vice versa. [People v. Ochoa,
authority to recruit and
G.R. No. 173792 (2011); People v. Ocden,
deploy workers, either
G.R. No. 173198 (2011)]
locally or overseas
3. Committed against 3 or
As such, the filing of criminal cases for both
more persons
does not constitute double jeopardy. In illegal
individually or as a
recruitment, profit is immaterial; on the other
group
hand, a conviction for estafa requires a clear
4. By a 1. Undertakes either: showing that the offended party parted with his
syndicate a. Any activity within money or property upon the offender’s false
the meaning of pretenses, and suffered damage thereby. The
"recruitment and two are
crimes. [then completely
People different
v. Melissa Chua,and distinct
G.R. No.
placement" under
Art. 13(b) 187052 (2012)]
b. Any of the
prohibited practices D. LIABILITY OF LOCAL RECRUITMENT
enumerated under
AGENCY AND FOREIGN EMPLOYER
Art. 34 (Local) or
Sec. 6 of R.A. No.
8042 (Migrant) 1. Solidary Liability
2. No valid license or
authority to recruit and a. Local Recruitment Agency
deploy workers, either
locally or overseas Illegal recruitment of local workers [Art. 39]
3. Committed by a group
of 3 or more persons Act Penalty
conspiring and
License/authority 2-5 years
confederating with one
holder violating or imprisonment or
another
causing another to P10K-P50K fine or
violate Title 1, Book both
3. Illegal Recruitment as 1 (Art. 34)
Distinguished from Estafa
Non- 4-8 years
Conviction for Illegal Recruitment NOT a license/authority imprisonment or
Bar to Conviction for Estafa and Vice versa holder violating or P20K-P100K fine or
A person who commits illegal recruitment may causing another to both
be charged and convicted separately of illegal violate Title 1, Book
recruitment under the LC and estafa under Art. 1 (Art. 38)

315(2a), RPC. The offense of illegal

recruitment is malum prohibitum where the

Page 18 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

2. For aliens, in addition to the penalties

Illegal recruitment Life imprisonment
herein prescribed, deportation without
constituting and P100K fine
further proceedings.
economic sabotage
(Art. 38)
Employees of a company or corporation
engaged in illegal recruitment may be held
If the offender is a corporation, partnership, liable as PRINCIPAL, together with his
association or entity, the penalty shall be
imposed upon the officer or officers employer if it is shown
consciously that he actively
participated in and
illegal
responsible for the violation. recruitment. [People v. Sagayaga, GR 143726
(2004)]
In every case, conviction carries with it:
1. Automatic revocation of license/authority Two jurisdiction rule
and all permits and privileges granted A criminal action arising from illegal
il legal recruitment
under this Title of migrant workers shall be filed with the RTC
2. Forfeiture of cash and surety bonds in favor of the province or city:
of POEA or the Regional Department with 1. Where offense was committed, or
jurisdiction over the place where the 2. Where the offended party actually resides
agency or branch office is located at the time of the commission of the
3. For aliens, in addition to the penalties offense. [Sec. 9, RA 8042]
herein prescribed, deportation without

further proceedings. [Art. 39 (3)] Provided, the court

filed acquires wheretosuch
jurisdiction the action is first
exclusion of
Illegal recruitment of migrant workers [Sec. other courts. [Sec. 6, Rule IV, Omnibus Rules
7, RA 8042 as amended] implementing RA 8042, as amended]
Act Penalty
Prescription
Prohibited Acts 6 years and 1 day - 12 Crime Classification Prescriptive
years imprisonment and Period
P500K-P1M fine
Local Simple/economic 3 years [Art.
Illegal 12 years and 1 day - 20 workers sabotage 305 LC]
Recruitment years imprisonment and
P1M-P2M fine Migrant Simple 5 years [Sec.
workers 12, RA 8042]
Illegal
recruitment Life imprisonment
P2M-P5M fine and Economic 20 years
constituting Sabotage [Sec. 12, RA
economic Max penalty: 8042]
sabotage 1. Illegally recruited
person is below 18
b. Foreign Employer
years old, or
2. Offense is committed
Foreign employers shall assume joint and
without license/
solidary liability with the recruitment/
authority
placement agency for all claims arising out of
an employer-employee relationship or by virtue
In every case, conviction carries with it: of any law or contract involving Filipino workers
1. Automatic revocation of license or for overseas deployment including claims for
registration of the recruitment/manning damages. [Sec. 10 of RA 8042, as amended]
agency, lending institutions, training school
or medical clinic.

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U.P. LAW BOC LABOR 1 LABOR LAW

c. Solidary Liability of Agent & 2. Assume joint and several liability with
Principal the employer for all claims and liabilities
which may arise in connection with the
Coverage implementation of the contract, including
The liability of the principal/employer and the but not limited to unpaid wages, death,
recruitment/placement agency for the claims disability compensation and repatriation.
involving Filipino workers for overseas 3. Assume full and complete responsibility

deployment
joint including claims for damages is
and several. for all acts of itsdone
representatives officers, employees with
in connection and
recruitment and placement [Part II, Rule II,
Incorporation into the contract Sec. 4 (f) (7-9), 2016 Revised POEA Rules
This shall be incorporated in the contract for and Regulations].
overseas employment and shall be a condition
precedent for its approval. For corporations or partnerships, a duly
notarized undertaking by the corporate officers
Performance bond and directors, or partners, that they shall be
The performance bond filed by the joint and severally liable with the corporation or
recruitment/placement agency shall be partnership for claims and/or damages
answerable for all money claims or damages awarded to workers is also required. [Part II,
awarded to workers. Rule II, Sec. 4 (g), 2016 Revised POEA Rules
and Regulations]

Corporate officersliable
partners solidarily and directors and
2. Theory of Imputed Knowledge
If the recruitment/placement agency is a
juridical being, the corporate officers and This is a doctrine in agency stating that the
directors and partners as the case may be, principal is chargeable with and bound by the
shall be joint and severally liable with the knowledge of or notice to his agent received
corporation or partnership for the claims and while the agent was acting as such.
damages. [Sec. 10, RA 8042 as amended]
Notice to the agent is notice to the principal.
Purpose of solidary liability
The termination of agreement between the A local employment agency is considered the
manning agency and its principal does not agent of the foreign employer, the principal.
relieve the former of its liability. The agency Knowledge of the former of existing labor and
agreement extends until the expiration of the social legislation in the Philippines in binding
employment contracts of the employees on the latter. Notice to the former of any
recruited and employed. Otherwise, this violation thereof is notice to the latter.
renders nugatory the purpose of the law which
is to assure aggrieved workers of immediate But, notice to the principal is NOT notice to the
and sufficient payment of what is due them. agent. Notice to the foreign employer,
therefore, is not notice to the local employment
Requisite undertaking for application of agency.
license
The written application for a license to operate
a private employment agency shall be
submitted with, among others, a duly
notarized undertaking that the applicant:
1. Shall assume full and complete
responsibility for all claims and liabilities
which may arise in connection with the use
of the license;

Page 20 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

In the case of Yap v. Thenamaris Ship’s

E. TERMINATION OF CONTRACT Management and Intermare Maritime
OF MIGRANT WORKER Agencies, Inc [G.R. No. 179532, (May 30,
2011)], the SC affirmed the Serrano ruling, but
In case of – did not apply the Operative Fact doctrine: “As
a. Termination of overseas employment an exception to the general rule, the doctrine

without just, valid, or authorized cause as applies only as a matter of equity and fair play.”
defined by law or contract, or
b. Any unauthorized deductions from the Note:In 2010, a year after Serrano, RA 10022,
migrant worker’s salary in amending RA 8042, reincorporated the
. nullified 3-month salary cap clause. However,
... the worker shall be entitled to full the SC did not allow this and again struck the
reimbursement of: revived clause as unconstitutional in the 2014
a. His placement fee and the deductions case of Sameer Overseas Placement
made with interest at twelve percent (12%) Agency v. Cabiles[G.R. No. 170139, (August
per annum; AND 05, 2014)]. There, the SC said that: “when a
b. His salaries for the unexpired portion of his law or a provision of law is null because it is
employment contract inconsistent with the Constitution, the nullity
(*or for three (3) months for every year of the cannot be cured by a reincorporation or
unexpired term, whichever is less) reenactment of the same or a similar law or
[Sec. 10, RA8042, as amended by RA 10022] provision. A law or
already declared provision of law
unconstitutional that was
remains as
such unless circumstances have so changed
Rule before Rule after Serrano: as to warrant a reverse conclusion.” Hence, the
Serrano (1995- invalidated the 3- case of Serrano holds as binding precedent,
2009): 3-month month salary cap even after the passage of RA 10022.
salary rule applied clause

The employment The SC there held F. EMPLOYMENT OF NON-

contract involved in that “said clause is RESIDENT ALIENS
the instant case unconstitutional for
covers a two-year being an invalid
period but the classification, in 1. Coverage
overseas contract violation of the equal
worker actually protection clause.” Who should apply for an Alien Employment
worked for only 26 Permit
days prior to his Thus, the present a. Any alien seeking admission to the
illegal dismissal. rule is that OFWs Philippines for employment purposes, and
Thus, the three whose contracts are b. Any domestic or foreign employer who
months’ salary rule terminated without desires to engage an alien for employment
applies [Flourish just cause are in the Philippines. [Art. 40, Labor Code]
Maritime Shipping v. entitled to all the
Almanzor, G.R. No. salaries for the Art. 40 of the Labor Code which requires
177948 (2008)] entire unexpired employment permit refers to non-resident
portion of their aliens. Resident aliens do not fall within the
employment ambit of the provision [Almodiel v. NLRC, 223
contract, irrespective SCRA 341 (1993)]
of the stipulated
An alien cannot file a labor complaint without
term or duration
thereof. having obtained an employment permit.

Page 21 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

[Andrew James McBurnie v. Eulalio Ganzon , 5. Contractual service supplier who is a

707 SCRA 646 (2013)] Manager, Executive, or Specialist
6. Representative of the Foreign
Who are exempted from securing an Alien Principal/Employer assigned in the Office
Employment Permit [DOISIPRRL] of Licensed Manning Agency (OLMA) in
1. All members of the Diplomatic service and accordance with the POEA law, rules and
foreign government Officials accredited by regulations. [Section 3, D.O. No. 186-17]

and with reciprocity

Philippine government;arrangement with the Intracorporate Transferee: Requisites for
2. Officers and staff of International exclusion
organizations of which the Philippine 1. Must be an Executive, Manager, or
government is a member, and their Specialist
legitimate Spouses desiring to work in the
Philippines; Executive: primarily directs the
3. Owners and representatives of foreign management of the organization and
principals whose companies are accredited exercises wide latitude in decision making
by the POEA, who come to the Philippines and receives only general supervision or
for a limited period and solely for the direction from higher level executives, the
purpose of Interviewing Filipino applicants board of directors, or stockholders of the
for employment abroad; business; an executive would not directly
4. Foreign national who comes to the perform tasks related to the actual
Philippines to teach,
conduct research studiespresent and/or
in universities provision of the service or services of the
organization
and colleges as visiting, exchange or
adjunct Professors under formal Manager: a natural person within the
agreements between the universities or organization who primarily directs the
colleges in the Philippines and foreign organization/department/ subdivision and
universities or colleges; or between the exercises supervisory and control functions
Philippine government and foreign over other supervisory, managerial or
government: provided that the exemption is professional staff; does not include first line
on a reciprocal basis; supervisors unless employees supervised
5. Permanent Resident foreign nationals, are professionals; does not include
probationary or temporary resident visa employees who primarily perform tasks
holders; necessary for the provision of the service
6. Refugees and stateless persons
recognized by DOJ; and Specialist: a natural person within the
7. All foreign nationals granted exemption by organization who possesses knowledge at
Law. [Section 2, D.O. No. 186-17] an advanced level of expertise essential to
the establishment/provision of the service
Who are excluded from securing an Alien and/or possesses proprietary knowledge of
Employment Permit [BPTCICR] the organization’s service, research
1. Members of the governing Board with equipment, techniques or management;
voting rights only and do not intervene in may include, but is not limited to, members
the management of the corporation or in of a licensed profession.
the day to day operation of the enterprise.
2. President and Treasurer, who are part- 2. At least 1 year of continuous employment
owner of the company. prior [Section 3, D.O. No. 186-17]
3. Those providing Consultancy services who
do not have employers in the Philippines.
4. Intra corporate transferee who is a
Manager, Executive or Specialist

Page 22 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

Contractual Service Supplier: Requisites a. General Rule (GR): within 15 working days
for exclusion after signing of contract/appointment
1. Must be an Executive, Manager, or b. If commencement of employment is later
Specialist that the 15 working day grace period:
2. Enters the Philippines temporarily to supply before the commencement of employment
a service pursuant to a contract between [Sec. 17, D.O. No. 186-17]
his/her employer and a service consumer

3. in the possess
Must Philippines
the appropriate educational What documents
1. Application formshould be submitted
and professional qualifications; and 2. Photocopy of passport with visa, or Cert of
4. Employed for at least 1 year prior [Section Recognition for Refugees or Stateless
3, D.O. No. 186-17] Persons
3. Original copy of notarized appointment or
Certificate of Exclusion contract of employment enumerating the
All foreign nationals excluded from securing duties and responsibilities, annual salary,
AEP shall secure Certificate of Exclusion from and other benefits of the foreign national
the Regional Office. Further, Regional Offices 4. Photocopy of Mayor’s Permit to operate
shall issue the Certificate of Exclusion within business, in case of locators in economic
two (2) working days after receipt of complete zones, certification from the PEZA or the
documentary requirements and fees. [Section Ecozone Authority that the company is
4, D.O. No. 186-17] located and operating within the ecozone,
while in case
photocopy of a construction
of license from PCAB company,
or D.O.
2. Conditions for Grant of Permit
No. 174-17 Registration should be
Non-availability of Competent, Able, and submitted in lieu of Mayor’s Permit; and
Willing persons [CAW] 5. Business Name Registration and
The employment permit may be issued to a Application Form with the Department of
non-resident alien or to the applicant employer Trade and Industry (DTI) or SEC
after a determination of the non-availability of Registration and GIS;
a person in the Philippines who is 6. If the position title of the foreign national is
competent, able and willing at the time of included in the list of regulated professions,
application to perform the services for a Special Temporary Permit (STP) from the
which the alien is desired. Professional Regulations Commission
(PRC); and
For an enterprise registered in preferred areas 7. If the employer is covered by the Anti-
of investments, said employment permit may Dummy Law, an Authority to Employ
be issued upon recommendation of the Foreign National (ATEFN) from the DOJ or
government agency charged with the from the DENR in case of mining. [Section
supervision of said registered enterprise . 5a, D.O. No. 186-17]
[Art 40, Labor Code]
In case of additional position of change in
Where to file Applications position
All applications for AEP shall be filed and Additional position of the foreign national in
processed at the DOLE Regional Office or the same company or subsequent assignment
Field Office having jurisdiction over the in related companies during the validity or
intended place of work. [Sec. 5(a), D.O. No. renewal of the AEP will be subject for
186-17] publication requirement. A change of
position or employer shall require an
When to file Applications application for new AEP [Section 5(c), D.O.
Newly hired/appointed officers may file the No. 186-17]
application for new AEP without penalty:

Page 23 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

Only one AEP at a time to establish availability or non availability of

At any given time only one AEP shall be issued able and qualified Filipino workers.
to a foreign national. A foreign national may be b. Information or criminal offense and grave
issued one AEP only at any given time. [Sec. misconduct in dealing with or ill treatment
5d, D.O. No. 186-17] of workers filed with the Regional Offices
any time.
Fees

1. Upon
a. One filing:
year validity: P9000 Processing
AEP shall beand Issuance
issued:
b. More than 1 year: plus P4000 per year a. Within three working days after publication
c. Renewal: P4000 per year and payment of fees: new AEP
2. Courier fee: P200 b. One day after receipt: renewal of AEP [Sec.
3. Loss/change of info, AEP replacement: 8, D.O. No. 186-17]
P1500
4. Certificate of exclusion: P500 Verification Inspection
[Sec. 6, D.O. No. 186-17] The authorized representatives of the Regional
Director may conduct inspection to verify
Labor Market Test [Sec. 7, D.O. No. 186-17] legitimacy of employment of the foreign
AEP application (new/change in or additional national as deemed necessary, based on the
position/subsequent assignment) should be documents submitted within two working days
published by the DOLE Regional Office in: upon payment of fees. [Sec. 9, D.O. No. 186-
1. Newspaper
working daysoffrom
general circulation
receipt within 2
of application
17]
2. DOLE Website (30 days) 3. Validity of AEP and Renewal
3. PESO (30 days)
Duration of Validity
Contents of the Publication: The AEP shall be valid for the position and the
1. Name, company for which it was issued for
2. Position,
3. Employer and address, GR: 1 year
4. A brief description of the functions to be Exception: period not exceeding 3 years; if the
performed by the foreign national, employment contract/mode of engagement
5. Qualifications, provides otherwise. [Sec. 10, D.O. No. 186-17]
6. Monthly salary range and other benefits, if
there are any. When to apply for renewal
7. Indicate that any person in the Philippines GR: not earlier than 60 days before expiration
who is competent, able and willing at the Exceptions:
time of the application to perform the a. Alien needs to leave the country;
services for which the foreign national is b. Other similar circumstances that will hinder
desired may file an objectionat the DOLE the filling of renewal within this prescribed
Regional Office. period.

Where to file objection In case of officers to be appointed/elected

a ppointed/elected
Regional Office within 30 days after a. Before AEP expiration: not later than 15
publication. working days after appointment, or before
its expiration, whichever comes later
Other information that DOLE may refer to b. After AEP expiration: before the expiration
a. Philjobnet and PESO Information System of the AEP, renewed for 1 year
(PEIS), the PRC Registry of professionals, c. Within 15 working days after the date of
and the TESDA registry of certified workers appointment or election, the foreign
national shall submit to the issuing

Page 24 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

Regional Office the Board Secretary’s 5. Revocation; Cancellation

Certification
1. The Regional Director shall revoke the Grounds for Cancellation [Non-Mi-Fa-Me-
AEP after 1 month from its issuance, if Con-Te-Mi]
no Certification is filed. [Sec. 11, D.O. a. Non-compliance with any of the
No. 186-17] requirements or conditions for which the
AEP was issued;
Expired
Expired AEP
AEP shall be processed as a new b. Misrepresentation of facts in the
application including fraudulent
application subject to the payment of required misrepresentation;
fees and penalties in relation to Section 17 c. Submission of Falsified or tampered
(Penalty for Working without AEP). [Sec. 11, documents;
D.O. No. 186-17] d. Meritorious objection or information against
the employment of the foreign national;
4. Denial of Application e. Foreign national has been Convicted of a
criminal offense or a fugitive from justice;
Grounds for Denial [Mi-Fa-Co-Mi-CAW-Wo- f. Employer Terminated the employment of
Ex]: foreign national;
a. Misrepresentation of facts in the g. Grave Misconduct in dealing with or ill
application including fraudulent treatment of workers. [Sec. 13, D.O. No.
misrepresentation 186-17]
1. i.e. false statement that has a negative
effect in the evaluation of the Effect of denial/revocation or cancellation
application made knowingly, or without Disqualified to re-apply for 10 years in case the
belief in its truth, or recklessly whether ground for denial or cancellation is:
it is true or false; a. Conviction of criminal offense or fugitive
b. Submission of Falsified documents; from justice in the country or abroad; or
c. Conviction to a criminal offense or a b. Grave misconduct in dealing with or ill
fugitive from justice in the country or treatment of workers [Sec. 14, D.O. No.
abroad; 186-17]
d. Grave Misconduct in dealing with or ill
treatment of workers; Effect of fraudulent application
e. Availability of a Filipino who is Competent, Employers, employer’s or foreign national’s
Able and Willing to do the job; representatives, and/or agents acting in behalf
f. Worked without valid AEP for more than a of the applicant found to have filed fraudulent
year; application for AEP for three (3) counts shall be
g. Application for renewal with Expired visa or barred from filing application for a period of five
with temporary visitor’s visa [Sec. 112, (5) years after due process. [Sec. 15, D.O. No.
D.O. No. 186-17] 186-17]

Effect of Denial 6. Appeal

Denial of application for AEP shall cause the
forfeiture of the fees paid by the applicant. When and where to file
[Sec. 12, D.O. No. 186-17] With the Secretary of the DOLE within 10 days
after receipt of denial/cancellation/revocation
order.

The decision of the DOLE Secretary shall be

final and executory unless a motion for
reconsideration is filled within 10 days after
receipt of the decision. No second motion for

Page 25 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

reconsideration shall be allowed. [Sec. 16, General principles in determining if time is

D.O. No. 186-17] considered as hours worked
All hours are hours worked which the employee
7. Penalty is required to give their employer, regardless
of whether or not such hours are spent in
Fines productive labor or involve physical or mental
Working without valid AEP: P10,000 for every exertion.
year or fraction thereof An employee need not leave the premises of
Employing aliens without valid AEP: P10,000 the work place in order that their rest period
for every year or fraction thereof shall not be counted, it being enough that
they stop working, may rest completely and
Failure to pay penalty: not allowed to employ may leave their work place to go elsewhere,
foreign national for any position [Sec. 17, D.O. whether within or outside the premises of their
No. 186-17] work place. [Sec. 4(b), Rule I, Book III, IRR]

If the work performed was necessary, or it

benefited the employer, or the employee
III. LABOR STANDARDS
could not abandon his work at the end of his
normal working hours because he had no
replacement, all time spent for such work shall
Labor Standards refers to the minimum
requirements prescribed by existing laws, rules be considered as hours worked, if the work
was with the knowledge of his employer or
and regulations relating to wages, hours of
immediate supervisor. [Sec. 4(c), Rule I,
work, cost-of-living allowance and other
Book III, IRR]
monetary and welfare benefits, including
occupational, safety and health standards.
The time during which an employee is inactive
[Maternity Children’s Hospital v. Secretary of
by reason of interruptions in his work
Labor, G.R. 78909 (1989)]
beyond his control shall be considered
working time either:
Note: All Articles from hereon refer to the Labor
a. If the imminence of the resumption of work
Code, unless otherwise indicated.
requires the employee’s presence at the
place of work, or
A. CONDITIONS OF b. If the interval is too brief to be utilized
effectively and gainfully in the employee’s
EMPLOYMENT
own interest. [Sec. 4, Rule I, Book III, IRR]
1. Hours of Work Employees exempted or not covered
General rule: Title I: Working Conditions and
a. Principles in determining hours Rest Periods shall apply to employees in all
worked and employees establishments and undertakings whether for
exempted or not covered profit or not. [Art. 82]

Principles in determining hours worked Note: Article 82 applies to the whole of Title I.
Hours worked shall include: This includes Service Incentive Leaves, which
1. All time during which an employee is will be discussed in a separate section.
required to be on duty or to be at a
prescribed workplace; AND Exceptions (i.e. those NOT covered by Title I):
2. All time during which an employee is 1. Government employees [Art. 82; Art. 76]
suffered or permitted to work. [Art. 84] (exception to the exception: Employees

Page 26 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

of GOCCs created under the Corporation transfer, suspend, lay off, recall, discharge,
Code) assign or discipline employees. [Art.
2. Managerial Employees [Art. 82] 219(m)]
3. Members of the managerial staff [Art. 82]
4. Field Personnel [Art. 82] Characteristics of managerial employees
5. Members of the family of the employer who [Sec. 2(b), Rule I, Book III, IRR]
are dependent on him for support [Art. 82]; Managerial employees are exempted from the
6. Domestic
141, RA workers
10361] or kasambahay
(exception to [Art.
the coverage
they meet ofall Book
of theIII Articles conditions:
following 83 through 96 if
exception: Assignment in a Commercial, 1. Their primary duty consists of the
Industrial or Agricultural Enterprise) management of the establishment in
7. Persons in the personal service of another which they are employed or of a
8. Workers who are paid by result as department or subdivision thereof.
determined by DOLE regulation [Art. 82] 2. They customarily and regularly direct the
work of two or more employees therein.
(1) Government Employees 3. They have the authority to hire or fire
employees of lower rank; or their
The terms and conditions of employment of all suggestions and recommendations as
government employees, including employees to hiring and firing and as to the promotion
of GOCCs, are governed by the Civil Service or any other change of status of other
rules and regulations, not by the Labor Code employees, are given particular weight.
[Art. 291].
Managerial employees and managerial staff
However, not all GOCCs are governed by the are determined by their job description and not
Civil Service Rules; only those created by their job title. [Peñarada v. Baganga Plywood
original charter are governed by the Civil Corp., G.R. No. 159577 (2006)]
Service rules:
(3) Members of the managerial staff
“Following Sec. 2(i) Art. IX-B of 1987 Phil. (supervisory employees)
Constitution, the test in determining whether a
government owned corporation is subject to Definition
the Labor Code or the Civil Service law is Supervisory employeesare those who, in the
finding out what created it – if it is created by interest of the employer, effectively
a special charter, then, Civil Service Law recommend such managerial actions if the
applies, if it is created by the General exercise of such authority is not merely
Corporation Law, then the Labor Code routinary or clerical in nature but requires the
applies.” [PNOC Energy Development Corp. v. use of independent judgment. [Art. 219(m)]
NLRC, G.R. No. 79182 (1991)]
Art. 82 also includes managerial staff
(2) Managerial Employees (supervisory employees) in the definition of
managerial employees. The definition in Art. 82
Two definitions of “managerial employee” covers more people than that in Art. 219(m). In
in the Labor Code: effect, managerial employees in Art. 82
1. One whose primary duty consists of the includes supervisors, but Art. 219(m) does not,
management of the establishment in which for purposes of the right to self-organization.
they are employed or of a department or
subdivision thereof and to other officers or
members of the managerial staff. [Art. 82]
2. One who is vested with the powers or
prerogatives to lay down and execute
management policies and/or to hire,

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Managerial Staff is included as they are ascertain if actual hours of work in the field can
considered managerial employees as well be determined with reasonable certainty by the
[Sec. 2(c), Rule I, Book III, IRR] employer. In so doing, an inquiry must be
Officers or members of a managerial staff are made as to whether or not the employee’s
also exempted if they perform the following time and performance are constantly
duties and responsibilities: supervised by the employer. [ Far East
1. Their primary duty consists of the Agricultural Supply v. Lebatique, G.R. No.

performance of workofdirectly
management policies related to
their employer; 162813 (2007)]
2. Customarily and regularly exercise Although the fishermen perform non-
discretion and independent judgment; agricultural work away from petitioner’s
3. (a) Regularly and directly assist a business offices, the fact remains that
proprietor or a managerial employee throughout the duration of their work they are
whose primary duty consists of the under the effective control and supervision
management of the establishment in which of petitioner through the vessel’s patron or
he is employed or subdivision thereof; OR master. Hence, the fishermen are not “field
(b) Execute under general supervision personnel”. [Mercidar Fishing Corporation v.
work along specialized or technical lines NLRC, G.R. No. 112574 (1998)]
requiring special training, experience, or
knowledge; OR (5) Dependent Family Members
(c) Execute, under general supervision,
special assignments and tasks; Workers who are family members of the
4. Do not devote more than 20% of their hours employer, and who are dependent on him for
worked in a work week to activities which their support, are outside the coverage of this
are not directly and closely related to the Title on working conditions and rest periods
performance of the work described in [Art. 82].
paragraphs (1), (2) and (3) above.
(6) Domestic Helpers (Workers)
Effective recommendatory power
Supervisory employees are those who, in the Definition
interest of the employer, effectively Domestic worker or “Kasambahay” refers to
recommendsuch managerial actions and the any person engaged in domestic work within
exercise of such authority is not merely an employment relationship such as but not
routinary or clerical in nature but requires the limited to the following:
use of independent judgment [Art. 219(m)]. 1. general househelp,
2. nursemaid or “yaya”,
(4) Field Personnel 3. cook,
4. gardener or
Field personnel are non-agricultural 5. laundry person
employees:
1. Who regularly perform their duties away "Domestic work" refers to work performed in
from the principal or place of business or or for a household. [Sec. 3(d), IRR of RA10361]
branch office of the employer; and
2. Whose actual hours of work in the field "Household" refers to the immediate
cannot be determined with reasonable members of the family or the occupants of the
certainty. [Art. 82] house who are directly and regularly provided
services by the kasambahay. [Sec. 3(g), IRR of
Legal Test: Control & Supervision of RA 10361]
employer
In order to determine whether an employee is
a field employee, it is also necessary to

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U.P. LAW BOC LABOR 1 LABOR LAW

The definition of “Kasambahay” excludes: (8) Workers Paid by Result (piece-workers)

1. Any person who performs domestic work
only occasionally or sporadically and not Definition
on an occupational basis. Workers who are paid by results are those
2. Children who are under foster family whose output rates are in accordance with the
arrangement, and are provided access to standards prescribed under Sec. 8, Rule VII,
education and given an allowance Book Three of these regulations, or where such
incidental
RA 10361]to education
[Sec. 4(d), Art. 1, rates
and have been fixed
Employment inbyaccordance
the Secretarywith
of Labor
the
3. Service providers, aforesaid Section.
4. Family drivers. [Sec. 2 of the IRR,
RA10361] These include those who are paid on piece
work, “takay,” “pakiao” or task basis, and other
Exclusivity of function required nontime work. [Sec. 2(e), Rule I, Book III, IRR]
Note that the definition contemplates a
domestic helper who is employed in the Workers under piece-rate employment have no
employer’s home to minister exclusivelyto the fixed salaries and their compensation is
personal comfort and enjoyment of the computed on the basis of accomplished tasks.
employer’s family. [Azucena] That their work output might have been
affected by the change in their specific work
Thus, it has been held that the following assignments does not necessarily imply that
personnel are NOTdomestic employees: any resulting reduction in pay is tantamount to
1. House-help or laundry-women working in constructive dismissal. It is the prerogative of
staffhouses of a company, as well as the management to change their assignments
drivers, houseboys, or gardeners or to transfer them. [Best Wear Garments v. De
exclusively working in the company, the Lemos and Ocubillo, G.R. No. 191281 (2012)]
staffhouses and its premises [Apex Mining
Company v. NLRC, G.R. No. 94951 Workers paid by results may be grouped into
(1991)] two: 1) those whose time and performance is
2. House-help doing chores for the supervised by the employer and 2) those
employer's family, while also fulfilling tasks whose time and performance is unsupervised
connected with the employer's business by the employer [Azucena, p. 289].
(bakery) such as cooking, filling orders,
baking orders, and other clerical work Must be unsupervised to be excluded
[Fernando Co v. Vargas, G.R. No. 195167 Those who are engaged on task basis,
(2011)] purely commission basis, or those who are
paid a fixed amount for performing work
(7) Persons in Personal Service of Another irrespective of the time consumed in the
performance thereof are excluded from
Persons in the personal service of another are receiving benefits such as nightime pay,
not covered by Title I: Working Conditions and holiday pay, service incentive leave, inter alia,
Rest Periods if they: provided their time and performance is
a. Perform such services in the employer’s unsupervised by the employer. [Labor
home which are usually necessary or Congress of the Philippines v. NLRC, G.R. No.
desirable for the maintenance and 123938 (1998)]
enjoyment thereof; or
b. Minister to the personal comfort Rule on overtime pay
convenience or safety of the employer as Workers who are paid by results, if their
well as the members of his employer’s output rates are in accordance with the
household. [Sec. 2 (d), Rule I, Book III, standards prescribed under Sec. 8, Rule VII,
IRR] Book III, of those regulations, or where such

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U.P. LAW BOC LABOR 1 LABOR LAW

rates have been fixed by the Secretary of Labor determining the existence or absence of
in accordance with the aforesaid section, are employer-employee relationship. [Tan
Tan v.
not entitled to receive overtime pay . [Sec. Lagrama, G.R. No. 111042 (1999)]
2(e), Rule I; Labor Congress of the Philippines
v. NLRC, G.R. No. 123938 (1998)] b. Compensable Time

Summary of benefits payable i. Normal hours of work

Benefit Unsuper- Supervised General Rule: 8-Hour Labor Law
vised
The normal hours of work of any employee
Applicable Yes shall not exceed eight (8) hours a day. [Art. 83]
statutory
minimum wage Note: Art. 83 of the Labor Code only sets a
[Art. 101] maximum of number of hours as "normal hours
of work" but did not prohibit work of less than
Night No Yes eight hours. [Legend Hotel v. Realuyo, G.R.
differential 153511 (2012)]
[Sec. 1(e),
Rule II] Exception to 8-Hour Law: Work Hours of
Service No Yes Health Personnel
incentive leave Health personnel in:
[Sec. 1(d), a. Cities and municipalities with a population
Rule V] of at least one million (1,000,000) OR
b. Hospitals and clinics with a bed capacity of
Holiday pay Yes at least one hundred (100)
[Sec. 8(b), shall hold regular office hours for eight (8)
Rule IV] hours a day, for five (5) days a week,
exclusive of time for meals.
13th month Yes, provided the worker
pay [Revised has rendered at least 1 HOWEVER, where the exigencies of the
Guidelines on month of service during the service require that they work for six (6) days
the calendar year or forty-eight (48) hours, they shall be entitled
Implementation to an additional compensation of at least thirty
of the 13th percent (30%) of their regular wage for work on
Month Pay the sixth day.
Law (1987)]
Other statutory No Yes “Health personnel" shall include:
benefits [Labor 1. Resident physicians, nurses, nutritionists,
Congress of
dietitians, pharmacists, social workers,
the Philippines
laboratory technicians, paramedical
v. NLRC, G.R. technicians, psychologists, midwives,
No. 123938 attendants and all other hospital or clinic
(1998)] personnel. [Art. 83]
2. Medical secretaries [Azucena]

Not determinative of EER ii. Night shift differential

Payment by result is not determinative of
employer-employee relationship. It is a method Definition
of compensation and does not define the Night Shift Differential is the additional
essence
computingof compensation,
the relation. It not
is aa method of
basis for compensation of 10% of an employee’s

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U.P. LAW BOC LABOR 1 LABOR LAW

regular wagefor each hour of work performed for the statutorily fixed or voluntary agreed
between 10pm and 6am. [Art. 86] hours of labor he is supposed to do. [PNB v.
PEMA, G.R. No. L-30279 (1982)]
Illustration : If an employee has a regular wage
of P100 for each hour of work performed Overtime on ordinary working day
between 10PM and 6AM, he/she shall be paid Work may be performed beyond eight hours a
P110 per hour worked during such time day, provided that the employee is paid an
interval. additional compensation
regular wage equivalent
plus at least 25% to 87]
thereof. [Art. his
Coverage
Aside from those enumerated under Art. 82 as Overtime work on holiday or rest day
excluded from Title I: Working Conditions and Work performed beyond eight hours on a
Rest Periods, those employed in retail and holiday or rest day shall be paid an additional
service establishments regularly employing not compensation equivalent to the rate of the first
more than five (5) workers are also NOT eight hours on a holiday or rest day plus at least
entitled to Night Shift differential [Sec. 1, Rule 30%thereof. [Art. 87]
II, Book III, IRR]
Computation of additional compensation
Rest days (night-off) Base of Computation:Regular wage – means
Night shift employees are entitled to a weekly regular base pay.
night-off (usually Saturday evening) or a
weekly rest period of 24 hours beginning at the It includes the cash wage only without
start of the night shift [See also Art. 91]. deduction on account of facilities provided by
the employer. [Art. 90]
Work on special days
Night shift employees are also entitled to the It excludes money received in different
premium pay on special days and holidays. concepts, such as Christmas bonus and other
These days are reckoned as calendar days fringe benefits. [Bisig ng Manggagawa ng
which start at midnight and end at the following Philippine Refining Co. v. Philippine Refining
midnight. The premium pay for the night shift Co., G.R. L-27761 (1981)]
also starts or ends at midnight. However, the BUT when the overtime work was performed
employment contract, company policy or CBA on the employee’s rest day or on special
may provide that in the case of night shift days or regular holidays(Art. 93 and 94), the
workers, days—including special days and premium pay, must be included in the
regular holidays—shall begin on the night computation of the overtime pay. [See: p. 19 of
before a calendar day. [Chan, Pre-Week Handbook on Workers’ Statutory Monetary
Guidelines] Benefits, issued by the Bureau of Working
Conditions, 2006]
iii. Overtime work
ILLUSTRATIONS
Overtime compensationis additional pay for Overtime on a Regular Day (OTRD)
service or work rendered or performed in Work may be performed beyond eight (8) hours
excess of eight hours a day by employees or a day provided that the employee is paid for the
laborers covered by the Eight-hour Labor Law. overtime work, an additional compensation
[National Shipyard and Steel Corp. v. CIR, equivalent to his regular wage plus at least
G.R. No. L-17068 (1961)] twenty-five percent (25%) thereof [Art. 87]

Rationale OTRD = Hourly wage x 125% x number of

There can be no other reason than that he is hours of OT work
made to work longer than what is
commensurate with his agreed compensation

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U.P. LAW BOC LABOR 1 LABOR LAW

Work on Scheduled Rest Day (WRD) 6. Where overtime work is necessary to avail
Work performed on a rest day shall be paid an of favorable weather or environmental
additional compensation equivalent to 30% of conditions where performance or quality of
the regular wage. [Art. 93] work is dependent thereon. [added by Rule
1, Sec. 10]
WRD = Regular Wage x 130%
Overtime pay does not preclude night
Overtime on Scheduled Rest Day (OTSRD) differential pay
Where an employee is made or permitted to When the tour of duty of a laborer falls at
work on his scheduled rest day, he shall be nighttime [between 10:00pm and 6:00am], the
paid an additional compensation of at least receipt of overtime pay will not preclude the
thirty percent (30%) of his regular wage. An right to night differential pay. The latter is
employee shall be entitled to such additional payment for work done during the night, while
compensation for work performed on Sunday the other is payment for the excess of the
only when it is his established rest day. [Art. regular eight-hour work. [Naric v. Naric
93(a)] Workers Union, G.R. No. L-12075 (1959)]

OTSRD = Hourly Wage x 169% x number of SYNTHESIS OF RULES

hours of OT work 1. An employer cannot compel an employee
to work overtime
Note: 169% was derived by adding 39% (which Exception: Emergency overtime work as
is 30% of 130 or 1.3x.3 to 130% provided for in Art. 89
Emergency overtime 2. Additional compensation is demandable
Any employee may be required by the only if the employer had knowledge and
employer to perform overtime work in any of consented to the overtime work rendered
the following cases: by the employee.
1. When the country is at war or when any Exception: Express approval by a superior
other national or local emergency has been NOT a requisite to make overtime
declared by the National Assembly or the compensable:
Chief Executive; a. If the work performed is necessary, or
2. When it is necessary to prevent loss of life that it benefited the company; or
or property or in case of imminent danger b. That the employee could not abandon
to public safety due to an actual or his work at the end of his eight-hour
impending emergency in the locality work because there was no substitute
caused by serious accidents, fire, flood, ready to take his place. [Sec. 4(c), Rule
typhoon, earthquake, epidemic, or other I; Manila Railroad Co. v. CIR, G.R. L-
disaster or calamity; 4614 (1952)]
3. When there is urgent work to be performed
on machines, installations, or equipment, in Note: However, the Court has also ruled
order to avoid serious loss or damage to that a claim for overtime pay is NOT
the employer or some other cause of justified in the absence of a written
similar nature; authority to render overtime after office
4. When the work is necessary to prevent loss hours during Sundays and holidays.
or damage to perishable goods; and [Global Incorporated v. Atienza, G.R. L-
5. Where the completion or continuation of 51612-13 (1986)]
the work started before the eighth hour is
necessary to prevent serious obstruction or Daily time records cannot prove the
prejudice to the business or operations of performance of overtime work if the same
the employer. [Art. 89] had no prior authorization by the
management. [Robina Farms Cebu/

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U.P. LAW BOC LABOR 1 LABOR LAW

Universal Robina Corp. v. Villa, G.R. No. expressed through collective bargaining or
175869 (2016)] other legitimate workplace mechanisms of
participation such as labor management
3. Compensation for work rendered in excess councils, employee assemblies or
of the 8 normal working hours in a day: referenda.
a. For ordinary days, additional 25% of 2. In firms using substances, chemicals and
the basic hourly rate. processes or operating under conditions
b. For rest 30%
additional day/special
of the basicday/holiday,
hourly rate.
where
human there are airborne
carcinogens contaminants,
or noise prolonged
exposure to which may pose hazards to
4. A given day is considered an ordinary day, employees’ health and safety, there must
unless it is a rest day. be a certification from an accredited
health and safety organization or
5. Undertime does NOT offset overtime. practitioner from the firm’s safety
Undertime work on any particular day shall committee that work beyond eight hours is
not be offset by overtime work on any other within threshold limits or tolerable levels of
day. Permission given to the employee to exposure, as set in the OSHS.
go on leave on some other day of the week 3. The employer shall notify DOLE, through
shall NOT exempt the employer from the Regional Office having jurisdiction over
paying the additional compensation the workplace, of the adoption of the CWW
required in this Chapter. [Art. 88] scheme. The notice shall be in DOLE
CWW Report Form attached to this
Offsetting work on a regular day with work Advisory. [DOLE Advisory No. 02-04]
rendered on a holiday or rest day is prohibited
because such deprives the employee of Effects of CWW
additional pay or premium. [Lagatic v. NLRC, 1. Unless there is a more favorable practice
G.R. No. 121004 (1998)] existing in the firm, work beyond eight
hours will not be compensable by
(a) Compressed work week overtime premium provided the total
(CWW) number of hours worked per day shall not
exceed twelve (12) hours. In any case, any
[DOLE Advisory No. 02, Series of 2004] work performed beyond 12 hours a day or
48 hours a week shall be subject to
A CWW refers to one where the normal overtime premium.
workweek is reduced to less than 6 daysbut 2. Consistent with Art. 85, employees under a
the total number of work hours of 48 hours per CWW scheme are entitled to meal periods
week shall remain. Under the CWW scheme, of not less than 60 minutes. There shall be
the normal workday goes beyond eight no impairment of the right of the employees
hours but not exceed 12 hours, without the to rest days as well as to holiday pay, rest
corresponding overtime premium. [DOLE day pay or leaves in accordance with law
Advisory No. 04, Series of 2010]. or applicable collective bargaining
agreement or company practice.
In excess of such, the employer is obliged to 3. Adoption of the CWW scheme shall in no
pay the worker the overtime premium. case result in diminution of existing
benefits. Reversion to the normal eight-
Conditions for CWW hour workday shall not constitute a
1. The CWW scheme is undertaken as a diminution of benefits.
result of an express and voluntary
agreement of majority of the covered Rationale: Although the right to overtime pay
employees or their duly authorized cannot be waived as per Cruz v. Yee Sing
representatives. This agreement may be [G.R. No. L-12046 (1959)], D.O. No. 21

Page 33 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

sanctions the waiver of overtime pay in Exceptions: Employees may be given a meal
consideration of the benefits that the period of not less than twenty (20) minutes
employees will derive from the adoption of a provided that such shorter meal period is
compressed workweek scheme, thus: credited as compensable hours worked of the
employee:
The compressed workweek scheme was 1. Where the work is non-manual work in
originally conceived for establishments wishing nature or does not involve strenuous
to save on energy costs, promote greater work physical exertion;
efficiency and lower the rate of employee 2. Where the establishment regularly
absenteeism, among others. Thus, under this operates not less than sixteen (16) hours a
scheme, the generally observed workweek of day;
six (6) days is shortened to five (5) days, but 3. In case of actual or impending
prolonging the working hours from Monday to emergencies or there is urgent work to be
Friday without the employer being obliged for performed on machineries, equipment or
pay overtime premium compensation for work installations to avoid serious loss which the
performed in excess of eight (8) hours on employer would otherwise suffer; OR
weekdays, in exchange for the benefits that will 4. Where the work is necessary to prevent
accrue to the employees (e.g. savings on meal serious loss of perishable goods [par. 1,
and snack expenses; longer weekends etc). Sec. 1, Rule I, Book III, IRR]
[Bisig Manggagawa sa Tryco v. NLRC, et al.,
G.R. No. 151309 (2008)] The eight-hour work period does not include
the meal break. Employees are not prohibited
(b) Built-in overtime from going out of the premises as long as they
return to their posts on time. Nowhere in the
Composite or Package Pay NOT per se law may it be inferred that employees must
illegal; Conditions for Validity take their meals within the company premises.
Composite or “package pay” or “all-inclusive [Philippine Airlines v. NLRC, G.R. No. 132805
salary” is an arrangement where the (1999)]
employee’s salary includes the overtime pay.
In other words, the overtime pay is “built-in”. SYNTHESIS OF THE RULES
Such arrangement is valid provided that: General Rule: Meal periods are NOT
1. There is a clear written agreement compensable.
knowingly and freely entered by the
employee; and Exception:
2. The mathematical result shows that the It becomes compensable:
agreed legal wage rate and the overtime 1. Where the lunch period or meal time is
pay, computed separately, are equal to or predominantly spent for the employer’s
higher than the separate amounts legally benefit. [Azucena citing 31 Am. Jur. 881;
due. [Damasco v. NLRC, G.R. 115755 Duka, Labor Laws and Social Legislation]
(2000)] 2. Meal periods of 1 hour are deemed
compensable when the employee is on
c. Non-compensable hours; When continuous shift. [National Development
compensable Co. v. CIR, G.R. No. L-15422, (1962)]
3. Shortened meal period of less than 1 hour
i. Meal break (say, 30 minutes) must be compensable.
[Sec. 7, Rule I, Book III, IRR]
General Rule: Subject to such regulations as
the Secretary of Labor may prescribe, it shall Note: To shorten meal time to less than 20
be the duty of every employer to give his minutes is not allowed. If the so-called meal
employees not less than sixty (60) minutes time is less than 20 minutes, it becomes only a
time-off for their regular meals. [Art. 85]

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U.P. LAW BOC LABOR 1 LABOR LAW

REST PERIOD and is considered working hours worked, whether used productively by
time. the employees or not.

Exception to the Exception:Shortened meal If they last more than 20 minutes, the time
breaks upon the employees’ request – NOT may not be treated as hours worked if:
compensable. 1. the employees can leave their workplace or
go elsewhere whether within or without the
The employees themselves may request that work premises; OR
the meal period be shortened so that they can 2. the employees can use the time effectively
leave work earlier than the previously for their own interest.
established schedule. [Drilon: Letter to Kodak
Philippines, Nov. 27, 1989; Cilindro: BWC- In this case, the employer may extend the
WHSD,Opinion No. 197, s. 1998] working hours beyond the regular schedule on
that day to compensate for the loss of
Conditions for shortened meal breaks upon productive man-hours without being liable for
employee’s request overtime pay. [Policy Instruction No. 36, May
1. The employees voluntarily agree in writing 22, 1978]
to a shortened meal period of 30 minutes
and are willing to waive the overtime pay Note: The time during which an employee is
for such shortened meal period; inactive by reason of work interruptions beyond
2. There will be no diminutionwhatsoever in his control is considered working time, either if
the salary and other fringe benefits of the the imminence of the resumption of work
employees existing before the effectivity of requires the employee’s presence at the place
the shortened meal period; of work or if the interval is too brief to be utilized
3. The work of the employees does not effectively and gainfully in the employee’s own
involve strenuous physical exertionand interest. [Sec. 4(d), Rule I, Book III, IRR]
they are provided with adequate “coffee
breaks” in the morning and afternoon; iii. Idle time
4. The value of the benefits derived by the
employees from the proposed work The idle time that an employee may spend for
arrangement is equal to or resting and dining which he may leave the spot
commensurate with the compensation or place of work though not the premises of his
due them for the shortened meal period as employer, is not counted as working time
well as the overtime pay for 30 minutes as only where the work is broken or is not
determined by the employees concerned; continuous. [National Development Co. v. CIR,
5. The overtime pay of the employees will G.R. No. L-15422 (1962)]
become due and demandable if ever they
are permitted or made beyond 4:30pm; A laborer need not leave the premises of the
and factory, shop or boat in order that his period of
6. The effectivity of the proposed working rest shall not be counted, it being enough that
time arrangement shall be of temporary he "cease to work", may rest completely and
duration as determined by the Secretary leave or may leave at his will the spot where he
of Labor. [BWC-WHSD Opinion No. 197, s. actually stays while working, to go somewhere
1998] else, whether within or outside the premises of
said factory, shop or boat. If these requisites
ii. Power interruptions or are complied with, the period of such rest
brownouts shall not be counted. [Luzon Stevedoring Co.
v. Luzon Marine Department Union, G.R. No.
Brownouts of short duration, but not L-9265 (1957)]
exceeding 20 minutes, shall be treated as

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U.P. LAW BOC LABOR 1 LABOR LAW

iv. Travel time the employer are considered hours

worked.
Travel time [Department of Labor Manual] 2. Attendance in CBA negotiations or
Travel from home to work – An employee grievance meeting is compensable hours
who travels from home before his regular worked provided that such is stipulated in
workday and returns to his home at the end of the CBA. [Department of Labor Manual,
the workday is engaged in ordinary home-to- Sec. 4323.03]
work travel which is NOT considered hours 3. Attendance in hearings in cases filed by the
worked, EXCEPT: employee is NOT compensable hours
a. When called to travel during emergency; worked.
b. When travel is done through a conveyance 4. Participation in strikes is NOT
furnished by the employer; compensable working time.
c. Travel is done under vexing and dangerous
circumstances; Attendance in lectures, meetings, and training
d. Travel is done under the supervision and periods must necessarily beneficial to the
control of the employer. employer. [Sec. 6(c), Rule I, IRR]

Travel that is all in the. day’s work – Time v. Commuting time

spent by an employee in travel from jobsite to
jobsite during the workday, must be counted Employees performing tasks during their
as hours worked. Where an employee is commute which are not merely incidental to the
required to report at a meeting place to receive employee’s job, and are primarily for the
instructions or to perform other work there, the benefit of the employer (such as a company
travel from the designated place to the driver performing a carpool service for co-
workplace is part of the day’s work. workers according to an agreement with the
company), are entitled to overtime pay. [Hilario
Hilario
Travel away from home – Travel that keeps Rada v. NLRC, G.R. No. 96078 (1992)]
an employee away from home overnight is
travel away from home. Travel away from vi. Waiting time
home is worktime when it cuts across the
employee’s workday. The time is hours worked Rest period – short duration or “coffee
not only on regular working hours but also break”
during the corresponding hours on non- 1. Rest periods of short duration during
working days. working hours shall be counted as hours
worked. [par. 2, Art. 84, par. 2]
Lectures, meetings, trainings 2. Rest periods or coffee breaks running from
Attendance at lectures, meetings, training five (5) to twenty (20) minutes shall be
programs, and other similar activities shall considered as compensable working time.
NOT be counted as working time if ALL of the [par. 2, Sec. 7, Rule I, Book III, IRR]
following conditions are met:
1. Attendance is outside of the employee’s On call
regular working hours; Compensable work time, if employee is:
2. Attendance is in fact voluntary; and 1. Required to remain on call in the
3. The employee does not perform any employer’s premises or so close thereto
productive work during such attendance. 2. That he cannot use the time effectively and
[Sec. 6, Rule I, Book III, IRR] gainfully for his own purpose shall be
considered as working while on call.
Notes:
1. Attendance in lectures, meetings, and Note: An employee who is not required to leave
training periods sanctioned or required by word at his home or with company officials

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U.P. LAW BOC LABOR 1 LABOR LAW

where he may be reached is NOT working COMPULSORY WORK ON REST DAY

while on call. [Sec. 5 (b), Rule I, Book III, IRR] The employer may require his employees to
work on any day:
Inactive due to work interruptions 1. In case of actual or impending
The time during which an employee is inactive emergencies caused by serious accident,
by reason of interruptions in his work beyond fire, flood, typhoon, earthquake, epidemic
his control shall be considered working time or other disaster or calamity to prevent loss
either: of life and property, or imminent danger to
1. If the imminence of the resumption of work public safety;
requires the employee's presence at the 2. In cases of urgent work to be performed on
place of work OR the machinery, equipment, or installation,
2. If the interval is too brief to be utilized to avoid serious loss which the employer
effectively and gainfully in the employee's would otherwise suffer;
own interest. [Sec. 4 (d), Rule I, Book III, 3. In the event of abnormal pressure of work
IRR] due to special circumstances, where the
employer cannot ordinarily be expected to
2. Rest Periods resort to other measures;
. 4. To prevent loss or damage to perishable
It shall be the duty of every employer, whether goods;
operating for profit or not, to provide each of his 5. Where the nature of the work requires
employees a rest period of not less than continuous operations and the stoppage of
twenty-four (24) consecutive hours after work may result in irreparable injury or loss
every six (6) consecutive normal work days. to the employer; and
[Art. 91 (a)] 6. Under other circumstances analogous or
similar to the foregoing as determined by
Preference of the employee the Secretary of Labor and Employment.
The employer shall determine and schedule [Art. 92]
the weekly rest day of his employees subject to
collective bargaining agreement and to such Synthesis of the Rules
rules and regulations as the Secretary of Labor 1. Rest day of not less than 24 consecutive
and Employment may provide. However, the hours after 6 consecutive days of work.
employer shall respect the preference of 2. No work, no pay principle applies.
employees as to their weekly rest day when 3. If an employee works on his designated
such preference is based on religious grounds. rest day, he is entitled to a premium pay.
[Art. 94 (b)] 4. Premium pay is additional 30% of the basic
pay.
The employee shall make known his 5. Employer selects the rest day of his
preference to the employer in writing at least employees
seven days before the desired effectivity of the 6. However, employer must consider the
initial rest day so preferred. religious reasons for the choice of a rest
day.
When the choice of the employee as to his rest
day based on religious grounds will inevitably PREMIUM PAY
result in serious prejudice or obstruction to the Premium pay refers to the additional
operations and the employer cannot normally compensation for work performed within 8
be expected to resort to other measures, the hours on non-work days, such as rest days and
employer may so schedule the weekly rest day special days.
of his choice for at least two days in a month.
[Rule III, Sec. 4] Coverage [Sec. 7, Rule III, Book III, IRR]
General Rule:All employees

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U.P. LAW BOC LABOR 1 LABOR LAW

Exceptions: Work on a Sunday or holiday which is also

1. Those of the government and any of the a scheduled rest day
political subdivision, including government- All establishments and enterprises may
owned and controlled corporations; operate or open for business on Sundays and
2. Managerial employees as defined in Book holidays provided that the employees are given
III; the weekly rest day and the benefits as
3. Househelpers and persons in the personal provided in this Rule. [Sec. 2, Rule III, Book III,
service of another; IRR]
4. Workers who are paid by results, including
those who are paid on piece rate, takay, Compensation on rest day/Sunday/holiday
pakyaw, or task basis, and other noontime Except those employees referred to under Sec.
work, if their output rates are in accordance 2, Rule I, Book III:
with the standards prescribed in the 1. An employee who is made or permitted to
regulations, or where such rates have been work on his scheduled rest day shall be
fixed by the Secretary of Labor and paid with an additional compensation of at
Employment; least 30% of his regular wage.
5. Field personnel, if they regularly perform 2. An employee shall be entitled to such
their duties away from the principal or additional compensation for work
branch office or place of business of the ER performed on a Sunday only when it is his
and whose actual hours of work in the field established rest day.
cannot be determined with reasonable 3. An employee shall be paid an additional
certainty. compensation of at least 30% of his regular
wage for work performed on Sundays and
Premium pay rates [Handbook on Workers holidays, where the nature of the work of
Statutory Monetary Benefits, 2018] the employee is such that he has no regular
work days and no regular rest days can be
When Work Performed Premium Pay
scheduled. [Sec. 7, Rule III, Book III, IRR]
On scheduled rest day 130% of regular
wage CBA on higher premium pay/Rate
Adjustments
On Sunday ONLY IF this 130% of regular Where the collective bargaining agreement or
is the ESTABLISHED wage other applicable employment contract
rest day stipulates the payment of a higher premium
pay than that prescribed under this Article, the
On Sunday and holidays, 130% of regular employer shall pay such higher rate. [Art. 93
when no regular work wage (d)] The employer and his employees or their
and rest days representatives are not prevented from
entering into any agreement with terms more
On any special 130% of regular favorable to the employees. [Sec. 9, Rule II,
holiday/special day wage Book III, IRR]

On any special holiday/ 150% of regular Nothing in this rule shall justify an employer in
special day falling on wage reducing the compensation of his employees
scheduled rest day for the unworked Sundays, holidays, or other
rest days, which are considered paid off days
On a regular holiday 260% of regular
or holidays by agreement or practice subsisting
falling on a rest day wage
upon the effectivity of the Code. [Sec. 8, Rule
III, Book III, IRR]

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U.P. LAW BOC LABOR 1 LABOR LAW

3. Service Charge other. [Philippine Hoteliers, Inc., Dusit

Hotel-Nikko v. NUWHRAIN-APL-IUF-Dusit
NUWHRAIN-APL-IUF-Dusit
Coverage Hotel Nikko Chapter, G.R. No. 181972
Employers (2009)]
This rule shall apply only to establishments
which collect service charges such as: Service charge not included in determining
a. Hotels, restaurants, lodging houses, night compliance with minimum wage
clubs, cocktail lounge, massage clinics, In the event that the minimum wage is
bars, casinos and gambling houses; increased by law or wage order, service
b. Similar enterprises including those entities charges paid to the covered employees shall
operating primarily as private subsidiaries not be considered in determining the covered
of the Government [Sec. 1, DO 206-19, establishment’s compliance with the increased
IRR of RA11360] minimum wage. [Sec. 5, DO 206-19, IRR of
RA11360]
Employees
Shall apply to ALL employees of covered In Relation to Collective Bargaining
employers: Agreements and Employer-Employee
1. Regardless of their positions, designations, Agreements
or employment status, and Nothing in the Rules shall prevent the employer
2. Irrespective of the method by which their and employee from entering into any
wages are paid. [Sec. 2 (a), DO 206-19, agreement with terms more favorable to the
IRR of RA11360] employees than those granted therein, or be
used to diminish any benefit granted to the
Exceptions employees under existing laws, agreement
Managerial employees [Sec. 2 (c), DO 2016- AND voluntary employer practice. [Sec. 6, Rule
19, IRR of RA11360] VI, Book III, IRR]

Distribution, amended by RA11360 The rule is without prejudice to existing, future

Pursuant to the 2019 amendments to Art. 96, collective bargaining agreements.[Sec. 7, Rule
all service charges collected by hotels, shall VI, Book III, IRR]
be distributed completely and equally
among the covered workers except managerial Synthesis of the Rules
employees, based on actual hours or days of 1. Service charges must be pooled;
work or service rendered, among the covered 2. Where a restaurant or similar
employees, including those already receiving establishment does not collect service
the benefit of sharing in the service charges. charges but has a practice or policy of
[Sec. 3, DO 206-19, IRR of RA11360] monitoring and pooling tips given
voluntarily by its customers to its
The shares shall be distributed to employees employees, the pooled tips should be
not less than once every 2 weeks or twice a monitored, accounted for and distributed in
month at intervals not exceeding 16 days.[Sec. the same manner as the services charges
4, DO 206-19, IRR of RA11360] [Handbook on Workers’ Statutory
Monetary Benefits, 2018];
Notes: 3. The amount collected shall be distributed
1. The P2,000.00 salary ceiling for completely and equally among the covered
entitlement thereto is no longer applicable. workers;
2. [The employees’] right to their shares in the 4. It shall be given twice a month with
service charges collected by [the employer] intervals of not more than 16 days;
is distinct and separate from their right to 5. Payment of service charges will not be
ECOLA; gratification by the [employer] of considered in compliance with any
one does not result in the satisfaction of the

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U.P. LAW BOC LABOR 1 LABOR LAW

increase in the minimum wage by law or Cooperative Development upon approval

wage order. of the Secretary of Labor.

Note: Workers in registered barangay micro

B. WAGES business enterprise are only exempted from
the Minimum Wage Law, not from the Title on
Wages [RA 9178].
1. Definition, Components, and a. Wage vs. Salary
Exclusions
Wages and salary are in essence synonymous.
Definition [Songco v. NLRC, G.R. No. L-50999 (1990)]
It is the remuneration or earnings, however
designated: There are slight differences:
1. Capable of being expressed in terms of
money; Wage Salary
2. Whether fixed or ascertained on a time,
task, piece, or commission basis, or other Paid for skilled or Paid to white collar
method of calculating the same; unskilled manual workers and denote
3. Payable by an employer to an employee labor a higher grade of
under a written or unwritten contract of employment

employment –
a. for work done or to be done; or Not subject to Subject to
execution, execution,
b. for services rendered or to be rendered
garnishment or garnishment or
[Art. 97(f)]
attachment except for attachment [Gaa v.
debts related to CA, G.R. No. L-
Coverage/Exclusions
necessities [Art. 44169 (1985)]
Wage includes the fair and reasonable value of 1708]
facilities furnished by the employer to the
employee. [Art. 97(f)] while allowances are
excluded from the basic salary or wage b. Distinguish: Facilities and
computation. [Cebu Institute of Technology v. Supplements
Ople, G.R. No. L-58870 (1987)]
Criterion:In determining whether a privilege is
Note: Fair and reasonable value shall not a facility, the criterion is not so much its kind

include any profit

person affiliated to the
with theemployer.
employer,[Art.
or 97(f)]
to any but the v.
[Millares PURPOSE for which
NLRC & PICOP, G.R. itNo.is122827
given.
(1999)]
Applicability
The Labor Code Title on wages shall not apply Comparison between Facilities and
to the following [Art. 98 and Sec. 3, Rule VII, Supplements
Book III, IRR]: Facilities Supplements
a. Farm tenancy or leasehold;
b. Household or domestic helpers, including What it is
family drivers and other persons in the
personal service of another; Articles or Extra remuneration or
c. Homeworkers engaged in needlework; services/items of special benefits/
d. Workers in registered cottage industries expense; articles or services/
who actually work at home; EXCLUDES tools of tools of the trade
e. Workers in registeredbycooperatives
so recommended the Bureau when
of the trade or
or service articles
primarily given to or received
by laborers over and

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U.P. LAW BOC LABOR 1 LABOR LAW

If the fair rental value is lower than the

for the benefit of the above their ordinary
computed value, fair rental value will be used.
ER [Sec. 5, Rule 7- earning or wages
[Rule VII-A, Sec. 6]
A, Book III, IRR] [Sec. 5, Rule 7-A,
Book III, IRR;]
c. Bonus, 13th Month Pay
Who benefits
BONUS
For the benefit of For the benefit or General Rule:A bonus is an act of gratuity on
the employee and convenience of the the part of the employer, and is a management
his family; for their employer prerogative which cannot be forced upon the
existence and employer. [Kamaya Point Hotel v. NLRC, G.R.
subsistence No. 75289, August 31, 1989]

Part of the wage? Exception: For a bonus to be enforceable:

1. It must have been promised by the
Yes [Art. 97] No [Art. 97] employer and expressly agreed upon by
the parties; or
Deductible from wage?
2. It must have had a fixed amount and had
been a long and regular practice on the part
Yes – part of the No – independent of
of the employer. [American Wire and Cable
wage so it is the wage so not
Union v. American Wire, G.R. No. 155059,
deductible [Art. 97] deductible [Art. 97]
April 29, 2005]
Requirements for deducting value of See also VI. D. Bonus for a more
facilities comprehensive discussion on company
Mere availment is not sufficient to allow practices*
deductions from employees’ wages. Before the
value of facilities can be deducted from the 13th MONTH PAY
employees’ wages, the following requisites [PD 851 (The 13th-Month Pay Law) and the
must all be attendant: Revised Guidelines on the Implementation of
a. Proof must be shown that such facilities are the 13th Month Pay Law]
customarily furnishedby the trade;
b. The provision of deductible facilities must Coverage
be voluntarily accepted in writing by the General Rule: ALL EMPLOYERS are hereby
employee; and required to pay all their rank and file
c. Facilities must be charged at reasonable employees a 13th month pay not later than
value. [SLL International Cable Specialists Dec 24 of every year, Provided that they have
v. NLRC, G.R. No. 172161 (2011)] worked for at least one (1) month during a
calendar year. [Memorandum Order No. 28]
“Customary” means long-established and
constant practice connoting regularity.[Millares N.B.: The law distinguishes managerial
v. NLRC & PICOP, G.R. No. 122827 (1999)] employees from rank-and-file employees;
hence, managerial employees are not legally
Computation entitled to 13thmonth pay.
Value of Facilities = Cost of Operation and
maintenance + Adequate depreciation + Exempted Employers:
reasonable allowance (not more than 5.5% a. Government, its political subdivisions,
interest on the depreciated amount of capital including GOCCs except those operating
invested by the employer) essentially as private subsidiaries of the
Government;

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U.P. LAW BOC LABOR 1 LABOR LAW

b. Employers already paying their employees 5. Holiday pay and, and

a 13th month pay or more in a calendar 6. Cost-of-living allowances.
year or its equivalent at the time of this
issuance; and Exception:A company practice favorable to
c. Employers of those who are paid on purely the employees had indeed been established if
commission, boundary or task basis and for a considerable length of time, the employer
those who are paid a fixed amount for had freely, voluntarily and continuously
performing specific work, irrespective of included in the computation of its employees'
the time consumed in the performance thirteenth month pay, the payments for sick,
thereof (except those workers who are paid vacation and maternity leaves, premiums for
on piece-rate basis, in which case their work done on rest days and special holidays,
employer shall grant them 13thmonth pay). and pay for regular holidays. Thus, the
payments made pursuant thereto, ripened into
Notes: benefits enjoyed by the employees, and any
“Equivalent ” of a 13thmonth pay includes: benefit and supplement being enjoyed by them
a. Christmas bonus, mid-year bonus, cash cannot be reduced, diminished, discontinued
bonuses; and or eliminated by the employer. [Davao Fruits
b. Other payments amounting to not less than Corp. v. ALU, G.R. No. 85073 (1993)]
1/12 of the basic salary
But shall NOT INCLUDE cash and stock Time of payment
dividends, cost of living allowances and all General Rule: paid not later than Dec 24 of
other allowances regularly enjoyed by the each year.
employee, as well a non-monetary benefits.
Exception:ER may give to his employees half
Workers paid on a piece-rate basis – paid a (!)of the required 13th Month Pay before the
standard amount for every piece or unit of work opening of the regular school year and the
produced that is more or less regularly other half on or before the 24th of December
replicated, without regard to the time spent in every year.
producing the same. Their employer shall grant
them 13thmonth pay. The frequency of payment of this monetary
benefit may be the subject of agreement
Minimum Amount between the employer and the recognized CBA
1/12 of the total basic salary earned by an of the employees.
employee within a calendar year.
Rationale behind 13th Month Pay
Base Amount a. To further protect the level of real wages
General Rule:basic salary shall include: from the ravage of world-wide inflation;
a. Cost of living allowances (COLA) b. There had been no increase in the legal
integrated into the basic salary of a minimum wage rates since 1970;
covered employee pursuant to EO 178. c. The Christmas season is an opportune
b. All remunerations or earnings paid by this time for society to show its concern for the
employer for services rendered. plight of the working masses so they may
properly celebrate Christmas and New
Excluding the allowances and monetary Year. [Whereas clauses of PD 851]
benefits which are not considered or integrated
as part of the regular or basic salary, such as 13th Month Pay in Special Cases
the cash equivalent of: a. Paid by Results:Employees who are paid
1. Unused vacation and sick leave credits, on piece work basis are, by law, entitled to
2. Overtime, the 13th Month Pay. [Revised Guidelines
3. Premium, on the Implementation of the 13th Month
4. Night differential, Pay Law]

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U.P. LAW BOC LABOR 1 LABOR LAW

b. Fixed or Guaranteed Wage: Employees Manufacturing Corp. v. NLRC, G.R. No.

who are paid a fixed or guaranteed wage 107225 (1995)]
plus commission are entitled to 13th month
pay (not purely commission); the basis for Additional Rules
computation shall be both their fixed or a. Commissions:If the commissions may be
guaranteed wage and commission. properly considered part of the basic
[Revised Guidelines] salary, then they should be INCLUDED. If
they are not an integral part of the basic
c. Those with Multiple Employers: salary, then they should be EXCLUDED.
Government Employees working part time [Phil. Duplicators Inc. v. NLRC, G.R. No.
in a private enterprise, including private 110068 (1995)]
educational institutions, as well as b. Substitute Payment not allowed:
Employees working in two or more private Benefits in the form of food or free
firms, whether on full or part time bases, electricity, assuming they were given, were
are entitled to the required 13th Month not a proper substitute for the 13th month
Pay from all their private Employers pay required by law. Neither may year-end
regardless of their total earnings from each rewards for loyalty and service be
or all their employers. [Revised Guidelines] considered in lieu of 13th month pay.
[Framanlis Farms, Inc. v. MOLE, G.R. No.
d. Private School Teachers: Private school 72616-17 (1989)]
teachers, including faculty members of c. Wage Difference:The difference between
universities and colleges, are entitled to the the minimum wage and the actual salary
required 13th month pay, regardless of the received by the Employee cannot be
number of months they teach or are paid deemed as his 13th month pay as such
within a year, if they have rendered service difference is not equivalent to or of the
for at least one (1) month within a year. same import as the said benefit
[Revised Guidelines] contemplated by law. [JPL Marketing
Promotions v. CA, G.R. No. 151966
Overload pay is NOT included in the (2005)]
computation for 13thmonth pay; overload is d. 14th Month Pay is not mandated:
not overtime as it is additional work done Employers already paying their employees
within the normal shift. [Letran Calamba a 13th month pay or its equivalent are not
Faculty v. NLRC, G.R. No. 156225 (2008)] covered by this Decree. [Kamaya Point
Hotel v. NLRC, G.R. No. 75289 (1989)]
e. Resigned or Separated Employee: An e. Non-inclusion in regular wage: The
Employee who has resigned or whose mandated 13th month pay need not be
services were terminated at any time credited as part of regular wage of
before the time for payment of the 13th employees for purposes of determining
month pay is entitled to this monetary overtime and premium pays, fringe benefits
benefit in proportion to the length of time he insurance fund, Social Security, Medicare
worked during the year, reckoned from the and private retirement plans. [Revised
time he started working during the calendar Rules]
year up to the time of his resignation or
termination from service. [Revised Commissions vis-à-vis 13th month pay
Guidelines] The Rule on Productivity Bonuses.
“Productivity bonuses” have no clear direct or
f. Terminated Employees: The payment of necessary relation to the amount of work
the 13th month pay may be demanded by actually done by each individual employee. If
the employee upon the cessation of an employer cannot be compelled to pay a
employer-employee relationship. [Archilles
Archilles productivity bonus to its employees, it should
follow that such productivity bonus, when

Page 43 of 262
U.P. LAW BOC LABOR 1 LABOR LAW

given, should not be deemed to fall within the Exceptions:

“basic salary” of employees when the time a. Those of the government and any of the
comes to compute their 13th month pay. [ Boie- political subdivision, including government-
Takeda v. de la Serna, G.R. No. 92174 and owned and controlled corporation;
G.R. No. L-102552 (1993)] b. Those of retail and service establishments
regularly employing less than 10 workers;
The sales commission earned by the salesmen c. Domestic helpers and persons in the
who make or close a sale constitute part of the personal service of another;
compensation or remuneration paid to d. Managerial employees and officers or
salesmen for serving as salesmen, and hence members of the managerial staff as defined
as part of the “wage” or salary of petitioner’s in Book III;
salesmen. The sale commissions were an e. Field personnel and other employees
integral part of the basic salary structure used whose time and performance is
as the base amount for the computation of 13th unsupervised by the employer including
month pay. [Phil. Duplicators v. NLRC, G.R. those who are engaged on task or contract
No. 110068 (1995)] basis, purely commission basis, or those
who are paid a fixed amount for performing
CBA vis-à-vis 13th month pay work irrespective of the time consumed in
P.D. No. 851 is specific and mandatory. the performance thereof. [Sec. 1, Rule IV]
However, if the employers actually grant such
13th month pay in the monetary benefits Retail Establishment is one principally
provided for in the CBA, they could be engaged in the sale of goods to end-users for
exempted from the operation of the decree. To personal or household use.
be exempted, there must be actual payment.
[Marcopper Mining Corp. v. Ople, G.R. No. L- Service Establishment is one principally
51254 (1981)] engaged in the sale of service to individuals for
their own or household use and is generally
Effect of Deficiency in 13th month pay recognized as such. [RA 6727 (The Wage
An employer who pays less than 1/12th of the Rationalization
Rationalization Act) IRR]
employees’ basic salary as their 13th month
pay is only required to pay the difference. Regular holidays
[Revised Rules] RA 9492 and 9849 (which added the two
Muslim holidays) provide for the observance of
d. Holiday Pay the following regular holidays:
1. New Year’s Day – Jan. 1
Holiday pay is a one-day pay given by law to 2. Maundy Thursday – Movable date
an employee, even if he does not work on a 3. Good Friday – Movable date
regular holiday. This gift of a day’s pay is 4. Araw ng Kagitingan – Monday nearest Apr.
limited to each of the 12 regular holidays. 9
Note: Art. 94 (c), was superseded by E.O. 203, 5. Labor Day – Monday nearest May 1
which was subsequently amended by RA 6. Independence Day – Monday nearest June
9177, 9256, 9492, and 9849. The current state 12
of the law is discussed below. 7. Eid’l Fitr – Movable date
8. Eid’l Adha – Movable date
Coverage 9. National Heroes Day – Last Monday of
General Rule: All employees [Art. 94(a); Rule August
IV, Sec. 1] 10. Bonifacio Day – Monday nearest Nov. 30
11. Christmas Day – Dec. 25
12. Rizal Day – Monday nearest Dec. 30

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U.P. LAW BOC LABOR 1 LABOR LAW

Special (Non-Working Days) holidays. Wages & other emoluments

RA 9492 and RA 10966 provide for the granted by law to the workingman are
observance of the following special holidays: determined on the basis of the criteria laid
1. Ninoy Aquino Day – Monday nearest Aug. down by laws, and not on worker’s faith.
21 Art. 3(3), PD 1083 states that nothing
2. All Saints Day – Nov. 1 herein shall be construed to operate to the
3. Immaculate Conception of Mary [RA prejudice of a non-Muslim. [San Miguel
10966]– Dec. 8 Corp v. CA, G.R. No. 146775 (2002)]
4. Last day of the year – Dec. 31
Holiday pay computation [Art. 94; Rule IV,
Note: Proclamation 269 fixed the data for the Book III, IRR; RA 9424; DOLE Memorandum
observance of the regular and special holidays Circular 1 Series of 2004]
including additional special holidays for 2018
and 2019 General Rule: An employer may require an
employee to work on a regular holiday but such
The dates for Eid’l Fitr and Eid’l Adha (special employee shall be paid a compensation
holidays) shall follow after approximate dates equivalent to twice his regular rate. If an
of the Islamic holidays have been determined. employee is required to work on a special
holiday, the additional compensation should be
Arts. 169-173, P.D. 1083 (Code of Muslim 30% of his regular rate.
Personal Laws)
Specifically for the Muslim Areas, P.D. 1083, in Work on
its Book V, IRR Title, recognizes five (5) Muslim Computation
holiday
Holidays, namely:
1. Amun Jadid(New Year) which falls on the Work on a WRH = Regular wage x
first (1st) day of the lunar month of Regular 200%
Muharram; Holiday
2. Mauli-un-Nabi (Birthday of the Prophet (WRH) Note:The employer may
Muhammad) which falls on the twelfth require an employee to work
(12th) day of the third (3rd) lunar month of on any holiday but such
Rabi-ul-Awwal; employee shall be paid a
3. Lailatul Isra Wal Mi Rai(Nocturnal Journey compensation equivalent to
and Ascencion of the Prophet twice his regular rate [Art.
Muhammand) which falls on the twenty- 94(b)]
seventh (27th) day of the seventh (7th)
lunar month of Rajab; Overtime on OTRH = Hourly wage x
4. Id-ul-Fitr (Hari Raja Pausa) which falls on a Regular 260% x number of hours
the first (1st) day of the tenth (10th) lunar Holiday of OT work
month of Shawwal commemorating the (OTRH)
end of the fasting season; and Note: Work performed
5. Id-ul-Adha (Hari Raha Haji) which falls on beyond eight hours on a
the tenth (10th) day of the twelfth (12th) holiday or rest day shall be
lunar month of Dhu’l-Hijja. paid an additional
compensation equivalent to
Notes: the rate of the first eight
1. Id-ul-Fitr (Eid’l Fitr) and Id-ul-Adha (Eid’l hours on a holiday or rest
Adha) have been added to the list of day plus at least thirty
national legal holidays [RA 9849]. percent (30%) thereof. [Art.
2. There should be no distinction between 87]
Muslims & non-Muslims as regards to
the payment of benefits for Muslim

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U.P. LAW BOC LABOR 1 LABOR LAW

200% of regular daily wage Work on WSHRD = Regular wage x

(for the 1st8 hours)+ 60% of Special 150%
hourly rate on said day Holiday
[260%] which falls Note: Where such holiday
on a Rest work falls on the employee’s
Work on WRHRD = Regular wage x Day scheduled rest day, he shall
Regular 260% (WSHRD) be entitled to an additional
Holiday compensation of at least
which falls Note: Where an employee is 50% of his regular wage.
on a Rest made or permitted to work Regular daily wage + 50%
Day on his scheduled rest day, thereof [150%]
(WRHRD) he shall be paid an
additional compensation of Overtime OTWSHRD = Hourly wage
at least 30% of his regular during Work x 195% x number of hours
wage. [Art. 93(a)] on Special of OT work
200% of regular daily wage Holiday
+ 60% (which is 30% of which falls Note: 45% (which is 30% of
200%) [260%] on a Rest 150%) + 150% [195%]
Day
Overtime on OTWRHRD = Hourly Rate (OTWSHRD)
Regular x 338% x number of hours
Holiday of OT According to DOLE Memo Circular 1-04, a
which falls
on a Rest Note: Regular holiday-on-
“special holiday”/”special day” includes the
Day rest day rate (200% of National Special Days, and declared special
(OTWRHRD) regular daily wage plus 30% days such as Special Non-working Holiday,
of such amount) + 30% of Special Public Holiday and Special National
hourly rate on said day. Holiday. Such days are entitled to the rates
[338%] prescribed above. These days are not the
same as a special working holiday.
Work on WSH = Regular wage x
Special 130% A special working holiday is considered an
Holiday ordinary working day, so there is no premium
(WSH) Note: Work performed on pay.
any special holiday shall be
paid an additional Double holiday pay
compensation of at least According to “DOLE Explanatory Bulletin on
30% of the regular wage of Worker’s Entitlement to Holiday Pay on 9 April
the employee. [Art. 93(c)] 1993,” if two holidays fall on the same day:
a. If unworked, 200% of basic wage.
Regular daily wage + 30% b. If worked, 300% of basic wage. [Azucena]
thereof [130%]
Double Holiday Rule for Monthly-paid
Overtime OTWSH = Hourly wage x employees
during Work 169% x number of hours For covered employees whose monthly
on Special of OT work salaries are computed based on 365 days and
Holiday for those other employees who are paid using
(OTWSH) Note: 130% of regular daily factor 314, or 262, or any other factor which
wage + 39 (which is 30% of already considers the payment for the 11 [now
130%) [169%] 12] regular holidays, NO additional payment is

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U.P. LAW BOC LABOR 1 LABOR LAW

due them. [BWC-WHSD Opinion No. 053, s. increases should only be used for
1998] computations which would be advantageous to
the employer (i.e. deduction for absences) and
Successive holiday pay not for computations which would diminish the
According to IRR, Rule IV, Sec. 10, an existing benefits of the employees (i.e.,
employee is entitled to holiday pay for both overtime pay, holiday pay and leave
days, IF: conversions). [Trans Asia Phils. v. NLRC,
a. He is present on day immediately supra]
preceding first holiday; or
b. He works on first holiday, which entitles him Sundays
to pay on second holiday. (See “Work on a Sunday or holiday which is
also a scheduled rest day”)
Where the day immediately preceding the a. When a holiday falls on a Sunday, the
holiday is a non-working day in the following Monday will not be considered a
establishment or the scheduled rest day of the holiday unless a proclamation says so.
employee, he shall not be deemed to be on b. A legal holiday falling on a Sunday does not
leave of absence on that day, in which case he create a legal obligation to pay extra, aside
shall be entitled to the holiday pay if he worked from the usual holiday pay, to monthly-paid
on the day immediately preceding the non- employees. [Azucena, citing Letter of
working day or rest day. [Sec. 6, Rule IV, Book Instruction No. 1087]
III, IRR]
No provision of law requires any employer to
Divisors make adjustments in the monthly salary rate
The divisor assumes an important role in set by him to take account of legal holidays
determining whether or not holiday pay is falling on Sundays in a given year, otherwise to
already computed. reckon a year at more than 365 days.
a. Monthly paid employees are not entitled to [Wellington Investment and Manufacturing
the holiday pay if their total annual income Corporation v. Trajano, G.R. No. 114698
is divided by 365 days resulting in a wage (1995)]
which is beyond the minimum wage per
day because they are considered paid Non-working/scheduled rest day
everyday of the year including holidays, Where the day immediately preceding the
rest days, and other non-working days. holiday is a non-working day in the
b. As a general rule, for a company with a 6- establishment or the scheduled rest day of the
day working schedule, the divisor 313 employee, he shall not be deemed to be on
already means that the legal holidays are leave of absence on that day, in which casehe
included in the monthly pay of the shall be entitled to the holiday pay if he
employee. The divisor is arrived at by worked on the day immediately preceding
subtracting all Sundays from the total the non-working day or rest day . [Sec. 6(c),
number of calendar days in a year. Rule IV, Book III, IRR]
c. As a general rule for a company with a 5-
day working schedule, the divisor 277 Example:
means that the holiday pay is already If a holiday falls on Monday, and Sunday is a
included in the monthly salary of the non-working day in the establishment or is the
employee. [Trans Asia Phils. v. NLRC, scheduled rest day of the employee, the
G.R. No. 118289 (1999)] employee shall be entitled to holiday pay if he
worked on Saturday (which is the day
An increase in the divisor that results in the immediately preceding Sunday, the non-
prejudice of the employees is a violation of the working day or rest day).
proscription against non-diminution of benefits
under Sec. 100 of the Labor Code. Such

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U.P. LAW BOC LABOR 1 LABOR LAW

Right to holiday pay in case of absences b. Where a covered employee, is paid by

If an employee is on leave of absencewith pay results or output, such as payment on
on the day immediately preceding a regular piece work, his holiday pay shall not be less
holiday, he is entitled to holiday pay. [Sec. 6(a), than his average daily earnings for the last
Rule IV, Book III, IRR] seven (7) actual working days preceding
the regular holiday; Provided, However,
If an employee is on leave of absence without that in no case shall the holiday pay be
b e less
pay on the day immediately preceding a than the applicable statutory minimum
regular holiday, he is not entitled to holiday pay wage rate.
unless he works on such regular holiday. [Sec. c. Seasonal workers may not be paid the
6(a), Rule IV, Book III, IRR] required holiday pay during off-season
when they are not at work
In case of temporary cessation of work d. Workers who have no regular working days
a. In cases of temporary or periodic shutdown shall be entitled to the benefits provided in
and temporary cessation of work of an this Rule. [Sec. 8, Rule IV, Book III, IRR]
establishment, as when a yearly inventory
or when the repair or cleaning of Holiday Pay of Hourly-Paid Faculty
machineries and equipment is undertaken, Members
the regular holidays falling within the Not Entitled:Regular Holiday Pay
periods shall be compensated in Entitled:Regular hourly rate on days declared
accordance with this Rule. as special holidays or for some reason classes
b. The regular holiday during the are called off or shortened for the hours they
cessation of operation of an enterprise are supposed to have taught, whether
due to business reverses as authorized extensions of class days be ordered or not; in
by the Secretary of Labor may not be paid case of extensions said faculty members shall
by the employer. [Sec. 7, Rule IV, Book III, likewise be paid their hourly rates should they
IRR] teach during said extensions.
a. They are not entitled to payment of
An employee is entitled to holiday pay for the holiday pay because they are paid only for
regular holidays falling within the period in work actually done. Since regular
cases of temporary shutdowns or cessation of holidaysare known to both the school and
work, when: faculty members as “no class day”;
a. An annual inventory; or certainly the latter do not expect payment
b. Repair or cleaning of machineries and for said unworked holidays.
equipment is undertaken. b. They are entitled to their hourly rate on
days declared as special holidays. When
The employer may not pay his employees for a special public holiday is declared, the
the regular holidays during the suspension of faculty member paid by the hour is
work if: the cessation of operation is due to deprived of expected income, and it does
business reverses, and is authorized by the not matter that the school calendar is
Secretary of Labor. extended in view of the days or hours lost,
for their income that could be earned from
Teachers, Piece Workers, Seafarers, other sources is lost during the extended
Seasonal Workers, Etc. days.
a. Private school teachers, including faculty c. Similarly, when classes are called off or
members of colleges and universities, may shortened on account of typhoons, floods,
not be paid for the regular holidays during rallies, and the like, these faculty members
semestral vacations. They shall, however, must likewise be paid, whether or not
be paid for the regular holidays during extensions are ordered. [Jose Rizal
Christmas vacation; College v. NLRC, G.R. No. L-65482
(1987)]

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U.P. LAW BOC LABOR 1 LABOR LAW

Piece workers c. Fair wage for fair work

The philosophy underlying the exclusion of
piece workers from the 8-hour law is that said General Rule: The age-old rule governing the
workers are paid depending upon the work relation between labor and capital or
they do irrespective of the amount of time management and employee is that a "fair day's
employed in doing said work. [Red V Coconut wage for a fair day's labor." It is hardly fair or
Products Ltd. v. CIR, G.R. No. L-21348 (1966)] just for an employee or laborer to fight or lit
litigate
igate
against his employer on the employer's time.
Seafarers [Sugue v. Triumph International, G.R. No.
Any hours of work or duty including hours of 164804 (2009)]
watch-keeping performed by the seafarer on
designated rest days and holidays shall be paid Exception: When the laborer was able,
rest day or holiday pay. [Sec. 11.C, Standard willing and ready to work but was illegally
Terms and Conditions Governing the locked out, suspended or dismissed, or
Employment of Filipino Seafarers on Board otherwise illegally prevented from working.
Ocean-Going Vessels] [Sugue v Triumph International, supra]

Seasonal workers d. Non-diminution of benefits

Seasonal workers who do not work during off-
season are not entitled to pay for the regular General Rule: There is a prohibition against
holidays occurring during their off-season. elimination or diminution of benefits. [Art. 100]
Workers assigned to “skeleton crews” that
work during the off-season have the right to be No wage order issued by any regional board
paid on regular holidays falling in that duration. shall provide for wage rates lower than the
statutory minimum wage rates prescribed by
2. Principles Congress. [Art. 127, as amended by RA 6727]

a. No work, no pay Requisites

If the following are met, then the employer
General Rule: If there is no work performed by cannot remove or reduce benefits [Vergara
Vergara Jr.
the employee, there can be no wage or pay. v. Coca-Cola Bottlers Phils, G.R. No. 176985
(2013)]:
Exception: Unless the laborer was able, 1. Ripened company policy – Benefit is
willing and ready to work but was prevented by founded on a policy which has ripened into
management or was illegally locked out, a practice over a long period;
suspended or dismissed. [Azucena, citing 2. Practice is consistent and deliberate; and
Philippine Airlines v. NLRC, G.R. No. 55159, 3. Not due to error in the construction or
June 22, 1989] application of a doubtful or difficult question
of law. [Globe Mackay Cable v. NLRC,
b. Equal pay for equal work G.R. No. L-74156 (1988)]
4. The diminution or discontinuance is done
Employees working in the Philippines, if they unilaterally by the employer.
are performing similar functions and
responsibilities under similar working See also VI. D. Bonus.
conditions, should be paid equally. If an
employer accords employees the same When not applicable: At least one of the
position and rank, the presumption is that these requisites is absent.
employees perform equal work. [International a. Mistake in the application of the law [Globe
School Alliance of Educators v. Hon. Mackay Cable v. NLRC, supra.]
Quisumbing, G.R. No. 128845 (2000)] b. Negotiated benefits [Azucena]

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U.P. LAW BOC LABOR 1 LABOR LAW

c. Reclassification of Positions – e.g. loss of Basis of output pay rate

some benefits by promotion. a. On petition of any interested party, or upon
d. Contingent or Conditional Benefits – the its initiative, the Department of Labor shall
rule does not apply to a benefit whose grant use all available devices, including the use
depends on the existence of certain of time and motion studies and consultation
conditions, so that the benefit is not with representatives of employers’ and
demandable if those preconditions are workers’ organizations, to determine
absent. whether the employees in any industry or
enterprise are being compensated in
Benefits initiated through negotiation between accordance with the minimum wage
Employee and Employer, e.g. CBA, can only requirements of this Rule.
be eliminated or diminished bilaterally. b. The basis for the establishment of rates for
piece, output, or contract work shall be the
3. Minimum Wage performance of an ordinary worker of
minimum skill or ability.
Definition - “Statutory minimum wage” is the c. An ordinary worker of minimum skill or
lowest wage fixed by law that an employer can ability is the average worker of the lowest
pay his workers. [Rules Implementing RA producing group representing 50% of the
6727] total number of employees engaged in
similar employment in a particular
Payment of statutory minimum wage is establishment, excluding learners,
mandatory apprentices and handicapped workers
Lack of funds is not a valid defense from paying employed therein.
the statutory minimum wage, which is a d. Where the output rates established by the
mandatory statutory obligation. To uphold such employer do not conform with the
defense of lack of available funds would render standards prescribed herein, or with the
the Minimum Wage Law futile and defeat its rates prescribed by the DOLE in an
purpose. [De Racho v. Municipality of Ilagan, appropriate order, the employees shall be
G.R. No. L-23542, January 2, 1968] entitled to the difference between the
amount to which they are entitled to receive
a. Payment by hours worked under such prescribed standards or rates
and that actually paid them by the
The minimum wage rates for agricultural and employer. [Sec. 8, Rule VII-A, Book III,
non-agricultural employees and workers in IRR]
each and every region of the country shall be
those prescribed by the Regional Tripartite From the above rules, piece rate workers may
Wages and Productivity Boards. [Art. 99] be categorized into two:
1. Those who are paid piece rates which are
See III. A. 1. Hours of work. prescribed in Piece Rate Orders issued by
DOLE.
b. Payment by results
Wages or earnings in this category are
The Secretary of Labor and Employment shall determined by simply multiplying the
regulate the payment of wages by results, number of pieces produced by the rate per
including pakyao, piecework, and other non- piece. [Azucena]
time work, in order to ensure the payment of
fair and reasonable wage rates, preferably These workers are not covered by the Rule
through time and motion studies or in on Hours of Work which provides for
consultation with representatives of worker’s premium and overtime payments.
and employer’s organizations. [Art. 101]

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See III. A. 1. a. Principles in determining When payment through check, postal

hours worked and employees exempted or orders or money orders is allowed:
not covered for more details. a. When payment is customary (on the date
of Code effectivity);
2. Those who are paid output rates which are b. Where it is so stipulated in a collective
prescribed by the employer and are not yet agreement;
approved by the DOLE. c. Where all of the following conditions are
met:
The number of pieces produced is multiplied by 1. Bank/Facility for encashment is within
the rate per piece as determined by the 1-km radius from the workplace
employer. 2. ER did not receive any pecuniary
1. If the resulting amount is equivalent to or benefit because of said arrangement
more than the applicable statutory 3. EEs are given reasonable time during
minimum daily rate in relation to the banking hours to withdraw their wages
number of hours worked, the worker will (compensable hours, if during working
receive that amount. hours)
2. If the amount is less than the applicable 4. The payment by check is with the
legal rate, it is possible that the rates per written consent of the EEs concerned,
piece are not in accordance with the in the absence of a CBA. [Sec. 2, Rule
standards prescribed by the rules VIII]
implementing the Labor Code. The
employer is thus required by law to pay the b. Time of Payment [Art. 103; Sec.
difference between the resulting amount 3, Rule VIII, Book III, IRR]
and the applicable legal minimum wage
rate. [Azucena]
Time of Payment

4. Payment of wages Frequency At least once every 2

weeks or 2x per month
a. Form of Payment [Art. 102;
Secs. 1-2, Rule VIII, Book III, Intervals Must not be more than
IRR] 16 days

General Rule:Legal Tender Only Force Majeure or Valid excuse for

circumstances delayed payment
Exception: Check/Money Order if customary beyond ER’s
OR necessary because of special control BUT ER must pay
circumstances, as specified by the Secretary of immediately after
Labor or the CBA. cessation and not less
than once a month
Not allowed:
1. Promissory Notes Tasks which Payments should be
2. Vouchers cannot be made with intervals
3. Tokens completed in 2 not more than 16
4. Tickets weeks days, in proportion to
5. Chits; or work completed
6. Any other form alleged to represent a legal
Final settlement is
tender, even when expressly requested by
made upon completion
the employee. [Art. 102]
of the work.

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U.P. LAW BOC LABOR 1 LABOR LAW

c. Place of Payment [Art. 104; Sec. d. Person to Pay [Sec. 5, Rule VIII,
4, Rule VIII, Book III, IRR] Book III, IRR]

General Rule: Shall be made at or near the General Rule:Directly to EE

place of undertaking (workplace).
Exceptions:
Exceptions: 1. Member of EE’s family ! if ER is
1. Deterioration of peace and order authorized in writing by the EE.
conditions, or by reason of actual or 2. A 3rd person ! if authorized by law (e.g.
impending emergencies (fire, flood, insurance companies for premiums, union
epidemic); dues where the right to check-off has been
2. Free transportation to the employees back recognized by ER in accordance with a
and forth; CBA or authorized in writing by EE
3. Under any other analogous circumstances concerned).
provided, that the time spent by the 3. Heirs ! in case of death of EE, without
employees in collecting their wages shall necessity of intestate proceedings.
be considered as compensable hours a. If heirs are of age !they shall execute
worked. an affidavit attesting to their
relationship to the deceased and the
NO PAYMENT in any bar, night or day club, fact that they are his heirs to the
drinking establishment, massage clinic, dance exclusion of others
hall, or other similar places or in places where b. If any of the heirs is a minor ! such
games are played with stakes of money or affidavit shall be executed in his behalf
things representing money, except in the case by his natural guardian or next of kin.
of persons employees in such places
When the employer engages the services of an
Condition for ATM payment [Labor organized group of workers, payment to their
Advisory on Payment of Salaries thru ATM leader cannot be considered a violation of the
(1996)] rule on direct payment. [Bermiso v. Escano,
1. ATM system of payment is with the written G.R. No. L-11606 (1959)]
consent of the EEs.
2. EEs are given reasonable time to withdraw 5. Prohibitions regarding wages
their wages from the banking facility
(compensable hours, if during work hours). a. Interference in disposal of wages [Art. 112]
3. System shall allow workers to receive their b. Wage deduction [Art. 113]
wages within the period/frequency c. Requirement to make deposits for loss or
provided by law. damage [Arts. 114-115]
4. There is a bank/ATM facility within 1km d. Withholding of wages [Art. 116]
radius from the place of work. e. Deduction to ensure employment [Art. 117]
5. Upon request of the concerned EEs, the f. Retaliatory measures [Art. 118]
ER shall issue a record of payment of g. False reporting [Art. 119]
wages, benefits and deductions for a
particular period. a. Prohibition against Interference
6. There shall be no additional expenses and in Disposal of Wages
no diminution of benefits and privileges.
7. The ER shall assume responsibility in case No employer shall:
the wage protection provisions of law and 1. Limit or otherwise interfere with the
regulations are not complied with under the freedom of any employee to dispose of his
arrangement. wages
2. Force, compel, or oblige his employees to:

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U.P. LAW BOC LABOR 1 LABOR LAW

a. Purchase merchandise, commodities established I by Article 2244. [Republic v.

or other property from any other Peralta, G.R. 150537 (1987)]
person; or
b. Make use of any store or services of Note: RA 10142 (FRIA) subsequently
such employer or any other person. amended Art. 2244, CC and Art. 110 by
[Art. 112] elevating trade-related claims to 1st priority.

b. Prohibition against Wage c. Prohibition Against

Deduction [Art. 113] Requirement to Make Deposits
for Loss or Damage [Art. 114,
General Rule: ER cannot make any deduction 115]
from the wages of his EE.
General Rule: No employer shall require his
Exceptions: worker to make deposits from which
1. Insurance premiums deductions shall be made for the
2. Union dues reimbursement of loss of or damage to tools,
3. Other deductions authorized by materials, or equipment supplied by the
law/Secretary of Labor [e.g. SSS, employer
withholding tax]
4. When the deductions are with written Exception: It is allowed when the employer is
authorization of the employees for payment engaged in such trades, occupations or
to a third person and the employer agrees business where the practice of making
to do so, provided that the latter does not deductions or requiring deposits is:
receive any pecuniary benefit, directly or 1. A recognized one, or is necessary; or
indirectly, from the transaction. [Labor 2. Desirable as determined by the Secretary
Advisory No. 11 (2014)] of Labor and Employment in appropriate
rules and regulations. [Art. 114]
If the law prohibits a deduction, the
authorization given by the employee does not No deduction from the deposits of an EE for the
validate the deduction. actual amount of the loss/damage shall be
made unless:
In case of Bankruptcy or Liquidation of an 1. There is reasonable opportunity for EE to
ER’s business show cause why deduction should not be
Workers shall enjoy first preference as regards made;
their wages and other monetary claims, any 2. EE’s responsibility has been clearly shown
provision of law to the contrary 3. Amount is fair and reasonable and shall not
notwithstanding. Such unpaid wages and exceed the actual loss of damage; and
monetary claims shall be paid in full before the 4. Must not exceed 20% of weekly pay. [Art.
claims of the Government and other creditors 115; Rule VIII, Sec. 11]
may be paid. [Art. 110]
Attorney’s fees in any judicial or administrative
Article 110 of the Labor Code has modified proceedings for the recovery of wages shall not
Article 2244 of the Civil Code in two respects: exceed 10% of the amount awarded.
1. Firstly, by removing the one year
limitation found in Article 2244, number 2; d. Prohibition Against Withholding
and of Wage
2. Secondly, by moving up claims for unpaid
wages of laborers or workers of the General Rule: It shall be unlawful for any
Insolvent from second priority to first person, directly or indirectly, to:
priority in the order of preference 1. Withhold any amount from the wages of a
worker or;

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U.P. LAW BOC LABOR 1 LABOR LAW

2. Induce him to give up any part of his wages 6. Wage determination

by force, stealth, intimidation, threat or by
any other means whatsoever without the a. Wage order
worker’s consent. [Art. 116]
Wage Order (WO) – an order issued by the
Exceptions: Regional Tripartite Wages and Productivity
1. Deduction is for insurance premium Boards (“Regional Boards”) that establishes
2. For union dues the minimum wage rates to be paid by ERs in
3. Authorized by law/ DOLE Sec the region, which shall in no case be lower than
4. Due & demandable debt to ER the applicable statutory minimum wage rates.
[NWPC Rules of Procedure on Minimum Wage
e. Prohibition Against Deduction Fixing].
to Ensure Employment
State Policy
It shall be unlawful to make any deduction from It is hereby declared the policy
pol icy of the State to:
the wages of any employee for the benefit of 1. Rationalize the fixing of minimum wages
the employer or his representative or 2. Promote productivity-improvement and
intermediary as consideration of a promise gain-sharing measures to ensure a decent
of employment or retention in employment. standard of living for the workers and their
[Art. 117] families;
3. To guarantee the rights of labor to its just
f. Prohibition Against Retaliatory share in the fruits of production;
Measures 4. To enhance employment generation in the
countryside through industry dispersal;
It shall be unlawful for an employer to: 5. To allow business and industry reasonable
a. Refuse to pay or reduce the wages and returns on investment, expansion and
benefits growth. [Sec. 2, Wage Rationalization Act
b. Discharge, or (RA 6727)]
c. Discriminate in any manner against
any employee who has filed any complaint or Powers & Functions of the Regional Board
instituted any proceeding under this Title or 1. To determine and fix minimum wage rates
has testified or is about to testify in such applicable in their region, provinces or
proceedings. [Art. 118] industries therein
2. To issue the corresponding wage orders,
This covers offenses only under the title of subject to guidelines issued by the
Wages in the Labor Code. Commission [Art. 122]

g. Prohibition Against False Wage fixing takes place whenever the

Reporting conditions in the region so warrant, after
investigating and studying all pertinent facts
It shall be unlawful for any person to make any and based on the standards and criteria
statement, report, or record filed or kept prescribed by the Labor Code. [Art. 123, as
pursuant to the provisions of this Code knowing amended by RA 6727]
such statement, report or record to be false in
any material respect. [Art. 119] Standards/Criteria in Wage Fixing
a. The demand for living wages;
Covers all offenses under the Labor Code. b. Wage adjustment vis-a-vis the consumer
price index;
c. The cost of living and changes or increases
therein;
d. The needs of workers and their families;

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U.P. LAW BOC LABOR 1 LABOR LAW

e. The need to induce industries to invest in Commission for payment to employees

the countryside; affected by the order of the corresponding
f. Improvements in standards of living; increase in the event such order is affirmed
g. The prevailing wage levels; [Art. 123].
h. Fair return of the capital invested and
capacity to pay of employers; Grounds for Appeals for Review of WO
i. Effects on employment generation and a. Non-conformity with prescribed guidelines
family income; and and/or procedure
j. The equitable distribution of income and b. Questions of law
wealth along the imperatives of economic c. Grave abuse of discretion [Sec. 2, Rule V,
and social development. [Art. 124, as Revised Rules of Procedure on Minimum
amended by RA 6727] Wage Fixing]

WO Effectivity: After 15 days from its Double Indemnity Doctrine

complete publication in at least one newspaper Double Indemnity is the payment to a
of general circulation. [Art. 123] concerned EE of the prescribed increase or
adjustments in the wage rate which was not
Note: Public hearing and publication are paid by an ER in an amount equivalent to 2x
mandatory [Cagayan Sugar Milling Co. v. Sec. the benefits owing to such employee.
of Labor, G.R. No. 128399 (1998)]. [Philippine Hoteliers, Inc. v. National Union of
Workers, GR No. 181972 (2009); RA 6727, as
Frequency: A WO issued by the Board may amended]
not be disturbed for a period of 12 months from
its effectivity and no petition for wage increase Unpaid Benefits
shall be entertained during said period. [Rule The prescribed wage rates which the ER failed
IV, Sec. 4, Revised rules of Procedure on to pay upon the effectivity of a WO, exclusive
Minimum Wage Fixing] of other wage-related benefits.

Exceptions: Unpaid benefits serve as the principal basis for

a. When Congress itself issues a law computing the double indemnity. [Sec. 2, D.O.
increasing wages. No. 10-98]
b. Supervening conditions (i.e. extraordinary
increases in prices of petroleum products Wages of apprentices, learners and
and basic goods/services. handicapped workers shall in no case be less
than 75% of the statutory minimum wage rates.
Appeal: Any party aggrieved by the Wage [Sec. 10, IRR of RA 6727]
Order issued by the Regional Board may
appeal such order to the Commission within METHODS OF FIXING
ten (10) calendar days from the publication of a. Floor Wage Method- fixing a determinate
such order. It shall be mandatory for the amount to be added to the prevailing
Commission to decide such appeal within sixty statutory minimum wage rates (e.g. setting
(60) calendar days from the filing thereof [Art. P25 increase for min. wage rates).
123]. b. Salary-Ceiling Method- Wage adjustment
to be applied to EEs receiving a certain
Effect of Appeal denominated salary or workers being paid
General Rule: Does not operate to stay the more than existing min. wage (e.g. WO
order. granting P25 increase to those earning up
to P250).
Exception: Party appealing such order shall
file with the Commission an undertaking with a
surety/sureties (surety bond) satisfactory to the

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U.P. LAW BOC LABOR 1 LABOR LAW

Wage distortion can only exist where the wage

adjustment is brought about by a wage order,
Floor Wage Salary Ceiling
not by management prerogative. [Bankards
Bankards
What it does Employees’ Union v. NLRC, G.R. No. 140689
(2004)]
Adds to previous All wages under a certain
minimum wage wage increases to that HOW TO RESOLVE WAGE DISTORTION
wage [Art. 124]
Organized Establishment
Example a. Employer and the union shall negotiate to
correct the distortions.
P456 + P100 = All wages under P456 b. Disputes shall be resolved through the
P556 must be increased to grievance procedure.
P556 c. If still unresolved, voluntary arbitration.

b. Wage distortion Grievance Procedure (under the CBA) ! if

unresolved, VOLUNTARY arbitration
Wage Distortion/Rectification
A situation where an increase in prescribed Unorganized Establishment
wage rates results in the elimination or severe a. ERs and Ees shall endeavor to correct
contraction of intentional quantitative such distortions.
differences in wage or salary rates between b. Disputes shall be settled through the
and among employee groups in an National Conciliation and Mediation Board.
establishment as to effectively obliterate the c. If still unresolved after 10 calendar days of
distinctions embodied in such wage structure conciliation, it shall be referred to the
based on skills, length of service, or other appropriate branch of the NLRC –
logical bases of differentiation. [Art. 124] compulsory arbitration
Both the employer and employee cannot
Elements of wage distortion use economic weapons.
1. Existing hierarchy of positions with d. Employer cannot declare a lock-out;
corresponding salary rates; Employee cannot declare a strike because
2. A significant change in the salary rate of a the law has provided for a procedure for
lower pay class without a concomitant settling
increase in the salary rate of a higher one e. The salary or wage differential does not
(must be caused by a wage order) need to be maintained. [National
[Philippine Geothermal Inc. v. Chevron, Federation of Labor v. NLRC, G.R. No.
G.R. No. 190187 (2018)]; 103586 (1994)]
3. The elimination of the distinction between
the two levels; and National Conciliation and Mediation Board!if
4. The existence of the distortion in the same unresolved, COMPULSORY arbitration by the
region of the country. [Prubankers Assn. v. NLRC
Prudential Bank and Co., G.R. No. 131247
(1999)] CBA vis-à-vis Wage Orders – CBA
creditability
The implementation of wage orders in one In determining an employee’s regular wage,
region but not in others does not in itself the pertinent stipulations in the CBA are
necessarily result in wage distortion. controlling, provided the result is not less than
[Prubankers Assn. v. Prudential Bank and Co., the statutory requirement [Philippine National
G.R. No. 131247 (1999)] Bank v. PEMA, G.R. No. L-30279 (1982)]

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Note: The manner of resolving wage distortion Teachers of private school on contract basis
is largely based on the applicable wage order. are entitled to service incentive leave. [Cebu
Cebu
The current one for NCR, WO 20, refers to the Institute of Technology v. Ople, G.R. No. L-
procedure in Art. 124 of the Labor Code 58870 (1987)]

The law grants annual SIL of five days to

C. LEAVES domestic workers, but their SIL shall not be
converted to cash or carried over to
succeeding years. [Sec. 5, RA 10361]
1. Labor Code
Meaning of “1 year of service”
General Rule: "At least one year service" shall
a. Service Incentive Leave (SIL)
mean service for NOT LESS than 12 months,
whether continuous or broken, reckoned from
Coverage
the date the employee started working,
Every employee who has rendered at least one
including authorized absences and paid
year of service shall be entitled to a yearly
regular holidays.
service incentive leave of five days with pay.
[Art. 95(a)]
Exception: Service for LESS than 12 months
is counted as “at least one year service” when:
Service Incentive Leave DOES NOT apply to
1. The working days of the establishment, as
the following
a. Those ofemployees:
the government and any of its a matter of practice or policy, is less than
12 months; or
political subdivisions, including GOCCs;
2. The employment contract provides working
b. Domestic helpers and persons in the
days that is less than 12 months. [Sec. 3,
personal service of another;
Rule V, Book III, IRR]
c. Managerial employees as defined in Book
III of this Code;
Arbitration or Administrative Action
d. Field personnel and other employees
The grant of benefit IN EXCESS of that
whose performance is unsupervised by the
provided herein shall not be made a subject of
employer including those who are engaged
arbitration or any court or administrative action.
on task or contract basis, purely
[Art. 95 (c)]
commission basis, or those who are paid a
fixed amount for performing work
Commutable nature of benefit
irrespective of the time consumed in the
The service incentive leave shall be
e. performance
Those who are thereof;
already enjoying the benefit commutable to its money equivalent if not used
or exhausted at the end of the year. [Sec. 5,
herein provided;
Rule V, Book III, IRR]
f. Those enjoying vacation leave with pay of
at least 5 days;
When Entitled EE’s Cause of Action
g. Those employed in establishments
Accrues
regularly employing less than 10
1. If the employee did not make use of
o f said
employees. [Sec. 1, Rule V, Book III, IRR]
leave credits but instead chose to avail
of its commutation into money:
Piece-rate employees are entitled to service
The cause of action to claim his SIL pay
incentive leave pay provided that they are
accrues from the moment the employer
supervised. If they are unsupervised, they are
refuses to remunerate its monetary
not entitled to SIL. [Labor Congress of the
equivalent.
Phils. v. NLRC, G.R. No. 123938 (1998)]
2. If the employee wishes to accumulate
his leave credits and opts for its

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U.P. LAW BOC LABOR 1 LABOR LAW

commutation upon his resignation or i. Any other person who solely provides
separation from employment: parental care and support to a child or
The cause of action to claim the whole children: Provided, that he/she is duly
amount of his accumulated SIL shall arise licensed as a foster parent by the
when the employer fails to pay such Department of Social Welfare and
amount at the time of his resignation or Development (DSWD) or duly appointed
separation from employment. [Auto Bus legal guardian by the court; and
Transport v. NLRC, G.R. No. 156367 j. Any family member who assumes the
(2005)] responsibility of head of family as a result
of the death, abandonment,
2. Special laws disappearance, or prolonged absence of
the parents or solo parent for at least one
a. Parental leave for solo parents (1) year. [Sec. 3 (a), RA 8972]

[RA 8972 (Solo Parents’ Welfare Act of 2000)] Conditions for Entitlement
A solo parent employee shall be entitled to the
Parental leave for solo parents – Leave parental leave under the following conditions:
benefits granted to a solo parent to enable a. He/she has rendered at least one (1) year
him/her to perform parental duties and of service, whether continuous or broken;
responsibilities where physical presence is b. He/she has notified his/her employer that
required. [Sec. 3 (d), RA 8972] he/she will avail himself/herself of it, within
a reasonable period of time; and
Coverage c. He/she has presented to his/her employer
Any solo parent or individual who is left alone a Solo Parent Identification Card, which
with the responsibility of parenthood due to: may be obtained from the DSWD office of
a. Giving birth as a result of rape or and other the city or municipality where he/she
crimes against chastity even without a final resides. [Sec. 19, Art. V, IRR, RA 8972]
conviction of the offender: Provided, That
the mother keeps and raises the child; Availment
b. Death of spouse; The parental leave is in addition to leave
c. Spouse is detained or is serving sentence privileges under existing laws with full pay,
for a criminal conviction for at least one (1) consisting of basic salary and mandatory
year; allowances. It shall not be more than seven (7)
d. Physical and/or mental incapacity of working days every year. [Sec. 8, RA 8972]
spouse as certified by a public medical
practitioner; Grant of Flexible Work Schedule
e. Legal separation or de facto separation The employer shall provide for a flexible
from spouse for at least one (1) year: working schedule for solo parents: Provided,
Provided, that he/she is entrusted with the That the same shall not affect individual and
custody of the children; company productivity: Provided, further, That
f. Declaration of nullity or annulment of any employer may request exemption from the
marriage as decreed by a court or by a above requirements from the DOLE on certain
church: Provided, that he/she is entrusted meritorious grounds. [Sec. 6, RA 8972]
with the custody of the children;
g. Abandonment of spouse for at least one (1) Protection against Work Discrimination
year; No employer shall discriminate against any
h. Unmarried father/mother who has solo parent employee with respect to terms and
an d
preferred to keep and rear his/her conditions of employment on account of his/her
child/children, instead of having others status. [Sec. 7, RA 8972]
care for them or give them up to a welfare
institution;

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U.P. LAW BOC LABOR 1 LABOR LAW

Termination of the Benefit b. Notice: The female worker shall have

A change in the status or circumstance of the notified her employer of her pregnancy and
parent claiming the benefit under the law, such the probable date of her childbirth, which
that he/she is no longer left alone with the notice shall be transmitted to the SSS in
responsibility of parenthood, shall terminate accordance with the rules and regulations
his/her eligibility for these benefits. [Sec. 3 (a), it may provide. [Sec. 1, Rule VI, IRR of
RA 8972] RA11210]

See III. E. 7. for discussion on other working Maternity leave benefit after termination of
conditions for solo parents* employment possible
General Rule: Maternity leave with full pay
See also VII. E. for discussion on support for shall be granted even if the childbirth,
solo parents* miscarriage, or emergency termination of
pregnancy occurs not more than 15 calendar
b. Expanded maternity leave days after the termination of an employee’s
service.
[RA 11210 (105-Day Expanded Maternity
Leave Law)] Exception: When the employment of the
pregnant woman worker has been terminated
Expanded Maternity Leave -- Maternity leave without just cause, the employer must pay her
of 105 days with full pay, with an option to the full amount equivalent to her salary for 105
extend for an additional 30 days without pay. days for childbirth and 60 days for miscarriage
[Sec. 3, RA 11210] and emergency termination of pregnancy
based on her full pay, in addition to the other
Coverage applicable daily cash maternity benefits that
Every female worker in government and the she should have received had her employment
private sector, including those in the informal not been illegally terminated. [Sec. 5, Rule IV,
economy, regardless of civil status or the IRR of RA 11210]
legitimacy of her child, is entitled to the
maternity leave benefits. Benefit received
A daily maternity benefit equivalent to 100% of
This is applicable to pregnancy and her average daily salary credit for:
miscarriage, or emergency termination of a. 105 days in cases of live childbirth
pregnancy, regardless of frequency. [Sec. 3, b. 60 days in cases of miscarriage or
RA 11210] emergency termination of pregnancy.

Maternity leave for female workers in The maternity leave can be credited as
private sector, requisites combinations of prenatal and postnatal leave
a. Contribution : The female worker must as long as it does not exceed 105 days or 60
have paid at least 3 monthly contributions days as the case may be. In no case shall
in the 12-month period immediately postnatal care be less than 60 days. [Sec. 2,
preceding the semester of her childbirth, Rule IV, IRR of RA 11210]
miscarriage, or emergency termination of
pregnancy. In case the employee qualifies as a solo parent
(seeIII. C. 2. a., above), the employee shall be
In determining the female member’s paid an additional maternity benefit of 15 days.
entitlement to the benefit, the SSS shall [Sec. 5 (a), RA 11210]
consider only those contributions paid prior
to the semester of contingency; and

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U.P. LAW BOC LABOR 1 LABOR LAW

Extended maternity leave option, requisite a. That the maternity leave benefits have not
notice yet been commuted to cash, if applicable;
In cases of live childbirth, an additional and
maternity leave of 30 days, without pay, can be b. That a certified true copy of the death
availed of, at the option of the female worker, certificate or medical certificate or abstract
provided that the employer shall be given is provided to the employers of both the
notice. female worker and the child’s father or
alternate caregiver.
Due notice must be in writing must be given at
least 45 days before the end of the female In case the maternity leave benefits have
worker’s maternity leave. already been paid to the female worker in full,
the child’s father or alternate caregiver shall be
Exception: No prior notice shall be necessary entitled to enjoy the remaining unexpired leave
in the event of a medical emergency, but credits of the female worker, if any.
subsequent notice shall be given to the
employer. Provided , That such leave without pay shall not
be considered a gap in the service of the child’s
The period of extended maternity leave without father or alternate caregiver. [Sec. 4, Rule VIII,
pay shall not be considered a gap in the IRR of RA 11210]
service. [Sec. 3, Rule IV, IRR of RA 11210]
Other conditions
Allocation of maternity leave credits a. Employer shall advance the full payment
A female worker entitled to maternity leave subject to reimbursement by the SSS
benefits may, at her option, allocate up to 7 within 30 days from filing of leave
days of said benefits to the child’s father, application. [Sec. 3, Rule VI, IRR of RA
whether or not the father is married to the 11210]
mother. b. SSS shall immediately reimburse the
employer the maternity benefits advanced
The allocated benefit granted to the child’s to the employed female member, only to
father is over and above the paternity benefits the extent of 100% of her average daily
provided under RA 8187 (Paternity Leave Act). salary credit for 105 days, 120 days or 60
In case of death, absence, or incapacity of the days, as the case may be, upon receipt of
child’s father, the female worker may allocate satisfactory and legal proof of such
to an alternate caregiver who may be: payment. [Sec. 4, Rule VI, IRR of RA
a. A relative within the 4th degree of 11210]
consanguinity; or c. Availment shall be a bar to the recovery of
b. The current partner, regardless of sexual sickness benefits provided under RA 1161
orientation or gender identity, of the female (Social Security Law) for the same period
worker sharing the same household. for which daily maternity benefits have
been received. [Sec. 6, Rule VI, RA 11210]
The option to allocate maternity leave credits d. Sanction: That if an employee should give
shall not be applicable in cases of miscarriage birth or suffer miscarriage or emergency
or emergency termination of pregnancy. [Sec. termination of pregnancy:
1, Rule VIII, IRR of RA 11210] 1. Without the required contributions
having been remitted for her by her
Death or permanent incapacity employer to the SSS, or
If the female worker dies or becomes 2. Without the latter having been
permanently incapacitated, the balance of her previously notified by the ER of time of
maternity leave benefits shall accrue to the the pregnancy,
child’s father or to a qualified alternate the employer shall pay to the SSS
caregiver subject to the following conditions: damages equivalent to the benefits which

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U.P. LAW BOC LABOR 1 LABOR LAW

said employee would otherwise have been Conditions for entitlement [Sec. 3, IRR, RA
entitled to. [Sec. 5, RA 11210] 8187]
a. He is married;
c. Paternity leave b. He is an employee at the time of the
delivery of his child
[RA 8187 (Paternity Leave Act of 1996)] c. He is cohabiting with his spouse ata t the time
that she gives birth or suffers a miscarriage
Paternity Leave – leave of 7 calendar days d. He has applied for paternity leave with his
with full payfor every married male employee ER within a reasonable period of time from
in the private and public sectors the expected date of delivery by his
pregnant spouse, or within such period as
Coverage and Purpose may be provided by company rules and
Paternity leave is granted to all married male regulations, or by CBA; and,
employees in the private and public sectors, e. His wife has given birth or suffered a
regardless of their employment status (e.g. miscarriage.
probationary, regular, contractual, project
basis). Application for paternity leave
Seed. under conditions for entitlement.
The purpose of this benefit is to allow the
husband to lend support to his wife during her In case of miscarriage, prior application for
period of recovery and/or in nursing her paternity leave shall not be required. [Sec. 4,
newborn child. [Sec. 3, RA 8187] IRR, RA 8187]

Benefit Non-conversion to cash

It shall be for 7 calendar days, with full pay , In the event that the paternity leave is not
consisting of basic salary and mandatory availed of, it shall not be convertible tocash
allowances fixed by the Regional Wage Board, and shall not be cumulative. [Sec. 7, IRR, RA
if any, provided that his pay shall not be less 8187]
than the mandated minimum wage. [Sec. 2, RA
8187] Crediting of existing benefits
a. If the existing paternity leave benefit under
It shall apply to the first 4 deliveries of the the CBA, contract, or company policy is
employee’s lawful wife with whom he is greater than 7 calendar days as provided
cohabiting. for in RA 8187, the greater benefit shall
prevail.
Cohabiting means the obligation of the b. If the existing paternity leave benefit is less
husband and wife to live together. [Sec. 1, IRR, than that provided in RA 8187, the ER shall
RA 8187] If the spouses are not physically adjust the existing benefit to cover the
living together because of the workstation or difference. [Sec. 9, IRR, RA 8187]
occupation, the male employee is still entitled
to the paternity leave benefit. Where a company policy, contract, or CBA
provides for an emergency or contingency
Usage of the benefit leave without specific provisions on paternity
Usage of the leave shall be after the delivery, leave, the ER shall grant to the employee 7
without prejudice to an employer’s policy of calendar days of paternity leave. [Sec. 9, IRR,
allowing the employee to avail of the benefit RA 8187]
before or during the delivery, provided that the
total number of days shall not be more than 7
days for each covered delivery. [Sec. 5, IRR,
RA 8187]

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U.P. LAW BOC LABOR 1 LABOR LAW

d. Gynecological leave Conditions for Entitlement

Any female employee, regardless of age and
[RA 9710 (Magna Carta for Women)] civil status, shall be entitled to a special leave
benefit, provided she has complied with the
Gynecological Leave - A female employee’s following conditions:
leave entitlement of two (2) months with full a. She has rendered at least 6 months
pay from her employer based on her gross continuous aggregate employment service
monthly compensation following surgery for the last 12 months prior to surgery;
caused by gynecological disorders, provided b. She has filed an application for special
that she has rendered continuous aggregate leave
employment service of at least six (6) months c. She has undergone surgery due to
for the last 12 months. gynecological disorders as certified by a
competent physician. [Sec. 2, D.O. No.
Gynecological Disorders 112]
Disorders that would require surgical
procedures such as, but not limited to: Application for Special Leave Before
1. Dilatation and curettage; Surgery
2. Those involving female reproductive The employee shall file her application for
organs such as the vagina, cervix, uterus, leave with her employer within a reasonable
fallopian tubes, ovaries, breast, adnexa period of time from the expected date of
and pelvic floor, as certified by a competent surgery, or within such period as may be
physician; provided by company rules and regulations or
3. Hysterectomy, ovariectomy, and by CBA.
mastectomy.
Application for Special Leave After Surgery
Gross Monthly Compensation Prior application for leave shall not be
The monthly basic pay plus mandatory necessary in cases requiring emergency
allowances fixed by the regional wage boards. surgical procedure, provided that the employer
[Sec. 7, Rule II, IRR, RA 9710] shall be notified verbally or in written form
within a reasonable period of time and provided
Basic Requirement further that after the surgery or appropriate
The woman employee should have been with recuperating period, the female employee shall
the company for 12 months prior to surgery. An immediately file her application using the
aggregate service of at least six (6) months prescribed form. [Sec. 3, D.O. No. 112]
within the said 12-month period is sufficient to
entitle her to avail of the special leave benefit. Period of Entitlement
The 2 months special leave is the maximum
Employment service includes absences with period of leave with pay that a woman
pay such as use of other mandated leaves, employee may avail of under RA 9710.
company-granted leaves and maternity leaves.
For purposes of determining the period of leave
Competent Physician with pay that will be allowed to a female
A medical doctor preferably specializing in employee, the certification of a competent
gynecological disorders or is in the position to physician as to the required period of
determine the period of recuperation of the recuperation shall be controlling. [Sec. 4, D.O.
woman employee. [Sec. 1, D.O. No. 112, as No. 112, as amended]
amended (Guidelines Governing the
Implementation of the Special Leave Benefits Availment
for Women Employees in the Private Sector)] The special leave shall be granted to the
qualified employee after she has undergone
surgery. [Sec. 5, D.O. No. 112, as amended]

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U.P. LAW BOC LABOR 1 LABOR LAW

Frequency of Availment When availed of

A woman employee can avail of the SLB for A victim leave may be availed of at any time
every instance of surgery due to gynecological during the application of any protection order,
disorder for a maximum total period of 2 investigation, prosecution and/or trial of the
months per year. [Sec. 6, D.O. No. 112, as criminal case [Sec. 42, Rule VI, IRR]
amended]
Requirement
Special Leave Benefit vis-à-vis SSS In order to be entitled to the leave benefit, the
Sickness Benefit only requirement is for the victim-employee to
The SLB is different from the SSS sickness present to her employer a certification from the
benefit. The former is granted by the employer barangay chairman (Punong Barangay) or
in accordance with RA 9710. barangay councilor (barangay kagawad) or
prosecutor or the Clerk of Court, as the case
It is granted to a woman employee who has may be, that an action relative to the matter is
undergone surgery due to gynecological pending [Sec. 42, Rule VI, IRR].
disorder. The SSS sickness benefit, on the
other hand, is administered and given by the The usage of the ten-day leave shall be at the
SSS in accordance with RA 1161 as amended option of the woman employee. In the event
by RA 8282. [Sec. 7, D.O. No. 112, as that the leave benefit is not availed of, it shall
amended] not be convertible into cashand shall not be
cumulative [Sec. 42, Rule VI, IRR].
e. Battered woman leave
When denied; employer’s liability
[RA 9262 (Anti-Violence Against Women and The employer/agency head who denies the
Their Children Act of 2004 or VAWC)] application for leave, and who shall prejudice
the victim-survivor or any person for assisting
Victims of any of the acts covered by VAWC a co-employee who is a victim-survivor under
shall be entitled to take a paid leave of the Act shall be held liable for discrimination
absence up to ten (10) days in addition to and violation of R.A 9262. [Sec. 42, Rule VI,
other paid leaves under the Labor Code and IRR].
Civil Service Rules and Regulations,
extendible when the necessity arises as
specified in the protection order [Sec. 43, RA D. SEXUAL HARASSMENT IN
9262] THE WORK ENVIRONMENT

Acts covered by VAWC

1. Definition
1. “Physical violence” - refers to acts that
include bodily or physical harm
[RA 7877 - Anti-Sexual Harassment Act of
2. “Sexual violence” - refers to an act which is
1995; RA 11313 - Safe Spaces Act]
sexual in nature, committed against a
woman or her child.
ANTI-SEXUAL HARASSMENT ACT
3. “Psychological violence” - acts or
Work, education or training-related sexual
omissions causing or likely to cause mental
harassment is defined in Sec. 3, RA 7877.
or emotional suffering of the victim.
Acts Demanding, requesting or
4. “Economic abuse” - acts that make or
covered otherwise requiring any
attempt to make a woman financially
sexual favor from the other,
dependent.
regardless of whether these
are accepted by the object of
Note: To fall under VAWC, the offender must
have had a sexual or dating relationship with said Act
the offended woman.

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U.P. LAW BOC LABOR 1 LABOR LAW

Committed An employer, employee, individual's employment or education,

by manager, supervisor, agent job performance or opportunities.
of the employer, teacher, 2. A conduct of sexual nature and other
instructor, professor, coach, conduct based on sex:
trainor, or any other person a. affecting the dignity of a person, which
who, having authority, is unwelcome, unreasonable, and
influence or moral offensive to the recipient;
ascendancy over another b. whether done verbally, physically or
Where In a work or training or through the use of technology such as
education environment text messaging or electronic mail or
through any other forms of information
Employment or Work-Related Sexual and communication systems.
Harassment 3. A conduct that is unwelcome and pervasive
1. The sexual favor is made as a condition: and creates an intimidating, hostile or
a. in the hiring or in the employment, re- humiliating environment for the recipient.
employment or continued employment
of said individual; or Workplaces include all sites, locations, spaces,
b. in granting said individual favorable where work is being undertaken by an
compensation, terms, conditions, employee within or outside the premises of the
promotions, or privileges; or usual place of business of the employer. [Sec.
c. in the refusal to grant the sexual favor 18, Rule VI, IRR of RA11313]
results in limiting, segregating or
classifying the EE which in any way 2. Duties and Liabilities of
would discriminate, deprive or diminish Employers
employment opportunities or otherwise
adversely affect said employee; ANTI-SEXUAL HARASSMENT ACT
2. The above acts would either: Persons who may be liable
a. impair the employee’s rights or 1. Any employer, employee, manager,
privileges under existing labor laws; or supervisor, agent of the employer, teacher,
b. result in an intimidating, hostile, or instructor, professor, coach, trainer or any
offensive environment for the other person, regardless of whether the
employee. [Sec. 3, RA 7877] demand, request for requirement for
submission is accepted by the object of
SAFE SPACES ACT said act having authority, influence or
Gender-based Sexual Harassment (GBSH)
in the Workplace moralor ascendancy
work over another
training or education in a
environment,
The crime of GSBH in the workplace includes who demands, requests or otherwise
the following: requires any sexual favor from another;
1. An act or series of acts: 2. Any person who directs or induces another
a. involving any unwelcome sexual to commit any act of sexual harassment as
advances, requests or demand for herein defined; OR
sexual favors or any act of sexual 3. Any person who cooperates in the
nature; commission by another without which it
b. whether done verbally, physically or would NOT have been committed, shall
through the use of technology such as also be held liable under this Act. [Sec. 3,
text messaging or electronic mail or RA 7877]
through any other forms of information
and communication systems; It is not necessary that the demand, request or
c. that has or could have a detrimental
effect on the conditions of an requirement
a categoricaloforal
a sexual favorstatement.
or written be articulated in
It may
be discerned, with equal certitude, from the

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U.P. LAW BOC LABOR 1 LABOR LAW

acts of the offender. [Domingo v. Rayala, G.R. Anyone who commits any of the acts of GBSH
No. 155831 (2008)] may be held liable. GBSH may even be
committed between peers, and by a
Role of the employer or Head of Office subordinate to a superior officer. [Sec. 18, IRR
The Employer or Head of Office shall have the of RA 11313]
duty: Duties of employers
1. to prevent the commission of such acts and Employers, or other persons of authority,
2. to lay down the procedure for the influence or moral ascendancy have the
resolution, settlement or prosecution of following duties:
committed acts. [Sec. 4, RA 7877] a. Disseminate or post a copy of the Safe
Spaces Act to all persons in the workplace;
He shall be solidarily liable for damages: b. Provide measures to prevent GBSH in the
1. if he is informed of such acts by the workplace;
offended party, and c. Create an independent internal mechanism
2. no immediate action is taken thereon. [Sec. or a committee on decorum and
5, RA 7877] investigation to investigate and address
complaints of GBSH;
Independent action for damages d. Provide and disseminate, in consultation
The victim of work, education or training- with all persons in the workplace, a code of
related sexual harassment can institute a conduct or workplace policy. [Sec. 17, RA
separate and independent action for damages 11313]
and other affirmative relief. [Sec. 6, RA 7877]
In addition to liabilities for committing acts of
Sanctions GSBH, employers may also be held
Criminal: imprisonment of 1 month to mos. or responsible for:
fine of P10k to P20k or both a. Non-implementation of their duties under
Sec. 17 of this Act (see above), as provided
Prescriptionof such action is in 3 years. in the penal provisions; or
b. Not taking action on reported acts of GBSH
Termination committed in the workplace.
As a managerial employee, petitioner is
bound by more exacting work ethics. When Any person who violates (a) shall, upon
such moral perversity is perpetuated against conviction, be penalized with a fine of not less
his subordinate, he provides a justifiable than P5,000, nor more than P10,000.
ground for his dismissal for lack of trust and
confidence. [Sec. 7, RA 7877; Libres v. NLRC, Any person who violates (b) shall, upon
G.R. No. 123737 (1999)] conviction, be penalized with a fine of not less
than P10,000 nor more than P15,000. [Sec. 19,
The gravamen of the offense in sexual RA 11310]
harassment is not the violation of the
employee's sexuality but the abuse of power by Independent action for damages
the employer. Any employee, male or female, Nothing shall preclude the victim of work-
may rightfully cry "foul" provided the claim is related GBSH from instituting a separate and
well substantiated. Strictly speaking, there is independent action for damages and other
no time period within which he or she is affirmative relief.
expected to complain through the proper
channels. [Phil. Aelous Automotive United 3. Applicable Laws
Corp. v. NLRC, G.R. No. 124617 (2000)]
a. Sexual Harassment Act
SAFE SPACES ACT b. Safe Spaces Act

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See alsoD. 1 & 2 above Employment. [Nitto Enterprises v. NLRC, G.R.

No. 114337 (1995)]
Qualifications of apprentice
E. WORKING CONDITIONS FOR An apprentice must:
SPECIAL GROUPS OF EMPLOYEES 1. Be at least fifteen years of age; provided
those who are at least fifteen years of age
but less than eighteen may be eligible for
1. Apprentices and Learners apprenticeship only in nonhazardous
occupations;
[RA 7796 (Technical Education and Skills
2. Be physically fit for the occupation in which
Development Act of 1994 or TESDA Act of
he desires to be trained;
1994)]
3. Possess vocational aptitude and capacity
for the particular occupation as established
a. Apprentices
through appropriate tests; and
4. Possess the ability to comprehend and
Definitions
follow oral and written instructions.
a. Apprenticeship - training within
employment with compulsory related
Trade and industry associations may
theoretical instruction involving a contract
recommend to the SOLE appropriate
between an apprentice and an employer on
educational qualifications for apprentices
an approved apprenticeable occupation.
in certain occupations.
b. [Sec 4(j), RA 7796]
Apprentice is a person undergoing General Rule: Such qualifications, if approved,
shall be the educational requirements for
training for an approved apprenticeable
apprenticeship in such occupations.
occupation during an apprenticeship
agreement. [Sec 4(k), RA 7796]
Exception: The educational qualifications may
c. Apprenticeship Agreement is a contract
be waived by an employer in favor of an
wherein a prospective employer binds
applicant who has demonstrated exceptional
himself to train the apprentice, who in turn
ability. A certification explaining briefly the
accepts the terms of training for a
ground for such waiver, and signed by the
recognized apprenticeable occupation
person in charge of the program, shall be
emphasizing the rights, duties and
attached to the apprenticeship agreement of
responsibilities of each party. [Sec 4(l), RA
the applicant concerned. [Sec. 11, Rule VI,
7796]
Book II, IRR]
d. Apprenticeable Occupation is an
occupation officially endorsed by a tripartite Period of Apprenticeship
body and approved for apprenticeship by
The period of apprenticeship shall not exceed
the Authority. [Sec 4(m), RA 7796]
six months.
Who may employ apprentices
Terms and conditions
Only employers in highly technical industries
Apprenticeship agreements, including the
may employ apprentices and only in
wage rates of apprentices, shall conform to the
apprenticeable occupations approved by the
rules issued by the Secretary of Labor and
SOLE. [Art. 60, LC].
Employment.
The act of filing the proposed apprenticeship
Wage rate
program with the DOLE is a preliminary step
Apprenticeship agreements providing for wage
towards its final approval, and does not
rates below the legal minimum wage, which in
instantaneously give rise to an employer-
no case shall start below 75 percent of the
apprentice relationship. It must be duly applicable minimum wage, may be entered
approved by the Minister of Labor and
into only in accordance with apprenticeship

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programs duly approved by the Secretary of be granted to the person or enterprise

Labor and Employment. [Art. 61, as amended organizing an apprenticeship program.[Art. 71]
by E.O. 111-1986] Requisites of the deduction:
1. Apprenticeship program must be duly
Apprenticeship without compensation approved by the DOLE;
The Secretary of Labor and Employment may 2. Deduction shall NOT exceed 10% of direct
authorize the hiring of apprentices without labor wage;
compensation whose training on the job is 3. Employer must pay his apprentices the
required by the school or training program minimum wage. [Art. 71]
curriculum or as requisite for graduation or
board examination. [Art. 72] Summary of Rules:
1. The apprentice must be paid not less than
The wages of apprentices and learners shall in 75% of the prescribed minimum salary [Art.
no case be less than seventy-five percent 61]; HOWEVER, the employer MAY NOT
(75%) of the applicable minimum wage rates. pay any wage if the apprenticeship training
[Sec. 7, Wage Order No. NCR-19] is:
a. part of the school curriculum,
Enforcement b. a requirement for graduation, or
Investigation of violation of apprenticeship c. a requirement for board examination
agreement [Art. 72]
Upon complaint of any interested person or 2. The apprenticeship agreement must be
upon its own initiative, the appropriate agency approved by the DOLE Secretary (without
of the DOLE or its authorized representative such one shall be deemed a regular
shall investigate any violation of an employee) [Nitto Enterprises v. NLRC,
apprenticeship agreement pursuant to such G.R. No. 114337 (1995)];
rules and regulations as may be prescribed by 3. The employer is not compelled to continue
the Secretary of Labor and Employment. [Art. one’s employment upon termination of
65] apprenticeship;
4. One-half (1/2) of the value of labor training
Appeal to the Secretary of Labor and expenses incurred for developing the
Employment productivity and efficiency of apprentices of
The decision of the authorized agency of the the training cost is deducted from the
DOLE may be appealed by any aggrieved employer’s income tax, but it shall not
person to the SOLE within five (5) days from exceed 10% of direct labor wage. [Art. 71]
receipt of the decision. The decision of the
Secretary of Labor and Employment shall be Working scholars
final and executory. [Art. 66] There is no employer-employee relationship
between students on one hand, and schools,
Exhaustion of administrative remedies colleges or universities on the other, where
No person shall institute any action for the there is written agreement between them under
enforcement of any apprenticeship agreement which the former agree to work for the latter in
or damages for breach of any such agreement, exchange for the privilege to study free of
unless he has exhausted all available charge, provided, the students are given real
administrative remedies. [Art. 67] opportunities, including such facilities as may
be reasonable and necessary to finish their
Incentives for employers chosen courses under such agreement. [Sec.
An additional deduction from taxable income of 14, Rule X, Book III, IRR]
one-half (1/2) of the value of labor training
expenses incurred for developing the
productivity and efficiency of apprentices shall

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b. Learners Summary of Rules

1. The duration of learnership shall not
Definition exceed 3 months [Art. 73];
Learners are persons hired as trainees in semi- 2. If the learnership of 3 months is completed,
skilled and other industrial occupations: the employer may be compelled to
1. Which are non-apprenticeable; continue with the services of the learner as
2. Which may be learned through practical a regular employee; There is a
training on the job in a relatively short commitment from the employer to employ
period of time, which shall not exceed the learners if they so desire, as regular
three (3) months. [Art. 73; Sec 4(n), RA employees upon completion of the
7796] learnership;
3. If the learner is dismissed from service
When may learners be hired without just and valid cause and without
1. No experienced workers are available; due process after 2 months of service, he
2. The employment of learners being will be deemed as regular employee; [Art.
necessary to prevent the curtailment of 75(d)] and
employment opportunities; and 4. The wages or salary rates of the learners
3. The employment will neither create unfair which shall begin at not less than 75% of
competition in terms of labor costs nor the applicable minimum wage. [Art. 75(c)]
impair working standards. [Art. 74]
Distinctions between Learnership and
Terms and conditions of employment Apprenticeship
Any employer desiring to employ learners shall
Apprenticeship Learnership
enter into a learnership agreementwith them,
which agreement shall include: Highly technical Semi-skilled
1. The duration of the learnership period, industries industrial
which shall not exceed three (3) months; occupations
2. The wages or salary rates of the learners
which shall begin at not less than seventy- Practical training Practical training
five percent (75%) of the applicable supplemented by whether or not such
minimum wage; and related theoretical practical training is
3. A commitment to employ the learners if instruction supplemented by
they so desire, as regular employees upon theoretical
completion of the learnership. All learners instructions
who have been allowed or suffered to work
during the first two (2) months shall be Apprenticeable Non-apprenticeable
deemed regular employees if training is occupations occupations
terminated by the employer before the end approved by the
of the stipulated period through no fault of SOLE
the learners.
Written apprentice Learnership
The learnership agreement shall be subject to agreement ratified agreement
inspection by the Secretary of Labor and by the appropriate
Employment or his duly authorized committees
representative. [Art. 75]
More than 3 months, Shall not exceed 3
Learners employed in piece or incentive-rate shall not exceed 6 months
jobs during the training period shall be paid in months
full for the work done. [Art. 76]
When apprentice When learner may
may be hired: be hired:

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1. The person is at 1. When no termination of if they so desire, as

least 15 years of experienced apprenticeship regular employees
age, provided workers are upon completion of
those who are at available; the learnership
least 15 years of 2. The employment
age but less of learners is Deductibility of $of No additional
training costs deduction from
than 18 for
eligible may be necessary
prevent to incurred, provided: taxable income for
apprenticeship curtailment of • Program is duly undertaking a
only in non- employment recognized by learnership
hazardous opportunities; DOLE agreement
occupation; and • Deduction shall
2. The person is 3. The employment not exceed 10%
physically fit for does not create of direct labor
the occupation in unfair wage
which he desires competition in • Payment of
to be trained; terms of labor minimum wage
3. The person costs or impair to apprentice
possesses or lower working
vocational standards.
2. Disabled Workers
aptitude
capacity and
for the
[RA 7277 - Magna Carta for Disabled Persons,
particular
as amended by RA 9442]
occupation as
established
Definitions
through
a. Disabled persons are those suffering from
appropriate
restriction or different abilities, as a result
tests; and
of a mental, physical or sensory
4. The person is
impairment, to perform an activity in the
able to
manner or within the range considered
comprehend and
normal for a human being. [Sec. 4(a), RA
follow oral and
7277]
written
b. Impairment is any loss, diminution or
instructions.
aberration of psychological, physiological,
Wage rate shall Wage rate shall or anatomical structure or function. [Sec.
begin at not less begin at not less 4(b), RA 7277]
than 75% of the than 75% of the c. Disability shall mean (1) a physical or
minimum wage minimum wage mental impairment that substantially limits
one or more psychological, physiological or
No compensation if Learners in anatomical function of an individual or
SOLE authorizes, as piecework shall be activities of such individual; (2) a record of
OJT is required by paid in full for the such an impairment; (3) being regarded as
the school [Art. 72]. work done having such an impairment. [Sec. 4(c), RA
7277]
The employer is not Learnership d. Handicap refers to a disadvantage for a
compelled to agreement must given individual, resulting from an
continue one’s contain a impairment or a disability, that limits or
employment upon commitment to prevents the function or activity, that is
employ the learners considered normal given the age and sex
of the individual. [Sec. 4(d), RA 7277]

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Coverage If suitable employment for disabled persons

RA 7277 covers all disabled persons and, to cannot be found through open employment,
the extent herein provided, departments, the State shall endeavor to provide it by means
offices and agencies of the National of sheltered employment.
Government or nongovernment organizations
involved in the attainment of the objectives of In the placement of disabled persons in
this Act. [Sec. 3, RA 7227] sheltered employment, it shall accord due
regard to the individual qualities, vocational
a. Equal opportunity goals and inclinations to ensure a good
working atmosphere and efficient production.
Rights of disabled workers [Sec 6, RA 7277]
1. Equal opportunity for employment
4. Full minimum wage
No disabled person shall be denied access to
opportunities for suitable employment. A All qualified handicapped workers shall
qualified disabled EE shall be subject to the receive the full amount of the minimum wage
same terms and conditions of employment and rate prescribed herein. [Sec 7, Wage Order No.
the same compensation, privileges, benefits, NCR-19]
fringe benefits, incentives or allowances as a
qualified able-bodied person. [Sec. 5 (par. 1), A Qualified Individual with a Disability shall
RA 7277] mean an individual with a disability who, with or
without reasonable accommodations, can
Once they are regular employees, they are perform the essential functions of the
entitled to the benefits granted by law which the employment position that such individual holds
parties cannot stipulate away. [Bernardo v. or desires.
NLRC, 310 SCRA 186 (1999)]
However, consideration shall be given to:
2. Reserved contractual positions 1. The employer’s judgement as to what
functions of a job are essential
5% of all casual, emergency and contractual 2. The written description prepared by the
positions in the DSWD; DOH, DepEd; and employer before advertising or interviewing
other government agencies, offices or applicants for the job, which shall be
corporations engaged in social development considered evidence of the essential
shall be reserved for disabled persons. [par. 2, functions of the job. [Sec. 2(l), RA 7277
Sec. 5, RA 7277] (Magna Cart for Persons with Disability, as
amended by RA 9442)]
3. Sheltered employment
A qualified disabled EE should be given the
Definition same terms and conditions of employment as
The provision of productive work for disabled a qualified able-bodied person. Since the
persons through workshop providing special Magna Carta accords them the rights of
facilities, income producing projects or qualified able-bodied persons, they are thus
homework schemes. [Sec 4(i), RA 7277] covered by Art. 280 of the Labor Code. In the
present case, the handicap of petitioners (deaf-
Purpose mutes) is NOT a hindrance to their work. The
To give them the opportunity to earn a living eloquent proof of this statement is the repeated
thus enabling them to acquire a working renewal of their employment contracts.
capacity required in open industry. [Sec 4(i), [Bernardo v. NLRC, G.R. No. 122917 (1999)]
RA 7277]

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Apprenticeship Opportunities non-disabled person performing the same

Disabled persons shall be eligible as work is entitled;
apprentices or learners: Provided, that: 5. Favoring a non-disabled employee over a
1. Their handicap is NOT as much as to qualified disabled employee with respect to
effectively impede the performance of job promotion, training opportunities, study
operations in the particular occupation for and scholarship grants, solely on account
which they are hired; of the latter's disability;
2. After the lapse of the period of 6. Re-assigning or transferring a disabled
apprenticeship, if found satisfactory in the employee to a job or position he cannot
job performance, they shall be eligible for perform by reason of his disability;
employment. [Art. 81; Sec. 7, RA 7277; 7. Dismissing or terminating the services of a
Bernardo v. NLRC,supra.] disabled employee by reason of his
disability unless the employer can prove
b. Discrimination on employment that he impairs the satisfactory
performance of the work involved to the
No entity, whether public or private, shall prejudice of the business entity: Provided,
discriminate against a qualified disabled however, That the employer first sought to
person by reason of disability in regard to: provide reasonable accommodations for
1. Job application procedures disabled persons;
2. The hiring, promotion, or discharge of 8. Failing to select or administer in the most
employees effective manner employment tests which
3. Employee compensation accurately reflect the skills, aptitude or
4. Job training other factor of the disabled applicant or
5. Other terms, conditions, and privileges of employee that such tests purports to
employment. measure, rather than the impaired sensory,
manual or speaking skills of such applicant
Acts of Discrimination: or employee, if any; and
1. Limiting, segregating or classifying a 9. Excluding disabled persons from
disabled job applicant in such a manner membership in labor unions or similar
that adversely affects his work organizations. [Sec. 32, RA 7277]
opportunities;
2. Using qualification standards, employment Occasions when a Disabled Applicant may
tests or other selection criteria that screen be Subjected to Medical Examination
out or tend to screen out a disabled person Upon an offer of employment, a disabled
unless such standards, tests or other applicant may be subjected to medical
selection criteria are shown to be job- examinations, on the following occasions:
related for the position in question and are 1. All entering employees are subjected to
consistent with business necessity; such an examination regardless of
3. Utilizing standards, criteria, or methods of disability;
administration that: 2. Information obtained during the medical
a. have the effect of discrimination on the condition or history of the applicant is
basis of disability; or collected and maintained on separate
b. perpetuate the discrimination of others forms and in separate medical files and is
who are subject to common treated as a confidential medical record;
administrative control. Provided, however, That:
4. Providing less compensation, such as a. Supervisors and managers may be
salary, wage or other forms of informed regarding necessary
remuneration and fringe benefits, to a restrictions on the work or duties of the
qualified disabled employee, by reason of employees and necessary
his disability, than the amount to which a accommodations;

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U.P. LAW BOC LABOR 1 LABOR LAW

b. First aid and safety personnel may be amended. [Sec. 32, RA 7277, as amended
informed, when appropriate, if the by RA 9442]
disability may require emergency
treatment; 3. Gender
c. Government officials investigating
compliance with this Act shall be Constitutional basis
provided relevant information on The State recognizes the role of women in
request; and nation-building, and shall:
d. The results of such examination are a. Ensure the fundamental equality before the
used only in accordance with this Act law of women and men;
[Sec. 33, RA 7277]. b. Protect working women by providing:
1. Safe and healthful working conditions,
c. Incentives for employers taking into account their maternal
functions, and
For employment of disabled persons - 2. Such facilities and opportunities that
additional deduction, from their gross income, will enhance their welfare and enable
equivalent to 25% of the total amount paid as them to realize their full potential in the
salaries and wages to disabled persons: service of the nation. [Sec. 14, Art. II &
a. Private entities that employ disabled Sec. 14, Art. XIII, 1987 Constitution]
persons either as regular EEs, apprentice
or learner; a. Discrimination
b. Provided such entities present proof as
certified by the DOLE and the DOH [Sec. It shall be unlawful for any employer to
8[b], RA 7277] discriminate against any woman employee with
respect to terms and conditions of employment
For construction of disabled-friendly solely on account of her sex.
facilities - additional deduction from their net
taxable income, equivalent to 50% of the direct The following are acts of discrimination:
costs of the improvements or modifications: a. Payment of a lesser compensation,
a. Private entities that improve or modify their including wage, salary or other form of
physical facilities in order to provide remuneration and fringe benefits, to a
reasonable accommodation for disabled female employee as against a male
persons; employee, for work of equal value; and
b. Does NOT apply to improvements or b. Favoring a male employee over a female
modifications or facilities required under employee with respect to promotion,
BP 344. [Sec. 8 (c), RA 7277] training opportunities, study and
scholarship grants solely on account of
For establishments giving discounts– may their sexes. [Art. 133]
claim such discounts as tax deductions based
on the net cost of the goods sold or services The Magna Carta of Women provides that the
rendered: State:
a. The cost of the discount shall be allowed 1. Condemns discrimination against women
as deduction from gross income for the in all its forms
same taxable year that the discount is 2. Pursues by all appropriate means and
granted without delay the policy of eliminating
b. The total amount of the claimed tax discrimination against women in keeping
deduction net of VAT if applicable, shall be with the Convention on the Elimination of
included in their gross sales receipts for tax All Forms of Discrimination Against
purposes and shall be subject to proper
documentation and to the provisions of the Women (CEDAW)
instruments andwith
consistent other international
Philippine law.
National Internal Revenue Code, as

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U.P. LAW BOC LABOR 1 LABOR LAW

3. Shall accord women the rights, protection, distinction based on marital status, and there is
and opportunities available to every no better available or acceptable policy which
member of society would better accomplish the business purpose,
4. Shall take steps to review and, when an ER may discriminate against an EE based
necessary, amend and/or repeal existing on the identity of the EE’s spouse. [Star
Star Paper
laws that are discriminatory to women Corp. v. Simbol, G.R. No. 164774 2006]
within three (3) years from the effectivity of
this Act. [Sec. 2 & Sec. 12, Magna Carta of A personal or marital relationship with an
Women] employee of a competitor might compromise
the interests of the company. Thus an
b. Stipulation against marriage [Art. 134; employer policy prohibiting the same may be
Sec. 13(e), Rule XII] held as valid [Duncan Association of Detailmen
v. Glaxo Wellcome, supra.]
It shall be unlawful for an employer to:
1. require as a condition of employment or c. Prohibited acts [Art. 135]
continuation of employment that a woman
employee shall not get married, or 1. Discharge to prevent enjoyment of
2. stipulate expressly or tacitly that upon benefits.
getting married a woman employee shall To deny any woman employee the benefits
be deemed resigned or separated or provided for in this Chapter or to discharge
3. actually dismiss, discharge, discriminate or any woman employed by him for the
otherwise prejudice a woman employee purpose of preventing her from enjoying
merely by reason of her marriage. [Art. 134; any of the benefits provided under this
Duncan Assoc of Detailman – PTGWO v. Code. [Art. 135 (1), as amended by R.A.
Glaxo Wellcome, G.R. No. 162994 (2004)] 6725]

The Magna Carta of Women protects women 2. Discharge on account of pregnancy.

against discrimination in all matters relating to To discharge such woman on account of
marriage and family relations, including the her pregnancy, while on leave or in
right to choose freely a spouse and to enter confinement due to her pregnancy. [Art.
into marriage only with their free and full 135 (2)]
consent.
3. Discharge or refusal of the admission to
Bona fide occupational qualification work
exception To discharge or refuse the admission of
While a marriage or no-marriage qualification such woman upon returning to her work for
may be justified as a "bona fide occupational fear that she may again be pregnant. [Art.
qualification," the employer must prove two 135 (3)]
factors necessitating its imposition, viz:
1. that the employment qualification is 4. Discharge on account of testimony
reasonably related to the essential To discharge any woman or child or any
operation of the job involved; and other employee for having filed a complaint
2. that there is a factual basis for believing or having testified or being about to testify
that all or substantially all persons meeting under the Code [Sec. 13 (d), Rule XII, Book
the qualification would be unable to III, IRR]
properly perform the duties of the job.
[Capin-Cadiz v. Brent Hospital and 5. Expulsion of Women faculty/female
Colleges, Inc., G.R. No. 187417 (2016)]. student due to pregnancy outside of
marriage
When the employer can prove that the Expulsion and non-readmission of women
reasonable demands of the business require a faculty due to pregnancy outside of

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U.P. LAW BOC LABOR 1 LABOR LAW

marriage shall be outlawed. No school 2. In any night club, cocktail lounge, massage
shall turn out or refuse admission to a clinic, bar or similar establishments;
female student solely on the account of her 3. Under the effective control or supervision
having contracted pregnancy outside of of the employer for a substantial period of
marriage during her term in school. [Sec. time as determined by the SOLE;
13(c), RA 9710] shall be considered as an employee of such
establishment for purposes of labor and social
d. Facilities for women [Art. 130] legislation. [Art. 136]

The Secretary of Labor shall establish 4. Minors

standards that will insure the safety and health
heal th
of women employees. In appropriate cases, he Relevant Laws: RA 7610 (Special Protection
shall by regulations, require employers to: of Children Against Abuse, Exploitation and
a. Provide seats proper for women and permit Discrimination Act), RA 9231 (Special
them to use such seats when they are free Protection of Children Against Child Abuse,
from work and during working hours, Exploitation and Discrimination Act), Art.
provided they can perform their duties in 137(a)
this position without detriment to efficiency;
b. To establish separate toilet rooms and Constitutional basis
lavatories for men and women and provide The State recognizes the vital role of the youth
at least a dressing room for women; in nation-building and shall promote and
c. To establish a nursery in a workplace for protect their physical, moral, spiritual,
the benefit of the woman employees intellectual, and social well-being. It shall
therein; and inculcate in the youth patriotism and
d. To determine appropriate minimum age nationalism, and encourage their involvement
and other standards for retirement or in public and civic affairs. [Sec. 13, Art. II, 1987
termination in special occupations such as Constitution]
those of flight attendants and the like.[Sec.
130] General Rule:Children below 15 shall NOT be
employed.
Subject to the approval of the SOLE, the
Bureau of Women and Young Workers (The Exception (Employment of Children)
BWYW merged into the Bureau of Workers Children below fifteen (15) years of age shall
with Special Concerns in 2010), shall, within 30 not be employed except:
days from the effective date of these Rules, a. When a child works directly under the sole
determine in an appropriate issuance: responsibility of his/her parents or legal
1. The work situations for which the facilities guardian and where only members of
enumerated in Art. 130 of the Code shall be his/her family are employed: Provided,
provided; however, That his/her employment neither
2. The appropriate minimum age and endangers his/her life, safety, health, and
standards for retirement or termination of morals, nor impairs his/her normal
employment in special occupation in which development: Provided, further, That the
women are employed. [Sec. 14, Rule XII, parent or legal guardian shall provide the
Book III, IRR] said child with the prescribed primary
and/or secondary education; or
e. Women working in night clubs, a. Where a child's employment or
etc. [Art. 136] participation in public entertainment or
information through cinema, theater, radio,
Any woman who:
1. Is permitted or suffered to work, with or television or other, That
essential: Provided forms
the ofemployment
media is
without compensation; contract is concluded by the child's parents

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 Page 74 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

or legal guardian, with the express 2. when the child is below fifteen (15) years of
agreement of the child concerned, if age, in work where he/she is directly under
u nder
possible, and the approval of the the responsibility of his/her parents or legal
Department of Labor and Employment: guardian and where only members of the
Provided, further, That the following child‘s family are employed; or in public
requirements in all instances are strictly entertainment or information. [Sec. 3, D.O.
complied with: No. 65-04]
1. The employer shall ensure the
protection, health, safety, morals and Exceptions
normal development of the child; a. Child works directly under the sole
2. The employer shall institute measures responsibility of his parents or legal
to prevent the child'.s exploitation or guardian and where only members of the
discrimination taking into account the employer’s family are employed, provided:
system and level of remuneration, and 1. his employment does NOT endanger
the duration and arrangement of his life, safety, health and morals,
working time; and 2. nor impairs his normal development,
3. The employer shall formulate and and
implement, subject to the approval and 3. the parent or legal guardian shall
supervision of competent authorities, a provide the said minor child with the
continuing program for training and prescribed primary and/or secondary
skills acquisition of the child. education; [Sec. 12 of RA 7610, as
amended by RA 7658]
In the above-exceptional cases where any b. Child’s employment or participation in
such child may be employed, the employer public entertainment or information through
shall first secure, before engaging such child, a cinema, theater, radio or television is
work permit from the DOLE which shall ensure essential, provided that [Sec. 12 of RA
observance of the above requirements. 7610, as amended by RA 7658] :
1. employment does NOT involve ads or
For purposes of this Article, the term "child" commercials promoting alcohol,
shall apply to all persons under eighteen (18) tobacco and its by-products or violence
years of age. [Sec. 2, RA 9231] [Sec. 14, RA 7610]
2. the employment contract is concluded
Children- refers to any person under 18 years by the child’s parents or guardian, and
of age or those over but are unable to fully take approved by DOLE
care of themselves or protect themselves from 3. The ER shall ensure the protection,
abuse, neglect, cruelty, exploitation or health, safety and morals of the child
discrimination because of a physical or mental 4. The ER shall institute measures to
disability or condition. [Sec. 2, RA 7610] prevent the child’s exploitation or
discrimination taking into account the
Child labor - refers to any work or economic system and level of remuneration, and
activity performed by a child that subjects the duration and arrangement of
him/her to any form of exploitation or is harmful working time
to his/her health and safety or physical, mental 5. The ER shall formulate and implement,
or psychosocial development. subject to the approval and supervision
of competent authorities, a continuing
Working child- refers to any child engaged as program for training and skills
follows: acquisition of the child. [Sec. 12 of RA
1. when the child is below eighteen (18) years 7610, as amended by RA 7658]
of age, in work or economic activity that is
not child labor as defined in the
immediately preceding subparagraph; and
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U.P. LAW BOC LABOR 1 LABOR LAW

Employment of Children from 15 to 18 3. Is performed underground, underwater

Employment is allowed even without permit but or at dangerous heights; or
restricted to non-hazardous work. 4. Involves the use of dangerous
machinery, equipment and tools such
Non-hazardous workshall mean any work or as power-driven or explosive power-
activity in which the EE is not exposed to any actuated tools; or
risk which constitutes an imminent danger to 5. Exposes the child to physical danger
his safety and health. [Sec. 3, Rule XII, Book such as, but not limited to the
III, IRR] dangerous feats of balancing, physical
strength or contortion, or which
The Secretary of Labor shall from time to time requires the manual transport of heavy
publish a list of hazardous work and activities loads; or
in which persons 18 years of age and below 6. Is performed in an unhealthy
cannot be employed [Sec. 3, Rule XII, Book III, environment exposing the child to
IRR] hazardous working conditions,
elements, substances, co-agents or
The following are HAZARDOUS processes involving ionizing, radiation,
workplaces: fire, flammable substances, noxious
SeeDO 149-16 as amended by DO 149-A-17, components and the like, or to extreme
Sec. 6 temperatures, noise levels, or
vibrations; or
Worst Forms of Child Labor 7. Is performed under particularly difficult
a. All forms of slavery, as defined under the conditions; or
"Anti-trafficking in Persons Act of 2003", or 8. Exposes the child to biological agents
practices similar to slavery such as sale such as bacteria, fungi, viruses,
and trafficking of children, debt bondage protozoans, nematodes and other
and serfdom and forced or compulsory parasites; or
labor, including recruitment of children for 9. Involves the manufacture or handling
use in armed conflict; or of explosives and other pyrotechnic
b. The use, procuring, offering or exposing of products [Sec. 12-D, RA 9231 as
a child for prostitution, for the production of amended].
pornography or for pornographic
performances; or Working Hours of a Child
c. The use, procuring or offering of a child for Quantity
illegal or illicit activities, including the
production and trafficking of dangerous Age Bracket Daily Max Weekly Max
drugs and volatile substances prohibited Below 15 y/o 4 hrs 20 hrs
under existing laws; or
d. Work which, by its nature or the 15 to below 8hrs. 40 hrs
circumstances in which it is carried out, is 18
hazardous or likely to be harmful to the
health, safety or morals of children, such
Night work prohibition
that it:
1. Debases, degrades or demeans the Age Bracket Prohibited Hours
intrinsic worth and dignity of a child as
a human being; or Below 15 y/o 8 pm to 6 am (10
2. Exposes the child to physical, hrs.)
emotional or sexual abuse, or is found
to be highly stressful psychologically or 15 to below 18 10 pm to 6 am (8
may prejudice morals; or hrs.)
 Page 76 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

Discrimination Within one year from the effectivity of RA

No employer shall discriminate against any 10361, and periodically thereafter, the
person in respect to terms and conditions of Regional Board shall review, and if proper,
employment on account of his age. [Art. 138] determine and adjust the minimum wage rates
of domestic workers. [Sec. 24, RA 10361]
5. Kasambahays
Standard of Treatment
Relevant Law: RA 10361 (Batas Kasambahay The employer or any member of the household
or Domestic Worker’s Act shall not subject a domestic worker or
Note: RA 10361 has expressly repealed “kasambahay” to any kind of abuse nor inflict
Chapter III, “Employment of Househelpers”, any form of physical violence or harassment or
Title III, Book III of the Labor Code any act tending to degrade the dignity of a
domestic worker. [Sec. 5, RA 10361]
Domestic work - This refers to work
performed in or for a household or households. Board, Lodging and Medical Attendance
[Sec 4(c)., RA 10361] The employer shall provide for the basic
necessities of the domestic worker to include:
Household- refers to the immediate
i mmediate members 1. At least three adequate meals a day
of the family or the occupants of the house that 2. Humane sleeping arrangements that
are directly provided services by the domestic ensure safety
worker. [Sec 4(f), RA 10361] 3. Appropriate rest and assistance in case of
illnesses and injuries sustained during
Domestic worker or “Kasambahay” - Refers service without loss of benefits. [Sec. 6, RA
to any person engaged in domestic work within 10361]
an employment relationship such as, but not
limited to, the following: general househelp, Privacy
nursemaid or “yaya”, cook, gardener, or Respect for the privacy of the domestic worker
laundry person. [Sec 4(d), RA 10361] shall be guaranteed at all times and shall
extend to all forms of communication and
The term domestic worker or “kasambahay” personal effects [Sec. 7, RA 10361]
excludes any person who performs domestic
work only occasionally or sporadically and not Access to Outside Communication
on an occupational basis. [Sec.4(d), RA 10361] The employer shall grant the domestic worker
access to outside communication during free
time: Provided, That in case of emergency,
drivers.IRR,
Note: See Sec. 2 does
previous not include
discussion family
on domestic access to communication shall be granted
workers. See also discussion under III. A. 1. A. even during work time. [Sec. 8, RA 10361]
e. Domestic workers.
Education and Training
Minimum wage The employer shall afford the domestic worker
The minimum wage of domestic workers shall the opportunity to finish basic education and
not be less than the following: may allow access to alternative learning
a. P2,500 a month for those employed in systems and, as far as practicable, higher
NCR education or technical and vocational training.
b. P2,000 a month for those employed in [Sec. 9, RA 10361]
chartered cities and first class
municipalities Social and Other Benefits
c. P1,500 a month for those employed in A domestic worker who has rendered at least
one (1) month of service shall be covered by
other municipalities the Social Security System (SSS), the
Philippine Health Insurance Corporation
 Page 77 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

(PhilHealth), and the Home Development Pre-Employment Prohibition

Mutual Fund or Pag-IBIG, and shall be entitled The ff. shall be unlawful:
to all the benefits in accordance with the 1. Charging any share in the recruitment or
pertinent provisions provided by law. finder’s fees against the domestic worker
by a private employment agency or third
Leave Benefits party. [Sec. 13, RA 10361]
A domestic worker who has rendered at least 2. Requiring a domestic worker to make
one (1) year of service shall be entitled to an deposits from which deductions shall be
annual service incentive leave of five (5) days made for the reimbursement of loss or
with pay. [Sec. 29, RA 10361] damage to tools, materials, furniture and
equipment in the household. [Sec. 14, RA
Rest Periods 10361]
Daily Rest Period: 8 hours 3. Placing the domestic worker under debt by
the employer or any person acting on
Weekly Rest Period: at least 24 consecutive behalf of the employer to [Sec. 15, RA
hours. The employer and employee may agree 10361]
to:
a. Offsetting a day of absence with a Time and Manner of Payment
particular rest day; Payment of wages shall be made:
b. Waiving a particular rest day in return for 1. Directly to the domestic worker in cash
an equivalent daily rate of pay; 2. At least once a month
c. Accumulating rest days not exceeding five 3. With no deductions from the wages other
(5) days; or than that which is mandated by law, unless
d. Other similar arrangements. [Sec. 20, 21, allowed by the domestic worker through a
RA 10361] written consent

Pre-Employment Requirement No employer shall pay the wages of a domestic

Prior to the execution of the employment worker by means of promissory notes,
contract, the employer may require the vouchers, coupons, tokens, tickets, chits, or
following from the domestic worker: any object other than the cash wage as
a. Medical certificate or a health certificate provided for under this Act. [Sec. 25, RA
issued by a local government health officer; 10361]
b. Barangay and police clearance;
c. National Bureau of Investigation (NBI) Payslip
clearance; and The employer shall at all times provide the
d. Duly authenticated birth certificate or if not domestic worker with a copy of the pay slip
available, any other document showing the containing the amount paid in cash every pay
age of the domestic worker such as voter’s day, and indicating all deductions made, if any.
identification card, baptismal record or The copies of the pay slip shall be kept by the
passport. employer for a period of three (3) years. [Sec.
26, RA 10361]
However, Sec. 12(a), (b), (c) and (d) shall be
standard requirements when the employment Wage Prohibitions
of the domestic worker is facilitated through the It shall be unlawful for the original employer to
PEA. charge any amount from the said household
where the service of the domestic worker was
The cost of the foregoing shall be borne by the temporarily performed. [Sec. 23, RA 10361]
prospective employer or agency, as the case
may be. [Sec. 12, RA 10361] Other Prohibited Acts
a. Interference in employee’s wage disposal
[Sec. 27, RA 10361]
 Page 78 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

b. Direct or indirect withholding of wages by 6. Other causes analogous to the foregoing.

the employer [Sec. 28, RA 10361] [Sec. 33, RA 10361]
c. Payment in forms other than cash [Sec. 25,
RA 10361] Initiated by the employer
An employer may terminate the services of the
Right against assignment to non- domestic worker at any time before the
household workat a wage rate lower than that expiration of the contract, for any of the
mandated for agricultural or non-agricultural following causes:
enterprises depending on the case. [Sec. 22, 1. Misconduct or willful disobedience by the
RA 10361] domestic worker of the lawful order of the
employer in connection with the former’s
Employment Age of Domestic Workers: work;
Unlawful to employ any person below fifteen 2. Gross or habitual neglect or inefficiency by
(15) years of age as a domestic worker [Sec. the domestic worker in the performance of
16, RA 10361] duties;
3. Fraud or willful breach of the trust reposed
Persons between 15-18 years old should only by the employer on the domestic worker;
be employed in non-hazardous work.[D.O. No. 4. Commission of a crime or offense by the
4-99 Sec. 4] domestic worker against the person of the
employer or any immediate member of the
Daily Rest Period: Aggregate of eight (8) employer’s family;
hours per day. [Sec. 20, RA 10361] 5. Violation by the domestic worker of the
terms and conditions of the employment
Employment Certification: ER shall give the contract and other standards set forth
househelper a written statement of the nature under this law;
and duration of the service and his or her work 6. Any disease prejudicial to the health of the
performance as househelper upon severance. domestic worker, the employer, or
[Sec. 35, RA 10361] member/s of the household; and
7. Other causes analogous to the foregoing.
Termination [Sec. 34, RA 10361]
Initiated by the domestic worker
The domestic worker may terminate the Employment Certification
employment relationship at any time before the Upon the severance of the employment
expiration of the employment contract for any relationship, the employer shall issue the
of the following causes: domestic worker within five (5) days from
1. Verbal or emotional abuse of the domestic request a certificate of employment indicating
worker by the employer or any member of the nature, duration of the service and work
the household; performance [Sec. 35, RA 10361].
2. Inhuman treatment including physical
abuse of the domestic worker by the Unjust dismissal
employer or any member of the household; Neither the domestic worker nor the employer
3. Commission of a crime or offense against may terminate the contract before the
the domestic worker by the employer or expiration of the term except for grounds
any member of the household; provided in Secs. 33 and 34 of RA 10361.
4. Violation by the employer of the terms and
conditions of the employment contract and If the domestic worker is unjustly dismissed,
other standards set forth under this law; the domestic worker shall be paid the
5. Any disease prejudicial to the health of the compensation already earned plus the
domestic worker, the employer, or equivalent of 15 days work by way of indemnity
member/s of the household; and [Sec. 32, RA 10361].
 Page 79 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

Leaving without justifiable reason by the processed or fabricated in or about a home

ho me
domestic worker and thereafter to be returned or to be
a. Any unpaid salary due not exceeding the disposed of or distributed in accordance
equivalent 15 days work shall be forfeited with employer’s direction; OR
AND b. Sells any goods, articles, or materials to be
b. The employer may recover from the processed or fabricated in or about a home
ho me
domestic worker the costs incurred related and then rebuys them after. [Art. 153]
to the deployment expenses, if any:
Provided, that the service has been Note: Sec. 2(d), Rule XIV, Book III is
terminated within 6 months from the substantially similar to the above.
domestic worker’s employment [Sec. 32,
RA 10361]. Rights and benefits accorded homeworkers
a. Right to form, join or assist organizations
Notice to end the working relationship [Sec. 3, Rule XIV, Book III, IRR]
If the duration of the domestic service is not b. Right to acquire legal personality and the
determined either in stipulation or by the nature rights and privileges granted by law to
of the service, the employer or the domestic legitimate labor organizations upon
worker may give notice to end the working issuance of the certification of registration
relationship five (5) days before the intended [Sec. 4, Rule XIV, Book III, IRR]
terminationof the service. c. Immediate payment upon employer’s
receipt of finished goods or articles [Sec. 6,
The domestic worker and the employer may Rule XIV, Book III, IRR]
mutually agree upon written notice to pre- d. SSS, MEDICARE and ECC premium
terminate the contract of employment to end contributions shall be deducted from their
the employment relationship. [Sec. 32, RA pay and shall be remitted by
10361] ER/contractor/subcontractor to the SSS
[Sec. 6, Rule XIV, Book III, IRR]
6. Homeworkers
Liability of Employer
Note:D.O. No. 5, DOLE (February 4, 1992), is a. Employer may require homeworker to redo
now Rule XIV, Book III of the IRR. work improperly executed without
additional pay [Sec. 9(a), Rule XIV, Book
Industrial homework III, IRR]
a. Is a system of production under which work b. Employer need not pay homeworker for
any work done on goods or articles not
for
by ana employer or contractor
homeworker is carried
at his/her out
home. returned due to homeworker’s fault [Sec.
Materials may or may not be furnished by 9(b), Rule XIV, Book III, IRR]
the employer or contractor. c. If subcontractor/contractor fails to pay
b. Decentralized form of production, where homeworker, employer is jointly and
there is ordinarily very little supervision or severally liable with the former to the
regulation of methods of work. [Sec. 2(a), homeworker for his/her wage [Sec. 11,
Rule XIV, Book III, IRR] Rule XIV, Book III, IRR]
d. Employer shall assist the homeworkers in
Industrial Homeworker - a worker who is the maintenance of basic safe and
engaged in industrial homework. healthful working conditions at the
homeworkers’ place of work. [Sec. 11, Rule
Employer means any natural or artificial XIV, Book III, IRR]
person who:

a. Acts as or
delivers a contractor
causes toorbesubcontractor –
delivered any Regional Office
assistance shall provide
to registered technical
homeworkers’
goods, articles, or materials to be organizations [Sec. 14, Rule XIV, Book III, IRR]
 Page 80 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

Prohibited Homework 8. Night Workers

a. explosives, fireworks and articles of like
character; Night worker
b. drugs and poisons; and Any employed person whose work requires
c. other articles, the processing of which performance of a substantial number of
requires exposure to toxic substances. hours of night work which exceed a
[Sec. 13, Rule XIV, Book III, IRR] specified limit. This limit shall be fixed by the
Sec of Labor after consulting the workers’
Deductions representatives/labor organizations and
No deduction from the homeworker’s earnings employers. [Art. 154, as amended by RA
for the value of materials lost, destroyed or 10151]
damaged unless:
a. Homeworker is clearly shown to be Any employed person whose work covers the
responsible for loss or damage period from 10:00 pm to 6:00 am the following
b. Reasonable opportunity to be heard morning, provided that the worker performs no
c. Amount of deduction is fair and less than 7 consecutive hours of work. [Sec. 2,
reasonable, and does not exceed actual Rule XV, Book III, Rule XV, Sec. 2, IRR,
loss or damage through D.O. No. 119-12]
d. Deduction does not exceed 20% of
homeworker’s weekly earnings [Sec. 8, Health Assessment
Rule XIV, Book III, IRR] At the worker’s request, they shall have the
right to undergo a health assessment without
7. Solo Parents chargeand to receive advice on how to reduce
or avoid health problems associated with their
See III. C. 2. A. for discussion on definition of work:
solo parents and solo parent leave* a. Before taking up an assignment as a night
worker
See VII. E. for discussion on non-work related b. At regular intervals during such an
support for solo parents* assignment
c. If they experience health problems during
Flexible work schedule for solo parents such an assignment
“Flexible work schedule” is the right granted to
a solo parent to vary his/her arrival and With the exception of a finding of unfitness for
departure time without affecting core work night work, the findings of such assessments

hours as defined by the employer. [Sec. 3(e),

RA 8972] shall be confidential
their detriment, andhowever,
subject, shall NOT
to be used to
applicable
company policies. [Art. 155, as amended by
The employer shall provide a flexible work RA 10151; Sec. 3, Rule XV, Book III, IRR,
schedule for solo parents: Provided, through D.O. No. 119-12]
1. That the same shall not affect individual
and company productivity: Mandatory Facilities
2. That any employer may request exemption Mandatory facilities shall be made available for
from the above requirements from the workers performing night work, which include
DOLE on certain meritorious grounds. the following:
[Sec. 6, RA 8972] a. Suitable first-aid and emergency facilities;
b. Lactation station in required companies
Work discrimination illegal pursuant to RA 10028;
No employer shall discriminate against any c. Separate toilet facilities for men & women

solo parentofemployee
conditions with on
employment respect to terms
account and
of his/her d. Facility
AND for eating w/ potable drinking water;
status. [Sec. 7, RA 8972]
 Page 81 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

e. Facilities for transportation and/or properly would otherwise be called upon to perform
ventilated temporary sleeping or resting such work. Such measures may include:
quarters, separate for male and female a. Transfer to day work – As far as
workers, shall be provided except where practicable, pregnant or nursing
any of the ff. circumstances is present: employees shall be assigned to day work,
1. There is an existing company before and after childbirth, for a period of at
guideline, practice or policy, CBA, or least sixteen (16) weeks, which shall be
any similar agreement providing for an divided between the time before and after
equivalent or superior benefit; or childbirth;
2. Start or end of the night work does NOT
fall within 12 mn - 5 am; or Medical certificate issued by competent
3. Workplace is located in an area that is physician (OB/Gyne/Pedia) is necessary
accessible 24 hours to public for the grant of:
transportation; or 1. additional periods of assignment to day
4. Number of employees does NOT work during pregnancy or after
exceed a specified number as may be childbirth, provided that such shall not
provided for by the SOLE in be more than 4 weeks or for a longer
subsequent issuances [Art. 156, as period as may be agreed upon by
amended by RA 10151; Sec. 4, Rule employer and worker;
XV, Book III, IRR, through D.O. No. 2. extension of maternity leave; and
119-12] 3. clearance to render night work.

Transfer b. Provision of social security benefits - in

If night worker is unfit for night work due to accordance with provisions of Act No 8282
health reasons as certified by competent (Social Security Act of 1997) and other
physician, s/he shall be: existing company policy or collective
a. Transferred in good faith to a job for which bargaining agreement.
they are fit to work whenever practicable,
which must be similar and equivalent c. Extension of maternity leave – where
position; transfer to day work is not possible, but
b. If transfer is not practicable, or workers are requires recommendation by competent
unable to render night work for a physician; without pay or using earned
continuous period of not less than 6 leave credits, if any. [Art. 158, , as
months upon certification of a competent amended by RA 10151; Sec. 6, Rule XV,
public health authority, they shall be Book III, IRR, through D.O. No. 119-12]
granted the same benefits as other workers
who are unable to work due to illness. Protection against dismissal and loss of
c. If workers are certified as temporarily unfit benefits attached to employment status,
to render night work for a period of less seniority, and access to promotion
than 6 months, they shall be given the Where no alternative work can be provided to
same protection against dismissal or notice a woman employee who is not in a position to
of dismissal as other workers who are render night work, she shall be allowed to go
prevented from working for health reasons. on leave or on extended maternity leave, using
[Art. 157, as amended by RA 10151; Sec. her earned leave credits.
5, Rule XV, Book III, IRR, through D.O. No.
119-12] A woman employee shall NOT be dismissed
for reasons of pregnancy, childbirth and
Women Night Workers childcare responsibilities as defined under this

Employers shallthat
taken to ensure ensure that measures
an alternative shall
to night be
work Rule. Shehershall
regarding NOT lose
employment the seniority,
status, benefits
for pregnant and nursing employees who and access to promotion which may attach to
 Page 82 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

her regular night work position. [Sec. 8, Rule Emergency repatriation

XV, Book III, IRR, through D.O. No. 119-12] The OWWA, in coordination with DFA, and in
appropriate situations, with international
See also Night Shift Differential above. agencies, shall undertake the repatriation of
workers in cases of war, epidemic, disasters or
9. Migrant Workers calamities, natural or man-made, and other
similar events, without prejudice to
See II. A. Policy of Selective Deployment reimbursement by the responsible principal or
above. agency within sixty (60) days from notice. [Sec.
5, Rule XIII, IRR of RA 8042, as amended by
Overseas Filipino Worker/Migrant Worker – RA 10022].
A person who is to be engaged, is engaged or
has been engaged in a remunerated activity: Underage migrant workers; repatriation is
1. In a state of which he or she is not a citizen mandatory
or Upon discovery or upon being informed of the
2. On board a vessel navigating the foreign presence of migrant workers whose actual
seas other than a government ship used for ages fall below the minimum age requirement
military or non-commercial purposes or for overseas deployment, the responsible
3. On an installation located offshore or on officers in the Foreign Service shall without
the high seas. [Sec. 2 (a), RA 8042, as delay repatriate said workers and advise the
DFA through the fastest means of
amended] communication available of such discovery and
Principals and agencies have primary other relevant information. [Sec. 6, Rule XIII,
responsibility for repatriation IRR of RA 8042, as amended by RA 10022]
The repatriation of the worker or his/her
remains, and the transport of his/her personal Prohibition on bonds and deposits
effects shall be the primary responsibility of the In no case shall a private recruitment/manning
principal, employer or agency that recruited or agency require any bond or cash deposit from
deployed him/her abroad. All costs attendant the worker to guarantee performance under the
thereto shall be borne by the principal, contract for his/her repatriation [Sec. 9, Rule
employer or the agency concerned. [Sec. 1, XIII, IRR of RA 8042, as amended by RA
Rule XIII, IRR of RA 8042, as amended by RA 10022]
10022]
Compulsory insurance coverage for all
migrant workers
Principals and agencies to advance
repatriation costs Each migrant worker shall be covered by a
Principals and agencies have the obligation to compulsory insurance policy which shall be
advance the costs of repatriation, and to secured at no cost to said worker. Such
immediately repatriate the migrant worker insurance policy shall be effective for the
without a prior determination of the worker’s duration of the migrant worker’s employment.
employment. [Sec. 37-A, RA 8042, as amended by RA
10022]
However, after the worker has returned to the
country, the principal or agency may recover The insurance policy shall cover:
the cost of repatriation from the worker if the a. Accidental death;
termination of employment was solely due to b. Natural death;
the worker’s fault. [Sec. 2, Rule XIII, IRR of RA c. Permanent total disablement;
8042, as amended by RA 10022] d. Repatriation cost of the worker when

his/her
employeremployment
without any is terminated
valid cause, orby the
by the
 Page 83 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

employee with just cause, including the b. Labor standards as may be provided in the
transport of his/her personal belongings; Service Agreement or under the Labor
e. Subsistence allowance benefit for a Code;
migrant worker who is involved in a case c. Retirement benefits under RA 7641, RA
for litigation for the protection of his/her 1161, as amended by RA 8282, and
rights in the receiving country; retirement plans of the security service
f. Money claims arising from employer’s contractor, if any;
liability which may be awarded or given to d. Social security and welfare benefits;
the worker in a judgment or settlement of e. Right to self-organization and collective
his/her case in the NLRC; bargaining, subject to the provisions of
g. Compassionate visit. When a migrant existing laws; and
worker is hospitalized and has been f. Security of tenure. [Sec. 6, DO 150-16]
confined for at least seven (7) consecutive
days, he shall be entitled to a PNP Examination required for employment
compassionate visit by one (1) family The security guards and other private security
member or a requested individual; personnel in the employ of any security service
h. Medical evacuation. When an adequate contractor (SSC)/private security agency
medical facility is not available proximate to (PSA) should be duly licensed and must have
the migrant worker, as determined by the passed the physical and neuro-psychiatric
insurance company's physician and/or a examination and drug test required by the PNP
consulting physician, the insurance for pre-employment and for continued
provider shall provide for the worker’s employment. Expenses for these examinations
evacuation; and and test shall be shouldered by the security
i. Medical repatriation. When medically guards.
necessary as determined by the attending
physician, repatriation under medical Any additional test may be required at the
supervision to the migrant worker's expense of the requesting party. [Sec. 7.1, DO
residence shall be undertaken by the 150-16]
insurance provider at such time that the
migrant worker is medically cleared for Minimum wage
travel by commercial carrier. [Sec. 2, Rule Unless a higher minimum wage is agreed upon
XVI, IRR of RA 8042, as amended by RA by the parties, the security guards and other
10022] private security personnel shall be entitled to
receive a salary of not less than the minimum
wage rate prescribed for non-agricultural
10. Security Guards sector or industry in the region where he/she is
[Relevant issuance: DO 150-16, Revised assigned, regardless of the nature of business
Guidelines Governing the Employment and of the principal. [Sec. 7.3, DO 150-16]
Working Conditions of Security Guards and
Private Security Personnel in the Private In case of transfer, the wage rate most
Sector Industry] favorable to the security guards and other
private security personnel shall apply. [Sec.
Rights of security guards and other private 7.4, DO 150-16]
security personnel
All security guards and other private security Deductions from salary
personnel, whether deployed or assigned as No deduction shall be made from the salary of
reliever, seasonal, week-ender, or temporary, the security guards and other private security
shall be entitled to all the rights and privileges personnel, except for:

as provided for in the Labor Code, which shall

include: 1.
2. SSS contribution;
Pag-IBIG contribution;
a. Safe and healthful working conditions; 3. PhilHealth contribution;
 Page 84 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

4. Withholding tax from income, provided a

proper withholding tax receipt is issued to IV. POST-EMPLOYMENT
the employee before the filing of income
tax return every year;
5. Union dues, if authorized in writing; A. EMPLOYER-EMPLOYEE
6. Agency fees which may be collected from RELATIONSHIP
employees who are not members of the
bargaining agent but accept benefits under
the collective bargaining agreement (CBA); Definitions
and 1. Employer
7. Other deduction as may be authorized in • Any person acting directly or indirectly in
writing by the security guard and other the interest of an employer in relation to an
private security personnel for payment to a employee. [Art. 97(b); Art. 219(f)]
third person and the employer agrees to do • Any person, natural or juridical, employing
so, provided that the latter does not receive the services of the employee. [Art. 173(f)]
any pecuniary benefit, directly or indirectly, • Includes:
from the transaction. o The government
o All its branches, subdivisions and
In case an SSC/PSA requires its security guard instrumentalities
and other private security personnel to post a o All government-owned or controlled
bond for use of firearms and other corporations and institutions
paraphernalia, such may only be imposed o All nonprofit private institutions, or
once. organizations. [Art. 97(b)]
• Does not include any labor organization or
The amount of the bond should not be more any of its officers or agents except when
than 5% of the amount of the firearm issued to acting as employer. [Art. 219(f)]
the security guard and other private security
personnel. The said cash bond, less the cost of 2. Employee
damage or loss of firearms or paraphernalia • Any individual employed by an employer.
due to the fault of the security guard, shall be [Art. 97(c); Art. 219(g)]
refunded to the security guards and other • Any person compulsorily covered by the
private security personnel within 15 calendar GSIS under C.A. No. 168, as amended.
days from severance of employment. [Art. 173(g)]
• Includes:
See III. B. 4. b. Prohibition against wage o The members of the AFP,
deductions for deduction from deposits. o Any person employed as casual,
emergency, temporary, substitute or
In the event that a SSC/PSA requires a cash contractual,
deposit from its employees, the maximum o Any person compulsorily covered by
amount shall not exceed the employee’s 1 the SSS under R.A. No. 1161, as
month basic salary. The said cash deposit may amended. [Art. 173(g)]
be deducted from the employee’s wages in an o Any individual whose work has ceased
amount which shall not exceed 20% of the as a result of or in connection with any
employee’s wages in a week. The full amount current labor dispute or because of any
of cash deposit deducted shall be returned to unfair labor practice if he has not
the employee within 10 days from his/her obtained any other substantially
separation from the service. [Sec. 8, DO 150- equivalent and regular employment.
16] [Art. 219(g)]
•

The term of
employees shall not beemployer,
a particular limited to the
unless
the Code so explicitly states. [Art. 219(g)]
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U.P. LAW BOC LABOR 1 LABOR LAW

3. Person Power to control

• An individual, partnership, association, This is the most important element when
corporation, business trust, legal determining the existence of an EER. It
representatives, or any organized group of pertains not only to results, but also to the
persons. [Art. 97(a); Art. 173(h)] means and methods to attain those results.
[Lirio v. Genovia, G.R. No. 169757 (2011)].
Both a question of law and of fact
The existence or absence of EER is a question The “existence” of the right to control is
of law and of fact, each in its defined sense. sufficient for the element to be present. There
Ultimately, it is a question of fact because need not be “actual exercise” of the right.
whether one exists or not is dependent upon [Zanotte Shoes v. NLRC, G.R. No. 100665,
the facts of each case. [SSS v. CA and Ayalde, (1995)]
G.R. No. 100388, (2000)]. However, it is a
question of law because it cannot be made the Not every form of control will create an EER.
subject of agreement [Tabas et.al. v. California No EER exists when control is in the form of
Manufacturing Co., et. al., G.R. No. 80680, rules that merely serve as guidelines towards
(1989)]. Hence, the characterization of the law the achievement of results without dictating the
prevails over that in the contract. means or methods to attain them. EER exists
when control is in the form of rules that fix the
1. Tests to Determine Existence methodology to attain a specified result and
bind the worker to use such. [Insular Life
a. Four-Fold Test Assurance Co, LTD v. NLRC, G.R. No. 84484
(1989)].
Elements of an EER
1. Selection and engagement of the b. Economic Dependence Test
employee;
2. Payment of wages; Two-tiered approach
3. Power of dismissal; and 1. Control Test (refer to the Four-Fold Test)
4. Employer’s power to control the 2. Underlying economic realities within the
employee’s conduct with respect to the activity or relationship [Sevilla v. CA, G.R.
means and methods by which the work is Nos. L-41182-3 (1988)]
to be accomplished [Brotherhood Labor
Unity Movement of the PH v. Zamora, G.R. Underlying economic realities
No. 48645, (1987)] In determining the existence of an EER, these
realities must be examined, taking into
Payment of wages consideration the totality of circumstances
The following are not conclusive of the surrounding the true nature of the parties’
absence of an EER: relationship. The benchmark “reality” for the
• That a worker was not reported as an existence of an EER is economic dependence
employee to SSS; of the worker on his employer. “Economic
• That a worker’s name does not appear in dependence” is whether the worker is
the payrolls and pay envelope records dependent on the employer for his continued
submitted by the employer. employment. [Orozco v. CA, G.R. No. 155207
(2008)]
Note: For a payroll to be utilized
utili zed to disprove the
EER, it must contain a true and complete list of
employees. [Southeast East International
Rattan v Coming, G.R. No. 186621 (2014)]
 Page 86 of 262

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Competent and relevant evidence needed be invoked to further ends subversive of

to prove EER justice. [Pamplona Plantation Co v Tinghil
No particular form of evidence is required to [G.R. No. 159121 (2005)]
prove the EER. Any competent and relevant
evidence to prove the relationship may be Doctrine illustrated in jurisprudence
admitted. For, if only documentary evidence In Sarona v. NLRC [G.R. No. 185280 (2012)],
would be required to show that relationship, no the doctrine was applied. It involved the illegal
scheming employer would ever be brought dismissal of Sarona, a security guard who first
before the bar of justice, as no employer would worked at Sceptre but was subsequently
wish to come out with any trace of the illegality assigned to Royale, where he was illegally
he has authored considering that it should take dismissed. In the computation of his separation
much weightier proof to invalidate a written pay, Sarona prayed that the corporate veil of
instrument. [Tenazas, et al., v. R. Villegas Taxi Royale be pierced as it was a mere
Transport, G.R. No. 192998 (2014)] continuation of Sceptre; hence, his separation
pay should be computed from the time he was
Burden of proof on alleged employee hired by Sceptre. This was granted.
The onus probandi rests on the employer to Circumstances indicated that Spectre and
prove that its dismissal was for a valid cause. Royale were one and the same (same office,
However, before a case for illegal dismissal same officers, same person exercising control
can prosper, an EER must first be established. and supervision over employees of both
It is incumbent upon the employee to prove the companies), and that Sarona’s transfer to
EER by substantial evidence. [Javier v. Fly Ace Royale was done in bad faith. As such, Sarona
Corporation, G.R. No. 192558 (2012)] could be said to have an EER with Sceptre.
Thus, his separation pay was to be computed
Doctrine of piercing the corporate veil from the time he was hired by Sceptre.
When this doctrine is applied, an employee can
be said to have an EER with the corporation 2. Legitimate Subcontracting as
that another corporation (who the employee distinguished from Labor-Only
“works” for) is merely an alter ego of. It applies Contracting
in these 3 basic scenarios:
1. Defeat of public convenience as when Contracting or Subcontracting
corporate fiction is used as a vehicle to
Definition of Contracting/Subcontracting
evade existing obligations; Contracting or subcontracting refers to an
2. Fraud casesas when the corporate entity
arrangement whereby a principal agrees to
is used atocrime;
defend justify a wrong, protect fraud, or farm out to a contractor the performance or
completion of a specific job or work –
3. Alter ego cases, where a corporation is a a. Within a definite or predetermined period,
farce, as it is a mere alter ego or business
b. Regardless of whether such job or work is
conduit of a person, or where the to be performed or completed within or
corporation is so organized and controlled
outside the premises of the principal. [Sec.
and its affairs are so conducted as to make 3(c), D.O. No. 174-17]
it merely an instrumentality, agency,
conduit or adjunct of another corporation. Contracting/Subcontracting as
[Maricalum Mining Corp. v. Florentino,
distinguished from Labor-Only Contracting
G.R. No. 221813 (2018)] There is "labor-only" contracting where:
1. The person supplying workers to an
Note: The corporate character is not fully
employer does not have substantial capital
abrogated. It continues for other legitimate or investment in the form of tools,
objectives.
it may beHowever,
pierced inincertain
ordercircumstances,
to promote equipment, machineries, work premises,
among others, and
substantial justice. Such fiction of law cannot
 Page 87 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

2. The workers recruited and placed by such 5. Contractors and subcontractors referred to
person are performing activities which are in these rules are prohibited from engaging
directly related to the principal business of in recruitment and placement activities as
such employer. defined in Art. 13(b), whether for local or
overseas employment. [Sec. 2. D.O. No.
In such cases, the person or intermediary shall 174-17: Rules Implementing Articles 106 to
be considered merely as an agent of the 109 of the Labor Code, as amended]
employer who shall be responsible to the
workers in the same manner and extent as if Applicability of Rules to Indirect Employers
the latter were directly employed by him. [Art. The provisions of Art. 106 shall likewise apply
106, par. 4] to any person, partnership, association or
corporation which, not being an employer,
Rules for Contracting/Subcontracting contracts with an independent contractor for
1. Whenever an employer enters into a the performance of any work, task, job or
contract with another person for the project. [Art. 107]
performance of the former’s work, the
employees of the contractor and of the Service Agreement
latter’s subcontractor, if any, shall be paid Service agreement refers to the contract
in accordance with the provisions of this between the principal and contractor
Code. [Art. 106, par. 1] containing the terms and conditions governing
2. In the event that the contractor or the performance or completion of a specific job
subcontractor fails to pay the wages of his or work being farmed out for a definite or
employees in accordance with this Code, predetermined period. [Sec. 3(j), D.O. No. 174-
the employer shall be jointly and severally 17]
liable with his contractor or subcontractor
to such employees: a. Elements
a. To the extent of the work performed
under the contract To be considered legitimate contracting or
b. In the same manner and extent that he subcontracting, the following elements must
is liable to employees directly concur:
employed by him. [Art. 106, par. 2] 1. Distinct and independent business:
3. The SOLE may, by appropriate Contractor or subcontractor is engaged in
regulations, restrict or prohibit the a distinct and independent business and
contracting-out of labor to protect the rights undertakes to perform the job on its own

of
[Art.workers established
106, par. 3] under this Code. responsibility,
and method; according to its own manner
a. He may make appropriate distinctions 2. Substantial capital or investment:
between labor-only contracting and job Contractor or subcontractor has substantial
contracting as well as differentiations capital to carry out the job farmed out by
within these types of contracting. the principal on his account, manner and
b. He may determine who among the method, investment in the form of tools,
parties involved shall be considered equipment, machinery and supervision;
the employer for purposes of this Code. 3. Free from control/direction of the
4. An employer or indirect employer may principal: In performing the work,
require the contractor or subcontractor to contractor or subcontractor is free from the
furnish a bond equal to the cost of labor control/direction of the principal in all
under contract, on condition that the bond matters regarding performance of the work
will answer for the wages due the except the result;

employees
subcontractor,should the may
as the case contractor
be, fail or
to 4. Compliance with labor
Agreement ensures laws: Service
that employees of the
pay the same. [Art. 108] contractor/subcontractor are given all the
 Page 88 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

benefits and rights they are entitled to a. Specific description of the job or work
under labor laws. [Sec. 8, D.O. No. 174-17] to be performed by the employee; and
b. Place of work and terms and conditions
Substantial capital (#2) of employment, including a statement
Refers to paid-up capital stocks/shares of at of the wage rate applicable to the
least P5,000,000 in the case of corporations, individual employee.
partnerships and cooperatives; in case of 2. Service Agreement between the principal
single proprietorship, a net worth of at least and the contractor - It shall include the
P5,000,000. [Sec. 3(l), D.O. No. 174-17] following:
a. Specific description of the job or work
b. Trilateral relationship being subcontracted, including its term
or duration;
When the above-elements are present, a b. Place of work and terms and conditions
trilateral relationship arises. It consists of the governing the contracting
following parties: arrangement, including the agreed
1. Principal - Any natural or juridical entity, amount of the contracted job or work,
whether an employer or not, who puts out the standard administrative fee of not
or farms out a job or work to a contractor. less than 10% of the total contract cost;
2. Contractor- Any person or entity engaged c. Provision on the issuance of the bond/s
bo nd/s
in a legitimate contracting or renewable every year. [Sec. 11, D.O.
subcontracting arrangement providing No. 174-17]
services for a specific job or undertaking
farmed out by a principal under a Service Rights of contractor’s employees
Agreement. 1. Security of tenure
3. Contractor’s employee- Employee of the 2. Safe and healthful working conditions;
contractor hired to perform or complete a 3. Labor standards such as but not limited to
job or work farmed out by the principal. service incentive leave, rest days, overtime
[Sec. 3, D.O. No. 174-17] pay, holiday pay, 13th month pay, and
separation pay
Note: Contractor may also be a subcontractor. 4. Retirement benefits under the SSS or
retirement plans of the
Relationships within the trilateral contractor/subcontractor;
relationship 5. Social security and welfare benefits; and
1. EER between the contractor and the 6. Self-organization, collective bargaining

employees
specific job,it engaged
work or toservice
performbeing
the and peaceful
the right concerted
to strike. activities
[Sec. 10, including
D.O. No. 174-
contracted; and 17]
2. Contractual relationship between the
principal and the contractoras governed Termination of employment [Sec. 13, D.O.
by the provisions of the NCC. [Sec. 5, par. No. 174-17]
1, D.O. No. 18-A-11]
Cause Effect
Required contracts Prior to Governed by Art. 297 –
1. Employment contract between the expiration of 299
contractor and its employees - Service
Notwithstanding any oral or written Agreement
stipulations to the contrary, such contract
shall be governed by LC 294 and 295, and Pre- The right of the
provisions onthe
shall include general labor standards. It
following: termination
Service of contractor’s
unpaid wages employee to
and other
 Page 89 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

Labor-only contracting
Agreement. unpaid benefits including
This is one of the violations that may be
and not due to unremitted legal mandatory
committed by the principal and contractor,
authorized contributions, (e.g., SSS,
which may make them solidarily liable. There
causes PhilHealth, Pag-ibig, ECC),
are two kinds:
shall be borne by the party
1. Provided for by Article 206, Labor Code:
at fault, without prejudice
a. (i) The contractor does not have
to the solidary liability of substantial capital; or
the parties to the Service
(ii) the contractor does not have
Agreement.
investments in the form of tools,
Due to Employee may opt to wait equipment, machineries, supervision,
expiration of for re-employment within 3 work premises, among others;
Service months to resign and b. The contractor’s employees are
Agreement, or transfer to another performing activities that are directly
from contractor-employer. related to the main business operation
completion of of the principal.
the phase of Failure of the contractor to 2. The contractor does not exercise the right
the job, work provide new employment to control the performance of the work of
or service for shall entitle the employee the employee. [Sec. 5., D.O. No. 174-17]
which to payment of separation
Substantial capital under 1st kind
employee
engaged is benefits
providedasbymay bethe
law or Having substantial capitalization is not enough
Service Agreement, to declare one a legitimate contractor. If any of
whichever is higher, the other elements of labor-only contracting is
without prejudice to his/her present, they are labor-only contractors.
entitlement to completion [Quintanar v. Coca-Cola Bottlers, 794 SCRA
bonuses or other 654 (2016)]
emoluments, including
retirement benefits Presumption of labor-only contracting
whenever applicable. A contractor is presumed to be a labor-only
The mere expiration of the contractor and has the burden of proving the
Service Agreement shall contrary. [Polyfoam-RGC Int’l Corp. v.
not be deemed as a Concepcion , 672 SCRA 148 (2012)]
termination of employment
of the contractor’s Effect
become of regular
labor-only contracting: employees
employees
employees who are
deemed regular employees Where an entity is declared to be a labor-only
of the contractor. contractor, the employees supplied by said
contractor to the principal become regular
employees of the latter. Having gained regular
c. Liabilities status, the employees are entitled to security of
tenure and can only be dismissed for just or
Solidary liability of principal and contractor authorized causes and after they had been
Every employer or indirect employer shall be afforded due process. [Norkis Trading v.
held responsible with his contractor for any Buenavista, G.R. No. 182018 (2012)]
violations of labor laws. For purposes of
determining the extent of their civil liability, they Other prohibitions
shall be considered as direct employers. [Art. 1. When the principal farms out work to a
109]
“Cabo”
D.O. No.[See definition
174-17]; under Sec. 3(a).,
 Page 90 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

2. Contracting out of job or work through an Applicability

in-house agency; D.O. No. 174-17 applies only to trilateral
3. Contracting out of job or work through an relationships that can be characterized as
in-house cooperative which merely contracting or subcontracting arrangements. It
supplies workers to the principal; does not apply to:
4. Contracting out of a job or work by reason 1. Information technology-enabled services,
of a strike or lockout whether actual or such as:
imminent; a. Business process outsourcing
5. Contracting out of a job or work being b. Knowledge process outsourcing
performed by union members and such will c. Legal process outsourcing
interfere with, restrain or coerce employees d. IT infrastructure outsourcing
in the exercise of their rights to self- e. Application development
organization as provided in Art. 259; f. Hardware and/or software support
6. Requiring the contractor’s employees to g. Medical transcription
perform functions which are currently being h. Animation services
performed by the regular employees of the i. Back office operations/support
principal; 2. Construction industry under the licensing
7. Requiring the contractor’s employees to coverage of the Philippine Contractors
sign, as a precondition to employment or Accreditation Board, which shall be
continued employment, an antedated governed by D.O. No. 19-93; D.O. No. 13-
resignation letter; a blank payroll; a waiver 98; and DOLEDPWH
DOLEDPWH-DILG-DTI
-DILG-DTI and PCAB
of labor standards including minimum Memo of Agreement-Joint Admin Order 1-
wages and social or welfare benefits; or a 2011.
quitclaim releasing the principal or 3. Contracting or subcontracting
contractor from liability as to payment of arrangements in the private security
future claims; or require the employee to industry, which are governed by D.O. No.
become member of a cooperative; 150-16.
8. Repeated hiring by the contractor of 4. Contracts of sale, purchase, lease,
employees under an employment contract carriage, growing agreement, toll
of short duration; manufacturing, contract of management,
9. Requiring employees under a contracting operation and maintenance and other such
arrangement to sign a contract fixing the contracts governed by the NCC and other
period of employment to a term shorter special laws. [DOLE Dept. Circular No. 01-
than the term of the Service Agreement, 17]

unless
for the substantially
which contract is divisible into
different phases
skills are 3. Kinds of Employment
required and this is made known to the
employee at the time of engagement; a. Regular
10. Such other practices, schemes or
employment arrangements designed to An employment shall be deemed to be regular
circumvent the right of workers to security where the employee has been engaged to
of tenure. [Sec. 6, D.O. No. 174-17] perform activities which are usually necessary
or desirable in the usual business or trade of
Mandatory registration the employer, exceptwhere:
It shall be mandatory for all persons or entities, a. The employment has been fixed for a
including cooperative, acting as contractors, to specific project or undertaking, the
register with the Regional Office of the DOLE completion or termination of which has
where it principally operates. Failure to register been determined at the time of the
shall give isrise
contractor to thein presumption
engaged that the
labor-only contracting. engagement of the employee; or
[Sec. 14, D.O. No. 174-17]
 Page 91 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

b. The work or service to be performed is Trading Corp. v. Molina, G.R. No. 206061
seasonal in nature and the employment is (2013)]
for the duration of the season. [Art. 295]
When Art. 295 not applicable
An employee who is allowed to work after a It does not apply where the existence of an
probationary period shall be considered a EER is in dispute. It is not the yardstick for
regular employee. [Art. 296] determining the existence of an EER, as it
merely distinguishes between two kinds of
Regular employee defined employees, i.e., regular and casual, for
One who is engaged to perform activities that purposes of determining the right of an
are necessary and desirable in the usual employee to certain benefits, to join or form a
business or trade of the employer as against union, or to security of tenure. [Atok Big Wedge
those which are undertaken for a specific Co., Inc. v. Gison, G.R. No. 169510 (2011)]
project or are seasonal.
Hiring for an extended period
It is not synonymous with permanent Where the employment of project employees is
employee, because there is no such thing as a extended long after the supposed project has
permanent employment. Any employee may been finished, the employees are removed
be terminated for just cause. from the scope of project employees and
considered regular employees. [Audion
Two kinds of regular employee Electric Co., Inc. v. NLRC, G.R. No. 106648
1. Those engaged to perform activities which (1999)]
are necessary or desirable in the usual
business or trade of the employer; and While length of time is not a controlling test for
2. Casual employees who have rendered at project employment, it can be a strong factor in
least 1 year of service, whether continuous determining whether the employee was hired
or broken, with respect to the activity in for a specific undertaking or in fact tasked to
which they are employed. [Romares v. perform functions which are vital, necessary
NLRC, G.R. No. 122327 (1998)] and indispensable to the usual business or
trade of the employer. [Tomas Lao Const. v.
Reasonable connection rule NLRC, G.R. No. 116781 (1997)]
The primary standard to determine regular
employment is the reasonable connection Repeated renewal of contract
between the activity performed by the While contractual stipulations as to the duration
d uration

employee
employer. to the business or trade of the of employment
where are valid, they cannot
the contract-to-contract apply
arrangement
was but an artifice to prevent the acquisition of
Test: W/N the employee is usually necessary security of tenure and to frustrate constitutional
or desirable in the usual business or trade of decrees. [Beta Electric Corp. v. NLRC, G.R.
the employer. No. 86408 (1990)]

If the employee has been performing the job for Length of time not controlling
at least one year, even if not continuous or Length of time is merely a badge of regular
merely intermittent, the repeated and employment. [Maraguinot v. NLRC, G.R. No.
continuing need for performance is sufficient 120969 (1998)]
evidence of necessity, if not indispensability of
that activity to the business of the employer.
Hence, the employment is also considered

regular,
and whilebut only
such with exists.
activity respect[Forever
to suchRichons
activity
 Page 92 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

b. Casual the job. If the job is usually necessary or

desirable to the main business of the employer,
An employment shall be deemed to be casual then employment is regular. [A. M. Oreta and
where: Co., Inc. v. NLRC, G.R. No. 74004 (1989)]
a. An employee is engaged to perform a job,
work or service which is merely incidental c. Contractual
to the business of the employer, and such
job, work or service is for a definite period See Discussion on Fixed-Term Employees
made known to the employee at the time of
engagement. [Sec. 5(b), Rule I, Book VI, Contractual employees defined
IRR] Those who employment is governed by the
b. The employment has been fixed for a contracts they sign every time they are hired.
specific project or undertaking, the Their employment is terminated when the
completion or termination of which has contract expires, which is usually fixed for a
been determined at the time of the certain period of time (e.g., seafarers). [Unica
Unica
engagement of the employee; or v. Anscor Swire Ship Management Corp., G.R.
c. The work or service to be performed is No. 184318 (2014)]
seasonal in nature and the employment is
for the duration of the season. [Art. 295] No implied renewal upon expiration
Absent a mutually-agreed upon agreement,
Provided, That any employee who has there is no renewal or extension of an expired
rendered at least one year of service, whether contract.
such service is continuous or broken, shall be
considered a regular employee with respect to Termination of contract
the activity in which he is employed and his The existence of a contract does not mean
employment shall continue while such activity there can be no illegal dismissal. Due process
exists. [Art. 295] (substantial and procedural) must still be
observed in termination and pre-termination of
Casual employee defined the contract. [Fuji Television Network Inc v.
One engaged to perform a job, work or service Espiritu, G.R. No. 204944-45 (2014)]
that is merely incidental to the business of the
employer, and such job, work or service is for d. Project
a definite period made known to the employee
at the time of engagement. Employment is not deemed regular where the

It is also someone who is not a regular, project employment has been fixed
project or undertaking for a specific
the completion or
or seasonal employee. termination of which has been determined at
the time of the engagement of the employee.
Requirements to become regular employee [Art. 295]
1. One (1) year service, continuous or broken
with respect to activity employed, unless he Project employee defined
has been contracted for a specific project. One who is hired for carrying out a separate
[Tabas v. California Marketing Co., Inc., job, distinct from the other undertakings of the
G.R. No. L-80680 (1989)] company, the scope and duration of which has
2. Employment shall continue while such been determined and made known to the
activity exists. employees at the time of employment. [Hanjin
Heavy Industries & Const. Co. v. Ibañez, G.R.
Nature of work determines kind of No. 170181 (2008)]
employment
What determines regularity or casualness is
not the employment contract but the nature of
 Page 93 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

Rationale for project employment 2. Such duration, as well as the specific

If a project has already been completed, it work/service to be performed, is defined in
would be unjust to require the employer to an employment contract;
maintain them in the payroll while they are 3. Agreement and is made clear to the
doing absolutely nothing except waiting until employee at the time of the hiring;
another project is begun. In effect, these stand- 4. The work/service to be performed by the
by workers would be enjoying the status of employee is in connection with the
privileged retainers, collecting payment for particular project/undertaking for which he
work not done, to be disbursed by the employer is engaged;
from profits not earned. [De Ocampo, Jr. v. 5. The employee, while not employed and
NLRC, G.R. No. 81077 (1990)] awaiting engagement, is free to offer his
services to any other employer;
Two kinds of project employee 6. The termination of his employment in the
1. For a particular job or undertaking that is particular project/undertaking is reported to
WITHIN the regular or usual business of the DOLE Regional Office having
the employer company, but which is jurisdiction over the workplace following
distinct and separate, and identifiable as the date of his separation from work, using
such, from the other undertakings of the the prescribed form on employees’
company (e.g., construction) terminations /dismissals/suspensions;
2. For a particular job or undertaking that is 7. An undertaking in the employment contract
NOT within the regular business of the by the employer to pay completion bonus
corporation. Such a job or undertaking to the project employee as practiced by
must also be identifiably separate and most construction companies. [D.O. No.
distinct from the ordinary or regular 19, Sec. 2.2; Samson v. NLRC, G.R. No.
business operations of the employer. [Villa
Villa 11366 (1996)].
v. NLRC, G.R. No. 117043 (1988)]
Repeated hiring, length of service not
Test of project employment determinative
W/N employment has been fixed for a specific The repeated and successive rehiring of
project or undertaking the completion or project employees do not qualify them as
termination of which has been determined at regular employees. What is determinative is
the time of the engagement of the employee. whether the employment has been fixed for a
[D.M. Consunji v. NLRC, G.R. No. 116572 specific project or undertaking, its
(2000)] completion has been determined at the time of

Note: When the employment contract does not the engagement

Geothermal Powerof Progressive
the employee. [Leyte
Leyte
Employees
state a particular date, but it does specify that Union v. Philippine National Oil Company, G.R.
termination of employment is to be on a “day No. 170351 (2011)]
certain” -- the day when the specified phase of
work would be completed --, the employee The fact that employment as project
cannot be considered regular. He is a project employees has gone beyond 1 year does not
employee. [Filipinas Pre-Fabricated Building legally dissolve their status as project
Systems, Inc. v. Puente, G.R. No. 153832 employees. LC 280(2) providing that an
(2005)] employee who has served at least 1 year
shall be considered a regular employee,
Indicators of project employment relates to casual employees, not to project
1. The duration of the specific/identified employees. [Raycor Aircontrol Systems v.
undertaking for which the worker is NLRC, G.R. No. 114290 (1996)]

engaged is reasonably determinable; Generally, length of service provides a fair

yardstick for determining when an employee
 Page 94 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

initially hired on a temporary basis becomes a trade of the employer. [Maraguinot v.

permanent one, entitled to the security and NLRC, G.R. No. 120969. (1998)]
benefits of regularization. But this standard
will not be fair, if applied to the construction Termination requirements
industry, simply because construction firms A report of termination to the nearest public
cannot guarantee work and funding for its employment office every time their
payrolls beyond the life of each project. employment was terminated due to completion
[William Uy Construction Corp. v. Trinidad, of each construction project. Failure of the
G.R. No. 183250 (2010)] employer to file termination reports after every
project completion proves that the employees
Work pool employee are not project employees. [Pasos v. Philippine
Project employees may or may not be National Construction Corp., G.R. No. 192394
members of a work pool. Those who are (2013)]
members of a work pool may either be project
or regular employees. [Raycor Aircontrol e. Seasonal
Systems, Inc. vs. NLRC, G.R. 114290, (1996)]
Employment is not deemed regular where the
A work pool may exist although the workers in work or service to be performed is seasonal in
the pool do not receive salaries and are free to nature and the employment is for the duration
seek other employment during temporary of the season. [Art. 295]
breaks in the business, provided, that the
worker shall be available when called to report Seasonal employees defined
for a project. Although primarily applicable to Those whose work or services to be performed
regular seasonal workers, this set-up can are seasonal in nature, as there is no
likewise be applied to project workers insofar continuing need for the worker. Their
as the effect of temporary cessation of work is employment is for the duration of the season.
concerned. [Maraguinot v. NLRC, G.R. No.
120969. (1998)] “Regular seasonal” employees after one
season
Work pools in construction companies Seasonal workers who are constantly rehired
Members of a work pool from which a and are only temporarily laid off during off-
construction company draws its project season are not separated from service in said
employees, if considered employees of the period, but are merely considered on leave
construction company while in the work pool, until work resumes. They are considered

are non-project
indefinite employees
period. or employees
If they are employedforinan
a regular
of their and permanent
relationship is employees. The nature
such that during off-
particular project, the completion of the project season they are temporarily laid off but during
or any phase thereof will not mean severance summer season they are re-employed, or when
of the EER. [Policy Instruction No. 20; J. & DO their services may be needed. They are not
Aguilar Corp. v. NLRC, G.R. No. 116352 strictly speaking separated from the service but
(1997)] are merely considered as on leave of absence
without pay until they are re-employed.
When a project employee or a member of a [Philippine Tobacco Flue-Curing & Redrying
work pool acquires the status of regular Corp. v. NLRC, G.R. No. 127395, (1998)]
employment
1. Continuous rehiring of project employees Must only be hired for the duration of one
even after cessation of a project; season
2. Task performed by the alleged “project To be considered seasonal employees, it is not
employees”
indispensableare vital,usual
to the necessary
businessand
or enough
seasonalthat work or
in nature. services
The performed
employees are
must have
been employed only for the duration of one
 Page 95 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

season. [Hacienda Fatima v. National their employment contract on more equal

Federatiom of Sugarcane Workers, G.R. No. footing with the employer than the latter.
149440 (2003)] Furthermore, both kinds of employment
happen within a period. For project employees,
Exception to one season rule (illustrative the determining factor is the activity (w/n
case) project) to be performed. For fixed-term
Although respondent constantly availed herself employees, the determining factor is the day
of the petitioners’ services from year to year, it certain agreed upon (i.e., the commencement
was clear from the facts therein that they were and termination of the EER). [GMA Network v.
not in her regular employ. Petitioners therein Pabriga, G.R. No. 176419 (2013)]
performed different phases of agricultural work
in a given year. However, during that period, Distinguished from independent
they were free to work for other farm owners, contractors
and in fact they did. In other words, they No EER exists between independent
worked for respondent, but were nevertheless contractors and their principals; their contracts
free to contract their services with other farm are governed by the law on contracts and other
owners. The Court was thus emphatic when it applicable law. Employees under fixed-term
ruled that petitioners were mere project contracts cannot be independent contractors
employees, who could be hired by other farm because in fixed-term contracts, an EER
owners. [Mercado, Sr. v. NLRC, G.R. No. exists. [Fuji Television Network, Inc. v.

79869 (1991)] Espiritu, G.R. No. 204944-45 (2014)]

f. Fixed-term Regular fixed-term employee
Where an employee’s contract had been
Brent doctrine continuously extended or renewed to the same
When the following indicators are present, position, with the same duties and remained in
fixed-term employment is valid: the employ without any interruption, then such
1. Fixed period of employment was knowingly employee is a regular employee. The
and voluntarily agreed upon by the parties employee’s contract indicating a fixed-term did
absent any circumstance vitiating consent not automatically mean that he/she could never
2. It satisfactorily appears that the employer be a regular employee.
and employee dealt each other on more or
less equal footing with no moral dominance An employee can be a regular employee with a
exercised by one over the other. fixed-term contract. The law does not preclude

Reason for equal footing indicator the possibility

to have that a regular
a fixed-term contractemployee may opt
for valid reasons.
When a prospective employee, on account of For as long as it was the employee who
special skills or market forces, is in a position requested, or bargained, that the contract have
to make demands upon the prospective a “definite date of termination,” or that the fixed-
employer, such prospective employee needs term contract be freely entered into by the
less protection than the ordinary worker. The employer and the employee, then the validity of
level of protection to labor must be determined the fixed-term contract will be upheld. [Fuji
on the basis of the nature of the work, Television Network Inc v. Espiritu, G.R. No.
qualifications of the employee, and other 204944-45 (2014)].
relevant circumstances. [Fuji Television
Network Inc v. Espiritu, G.R. No. 204944-45 No implied renewal upon termination
(2014)]. When the day certain for the termination of
employment comes, there is no implied
Distinguished from project
Fixed-term employees areemployees
different from renewal or extension
be expressly of employment
and mutually-agreed This[Unica
upon. Umust
nica
project employees, as the former negotiates
 Page 96 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

v. Anscor Swire Ship Management Corp., G.R. Exceptions:

No. 184318 (2014)] 1. When it is covered by an apprenticeship
agreement stipulating a longer period. [Art.
In case of pre-termination 296]
Due process must be observed in the pre- 2. When the parties to the employment
termination of fixed-term contracts in order for contract agree otherwise, such as when
the employer to not be liable for illegal established by company policy or required
dismissal. [Fuji Television Network Inc v. by the nature of the work performed by the
Espiritu, G.R. No. 204944-45 (2014)] employee. [Buiser v. Leogardo, G.R. No. L-
63316, (1984)]
g. Probationary; Private School 3. When it involves the 3-year probationary
Teachers period of teachers. [Mercado v. AMA
Computer College, G.R. No. 183572,
Probationary employee defined (2010)]
One who is made to go on a trial period by an 4. When it involves an act of liberality on the
employer during which the employer part of his employer affording him a second
determines whether he is qualified for chance to make good after having initially
permanent employment, based on reasonable failed to prove his worth as an employee.
standards made known to him at the time of [Mariwasa v. Leogardo, G.R. No. 74246
engagement. [Robinson’s Galleria et al. v. (1989)]

Ranchez, G.R. No. 177937 (2011)] Purpose of probationary employment

Rules for probationary employment 1. Observation Period– for the employee to
1. Shall not exceed 6 months from the date demonstrate his skills to the employer who
the employee started working, unless it is determines whether the former is qualified.
covered by an apprenticeship agreement 2. Restrictive - As long as termination was
stipulating a longer period. [Art. 296] made before the expiration of the 6-month
2. The services of an employee who has been probationary period, the employer has a
engaged on a probationary basis may be right to sever the EER.
terminated for a just cause or when he
fails to qualify as a regular employeein The employer has the right to choose who will
accordance with reasonable standards be hired. It is within the exercise of this right
made known by the employer to the that the employer may fix a probationary period
employee at the time of his engagement. within which he may test and observe the

[Art.
a. The296]employer shall make known to the conduct of the
hiring. [Grand employee
Motor before
Parts Corp. permanent
v. MOLE, G.R.
employee the standards under which No. L-58958 (1984)]
he will qualify as regular employee at
the time of his engagement. Requirements for validity of qualification
b. Where no standards are made known standards
to the employee at the time of In order for the standards set by the employer
engagement, he shall be deemed a to be validly used in determining whether the
regular employee. [Sec. 6(d), Rule I, employee qualifies for permanent employee:
Book VI, IRR] 1. The employer must communicate such
3. An employee who is allowed to work after standards to the probationary employee;
a probationary period shall be considered and
a regular employee. [Art. 296] 2. Such communication must be made at the
time of the probationary employee’s
Duration
General Rule:Shall not exceed 6 months from engagement.
the date of the commencement of employment
 Page 97 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

An employer is deemed to have made known termination of the 6-month probationary period,
the standards when it has exerted reasonable the employer was within his rights to sever the
efforts to apprise the employee of what he is EER. A contrary interpretation would defect the
expected to do or accomplish during the trial clear meaning of the term “probationary.” [De
De
period of probation. This employee must be la Cruz, Jr. v. NLRC, G.R. No. 145417 (2003)]
sufficiently made aware of his probationary
status as well as the length of time of the Termination can only be for:
probation. The exception to the foregoing is 1. Just causes;
when the job is self-descriptive in nature. 2. Authorized causes; or
[Abbott Laboratories Phil. et al. v. Alcaraz, G.R. 3. Failure to qualify as a regular employee in
No. 192571 (2013)] accordance with reasonable standards
made known by the employer to the
Effect of failure to comply employee at the time of engagement.
If the employer fails to comply with the above- [Robinson’s Galleria et al. v Ranchez, G.R.
requirements, the employee is deemed as a No. 177937, Jan. 19, (2011)]
regular and not probationary employee. [Alcira
Alcira
v. NLRC, G.R. No. 149859, (2004)] Nonetheless, procedural and substantial due
process must be observed during termination
Burden of proof of compliance with of the probationary employee.
employer

The
they employer has the
have informed burden of proving
the probationary that
employee Note : In orderstandards”
probationary to invoke as
“failure to meet the
a justification for
of the standards, that those standards have dismissal, the employer must show how these
been applied to the employee, and that the standards have been applied to the subject
employee fell short of such standards. employee. [Univac Development, Inc. v.
Soriano, G.R. No. 182072 (2013)]
Prohibition on extended/double probation
When the employer renews the employment Limits to termination
contract after the lapse of the 6-month 1. It must be exercised in accordance with the
probationary period, the employees thereby specific requirements of the contract
became regular employees. No employer is 2. If a particular time is prescribed, the
allowed to indefinitely determine the fitness of termination must be within such time and if
its employees. [Bernardo v. NLRC, supra.] formal notice is required, then that form
must be used

Furthermore,
transferred to an employee who
his employer’s sister iscompany
merely 3. Employer’s
and in gooddissatisfaction must so
faith, not feigned beasreal
to
cannot be subjected to new probationary circumvent the contract or the law
employment when he had already attained 4. There must be no unlawful discrimination in
regular employment under his original the dismissal [Manila Hotel Corporation v.
employer. [A Prime Security Services, Inc. v. NLRC,G.R. No. 53453 (1986)]
NLRC, G.R. No. 107023, (2000)]
Private school teachers
Termination of probationary employee A private school teacher’s entitlement to
A probationary employee enjoys only a security of tenure is governed by the Manual of
temporary employment status. He is Regulations for Private Schools and not the
terminable at any time, permanent employment Labor Code. Thus, for a private school teacher
not having been attained in the meantime. The to acquire permanent employment (security of
employer could decide he no longer needed tenure), these must be present:
the probationary
performance employee’s
fell short servicesAs
of expectations. orlong
his 1.
2. Must be a full-time
Must have renderedteacher
3 consecutive years of
as termination was made before the service
 Page 98 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

3. Service must have been satisfactory. [La 3. Other benefits or their monetary equivalent
Salette of Santiago v. NLRC, G.R. No.
82918 (1991)] Reckoning period of computation: from the
time his compensation was withheld up to his
Mere completion of the 3-year probation, even actual reinstatement.
with an above-average performance, does not
guarantee that the employee will automatically Rationale
acquire a permanent employment status. The It is a constitutionally protected right under
un der Sec.
probationer can only qualify upon fulfillment of 3, Art. XIII, 1987 Constitution.
the reasonable standards set for permanent
employment as a member of the teaching Termination of employment is not anymore a
personnel. [Herrera-Manaois v. St. mere cessation or severance of a contractual
Scholastica’s College, G.R. No. 18891 (2013)] relationship, but an economic phenomenon
affecting members of the family. Under the
These standards should be made known to the principle of social justice, dismissal of
teachers on probationary status at the start of employees is adequately protected by the
their probationary period, or at the very least laws. [Albambra Industries v. NLRC, GR No.
under the circumstances of the present case, 106771 (1994)]
at the start of the semester or the trimester
during which the probationary standards are to Management Prerogative

be applied.
failure Of critical
to meet importance
importancestandards,
the probationary in invoking isa An employer
in its employ cannot be whose
a person compelled to continue
continuance in
that the school should show – as a matter of the service would patently be inimical to its
due process – how these standards have been interests. [Baguio Central University v.
applied. [Colegio del Santisimo Rosario v. Gallente, GR No, 188267 (2013)]
Rojo, G.R. No. 170388 (2013)]
Requisites for the valid invocation of
management prerogative affecting security of
B. TERMINATION BY tenure:
EMPLOYER 1. Exercised in good faith for the
advancement of employer’s interest, and
Coverage 2. Not for the purpose of defeating or
All establishments or undertakings, whether for circumventing the rights of the employees
profit or not. [Art. 293] under special laws or valid agreements.

[Ople,
San Miguel
GR No.Brewery Sales Force Union v.
52515 (1989)]
Exception
Government and its political subdivisions
including GOCCs without original charter. [Sec. Disposition of labor disputes
1, Rule 1, Book VI, IRR] Bare and vague allegations as to the manner
of service and the circumstances surrounding
Security of Tenure [Art. 294] the same would not suffice.
In case of regular employment, the employer
shall not terminate the services of an employee Example: a mere copy of the notice of
except for a just cause or when authorized termination allegedly sent by the employer to
by this Title. the employee, without proof of receipt or at the
very least, actual service is not substantial
An employee who is unjustly dismissed from evidence. [Mansion Printing Center v. Bitara
work shall be entitled to: Jr., GR No. 168120 (2012)]

1. Reinstatement without loss of seniority Substantive issues must be addressed more

rights, and other privileges,
2. Full backwages inclusive of allowance, and than anything else, and so, the Court may
 Page 99 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

forego the matter of procedural infirmities in While an employer enjoys a wild latitude of
labor cases. [Ang v. San Joaquin, Jr., GR No. discretion in the promulgation of policies, rules
182249 (2013)] and regulations on work-related activities, such
must be fair and reasonable, and the
Burden of Proof corresponding penalties, when prescribed
In order: must be commensurate to the offense
1. Existence of ER-EE Relationship - borne involved and to the degree of infraction.
by employee [Moreno v. San Sebastian College-Recoletos,
2. Fact of dismissal - borne by employee GR No. 175283 (2008)]
3. Legality of dismissal - borne by employer
1. Requisites for Validity
Employee must first establish fact of
dismissal a. Substantive due process
Before the employer must bear the burden of
proving that the dismissal was legal, the Substantive Due Process - whether the
employee must prove by substantial evidence termination was based on the provisions of the
the fact of his dismissal from service for the Labor Code or in accordance with
question of the legality or illegality of the jurisprudence.
dismissal to arise. [MZR Industries v.
Colambot, GR No. 179001 (2013)] The dismissal must be for any of the causes

Employer’s burden of proving legality of provided for in Art. 297-299.

dismissal i. Just causes
The burden of proving the termination was for
a valid or authorized cause shall rest on the a. Serious Misconduct or Willful
employer. (Art. 292 (b)) Disobedience (Insubordination)
b. Gross & Habitual Neglect of Duties
Unsubstantiated accusations or baseless c. Fraud/Willful Breach of Trust
conclusions of the employer are insufficient d. Commission of A Crime
legal justifications to dismiss and employee. e. Analogous cases
[Garza v. Coca-Cola Bottlers Inc, GR No.
180972 (2014)] An employer may terminate an employment for
any of the following causes:
The employer’s case succeeds or fails on the a. Serious misconduct or willful disobedience
strength of its evidence,
of that adduced by the and not theinweakness
employee keeping by the employee of the lawful orders of his
employer or representatives in connection
with the principle that the scales of justice with his work;
should be titled in favor of the latter in case of b. Gross and habitual neglect by the
doubt in the evidence presented. [Functional
Functional employee of his duties;
Inc. v Garafil, GR No, 176377 (2011)] c. Fraud or willful breach by the employee of
the trust reposed in him by his employer or
Measure of Penalty duly authorized representative;
Not every case of insubordination or willful d. Commission of a crime or offense by the
disobedience by an employee reasonably employee against the person of his
deserves the penalty of dismissal. The penalty employer or any immediate member of his
must be commensurate with the gravity of family or his duly authorized
the offense. [Joel Montallana v. La representatives; and
Consolacion College Manila, GR No. 208890 e. Other causes analogous to the foregoing.
(2014)] [Art. 297]
 Page 100 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

Basis disrespect and defiance, was for honest and

As a measure of self-protection against acts well-intentioned reasons to protect the
inimical to the employer’s interest. An employer company from liability under the Bouncing
cannot be compelled to continue employing an Checks Law. It was not wrongful nor willful.
employee guilty of acts inimical to the Neither can it be considered an obstinate
employer’s interest, justifying loss of defiance of company authority. [Lores Realty
confidence in him. [Yabut v. Meralco, GR No. Enterprises v. Paria, GR No. 171189 (2011)]
190436 (2012)]
(b) Gross and Habitual Neglect of Duties
(a) Serious Misconduct or Willful
Disobedience Requisites
1. There must be a neglect of duty
Requisites of Serious Misconduct 2. The neglect must be both gross and
1. There must be misconduct habitualin character.
2. The misconduct is of such grave and
aggravatedcharacter Gross negligence has been defined as the
3. It must relate to the performance of the want or absence of or failure to exercise slight
employee’s duties care or diligence, or the entire absence of care.
4. A showing that the employee becomes It evinces a thoughtless disregard of
unfit to continue working for the consequences without exerting any effort to

employer. [Sec. 5.2(a), D.O. No. 147-15] avoid them. In order

an employee’s to constitute
dismissal just cause forit
due to negligence,
Misconduct refers to the improper or wrong must be both gross and habitual. A single or an
conduct that transgresses some established isolated act cannot be categorized as habitual.
and definite rule of action, a forbidden act, a [National Bookstore v. CA, GR No. 146741
dereliction of duty, willful in character, and (2002)]
implies wrongful intent and not mere error in
judgment. [Northwest Airlines Inc v. Del Gross negligence - want of care in the
Rosario, GR No. 157633 (2014)] performance of one’s duties

Example: Accusatory and inflammatory Habitual neglect - repeated failure to perform

language used by an employee to the one’s duties for a period of time.
employer or superior. [Nissan Motors Phils v.
Angelo, GR No. 164181 (2011)] Estoppel by toleration of management

Requisites of Willful Disobedience Breach

toleratedofbyrules and regulations
management whichasare
cannot serve a
1. There must be disobedience or basis for termination. The rule only applies
insubordination ; when the violation is not tantamount to fraud or
2. The disobedience or insubordination must commission of illegal activities. One cannot
be willful or intentional characterized by evade liability based on obedience to the
a wrongful and perverse attitude; corporate chain of command. [PNB V. Padao,
3. The order violated must be reasonable, GR No. 180849, 187143 (2011)]
lawful and made knownto the employee
[Mirant Philippines Corp v. Sario, GR No. Gross negligence includes gross
197598 (2012)]; and inefficiency
4. The order must pertain to the duties which Gross and habitual neglect of duty includes
he has been engagedto discharge. [Sec. gross inefficiency, negligence and
5.2(b), D.O. No. 147-15] carelessness. [Century Iron Works, Inv. c.
Banas, GR No. 184116 (2013)]
The employee’s initial reluctance to prepare
the checks which was seemingly an act of
 Page 101 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

(c) Fraud/Willful Breach of Trust The employee is one holding a position of trust
and confidence (e.g. managerial or fiduciary
Requisites of fraud or willful breach of trust: employees). There must be an act that justifies
1. There must be an act, omission or the loss of trust and confidence based on a
concealment; willful breach of trust and founded on clearly
2. The act, omission or concealment involves established facts. [Wesleyan University -
a breach of legal duty, trust, or Philippines v. Reyes, GR No. 208321 (2014)]
confidencejustly reposed;
3. It must be committed against the Moreover, the act complained must be related
employer or his/her representative; and to the performance of the duties of the
4. It must be in connection with employee’s employee such as would show him to be
work. [Sec. 5.2 (d), DO No. 147-15] thereby unfit to continue working for the
employer. [Equitable Banking Corp. v. NLRC,
When dismissal is proper for fraud/willful GR No. 102467 (1997)]
breach of trust
Such breach is willful if it is done intentionally, Note: DO 174-15 distinguishes fraud or willful
knowingly, and purposely, without justifiable breach of trust from loss of confidence, but, as
excuse as distinguished from an act done seen in cases, jurisprudence seems to make
carelessly, thoughtlessly, heedlessly or no such distinction.
inadvertently. The act complained of must be

work-related andworking.
unfit to continue shows that the employee
In addition, is
it must be Positions of trustemployees
1. Managerial and confidence
- vested with
premised on the fact that the employee powers or prerogatives to lay down
concerned holds a position of responsibility, management policies and to hire, transfer,
trust and confidence or is entrusted with suspend, lay-off, recall, discharge, assign
confidence with respect to delicate matters or discipline employees or effectively
such as handling or case and protection of the recommend such managerial actions.
property and assets of the employer. 2. Fiduciary Rank and File - those who in the
[Villanueva, Jr. v. NLRC, GR No. 176893 normal and routine exercise of their
(2012)] functions, regularly handle significant
amounts of money or property. Ex.
Requisites of loss of confidence cashiers, auditors, property custodians.
1. There must be an act, omission or [Prudential Guarantee and Assurance
concealment; Employee Labor Union v. NLRC, GR No.

2. the
The loss
act, omission
of trust or
andconcealment
confidencejustifies
of the 185335 (2012)].
employer to the employee;
Managerial Fiduciary Rank-
3. The employee concerned must be holding
and-File
a position of trust and confidence;
4. The loss of trust and confidence should Mere existence of a Proof of involvement
not be simulated; basis for the belief in the alleged events
5. It should not be used as a subterfugefor of employee’s guilt. in question required;
causes which are improper, illegal or [Grand Asian mere uncorroborated
unqualified; and Shipping Lines assertions and
6. It must be genuine and not a mere Inc.v. Galvez, GR accusations are not
afterthought to justify an earlier action No. 178184 (2014) enough. [Etcuban,
taken in bad faith. [Sec. 5.2(e), DO No. Jr. v. Sulpico Lines
147-15] Employment for a Inc, GR No. 148410

When dismissal is proper for loss of

long time is counted (2005)]
AGAINST the
trust/confidence
 Page 102 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

employer, his immediate family

employee. [Salvador
member, or his duly authorized
v. Philippine Mining
representative . [Sec. 5.2(f), D.O. No. 147-
Service, GR No.
15]
148766]
The employer may validly dismiss for loss of
Reason for Rule on Managerial Employees
While plain accusations are not sufficient to trust andan confidence
commits act of fraudanprejudicial
employeeto whothe
justify the
the dismissal of rank and file employees, interest of the employer. Neither a criminal
the mere existence of a basis for believing that prosecution nor a conviction beyond
managerial employees have breached the trust reasonable doubt for the crime is a requisite for
reposed on them by their employer would the validity of the dismissal. [Concepcion v.
suffice to justify their dismissal. [Grand Asian Mimex Import Corporation, GR No. 153569
Shipping Lines Inc.v. Galvez, GR No. 178184 (2012)]
(2014)]
(e) Analogous causes
Acquittal in Criminal Case arising from
Misconduct Requisites
Notwithstanding acquittal in the criminal case 1. There must be an act or omission similar
for qualified theft, the company had adequately to those specified just causes; and
established the basis for the company’s loss of
confidence as a just cause to terminate. As 2. The act or
and/or omission
willful on the be voluntary
must part of the
opposed to the “proof beyond reasonable employees.
doubt” standard of evidence in criminal cases,
labor suits require only substantial evidence to No act or omission shall be considered as
prove the validity of the dismissal. [Paulino v. analogous cause unless expressly specified in
NLRC, GR No. 176184 (2012)] the company rules and regulations or policies.
[Sec 5.2. (g), D.O. No. 147-15]
Betrayal by a long-time employee
Length of service is not a bargaining chip that Analogous means susceptible of comparison
can simply be stacked against the employer. with another either in general or in some
After all, an employer-employee relationship is specific detail; or has a close relationship with
symbiotic where both parties benefit from the latter.
mutual loyalty and dedicated service, If an

employer
accorded had treated
him his employees
fairness well, has
and adequate Other causes
1. Abandonment
compensation as determined by law, it is only 2. Courtesy resignation
fair to expect a long-time employee to return 3. Change of ownership
such fairness with at least some respect and 4. Habitual absenteeism/tardiness
honesty. Thus, it may be said that betrayal by 5. Poor performance
a long-time employee is more insulting and 6. Past offenses
odious for a fair employer. [Moya v. First Solid 7. Habitual infractions
Rubber Industries, GR No. 184011 (2013)]. 8. Immorality
9. Totality of infractions
(d) Commission of a Crime 10. Pregnancy out of wedlock
11. Conviction/commission of a crime
Requisites: 12. Temporary “off-detail” or “floating status”
1. There must be an act or omission

2. punishable or prohibited
The act or omission by law; and
was committed by the
employee against the person of the
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Abandonment time. [RB Michael Press v. Galit, GR NO.

It is the deliberate and unjustified refusal of an 153510 (2008)]
employee to resume his employment. It is a
form of neglect of duty. However, there are instances when
absenteeism is not sufficient to justify
Requisites termination. In the case of Cavite Apparel v.

1. Failure to report
without valid for work
or justifiable or and
reason, absence Michelle
SC ruledMarquez, GR No.
that though 172044
Michelle (2013),
was guiltythe
of
2. Clear intention to sever the employer- violating company rules on leaves of absences
employee relationship (more determinative and discipline, the dismissal imposed on her
factor and manifested in overt acts). was unjustified under the circumstances.
Michelle had been employed with the employer
The burden to prove whether the employee for 6 years, with no derogatory record other
abandoned his work rests on the employer. than the four absences without official leave,
[Protective Maximum Security Inc. v. Celso E. not to mention she had already been penalized
penali zed
Fuentes, GR No. 169303 (2015)] for the first three absences, the most serious
being a six-day suspension.
Absence must be accompanied by overt acts
unerringly pointing to the fact that the Poor performance
employee simply does not want to work It is tantamount to inefficiency and

anymore. The employer

proof to show has and
a deliberate the burden of
unjustified incompetence in the performance
duties. An unsatisfactory rating can of
be official
a just
refusal of the employee to resume employment cause for dismissal only if it amounts to gross
without any intention of returning. [Tan and habitual neglect of duties. Poor or
Brothers Corp v. Escudero, GR No. 188711 unsatisfactory performance of an employee
(2013)] does not necessarily mean he is guilty of gross
and habitual neglect of duty. [Shipmanagement
Courtesy resignation Inc. v. Campo-Redondo, GR No. 199931
Resignation per se means voluntary (2015)]
relinquishment of a position or office. Adding
the word ‘courtesy’ did not change the essence Past offenses
of the resignation. [Batongbacal v. Associated Previous offenses may be used as a valid
Bank, GR No. 184517 (2013)] justification for dismissal only if the infractions
are related to the subsequent offense upon
Change of ownership
A mere change in the equity composition of a which theCanning
[Century basis of terminationv. isRamil,
Corporation decreed.
GR
corporation is neither just nor an authorized No. 171630 (2010)
cause that would legally permit the dismissal of
the corporation’s employees en masse. [SME Habitual infractions
Bank Inc. v. De Guzman, GR No. 184517, A series of irregularities when put together may
186641 (2013)] constitute serious misconduct, under which Art.
297 of the Labor Code is a just cause for
Habitual absenteeism/tardiness dismissal. [Gustilo v. Wyeth Phil Inc., GR No.
It is a form of neglect of duty. Lack of initiative, 149629 (2004)]
diligence and discipline to come to work on
time everyday exhibit the employee’s Immorality
deportment towards work. It is inimical to the DECS Order No. 92 provides that disgraceful
general productivity and business of the or immoral conduct can be used as a basis for
employer. This is especially true when the termination of employment. [Santos, Jr. v.
tardiness and/or absenteeism occur frequently NLRC, GR No. 116795 (1998)]
and repeatedly within an extensive period of
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The act of engaging in extramarital affairs was misconduct and present behavior must be
specifically provided for by the cooperative’s taken together in determining the proper
Personnel Policy as one of the grounds for imposable penalty. [Merin v. NLRC, GR No.
termination of employment. The Board 171790 (2008)]
received complaints and petitions from the
cooperative members for the removal of Pregnancy out of wedlock

Bandiola because(extramarital
hence immorality of his immoral
affair)conduct,
justified When the disgraceful
necessarily, law speaks of immoral
conduct, it pertains or
to
the termination of his employment. [Alilem public and secular morality.
Credit Cooperative v. Bandila, Jr. GR No.
173489 (2013) Pre-marital sexual relations between two
consenting adults, who have no impediment to
Standard of morality marry each other, and consequently,
It is public and secular, not religious. Whether conceiving a child out of wedlock, gauged from
a conduct is considered disgraceful or immoral a purely public and secular view of morality
should be made in accordance with the does NOT amount to an immoral conduct.
prevailing norms of conduct, which as stated in [Cheryl Leus v. St. Scholastica College
Leus, refer to those conducts which are Westgrove, GR No. 187226 (2015)]
proscribed because they are detrimental to
conditions upon which depend the existence of Conviction/commission of a crime

and progress of human society. The chargeand

premises of drug abuse
during within
work the constitutes
hours company’s
The fact that a particular act does not conform serious misconduct which is a just cause for
to the traditional moral views of a certain termination. [Bughaw Jr. v. Treasure Island
sectarian institution is insufficient to qualify the Industrial, GR No. 173151 (2008)]
act as immoral unless it likewise does not
conform to the public and secular standards. Temporary “off-detail” or “floating status”
More importantly, there must be substantial This is the period of time when security guards
evidence to establish premarital sexual are in between assignments or when they are
relations and pregnancy out of wedlock is made to wait after being relieved from a
considered disgraceful or immoral. [Capin- previous post until they are transferred to a new
Cadiz v. Brent Hospital, GR No. 187417 one.
(2016)]
When this occurs
Totality of infractions
The totality of infractions or the number of 1. Security
renew theiragency’s clients
contracts withdecide not to
the agency,
violations committed during the period of resulting in a situation where the available
employment shall be considered in determining posts under its existing contracts are less
the penalty to be imposed upon an erring than the number of guards in its roster,
employee. Fitness for continued employment 2. Contracts stipulate that the client may
cannot be compartmentalized into tight little request the agency for replacement of
cubicles of aspects of character, conduct and guards assigned to it even for want of
ability separate and independent of each other. cause.

While it may be true that the petitioner was During such time, the security guard does not
penalized for his previous infractions, this does receive any salary or financial assistance
not and should not mean that his employment provided by law. It does not constitute a
record would be wiped clean. After all, the dismissal, as the assignments primarily
record of an employee is a relevant depend on contracts entered into between
consideration in determining the penalty that security agencies and third parties, so as long
should be meted out since an employee’s past as such status does not continue beyond a
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reasonable time. When such status lasts for Payment of Separation Pay
more than 6 months, the employee may be
Authorized Cause Separation Pay
considered constructively dismissed.
[Salvaloza v. NLRC, GR No. 182086 (2010)] Labor-saving 1 month pay or at
devices least 1 month pay
Transfer/Reassignment of work for every year of
Jurisprudential
1. A transfer is aguidelines
movement from one position Redundancy service, whichever is
higher [Art. 298]
to another of equivalent rank, level or
salary without break in the service or a Retrenchment, 1 month pay or at
lateral movement from one position to closure, or least $month pay
another of equivalent rank or salary; suspension of for every year of
2. The employer has the inherent right to operations service, whichever is
transfer or reassign an employee for higher. [Art. 298]
legitimate business purposes;
3. A transfer becomes unlawful where it is
Note: A fraction of at least 6 months shall be
motivated by discrimination or bad faith or
considered 1 whole year. [Art. 298]
is effected as a form of punishment or is a
demotion without sufficient cause;
Basis
4. The employer must be able to show that
Employment is the lifeblood upon which the
the transfer oris prejudicial
inconvenient not unreasonable,
to the worker and his family owe their survival. [Flight
Attendants and Stewards Ass’n of the
employee. [Rural Bank of Cantilan Inc v.
Philippines v. PAL, GR. No. 178083 (2009)]
Julve, GR No. 169750 (2007)]
Written notice
ii. Authorized causes
For all authorized causes, a written notice
served on both the employees and the DOLE
Also known as “Business-related Causes”
at least one month prior to the intended date of
termination is required.
The employer may also terminate the
employment of any employee due to:
(a) Installation of labor-saving devices
a. The installation of labor-saving devices,
b. Redundancy,
This refers to the installation of machinery to
c. Retrenchment to prevent losses or
effect efficiency and economy in the
d. The closing or cessation
establishment of operation
or undertaking of the
not due to employer’s method of production. [Edge
Apparel Inc v. NLRC, GR No. 121314 (1998)]
serious loss [Art. 298]
Requisites
Other causes
1. There must be introduction of
a. Disease incurable in 6 months [Art. 299]
machinery, equipment, or other
b. Enforcement of union security clause in the
devices;
CBA
2. The introduction must be done in good
c. Dismissal of union officers for the conduct
faith;
of an illegal strike; Dismissal of union
3. The purpose for such introduction must
members for participating in the
be validsuch as to save on cost, enhance
commission of illegal acts in a strike [Art.
efficiency and other justifiable economic
279 (a)]
reasons;
d. Termination in conformity with existing
4. There is no other option available to
statute/qualification requirements. employer than the introduction of
machinery, equipment or device and the
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U.P. LAW BOC LABOR 1 LABOR LAW

consequent termination of employment of

those affected thereby; and In implementing a redundancy program, the
5. There must be fair and reasonable employer is required to adopt fair and
criteria in selecting employees to be reasonable criteria taking into consideration
terminated. factors such as (a) preferred status, (b)
efficiency, and (c) seniority among others.

General
saving Rule: In
devices, cases of installation
redundancy of labor-
and retrenchment, [Morales v. Metrobank, GR No. 182475 (2012)]
the Last-In, First-Out Rule shall apply. (c) Retrenchment to prevent serious loss

Exception: Employee volunteers to be Requisites

separated from employment. [Sec. 5.2(a), D.O. 1. The retrenchment is reasonably
No. 147-15] necessary and likely to prevent business
losses;
(b) Redundancy 2. The losses, if already incurred, are not
merely de minimis, but substantial,
Redundancy exists when the service capability serious, actual and real, or if only
of the workforce is in excess of what is expected are reasonably imminent as
reasonably needed to meet the demands of the perceived objectively and in good faith by
business enterprise. the employer;

A position is redundant when it is superfluous 3. The

provedexpected or actualand
by sufficient losses must be
convincing
and superfluity of a position or positions could evidence;
be the result of a number of factors such the 4. The retrenchment must be in good faithfor
overhiring of workers, a decrease in the volume the advancement of its interest and not to
of business or dropping of a particular line or defeat or circumvent the employees’ right
service previously manufactured or undertaken to security of tenure; and
by the enterprise. [Morales v. Metrobank, GR 5. There must be fair and reasonable
No. 182475 (2012)] criteria in ascertaining who would be
dismissed and would be retained among
Requisites the employees such as status, efficiency,
1. There must be superfluous positions or seniority, physical fitness, age and financial
servicesof employees; hardship for certain workers. [Sec. 5.4(c),
2. The positions or services are in excess of D.O. No. 147-15]
what
actual isrequirements
reasonably ofdemanded by theto
the enterprise The employer bears the burden of proving the
operate in an efficient and economical existence of the imminence of substantial
manner; losses with clear and satisfactory evidence that
3. There must be good faith in abolishing there are legitimate business reasons justifying
redundant positions; a retrenchment. [Mount Carmel College
4. There must be fair and reasonable Employees Union v. Mount Carmel College,
criteria in selecting the employees to be GR No. 187621 (2014)]
terminated; and
5. There must be adequate proof of Two kinds of losses justifying retrenchment
redundancy such as but not limited to the 1. Incurred losses - substantial, serious actual
new staffing pattern, feasibility and real
studies/proposal, on the viability of newly 2. Expected losses - reasonably imminent
created positions, job description and the [Sanoh Fulton Phils v. Bernardo Tagohoy, GR
approval by the management of the No. 187214 (2013)]
restructuring. [Sec. 5.4(b), D.O. No. 147-
15]
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(d) Closing or cessation of business not separation pay. Otherwise, the affected
due to serious loss employees are entitled to separation pay.
5. The burden of proving compliance with all
Requisites the above-stated falls upon the employer.
1. There must be a decision to close or cease [Manila Polo Club Employees’ Union v.
operation of the enterprise by the Manila Polo Club, GR No. 172846 (2013)]

management;
2. The decision was made in good faith; and Closure of Department
3. There is no other option available to the The closure of a department or division of a
employer except to close or cease company constitutes retrenchment by, and not
operations. [Sec 5.4(d), DO No. 147-15] closure of, the company itself. [Waterfront
Cebu City Hotel v. Jimenez, GR No. 174214
Unless the closing is for the purpose of (2012)]
circumventing the provisions of this Title [Art.
298] Corporate Acquisitions
Asset Sales Stock Sales
By serving a written notice on the workers and
the Ministry of Labor and Employment at least
Sale
1 month before the intended date thereof.[Art.
298]
Corporate entity The individual or
Guidelines sells all or corporate
1. Closure or cessation of operations of substantially all of its shareholders sell a
establishment or undertaking may either be assets to another controlling lock of
partial or total. entity. stock to new or
2. Closure or cessation of operations of existing
establishment or undertaking may or may shareholders.
not be due to serious business losses or
financial reverses. In both instances, proof Obligations
Obligations of Seller
must be shown that:
a. It was done in good faith to advance the Seller in good faith is A shift in the
employer's interest and not for the authorized to composition of its
purpose of defeating or circumventing dismiss the affected shareholders will not
the rights of employees under the law employees, but is affect its existence

b. orA awritten
valid agreement;
notice onandthe affected liable
paymentfor the
of and continuity.
employees and the DOLE is served at separation pay. Notwithstanding the
least 1 month before the intended date stock sale, the
of termination of employment. corporation
3. The employer can lawfully close shop even continues to be the
if not due to serious business losses or employer of its
financial reverses but separation pay, people and
which is equivalent to at least one month continues to be
pay as provided for by Article 283 of the liable for the
Labor Code, as amended, must be given to payment of their
all the affected employees. wages.
4. If the closure or cessation of operations of
establishment or undertaking is due to Obligation of Buyer
serious business losses or financial
reverses, the employer must prove such
allegation in order to avoid the payment of
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Asset Sales Stock Sales

The buyer in good The corporation or

faith is not obliged to its new majority
absorb the shareholders are not
employees affected entitled to lawfully
by the sale, nor is it dismiss corporate
liable for the employees absent a
payment of their just or authorized
claims. The most cause. [SME Bank v.
that it may do, for De Guzman, GR
reasons of public No.184517 (2013)]
policy and social
justice, is to give
preference to the
qualified separated
personnel of the
selling firm.

Criteria in selecting employees for

dismissal
1. Preferred status (e.g. temporary, casual or
regular employees)
2. Efficiency
3. Physical fitness
4. Age
5. Financial hardship
6. Seniority [Asian Alcohol Corp v. NLRC, GR
No. 131108 (1999)]

Summary
Retrenchment Redundancy Closure

Reduction
due to pooroffinancial
personnel
returns so Service
usually ofwhat
excess of employee is in by
is required The reversal of
the employer the fortune
whereby thereofis
as to cut down on costs of an enterprise a complete cessation of
operations in terms of wages business operations and/or
and salaries actual locking-up of the doors
of the establishment, usually
due to financial losses.

To avoid or minimize business To save production costs. To prevent further financial

losses. drain upon the employer.

1 month or $month pay per 1 month or 1 month pay per Closure not due to serious
year of service separation pay year of service separation pay business losses, 1 month or $
(whichever is higher) (whichever is higher) month pay per year of service

separation
higher). pay (whichever is
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Retrenchment Redundancy Closure

Closure due to serious

business losses, no separation
pay. [Manila Polo Club
Employees union v. Manila
Polo Club, GR No. 172846
(2013)]

(e) Disease Burden of proof with employer

The burden of proof falls upon the employer to
An employer may terminate the services of an establish the requisites. In the absence of such
employee: certification, the dismissal must be necessarily
1. Who has been found to be suffering from declared illegal.
any disease; and
2. Whose continued employment is prohibited Prior certification required
by law or is prejudicial to his health as well It is only where there is a prior
p rior certification from
as the health of his co-employees. [Art. a competent public authority that the disease
299] afflicting the employee sought to be dismissed
is of such nature or at such stage that it cannot
Separation Pay be cured within 6 months even with proper
An employee terminated on the ground of medical treatment that the latter could be
disease shall be paid separation pay validly terminated from his job. [Crayons
equivalent to at least 1 month salary or to $ Processing v. Pula, GR No. 167727 (2007)]
month salary for every year of service,
whichever is greater. [Art. 299] Note: If the disease or ailment can be cured
within the period of 6 months, the employer
Note: A fraction of at least six (6) months being shall not terminate the employee but shall ask
considered as one (1) whole year. the employee to take a leave of absence. The
employer shall reinstate such employee to his
Requisites former position immediately upon the
1. The employee must be suffering from a restoration of his health. [Sec. 8, Rule I, Book
disease which cannot be cured within 6 VI]

month,
treatment;even with proper medical (f) Enforcement of Union Security Clause
2. Continued employment is either: in CBA
a. Prohibited by law or
b. Prejudicial to his health or The law authorizes the enforcement of union
c. Prejudicial to the health of his co- security clauses, provided it is not
employees; and characterized by arbitrariness and always with
3. A certification to that effect issued by a due process.
competent public health authority, which
must state that the disease is of such In terminating the employment of an employee
nature or at such a stage that it cannot be by enforcing the Union Security Clause, the
cured within a period of six (6) months even employer needs only to determine and prove
with proper medical treatment [Sec. 8, Rule that:
I, Book VI; Crayons Processing v. Pula, GR 1. The union security clause is applicable

No.
15] 167727 (2007), Sec. 5.2(f), D.O. 147- 2. The union of is
enforcement requesting
the union for the
security provision
in the CBA
 Page 110 of 262

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3. There is sufficient evidence to support the the National Labor Relations Commission.
union’s decision to expel the employee [Art. 292 (b)]
from the union or company.
Procedural Due Process - manner in which
(g) Dismissal of Union Officers for the the dismissal was effected.
conduct of an illegal strike; Dismissal of 1. The first written notice to be served on the

union members
commission for participating
of illegal in the
acts in a strike employees should for
causes or grounds contain the specific
termination against
them, and a directive that the employees
Any union officer who knowingly participates in are given the opportunity to submit their
an illegal strike, and any worker or union officer written explanation within a reasonable
who knowingly participates in the commission period.
of illegal acts during a strike may be declared 2. The requirement of a hearing is complied
to have lost employment status. [Art. 279 (a)] with as long as there was an opportunity to
be heard, and not necessarily an actual
(h) Termination in Conformity with Existing hearing was conducted.
Statute/ Qualification Requirements 3. After determining that termination of
employment is justified, the employers
While the right of workers to security of tenure shall serve the employees a written notice
is guaranteed by the Constitution, its exercise of termination indicating that:
may
policebe reasonably
powers of the regulated pursuanthealth,
State to safeguard to the a. All circumstances
against involvinghave
the employee the charge
been
morals, peace, education, order, safety, and considered, and
the general welfare of the people. b. The grounds have been established to
justify the severance of the
Consequently, persons who desire to engage employment. [Inguillo v. First Phil
in the learned professions requiring scientific or Scales, GR No. 165407 (2019)]
technical knowledge may be required to take
an examination as a prerequisite to engaging The employee must be afforded an opportunity
opp ortunity
in their chosen careers. [St. Luke's Medical to be heard and defend himself. [Fujitsu
Fujitsu
Center Employees Assn v. NLRC, GR No. Computer Products Corporation of the Phil v.
162053 (2007)] CA, GR No. 158232 (2005)]

b. Procedural due process The employer may not substitute the required
prior notice and opportunity
of 30 day’stosalary.
be heard with
The employer shall: the mere payment [PNB
PNB V.
1. Furnish the worker, whose employment is Cabansag, GR No. 157010 (2005)]
sought to be terminated, a written notice
containing a statement of the causes for Right to Counsel
termination; and The right to counsel, a very basic requirement
2. Afford the latter ample opportunity to be of substantive due process, has to be
heard and to defend himself, with the observed. Indeed the rights to counsel and to
assistance of his representative if he so due process of law are two of the fundamental
desires, in accordance with company rules rights guaranteed by the 1987 Constitution to
and regulations promulgated pursuant to any person under investigation, be the
guidelines set by the DOLE. [Art. 292 (b)] proceeding administrative, civil or criminal.
[Salaw v. NLRC, GR No. 90786 (1991)]
Any decision taken by the employer shall be
without prejudice to the right of the worker to The procedure can be summarized as follows:
contest the validity or legality of his dismissal
by filing a complaint with the regional branch of
 Page 111 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

1. Employer must furnish the employee with a 2. Directive that the employee is given the
written notice containing the cause for opportunity to submit his written
termination. explanation within a “reasonable period” or
2. The employer must give the employee an every kind of assistance that management
opportunity to be heard. This can be done must accord to enable him to prepare
either through: adequately for his defense. This should be

a.
b. Position paper
Clarificatory or
hearing. construed as a period
days from receipt of at least 5 calendar
of notice.
3. The employee MAY also be assisted by a 3. Detailed narration of the facts and
representative or counsel. circumstances that will serve as basis for
4. The employer must give another written the charge against the employees. A
notice apprising the employee of its general description of the charge will not
findings and the penalty to be imposed suffice. [Unilever v. Rivera, GR No. 201701
against the employee, if any. (2013)]
4. The company rules, if any, violated and/or
In labor cases, these requisites meet the the grounds under Art. 288 being charged
constitutional requirement of procedural due against the employee. [United Tourist
process, which contemplates, “notice and Promotions v. Kemplin, GR No. 205453
opportunity to be heard before judgment is (2014)]
rendered affecting one’s person or property”.
[Montinola v. PAL, GR No. 198656 (2014)] CONTENTS OF SECOND
1. All circumstances NOTICEthe charge
involving
i. Twin Notice Requirement against the employee considered
2. Grounds established to justify the
The employer has the burden of proving that a severance of employment. [United Tourist
dismissed worker has been served two notices: Promotions v. Kemplin, GR No. 205453
1. First written notice: specifying the (2014)]
ground(s) for termination and giving the
employee the reasonable opportunity PRE-DISMISSAL NOTICE GROUNDS
within which to explain his side. An employee may be dismissed only if the
2. Second written notice: indicating that upon grounds mentioned in the pre-dismissal notice
due consideration of all circumstances, were the ones cited for termination of
grounds have been established to justify employment. [Erector Advertising Sign Groups
his termination v. Cloma, GR No. 167218 (2010)]

Reasonable opportunity for the first written ii. Hearing

notice should be construed at least 5 calendar
days from receipt of the notice. In employee dismissal cases, the essence of
due process is simply the opportunity to be
Ratio: to give the employee an opportunity to heard, it is the denial of this that constitutes a
study the accusation against him, consult a violation of due process of law. [Technol Eight
union official or lawyer, gather data and Philippines Corporation v. NLRC, GR No.
evidence, and decide on his defenses. [King
King of 187605 (2010)]
Kings Transport v. Mamac, GR No. 166208
(2007); Puncia v. Toyota Shaw/Pasig, GR No. While a formal hearing or conference is ideal, it
214399 (2016)] is not an absolute, mandatory or exclusive
avenue of due process. [Perez v. PT&T, GR
CONTENTS OF FIRST NOTICE No. 152048 (2009)]
1. Specific causes or grounds for termination
against the employee
 Page 112 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

Guidelines in hearing requirements Consequences for non-compliance of

1. “Ample opportunity to be heard” means any Procedural Due Process (PDP)
meaningful opportunity (verbal or written)
Just/ PDP Dismissal Employer’s
given to the employee to:
Autho- liability
a. Answer the charges against him and
rized
b. Submit evidence in support of his
cause
defense,
conference whether in fair,
or some other a hearing,
just and YES YES VALID No liability.
reasonable way. Separation
2. A formal hearing or conference becomes pay only in
mandatory when: authorized
a. Requested by the employee in writing, causes.
b. Substantial evidentiary disputes exist
c. A company rule or practice requires it, NO YES INVALID Reinstatement
or or separation
d. When similar circumstances warrant. pay (if
3. The “ample opportunity to be heard” reinstatement
standard in the Labor Code prevails over is not
the “hearing or conference” requirement in possible) + full
the implementing rules and regulations. backwages
[Perez v. PT&T, supra] NO NO INVALID Reinstatement
PROCEDURE FOR TERMINATION CASES or separation
pay (if
Just Cause Authorized Cause
reinstatement
1. First notice Notice to: is not
specifying 1. Employee and possible) + full
grounds of 2. DOLE backwages
dismissal
YES NO VALID Liable for
2. Hearing or At least 1 month prior
damages due
opportunity to to the date of
to procedural
be heard termination of
infirmity
3. Second notice employment.
(nominal
of decision to
dismiss damages).
Separation
pay if for
Guidelines authorized
1. Notice is NOT NEEDED when employee cause.
consented to the retrenchment or
voluntarily applied for one. [International
Hardware Inc v. NLRC, GR No. 80770 2. Preventive Suspension
(1989)]
2. Notice must be individual, not collective. Definition
[Shoppers Gain Supermart v. NLRC, GR Preventive suspension is a disciplinary
No. 110731 (1996)] measure for the protection of the company’s
3. Voluntary arbitration satisfies notice property pending investigation of any alleged
requirement for authorized causes. malfeasance or misfeasance committed by the
employee. [Gatbonton v. NLRC, G.R. No.
[Revidad v. NLRC, GR No. 11105 (1995)] 146779 (2006)]
 Page 113 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

It is important to note that preventive Note: The portion on preventive suspension

suspension is not a penalty, but a part of a under the cited Book V, Rule XXIII, Secs. 8-9
process to investigate a questioned action of are no longer in existence. The current IRR of
an employee. Preventive suspension does not the Labor Code (as of 2020) has replaced Rule
in itself prove that the employer already finds XXIII with “Rule XXIII Contempt” and does not
the employee guilty of the charges he is asked contain provisions on preventive suspension.

to answer
G.R. and explain
No. 75510, [Soriano v. NLRC et. al.,
(1987)]. It is curious to note, however, that in a 2018
case [Consolidated Building Maintenance, Inc.
When imposed v. Asprec, Jr., G.R. No. 217301, (June 6,
Preventive suspension may be legally imposed 2018)], the Court stated that “preventive
on employee whose alleged violation is the suspension shall not last for more than 30
subject of an investigation. days” HOWEVER, in stating so, the Court cited
an OLD provision of the IRR of the Labor Code.
The employer may place the worker concerned In fact, it is a recurring theme in a number of
under preventive suspension if his continued more recent cases that the Court would cite old
employment poses a serious and imminent provisions of the IRR of the labor code which
threat to the life or property of the employer or have long been amended or repealed.
of his co-workers. When, however, it is
determined that there is no sufficient basis to When preventive suspension is deemed
justify
the an isemployee’s
latter preventive
entitled to the paymentsuspension,
of salaries dismissal
When preventive suspension exceeds the
during the time of preventive suspension.” maximum period allowed without reinstating
[Gatbonton v. NLRC, G.R. No. 146779 (2006)] the employee either by actual or payroll
reinstatement or when preventive suspension
Purpose is for an indefinite period, only then will
The purpose of his suspension is to prevent constructive dismissal set in.
him from causing harm or injury to the company
as well as to his fellow employees. [Sec. 8, Not entitled to pay
Rule XXIII, IRR]. Employee placed under preventive suspension
is not entitled to the payment of wages.
Period of suspension However, if the basis for suspension is later
No preventive suspension shall last longer than proven to be unfounded or invalid, the said
thirty (30) days. employee is entitled to his salary during the
whole period of his suspension. [Gatbonton v.
Upon the expiry of such period, the employer NLRC, G.R. No. 146779 (2006)]
shall thereafter:
1. Reinstate the worker in his former or in a 3. Illegal Dismissal
substantially equivalent position; or
2. The employer may extend the period of a. Kinds
suspension provided that:
a. During the period of extension, he pays i. No just or authorized cause
the wages and other benefits due to the
worker For the dismissal of an employee to be valid,
b. The worker shall not be bound to the dismissal must be for any of the causes
reimburse the amount paid to him provided for in Art. 297-299.
during the extension if the employer
decides, after completion of the An employer who dismisses an employee
hearing, to dismiss the worker. [Sec. 9, without just or authorized cause is liable for:
Rule XXIII, Book V, IRR] 1. Reinstatement or separation pay if
reinstatement is not possible; and
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U.P. LAW BOC LABOR 1 LABOR LAW

2. Full backwages. (3) The action is not motivated by

discrimination, made in bad faith, or
ii. Constructive dismissal effected as a form of punishment or
demotion without sufficient cause.
Constructive dismissal is cessation of work
because continued employment is either: Otherwise, the transfer could be considered as

1. rendered
unlikely; impossible, unreasonable or constructive dismissal.
American Life and General [Insurance
The Philippine
Co. v.
2. when there is a demotion in rank or Angelita S. Gramaje, G.R. No. 156963 (2004)]
diminution in pay or both; or
3. when a clear discrimination, insensibility, or Forced resignation is constructive
disdain by an employer becomes dismissal
unbearable to the employee. [Dusit Hotel Mere allegations of threat or force do not
Nikko v. NUHWRAIN-Dusit Hotel Chapter, constitute evidence to support a finding of
G.R. No. 160391 (2005)] forced resignation.

The Test of Constructive Dismissal In order for intimidation to vitiate consent, the
Whether a reasonable person in the following requisites must concur:
employee’s position would have felt compelled 1. that the intimidation caused the consent to
to give up his position under the be given;
circumstances.
G.R. No. 192076[Tuazon
(2012)]v. Bank of Commerce, 2. that the threatened act be unjust or
unlawful;
3. that the threat be real or serious, there
It is an act amounting to dismissal but made to being evident disproportion between the
appear as if it were not. Constructive dismissal evil and the resistance which all men can
is, therefore, a dismissal in disguise. As such, offer, leading to the choice of doing the act
the law recognizes and resolves this situation which is forced on the person to do as the
in favor of employees in order to protect their lesser evil; AND
rights and interests from the coercive acts of 4. that it produces a well-grounded fear from
the employer. In fact, the employee who is the fact that the person from whom it
constructively dismissed may be allowed to comes has the necessary means or ability
keep on coming to work. [McMer Corp., Inc. v. to inflict the threatened injury to his
hi s person
NLRC, G.R. No. 193421 (2014)] or property. [Mandapat v. Add Force
Personnel , G.R. No. 180285 (2010)]
Unlawful withholding of wages for a long time (a) Burden of proof
could be tantamount to an illegal constructive
dismissal. [Gilles v. CA, G.R. No. 149273 The burden of proving that the termination was
(2009)] for a valid or authorized cause shall rest on the
employer. [Art. 292 (b)]
A bona fide suspension of work is allowed for
as long as it does not exceed 6 months. In illegal dismissal cases, the onus of proving
Failure of the employer to recall the suspended that the employee was not dismissed or, if
employees in the 6-month period amounts to dismissed, that the dismissal was not illegal,
constructive dismissal. [SKM Art. Craft Corp. v. rests on the employer, failure to discharge
Bauca, G.R. No. 171282 (2013)] which would mean that the dismissal is not
justified and, therefore, illegal. [Macasero v.
For a transfer to be a valid exercise of Southern Industrial Gases Philippines, GR No.
management prerogative: 198656 (2014)]
(1) There is no demotion in rank;
(2) There is no diminution of salary, benefits,
and other privileges;
 Page 115 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

Degree of Proof b. Constructively reinstate them in the

In labor cases, as in other administrative payroll.
proceedings, substantial evidence is required 3. Backwages
and it is such relevant evidence as a 4. Damages and Attorney’s Fees
reasonable mind might accept as adequate to 5. Separation Pay
support a conclusion. [Andrada v. Agemar
Manning Agency, GR No. 194758 (2012)] (1) Reinstatement
Substantial evidence is necessary for an Reinstatement means restoration to a state or
employer to effectuate any dismissal. condition from which one had been removed or
Uncorroborated assertions and accusations by separated. The person reinstated assumes the
the employer do not suffice; otherwise the position he had occupied prior to his dismissal.
constitutional guarantee of security of tenure of [Asian Terminals, Inc. v. Villanueva, G.R. No.
the employee would be jeopardized. [Kulas Kulas 143219 (2006)]
Ideas & Creations et. al. v. Alcoseba & Arao
Arao, GR No. 180123 (2010)] General Rule: Reinstatement and backwages
Exceptions:
(b) Liability of officers a. Separation pay
b. Closure of business [Retuya v. Hon.
Art. 219(e) defines “employer” as including any Dumarpa , G.R. No. 148848 (2003)]
person acting in the interest of an employer, c. Economic
Supervisorsbusiness conditions [Union of
directly or indirectly. v. Secretary of Labor , G.R.
No. L-39889 (1981)]
Note that the provision does not expressly d. Employee’s unsuitability [Divine Word High
make a corporate officer personally liable for School v. NLRC, G.R. No. 72207 (1986)]
the liabilities of a corporation. However, in e. Employee’s retirement/ overage [New
Lozada vs Mendoza [GR No. 196134, 12 Philippine Skylanders, Inc. v. Dakila, G.R.
October 2016], the Court ruled that, as a No. 199547 (2012)]
general rule, officers are not personally liable f. Antipathy and antagonism [Wensha Spa
for corporate obligation, with the exception that Center v. Yung, G.R. No. 185122 (2010)]
in order to hold a director or officer personally g. Job with a totally different nature [DUP
DUP
liable occurs when the following requisites are Sound Phils. v. CA, G.R. No. 168317
present: (2011)]
1. the complaint must allege that the director h. Long passage of time
or officer assented to the patently unlawful i. Inimical to the employer's interest
acts of the corporation, orthat the director j. When supervening facts have transpired
or officer was guilty of gross negligence or which make execution on that score unjust
bad faith; and or inequitable or, to an increasing extent
2. there must be proof that the director or [Emeritus Security & Maintenance
officer acted in bad faith. Systems, Inc. v. Dailig, G.R. No. 204761
(2014)]
(c) Reliefs from illegal
dismissal Prescription Period
An action for reinstatement by reason of illegal
The following reliefs are cumulative and not dismissal is one based on an
a n injury, which may
alternative: be brought within 4 years from the time of
1. Reinstatement dismissal. [Art. 1146, CC]
2. Options Given to Employers
a. Actually reinstate the dismissed In any event, the decision of the Labor Arbiter
employees or, reinstating a dismissed or separated
employee, insofar as the reinstatement aspect
 Page 116 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

is concerned, shall immediately be executory, restitution of wages paid due to reinstatement

pending appeal. The employee shall either be pending appeal.
admitted back to work under the same terms
and conditions prevailing prior to his dismissal SEPARATION PAY IN LIEU OF
or separation or, at the option of the employer, REINSTATEMENT
merely reinstated in the payroll. The posting of

a bond byforthereinstatement
execution employer shall not stay
provided the
herein. Kinds
1. SPof as
separation pay (SP)
a statutory requirement for
[Art. 229] authorized causes
2. SP as financial assistance found in the next
(2) Options Given to Employers section
a. Actually reinstate the dismissed 3. SP in lieu of reinstatement where
employees or, reinstatement is not feasible; and
b. Constructively reinstate them in the 4. SP as a benefit in the CBA or company
payroll. policy

Either way, this must be done immediately Instances when the award of separation pay, in
upon the filing of their appeal, without need of lieu of reinstatement to an illegally dismissed
any executory writ. employee, is proper:
a. When reinstatement is no longer possible,
If
is the order ofon
reversed reinstatement
appeal, it isofobligatory
the Labor on
Arbiter
the in casesiswhere
position the dismissed
no longer available; employee's
part of the employer to reinstate and pay the b. The continued relationship between the
wages of the dismissed employee during the employer and the employee is no longer
period of appeal until reversal by the higher viable due to the strained relations
court. between them; and
c. When the dismissed employee opted not to
The Labor Arbiter's order of reinstatement is be reinstated, or the payment of separation
immediately executory and the employer has to benefits would be for the best interest of the
either re-admit them to work under the same parties involved. [Sec. 4(b), Rule I, Book VI,
terms and conditions prevailing prior to their IRR]
dismissal, or to reinstate them in the payroll,
and that failing to exercise the options in the Separation Pay and Reinstatement,
alternative, employer must pay the employee's Exclusive Remedies
salaries [Magana v. Medicard Philippines, Inc., The payment of separation pay and
G.R. No. 174833 (2010)] reinstatement are exclusive remedies. The
payment of separation pay replaces the legal
No refund doctrine consequences of reinstatement to an
An employee cannot be compelled to employee who was illegally dismissed. [Bani
reimburse the salaries and wages he received Rural Bank, Inc. v. De Guzman, G.R. No.
during the pendency of his appeal, 170904 (2013)]
notwithstanding the reversal by the NLRC of
the LA's order of reinstatement. [College of the Doctrine of Strained Relations
Immaculate Conception v. NLRC, G.R. No. Where reinstatement is not feasible, expedient
167563 (2010)] or practical, as where reinstatement would only
exacerbate the tension and strained relations
Note: However, Rule XI, Sec. 14 of the 2011 between the parties or where the relationship
NLRC Rules of Procedure provide for between the employer and employee has been
restitution of amounts paid pursuant to unduly strained by reason of their irreconcilable
execution of awards during pendency of the differences, particularly where the illegally
appeal. However, it expressly disallows dismissed employee held a managerial or key
 Page 117 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

position in the company, it would be more 3. In the nature of a command to the employer
prudent to order payment of separation pay to make a public reparation for illegally
instead of reinstatement. [Quijano v. Mercury dismissing an employee.
Drug Corp., G.R. No. 126561 (1998)] a. It is not private compensation or
damages;
Computation b. Nor is it a redress of a private right. [St.
SP as a statutory
integrating requirement
the basic salaryis with
computed by
regular Theresa's
Foundation v.School of No.
NLRC, G.R. Novaliches
122955
allowances employee has been receiving (1998)]
[Planters Products, Inc. v. NLRC, G.R. No.
78524, 78739 (1989)]; allowances include Backwages and reinstatement are two reliefs
transportation and emergency living that should be given to an illegally dismissed
allowances [Santos v. NLRC, G.R. No. 76721 employee. They are separate and distinct from
(1987)] each other.

In an illegal dismissal case involving An illegally dismissed employee is entitled to

salespersons, the Court took judicial notice of (1) either reinstatement, if viable, or separation
the fact that the nature of the work of a pay if reinstatement is no longer viable, and (2)
salesperson and the reason for such type of backwages. [Aurora Land Projects Corp. v.
remuneration for services rendered, NLRC, G.R. No. 114733 (1997)]
demonstrate
of salespersons'clearly
wagethatorcommissions areCourt
salary. If the part Effect of failure to order backwages
adopted the opposite view that commissions A “plain error” which may be rectified, even if
do not form part of wage or salary, then, in employee did not bring an appeal regarding the
effect, the Court will be saying that matter. [Aurora Land Projects Corp. v. NLRC,
salespersons do not receive any salary and supra.]
therefore, not entitled to separation pay in the
event of discharge from employment. This Extent of Entitlement
narrow interpretation is not in accord with the General rule: An illegally dismissed employee
liberal spirit of our labor laws and considering is entitled to full backwages.
the purpose of separation pay which is, to
alleviate the difficulties which confront a Exceptions
dismissed employee thrown to the streets to a. The Court awarded limited backwages
face the harsh necessities of life. [Songco v. where the employee was illegally
NLRC, G.R. Nos. 50999-51000 (1990)] dismissed but the employer was found to
be in good faith. [San Miguel Corporation v.
A dismissed employee who has accepted Javate, Jr., G.R. No. L-54244 (1992)]
separation pay is not necessarily estopped b. Delay of the EE in filing the case for illegal
from challenging the validity of his or her dismissal [Mercury Drug Co., Inc. v. CIR,
dismissal. Neither does it relieve the employer supra]
of legal obligations. [Anino v. NLRC, G.R. No.
123226 (1998)] COMPUTATION OF BACKWAGES
Full backwages means exactly
(3) Backwages that, i.e., without deducting from backwages
the earnings derived elsewhere by the
Definition concerned employee during the period of his
Backwages are: illegal dismissal. [Bustamante v. NLRC, G.R.
1. Earnings lost by a worker due to his illegal No. 111651 (1996)]
dismissal;
2. A form of relief that restores the income lost The formula of awarding reasonable net
by reason of such unlawful dismissal; backwages without deduction or
 Page 118 of 262

U.P. LAW BOC LABOR 1 LABOR LAW

qualification relieves the employees from Indemnity of Employer

proving or disproving their earnings during their Validity
Doc-
lay-off and the employers from submitting of Liability
Period trine in
counterproofs, and obviates the twin evils of: dismis- of ER
effect
1. Idleness on the part of the employee who sal
would "with folded arms, remain inactive in Reinstate-
the expectation
to him" [Itogonthat a windfall
Suyoc would
Mines, come
Inc. v. Prior
1989 Pre-
Wenphil
Illegal ment
Back-+
Sangilo-Itogon Workers Union, G.R. No. L- wages
24189 (1968), as cited in Diwa ng Dismiss
Pagkakaisa v. Filtex International Corp., Feb.
now,
G.R. No. 23960-61 (1972)]; and 1989- Wenphil Valid
indemnity
2. Attritionand protracted delay in satisfying 1999
pay later
such award on the part of unscrupulous Full back-
employers who have seized upon the wages up
further proceedings to determine the actual Jan.
to
earnings of the wrongfully dismissed or 2000 – Ineffec-
Serrano reinstate-
laid-off employees [See La Campana Food Oct. tual
ment
Products, Inc. v. CIR, G.R. No. L-27907 2004
finality of
(1969); and Kaisahan ng Mga decision
Manggagawa v. La Campana Food Nov. Nominal
Products, Inc., G.R. No. L-30798 (1970)]. 2004 – Agabon Valid
damages
present
The salary base properly used should be the
basic salary rate at the time of dismissal plus (4) Damages and Attorney’s Fees
the regular allowances; allowances include:
a. Emergency cost of living allowances In cases of unlawful withholding of wages: the
(ECOLA), transportation allowances, 13th culpable party may be assessed attorney’s
month pay. [Paramount Vinyl Product fees
Corp. v. NLRC, G.R. No. 81200 (1990)]
b. Also included are vacation leaves, service Amount: equivalent to 10% of the amount of
incentive leaves, and sick leaves. wages recovered.

The effects of extraordinary inflation are not to It shall be unlawful for any person to demand
be applied without an official declaration or accept, in any judicial or administrative
thereof by competent authorities. [Lantion v. proceedings for the recovery of wages,
NLRC, G.R. No. 82028 (1990)] attorney’s fees which exceed 10% percent of
the amount of wages recovered. [Art. 111, CC]
Note that according to Nacar v. Gallery
Frames, when the judgment of the court General Rule: attorney's fees and expenses of
awarding a sum of money becomes final and litigation, other than judicial costs, cannot be
executory, the rate of legal interest …. shall be recovered
6% per annum from such finality until its
satisfaction, this interim period being deemed Exception: stipulation to the contrary xxx in
to be by then an equivalent to a forbearance of actions for the recovery of wages of household
credit. [Nacar v. Gallery Frames, G.R. No. helpers, laborers and skilled workers [Art.
189871, (2013)] 2208(7), CC]

The employee is entitled to moral damages

when the employer acted
 a. in bad faith or fraud;

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U.P. LAW BOC LABOR 1 LABOR LAW

b. in a manner oppressive to labor; or in a devices or year of service,

manner contrary to morals, good customs, redundancy whichever is higher
or public policy [Montinola v. PAL, G.R. No. Art. 289:
198656 (2014). Retrenchment to
prevent losses or
Equivalent to at least
In labor cases, the court may award exemplary closure or cessations
1 month pay or $
damages "if the dismissal
wanton, oppressive was effected
or malevolent in a
manner." of operations of or
establishments
month pay for every
year of service*,
[Garcia v. NLRC, GR. No. 110518 (1994)] undertaking not due
whichever is higher
to serious business
(5) Separation Pay losses or financial
reverses
[Arts. 289 & 290; DOLE Handbook on Worker’s Art. 290: Disease
Statutory Monetary Benefits (2018)] when continued Equivalent to at least
employment is 1 month pay or $
Separation pay is defined as the amount that prohibited by law or month pay for every
an employee receives at the time of his is prejudicial to his year of service*,
severance from the service and is designed to health or health of whichever is higher
provide the employee with the wherewithal co-employees
during the period that he is looking for another Art. 291: Termination
employment. [A’ Prime Security Services v. by employee whether None
NLRC, G.R. No. 107320 (1993)] with or without just
cause
COVERAGE *A fraction of at least 6 months shall be
General Rule: considered 1 whole year
Cause for
Entitlement
Termination Exceptions: Considerations of equity as in
Art. 288: Termination the cases of Filipro, Inc. v. NLRC [G.R. No.
by Employer 70546 (1986)]; Metro Drug Corp. v. NLRC
a. Serious [G.R. No. 72248 (1986)]; Engineering
misconduct or Equipment, Inc. v. NLRC [G.R. No. L-59221
willful (1984)]; and San Miguel Corp v. NLRC [G.R.
disobedience of No. 80774 (1988)] [PLDT v. NLRC, G.R. No.
lawful orders 80609 (1988)].
b. Gross and An employee who voluntarily resigns is not
habitual neglect entitled to separation pay unless stipulated in
of duties the employment contract, or the collective
c. Fraud or willful None bargaining agreement, or is sanctioned by
breach of trust established practice or policy of the employer.
d. Commission of a [Phimco Industries v. NLRC, G.R. No. 118041
crime against (1997); Hinatuan Mining Corp v. NLRC, G.R.
employer or No. 117394 (1997) cited in JPL Marketing
immediate Promotions v. CA, G.R. No. 151966 (2005)]
member of his
family or AMOUNT
representative One-Half (!) Month Pay per Year of Service
e. Analogous An employee is entitled to receive separation
causes pay equivalent to $ month pay for every year
Art. 289: Installation Equivalent to at least of service, a fraction of at least six (6) months
1 month pay or 1 being considered as one whole year, if his/her
of labor-saving
 month pay for every

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U.P. LAW BOC LABOR 1 LABOR LAW

separation from the service is due to any of the on the employee and the DOLE through its
following authorized causes: regional office having jurisdiction over the
a. Retrenchment to prevent losses (i.e. place of business at least 1 month before the
reduction of personnel effected by intended date thereof. [DOLE Handbook on
management to prevent losses) [Art. 298]; Workers’ Statutory Monetary Benefits, 2018
b. Closure or cessation of operation of an ed.]

establishment not [Art.

financial reverses due 298];
to serious losses or Basis of Separation Pay
c. When the EE is suffering from a disease The computation of separation pay of an
not curable within a period of six (6) months employee shall be based on his/her latest
and his/her continued employment is salary rate. [DOLE Handbook on Workers’
prejudicial to his/her health or to the health Statutory Monetary Benefits, 2018 ed.]
of his/her co-employees [Art. 299];and,
d. Lack of service assignment of security Inclusion of Regular Allowance in the
guard for a continuous period of six (6) Computation
months [D.O. 150, s. 2016] In the computation of separation pay, it would
be error not to integrate the allowance with the
In no case will an employee get less than one basic salary. The salary base properly used in
(1) month separation pay if the separation is computing the separation pay should include
due to the above stated causes. [DOLE not just the basic salary but also the regular
Handbook on Workers’ Statutory Monetary allowances that an employee has been
Benefits, 2018 ed.] receiving. [Planters’ Products, Inc. v. NLRC,
G.R. No. 78524 (1989); DOLE Handbook on
One-Month Pay per Year of Service Workers’ Statutory Monetary Benefits, 2018
An employee is entitled to separation pay ed.]
equivalent to his/her one-month pay for every
year of service, a fraction of at least 6 months Non-taxable
being considered as one whole year, if his/her In case of separation of an official or employee
separation from service is due to any of the from the service of the employer due to death,
following: sickness or other physical disability or for any
a. Installation by employer of labor-saving cause beyond the control of the said official or
devices; employee, any amount received by him or by
b. Redundancy, as when the position of the his heirs from the employer as a consequence
employee has been found to be excessive of such separation shall likewise be exempt
or unnecessary in the operation of the from tax. [Last proviso of par. 1, Sec. 1, RA
enterprise; 4917]
c. Impossible reinstatement of the employee
to his/her former position or to a 4. Money Claims arising from
substantially equivalent position for Employer-Employee Relationship
reasons not attributable to the fault of the
employer [Gaco v. NLRC, G.R. No. 104690 Money claims must have arisen from
(1994)] employment
d. Lack of service assignment of security Money claims of workers which do not arise out
guard by reason of age. [D.O. 150, s. 2016; of or in connection with their employer-
DOLE Handbook on Workers’ Statutory employee relationship fall within the general
Monetary Benefits, 2018 ed.] jurisdiction of regular courts of justice. [San
Jose vs. NLRC and Ocean Terminal Services,
Notice of Termination Inc., G.R. No. 121227 (1998)]
The employer may terminate the employment
of any employee due to the above-mentioned
authorized causes by serving a written notice
authorized causes by serving a written notice

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Illustrative cases A money claim arising from employer-

In Pepsi-Cola Bottling Co. v. Martinez [G.R. employee relations, excepting SSS/
No. L-5887 (1982)], where an employee won ECC/Medicare claims, is within the jurisdiction
an award for his performance as top salesman of a Labor Arbiter —
of the year, the Court held that the claim for a. if the claim, regardless of amount, is
said prize unquestionably arose from an accompanied with a claim for
employer-employee
therefore, falls within the relationship
coverage of Art. and,
217 b. reinstatement; or
if the claim, whether or not accompanied
(now 224), which speaks of "all claims arising with a claim for reinstatement, exceeds five
from employer-employee relations." Indeed, thousand pesos (P5,000) per claimant.
the employee would not have qualified for the
contest, much less won the prize, if he was not Money claims cognizable by the Secretary
an employee of the company at the time of the of Labor or its duly authorized
holding of the contest. representative
The Secretary of Labor and Employment or his
But, in San Miguel Corp. vs. NLRC [G.R. No. duly authorized representatives shall have the
80774 (1988)], where SMC sponsored an power to:
innovation program granting cash awards to 1. issue compliance orders to give effect to
employees who would submit ideas and the labor standards provisions of this Code
suggestions beneficial to the corporation, the and other labor legislation
Court ruled that such undertaking, though 2. Issue writs of execution to the appropriate
unilateral in origin, could nonetheless ripen into authority for the enforcement of their
an enforceable contractual obligation on the orders, except in cases where the
part of SMC under certain circumstances. employer contests the findings of the labor
Thus, whether or not an enforceable contract employment and enforcement officer and
had arisen, and if so, whether or not it had been raises issues supported by documentary
reached, are preeminently legal questions on proofs which were not considered in the
contracts, questions not to be resolved by course of inspection. [Art. 128]
referring to labor legislation.
The visitorial and enforcement powers of the
Money claims cognizable by the Labor DOLE Regional Director to order and enforce
Arbiter compliance with labor standard laws can be
The Labor Arbiter shall have original and exercised even where the individual claim
exclusive jurisdiction to hear and decide, the exceeds P5,000.00. [Cireneo Bowling Plaza
following cases involving all workers: Inc. v. Sensing,G.R. 146572 (2005)]
1. Those cases that workers may file See discussion on Part VIII. G. 1. Visitorial
involving wages, rates of pay, hours of powers of the SOLE.
work and other terms and conditions of
employment, if accompanied with a claim Money claims cognizable by the Regional
for reinstatement Director
2. All other claims arising from employer- The Regional Director or any of the duly
employee relations, including those of authorized hearing officers is empowered to
persons in domestic or household service, hear and decide any matter involving the
involving an amount exceeding P5,000.00 recovery of:
regardless of whether accompanied with a 1. Wages and other monetary claims and
claim for reinstatement. benefits arising from employer-employee
a. Except claims for Employees relations
Compensation, Social Security, 2. Including legal interest
Medicare and maternity benefits [Art. Owing to an employee or person employed in
224(a)(3)(6)] domestic or household service or househelper
 under this Code

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the employee of a military or civic duty shall

Provided,That: not terminate employment. [Art. 301]
1. Such complaint does not include a claim
for reinstatement; During this time, employees are considered on
2. The aggregate money claims of each "floating status". [Art. 301; International
employee or househelper does not Hardware, Inc. vs. NLRC, G.R. No. 80770
exceed [Art. 129] (1989)]
SUMMARY OF RULES ON MONEY CLAIMS Floating Status in Security Agencies
Art. 224 - Art. 128 - Temporary “off-detail” or “floating status” is the
Art. 129 - RD
LA SOLE period of time when security guards are in
Past or Past or between assignments or when they are made
Existing ER- to wait after being relieved from a previous post
present ER- present ER-
EE relation-
EE relation- EE relation- until they are transferred to a new one.
ship
ship ship
Monetary The power Monetary Dire exigency of the employer’s bona fide
claims of the SOLE claims below suspension of operation, business or
below 5k to order and 5k without a undertaking takes place when:
arising from enforce claim for a. The security agency’s clients decide not to
terms and compliance reinstate- renew their contracts with the agency; and
conditions of with labor ment b. Contracts for security services stipulate
employment, standard that the client may request the agency for
if it is with a laws can be the replacement of the guards assigned to
claim for exercised it
reinstate- even where
ment the The employer should prove that there are no
individual posts available to which the employee
Monetary claim temporarily out of work can be assigned. [Peak
Peak
claims exceeds Ventures Corp v. Nestor Villareal, G.R. No.
exceeding P5,000.00 184618 (2014)]
5k, whether [Cireneo
or not it is Bowling Requirement to be Reinstated
with a claim Plaza, Inc. The employee on floating status must indicate
for reinstate- v. Sensing] his desire to resume his work not later than one
ment, (1) month from the resumption of operations of
except his employer or from his relief from the military
those or civic duty.
involving
SSS, Thereafter, the employer shall reinstate the
Medicare employee to his former position without loss of
and seniority rights. [Art. 301]
maternity
benefits When deemed constructive dismissal
When that "floating status" of an employee
5. When Not Deemed Dismissed; lasts for more than six months, he may be
considered to have been illegally dismissed
Employee on Floating Status
from the service. Thus, he is entitled to the
corresponding benefits for his separation, and
The bona fidesuspension of the operation of a
business or undertaking for a period not this will apply to the two types of work
suspension, that is, either of the entire
exceeding six (6) months, or the fulfillment by
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U.P. LAW BOC LABOR 1 LABOR LAW

business or of a specific component thereof. service, such that he has no other choice but to
[Valdez v. NLRC, G.R. No. 125028 (1998)] disassociate himself from his employment.
[Cervantes v. PAL Maritime Corp., G.R. No.
175209 (2013)]
C. TERMINATION BY
EMPLOYEE To constitute a resignation:
1. It
tomust be unconditional
operate as such; and with the intent
1. With notice to the employer
2. There must be an intention to relinquish a
portion of the term of office accompanied
An employee may terminate without just cause
by an act of relinquishment.
the employer-employee relationship
a. By serving a written notice on the employer
The fact that the employee signified his desire
at least one (1) month in advance
to resume his work when he went back to
b. The employer upon whom no such notice
AZCOR after recuperating from his illness, and
was served may hold the employee liable
actively pursued his case for illegal dismissal
for damages [Art. 300]
before the labor courts when he was refused
admission by his employer, negated any
Notice is required when termination is without
intention on his part to relinquish his job at
just cause. Written notice to resign must be
AZCOR. [Azcor Manufacturing Inc. v. NLRC,
submitted one (1) month in advance. [Art. 300]
G.R. No. 117963 (1999)]
2. Without notice to the employer Well-entrenched is the rule that resignation is
inconsistent with the filing of a complaint for
An employee may put an end to the illegal dismissal. [Blue Angel Manpower and
relationship without serving any notice on the Security Services Inc. v Court of Appeals, G.R.
employer for any of the following requirements: No. 161196 (2008)]
1. Serious insult by the employer or his
representative on the honor and person of The rule requiring an employee to stay or
the employee; complete the 30-day period prior to the
2. Inhuman and unbearable treatment effectivity of his resignation becomes
accorded the employee by the employer or discretionary on the part of management, as an
his representative; employee who intends to resign may be
3. Commission of a crime or offense by the allowed a shorter period before his resignation
employer
person oforthe
his employee
representative against
or any the
of the becomes effective. [Hechanova Bugay Vilchez
Lawyers v. Matorre, G.R. No. 198261 (2013)]
immediate members of his family; and
4. Other causes analogous to any of the Requisites of a valid resignation
foregoing. [Art. 300] 1. Voluntary, unconditional, and intentionally
to relinquish a portion of a term of
Notice is NOT required when termination is employment;
with just cause. [Art. 300] 2. Accompanied by an act of relinquishment.
reli nquishment.

3. Distinguish voluntary resignation Intent to Relinquish

and constructive dismissal As the intent to relinquish must concur with the
overt act of relinquishment, the acts of the
Definition of Resignation employee before and after the alleged
Resignation is the voluntary act of an employee resignation must be considered in determining
who finds himself in a situation where he whether he or she, in fact, intended to sever his
believes that personal reasons cannot be or her employment. [Saudi Arabian Airlines v.
sacrificed in favor of the exigency of the Rebesencio , G.R. No. 198587 (2015)]

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Resignation is voluntary when the act of D. RETIREMENT

resignation and the intention to resign concur.
If the resignation was done because of
oppressive conditions set by the employer, [Art 302, LC; RA 7641 (The Retirement Pay
such is tantamount to constructive dismissal. Law)]
[No.
Saudi Arabian Airlines v. Rebesencio, G.R.
198587 (2015)] What is Retirement
It is the result of a bilateral
bil ateral act of the parties, a
Constructive voluntary agreement between the employer
Resignation
Dismissal and the employee whereby the latter, after
reaching a certain age agrees to sever his or
Voluntary act of an Involuntary or forced her employment with the former.
employee who is in resignation due to
a situation where the harsh, hostile, Three kinds of retirement schemes
one believes that and unfavorable 1. Mandated by law: Compulsory and
personal reasons conditions set by the contributory in character
cannot be sacrificed employer. It is 2. CBA and other agreements: Agreement
in favor of the essentially quitting between the employer and the employees
exigency of the or cessation of work 3. Voluntarily given by the employer:
service. It is a formal because continued expressly as in an announced company
pronouncement or employment is policy or impliedly as in a failure to contest
relinquishment of an rendered impossible, the employee's claim for retirement
office, with the unreasonable or benefits. [Gerlach v. Reuters Limited, PH,
intention of unlikely; when there G.R. No. 148542 (2005)]
relinquishing the is a demotion in rank
office accompanied or a diminution of Requisites for Retroactive Application
by the act of pay and other 1. The claimant for retirement benefits was
relinquishment. [Gan benefits. It exists if still in the employ of the employer at the
v. Galderma an act of clear time the statute took effect; and
Philippines, Inc.] discrimination, 2. The claimant had complied with the
insensibility, or requirements for eligibility for such
disdain by an retirement benefits under the statute.
employer becomes [Universal Robina Sugar Milling Corp. v.
so unbearable on Caballeda, G.R. No. 156644 (2008)]
the part of the
employee that it 1. Eligibility and Coverage
could foreclose any
choice by him Who are covered
except to forego his All employees in the private sector, regardless
continued of their position, designation, or status, and
employment. [Gan v. irrespective of the method by which their
Galderma wages are paid [Sec. 1, IRR, RA 7641]
Philippines, Inc.]
Exceptions:
Valid termination of Illegal dismissal
1. Employees covered by the Civil Service
employment by the
Law;
employee.
2. Employees in retail, service
agricultural establishments and
or operations
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regularly employing not more than ten Employee may still work after retirement
employees [Sec. 2, IRR, RA 7641] Upon retirement of an employee, whether
optional or compulsory, his services may be
Note: Domestic helpers and those in the continued or extended on a case to case basis
personal service of others used to be upon the agreement of the employer and
exempted but such was deleted by D.O. 20 employee. [Sec. 4, IRR, RA 7641]
(1994).
2. Amount of Retirement Pay
When the provisions of RA 7641 apply
RA 7641 only applies in a situation where there Minimum Retirement Pay [Sec. 5, IRR, RA
is: 7641]
a. No CBA or other applicable employment
Minimum Components
contract providing for retirement benefits;
OR $month salary for “One-half month
b. Retirement benefits provided by CBA or
every year of service salary” shall include
other employment contract fall below the all of the following:
requirements set by law. [Oxales v. Unilab,
NOTE:a fraction of Fifteen (15) days
G.R. No. 152991 (2008)] at least 6 months salary based on the
shall be considered latest salary rate;
Age of retirement a year
In the absence of a retirement plan or Cash equivalent of
agreement: “one-half month five (5) days of
a. Compulsory retirement: 65 years old [Sec. salary” is equivalent service incentive
4, IRR, RA 7641] to 22.5 days. leave;
b. Optional retirement: 60 years or more (but [Capitol Wireless,
below 65) and having served the Inc. v. Sec. One-twelfth (1/12) of
establishment for at least 5 years. [Sec. 1, Confessor, G.R. No. the 13th month pay.
IRR, RA 7641]
117174 (1996); (1/12 x 365/12 =
Reyes v. NLRC, .083 x 30.41 = 2.52)
An employer is free to impose a retirement age G.R. No. 160233
less than 65 for as long as it has the (2007)] All other benefits
employees’ consent. [Jaculbe v. Silliman that the employer
University, G.R. No. 156934 (2007)] and employee may
agree upon
For surface mine workers:
a. Compulsory retirement age: 60 years old
b. Optional retirement age is 50 and having Retirement pay under RA 7641 vis-à-vis
served the establishment for at least 5 retirement benefits under SSS and GSIS
years. [Sec. 2, RA 10757] laws
The benefits under RA 7641 are other than
Forfeiture of Benefits those granted by the SSS or the GSIS. [Secs.
Employees dismissed for just cause are not 1 & 2, RA 7641]
entitled to retirement benefits and other
privileges including reinstatement and Retirement Benefits under a CBA or
backwages. To rule otherwise would be to Applicable Contract
reward acts of willful bread of trust by Any EE may retire or be retired by his/her ER
employees. [Sy v. Metropolitan Bank, G.R. No upon reaching the age established in the CBA
160618 (2006)] or other applicable agreement/contract and
shall receive the retirement benefits granted
therein; provided, however, that such
 retirement benefits shall not be less than the

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retirement pay required under RA 7641, and 5. Non-Taxable

provided further that if such retirement benefits
under the agreement are less, the ER shall pay General Rule: Exempt from all taxes, not liable
the difference. [Art. 302; Sec. 3.2, IRR] to attachment

Where both the ER and the EE contribute to a The retirement benefits received by officials
retirement
agreement, fund pursuant
the ER’s to the applicable
total contributions and the
and employees of private firms in accordance
with a reasonable private benefit plan
accrued interest thereof should not be less maintained by the employer:
than the total retirement benefits to which the a. shall be exempt from all taxes and
EE would have been entitled had there been no b. shall not be liable to attachment,
such retirement benefits’ fund. If such total garnishment, levy or seizure by or under
portion from the ER is less, the ER shall pay any legal or equitable process whatsoever.
the deficiency. [Sec. 3.3, IRR, RA 7641] [Sec. 1, RA 4917]

3. Retirement Benefits for Workers Exception:payment of debts

Paid by Results The benefits may be subject of attachment,
garnishment, levy or seizure to cover a debt of
Basis for computation of salary for 15 days the official or employee concerned to the
Average Daily Salary (ADS): The ADS is private benefit plan or that arising from liability
derived by dividing the total salary for the last imposed in a criminal action. [Sec. 1, RA 4917]
12 months reckoned from the date of
retirement by the number of actual working Requirements to Avail of Exemption
days in that particular period, provided that the 1. That the retiring official or employee has
determination of rates of payment by results been in the service of the same employer
are in accordance with established regulations. for at least 10 years
[Sec. 5.3, IRR, RA 7641] 2. He is not less than fifty years of age at the
time of his retirement;
4. Retirement Benefit of Part-Time 3. That the retirement benefits shall be
availed of by an official or employee only
Workers
once [Sec. 1, RA 4917]
4. The benefit plan must be approved by the
Requisites
BIR [Sec. 6, IRR, RA 7641]
Part-time workers are also entitled to
retirement pay of “one-half month salary” for
every year of service under RA 7641 after Coverage of Exemption from Income Tax
Exempted from taxation are:
satisfying the following conditions precedent
a. The retirement benefits received under RA
for optional retirement:
7641;
a. There’s no retirement plan between the ER
b. Those received by officials and employees
and the EE; and,
b. The EE should have reached the age of 60 of private firms, whether individual or
corporate, in accordance with a reasonable
years, and should have rendered at least 5
private benefit plan maintained by the
years of service with the ER.
employer [Handbook on Workers’ Statutory
Monetary Benefits, 2018 ed.];
Applying the foregoing principle, the
c. Amount received by the official/employee
components of retirement benefit of part-time
or his heirs as a consequence of
workers may likewise be computed at least in
separation due to death, sickness, or other
proportion to the salary and related benefits
physical disability or for any cause beyond
due them.
Statutory [DOLE Benefits,
Monetary Handbook 2018on
ed.]Workers’ the control of the said official or employee.
[Sec. 1, RA 4917]
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Reasonable Private Benefit Plan Defined

It refers to a pension, gratuity, stock bonus or
profit-sharing plan:
a. Maintained by an employerfor the benefit
of some or all of his officials and
employees,
b. Wherein contributions are madeby such
employer or officials and employees, or
both, for the purpose of distributing to such
officials and employees the earnings and
principal of the fund thus accumulated, and
c. Wherein it is provided in said plan that at
no time shall any part of the corpus or
income of the fund be used for, or be
divertedto, any purpose other than for the
exclusive benefit of the said officials and
employees. [Sec. 1, RA 4917; Handbook
on Workers’ Statutory Monetary Benefits,
2018 ed.
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LABOR LAW 2
LABOR LAW
 Page 129 of 262

U.P. LAW BOC LABOR 2 LABOR LAW

American Employees Association, G.R.

V. LABOR RELATIONS No. L-25094 (1969)]
6. Recognition of the tenets of the sect should
not infringe on the basic right of self-
A. RIGHT TO SELF- organization granted by the [C]onstitution

ORGANIZATION to workers, regardless of religious

affiliation. [Kapatiran sa Meat and Canning
Division v. Calleja, G.R. No. 82914 (1988)]
Right to Self-Organization: A Fundamental
Right 1. Who May or May Not Exercise the
Self-organization is a fundamental right
Right
guaranteed by the Philippine Constitution and
the Labor Code. Employees have the right to
a. All employees
form, join or assist labor organizations for the
b. Government employees of corporations
purpose of collective bargaining or for their
created under the Corporation Code
mutual aid and protection. [UST Faculty Union
c. Supervisory Employees
v. Bitonio, G.R. No. 131235 (1999)]
d. Aliens with valid working permits
e. Security personnel
Infringement of the right to self-

organization
It shall be unlawful for any person to restrain, (a) All Employees
coerce, discriminate against or unduly interfere
All persons employed in commercial, industrial
with employees and workers in their exercise
and agricultural enterprises and in religious,
of the right to self-organization [Art. 257]
charitable, medical or educational institutions,
whether operating for profit or not, shall have
Scope of right to self-organization
the right to self-organization and to form, join or
1. Right to form, join or assist labor
assist labor organizations of their own
organizations of their own choosing for the
choosing for purposes of collective bargaining.
purpose of collective bargaining through
(Presumes an employer-employee
representatives of their own choosing [Art.
relationship)
257];
2. Right to engage in lawful concerted
Ambulant, intermittent and itinerant workers,
activities for the same purpose (collective
self-employed people, rural workers and those
bargaining) or 257]
protection [Art. for their mutual aid and without any definite employers may form labor
organizations for their mutual aid and
3. The right of any person to join an
protection. [Art. 253]
organization also includes the right to leave
that organization and join another one.
Any employee, whether employed for a definite
[Heritage Hotel Manila v. PIGLAS-
period or not, shall, beginning on his first day of
Heritage, G.R. No. 177024 (2009)]
service, be considered an employee for
4. The right to form or join a labor organization
purposes of membership in any labor union.
necessarily includes the right to refuse or
[Art. 292(c)]
refrain from exercising said right. [Reyes v.
Trajano, G.R. No. 84433 (1992)]
Employee […] shall include any individual
5. The freedom to form organizations would
whose work has ceased as a result of or in
be rendered nugatory if they could not
connection with any current labor dispute or
choose their own leaders to speak on their
because of any unfair labor practice if he has
behalf and to bargain for them. [Pan-
Pan- not obtained any other substantially equivalent
American World Airways, Inc v. Pan-
and regular employment. [Art. 219(f)]
 Page 130 of 262

U.P. LAW BOC LABOR 2 LABOR LAW

Employees of non-profit organizations are now (d) Aliens with valid working permits
permitted to form, organize or join labor unions
of their choice for purposes of collective General Rule: All aliens, natural or juridical,
bargaining [FEU-Dr. Nicanor Reyes Medical […] are strictly prohibited from engaging
Foundation Inc. v. Trajano, G.R. No. 76273 directly or indirectly in all forms of trade union
(1987)] activities. [Art. 284]

(b) Government employees of corporations Exception: Aliens may exercise the right to
created under the Corporation Code self-organization and join or assist labor unions
for purposes of collective bargaining, provided
The right to self-organization shall not be the following requisites are fulfilled:
denied to government employees. [Sec. 2(5), 1. With valid working permits issued by the
Art. IX-B, Constitution]
Constitution] DOLE; and
2. They are nationals of a country which
Employees of government corporations grants the same or similar rights to Filipino
established under the Corporation Code shall workers [Art. 284]
have the right to organize and to bargain a. As certified by DFA; OR
collectively with their respective employers b. Has ratified either ILO Conventions No.
87 and 98 [Sec. 2, Rule II, Book V, IRR]
All other employees in the civil service shall
have the right to form associations for (e) Security personnel
purposes not contrary to law. [Art. 254]
The security guards and other personnel
All government employees can form, join or employed by the security service contractor
assist employees’ organizations of their own shall have the right:
choosing for the furtherance and protection of 1. To form, join, or assist in the formation of a
their interests. They can also form, in labor organization of their own choosing for
conjunction with appropriate government purposes of collective bargaining and
authorities, labor-management committees, 2. To engage in concerted activities which are
work councils and other forms of workers’ not contrary to law including the right to
participation schemes to achieve the same strike. [D.O. No. 14 Series of 2001
objectives. [E.O. 180, Sec. 2 (1987)] (Guidelines Governing the Employment
and Working Conditions of Security Guards
(c) Supervisory Employees and Similar Personnel in the Private
Security Industry)]
Supervisory employees are those who, in the
interest of the employer, effectively On Dec. 24, 1986, President C. Aquino issued
recommend such managerial actions if the EO No. 111 which eliminated the provision
exercise of such authority is not merely which made security guards ineligible to join
routinary or clerical in nature but requires the any labor organization. In 1989, Congress
use of independent judgment. [Art. 219(m)] passed RA 6715 which also did not impose
limitations on the ability of security guards to
What is essential is the nature of the join labor organizations. Thus, security guards
employee’s function and not the nomenclature “may now freely join a labor organization of the
or title given to the job which determines rank-and-file or that of the supervisory union,
whether the employee has rank-and-file or depending on their rank.” [Manila Electric Co.
managerial status or whether he is a v. SOLE, G.R. No. 91902 (1991)]
supervisory employee. [Tagaytay Highlands
International Golf Club, Inc. v . Tagaytay
Highlands Employees Union-PTGWO, G.R.
142000 (2003)]

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Ineligibility of Managerial Employees; a. Doctrine of Necessary

Rights of Supervisory Employees Implication

Managerial employees are not eligible to join, While Art. 245 [now 255] of the Labor Code
assist or form any labor organization. [Art. 255] singles out managerial employees as ineligible
to join, assist or form any labor organization,
Supervisory employees shall not be eligible for under the doctrine of necessary implication,
membership in the collective bargaining unit of confidential employees are similarly
the rank-and-file employees but may join, disqualified. This doctrine states that what is
assist or form separate collective bargaining implied in a statute is as much a part thereof as
units and/or legitimate labor organizations of that which is expressed. [Metrolab Industries
their own. The rank and file union and the Inc. v. Roldan-Confessor, G.R. No. 108855
supervisors' union operating within the same (1996)]
establishment may join the same federation or
national union. Nature of Access Test
Confidential employees, by the nature of their
Rationale: Supervisory employees, while in functions, assist and act in a confidential
the performance of supervisory functions, capacity to, or have access to confidential
become the alter ego of the management in the matters of, persons who exercise managerial
making and the implementing of key decisions functions in the field of labor relations.
at the sub-managerial level. Certainly, it would
be difficult to find unity or mutuality of interests Requisites
in a bargaining unit consisting of a mixture of 1. The confidential relationship must exist
rank-and-file and supervisory employees. between the employees and his
[Toyota Motor Phil. Corp. v. Toyota Motor Phil. supervisor, and
Corp. Labor Union, G.R. No. 121084 (1997)] 2. The supervisor must handle the prescribed
responsibilities relating to labor relations.
Supervisor and Rank and File Union [San Miguel Supervisors and Exempt
Affiliation Union v. Laguesma, G.R. No. 110399
The rank and file union and the supervisors’ (1997)]
union operating within the same establishment
may join the same federation or national union.
uni on. Function Test: Nomenclature is not
[Art. 255] controlling
The mere fact that an employee is designated
Note also: Prior to the enactment of RA 9481, “manager” does not ipso facto make him one.
which inserted a new provision [Art. 245-A, Designation should be reconciled with the
now Art. 256], the Court held in De La Salle actual job description of the employee. [Paper
Paper
University v. Laguesma that a local Industries Corp. of the Philippines. v.
supervisors’ union is not allowed to affiliate with Laguesma, G. R. No.101738 (2000)]
a national federation of unions of rank and file
employees only where two conditions concur: Confidential information: Must relate to
1. The rank-and-file employees are directly labor relations and not from a business
under the authority of supervisory standpoint
employees An employee must assist or act in a confidential
2. The national federation is actively involved capacity and obtain confidential information
in union activities in the company. [De La relating to labor relations policies. Exposure to
Salle University Medical Center and internal business operations of the company is
College of Medicine v. Laguesma, G.R. No. not per se a ground for the exclusion in the
102084 (1998)] bargaining unit. [Coca-Cola Bottlers v. IPTEU,
G.R. No. 193798 (2015)]
 Page 132 of 262

U.P. LAW BOC LABOR 2 LABOR LAW

Rationale of Exclusion of Confidential Irrespective of the degree of their participation

Employees in the actual management of the cooperative,
If confidential employees could unionize in all members thereof cannot form, assist or join
order to bargain for advantages for a labor organization for the purpose of
themselves, then they could be governed by collective bargaining. [Benguet Electric
their own motives rather than the interest of the tive v. Ferrer-Calleja, G.R. No. 79025
Cooperative
Coopera
employers. (1989)]
Moreover, unionization of confidential Exception: Employees who withdrew their
employees for the purpose of collective membership from the cooperative are entitled
bargaining would mean the extension of the to form or join a labor union for the negotiations
law to persons or individuals who are supposed of a Collective Bargaining Agreement. [Central
to act in the interest of the employers. It is not Negros Electric Cooperative, Inc. v. DOLE ,
far-fetched that in the course of collective G.R. No. 94045 (1991)]
bargaining, they might jeopardize that interest
which they are duty bound to protect. [Metrolab (c) Employees of International
Industries Inc. v. Roldan-Confessor, G.R. No. Organizations
108855 (1996)]
International organizations are endowed with
Other People Who Cannot Form, Join or some degree of international legal personality.
Assist Labor Organizations They are granted jurisdictional immunity, as
provided in their organization’s constitutions, to
(a) New Employees safeguard them from the disruption of their
functions.
[Persons who] are not employees of [a
company] are not entitled to the constitutional Immunity […] is granted to avoid interference
right to join or form a labor organization for by the host country in their internal workings.
purposes of collective bargaining. […] The The determination [by the executive branch]
question of whether employer-employee has been held to be a political question
relationship exists is a primordial consideration conclusive upon the Courts in order not to
before extending labor benefits under the embarrass a political department of
workmen's compensation, social security, Government. [Hence], a certification election
Medicare, termination pay and labor relations cannot be conducted in an international
law. [Singer Sewing Machine Co. v. Drilon, organization to which the Philippine
G.R. No. 91307, 1991] Government has granted immunity from local
jurisdiction. [International Catholic Migration
But employees of the contractor can still form a Commission v. Calleja, G.R. No. 85750 (1990)]
labor union; the labor union can be established
to bargain with the contractor but not with the (d) Members of the AFP, Policemen, Police
principal employer. [Prof. Battad] Officers, Firemen, and Jail Guards

(b) Employee-member of a Cooperative Members of the AFP, Policemen, Police

Officers, Firemen and Jail Guards are
General Rule: An employee of a cooperative expressly excluded by EO 180, Sec. 4 from the
who is a member and co-owner thereof cannot coverage of the EO 180 which provides
invoke the right to collective bargaining for guidelines for the exercise of the right to
certainly an owner cannot bargain with himself organize of government employees.
or his co-owners. [Batangas-I Electric
Cooperative Labor Union v. Romeo A. Young, SUMMARY - Who Cannot Form, Join or
G.R. No. 62386 (1988)] Assist Labor Organizations
 a. Managerial employees

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U.P. LAW BOC LABOR 2 LABOR LAW

b. Confidential employees oppressive fine and forfeiture be imposed. [Art.

c. Non-employees 250(e)]
d. Member-employee of a cooperative
e. Employees of international organizations Prohibition on subversive activities or
f. High-level government employees membership
g. Members of the AFP, police officers, No labor organization shall knowingly admit as
policemen, firemen and jail guards members or continue in membership any
individual who:
2. Commingling or Mixture of 1. Belongs to a subversive organization; or
Membership 2. Who is engaged directly or indirectly in any
subversive activity;
Effect of Inclusion of Employees Outside
the Bargaining Unit or Commingling Unions cannot arbitrarily exclude qualified
General Rule: It shall not be a ground for the applicants
cancellation of the registration of the union. Unions are not entitled to arbitrarily exclude
Said employees are automatically deemed qualified applicants for membership, and a
removed from the list of membership of said closed%shop provision would not justify the
union. [Art. 256] employer in discharging, or a union in insisting
upon the discharge of, an employee whom the
Exception:Unless such mingling was brought union thus refuses to admit to membership,
about by misrepresentation, false statement or without any reasonable ground therefor.
fraud under Art. 247 (Grounds for cancellation Needless to say, if said unions may be
of Union Registration) of the Labor Code. compelled to admit new members, who have
[SMCC-Super v. Charter Chemical and the requisite qualifications, with more reason
Coating Corporation, G.R. No. 169717 (2011)] may the law and the courts exercise the
coercive power when the employee involved is
a long-standing union member, who, owing to
3. Rights and Conditions of provocations of union officers, was impelled to
tender his resignation which he forthwith
Membership
withdrew or revoked. [Salunga v. CIR, G.R.
No. L-22456 (1967)]
a. Nature of Relationship
Members who seek destruction of union
i. Member-Labor Union
lose right to remain as members
The nature of the relationship between the Inherent in every labor union, or any
organization for that matter, is the right of self-
union and its members is fiduciary in nature,
preservation. When members of a labor union,
which arises from the dependence of the therefore, sow the seeds of dissension and
employee on the union, and from the
strife within the union; when they seek the
comprehensive power vested in the union with disintegration and destruction of the very union
respect to the individual. The union may be
to which they belong, they thereby forfeit their
considered but the agent of its members for the rights to remain as members of the union which
purpose of securing for them fair and just
they seek to destroy. [Villar v. Inciong, G.R. No.
wages and good working conditions. [Heirs
Heirs of
L-50283-84 (1983)]
Cruz v. CIR, G.R. No. L-23331-32 (1969)]
ii. Labor Union-Federation
Admission and Discipline of Members
No arbitrary or excessive initiation fees or fines.
Local unions do not owe their creation and
No arbitrary
required or excessive
of the membersinitiation fees shall
of a legitimate be
labor existence to the national federation to which
they are affiliated but, instead, to the will of their
organization nor shall arbitrary, excessive or members, […] The local unions remain the

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basic units of association, free to serve their

own interests subject to the restraints imposed The chapter shall be entitled to all other rights
by the constitution and by-laws of the national and privileges of a legitimate labor organization
federation, and free also to renounce the only upon the submission of the following
affiliation upon the terms laid down in the documents in addition to its charter certificate:
agreement which brought such affiliation into 1. The names of the chapter's officers, their
existence. [Philippine Skylanders, Inc. v. addresses, and the principal office of the
NLRC, G.R. No. 127374 (2002)] chapter; and
2. The chapter's constitution and by-laws:
Union Chartering Provided, That where the chapter's
Affiliate constitution and by-laws are the same as
An independent union affiliated with a that of the federation or the national union,
federated, national union or a chartered local this fact shall be indicated accordingly.
which was subsequently granted independent
registration but did not disaffiliate from its The additional supporting requirements shall
federation, reported to the Regional Office and be:
the Bureau in accordance with Rule III, Secs. 6 1. Certified under oath by:
and 7 [Sec. 1(b), Rule I, Book V, IRR] a. Secretary; or
b. Treasurer
Independent Union 2. Attested by: Its president [Art. 241]
A labor organization operating at the enterprise
level that acquired legal personality through Lesser requirements for Chartered locals
independent registration under Art. 234 of the The intent of the law in imposing less
Labor Code and Rule III, Sec. 2-A [Sec. 1(x), requirements in the case of a branch or local of
Rule I, Book V] a registered federation or national union is to
encourage the affiliation of a local union with a
National Union or Federation federation or national union in order to increase
A group of legitimate labor unions in a private the local unions’ bargaining powers respecting
establishment organized for collective terms and conditions of labor. [SMCEU-
bargaining or for dealing with employers PTGWO v. SMPEU-PDMP, G.R. No. 171153
concerning terms and conditions of (2007)]
employment for their member union or for
participating in the formulation of social and Trade Union Centers cannot create locals
employment policies, standards and programs, or chapters
registered with the BLR in accordance with Art. 241 mentions only “a duly registered
Rule III Sec. 2-B [Sec. 1(ll), Rule I, Book V, federation or national union.”
IRR]
The solemn power and duty of the Court to
Chartered Local (Local Chapter) interpret and apply the law does not include the
A labor organization in the private sector power to correct by reading into the law what is
operating at the enterprise level that acquired not written therein. [SMCEU-PTGWO v.
legal personality through registration with SMPEU-PDMP, G.R. No. 171153 (2007)]
Regional Office [Sec. 1(j), Rule I, Book V, IRR]
National Union or Federation v. Trade
A duly registered federation or national union Unions
may directly create a local chapter by issuing a National Union or
Trade Unions
charter certificate indicating the establishment Federation
of the local chapter. The chapter shall acquire With at least ten Composed of a
legal personality only for purposes of filing a (10) locals or group of registered
petition for certification election from the date it chapters (or national unions or
was issued a charter certificate. independent unions federations

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[Sec. 2-B(5), Rule Mere affiliation does not divest the local union
III, Book V, IRR], of its own personality, neither does it give the
each of which must mother federation the license to act
be a duly independently of the local union. It only gives
recognized rise to a contract of agency, where the former
collective bargaining acts in representation of the latter.
l atter. Hence, local
agent [Art. 244] unions are considered principals while the
Can directly create Cannot directly federation is deemed to be merely their agent.
local chapter [Art. create local chapter [Insular Hotel Employees Union NFL v.
241] [SMCEU-PTGWO v. Waterfront Insular Hotel, G.R. No. 174040-41
SMPEU-PDMP, (2010)]
G.R. No. 171153
(2007)]
(a) Disaffiliation
Purpose of Affiliation
To foster the free and voluntary organization of In the absence of specific provisions in the
a strong and united labor movement [Art. 218- federation’s constitution prohibiting
A(c)] disaffiliation or the declaration of autonomy of
a local union, a local may dissociate with its
The sole essence of affiliation is to increase, by parent union. [Malayang Manggagawa sa M.
collective action, the common bargaining Greenfield v. Ramos, G.R. No. 113907 (2000)]
power of local unions for the effective
enhancement and protection of their interests. Local unions have the right to separate from
Admittedly, there are times when without their mother federation on the ground that as
succor and support local unions may find it separate and voluntary associations, local
hard, unaided by other support groups, to unions do not owe their creation and existence
secure justice for themselves. [Philippine to the national federation to which they are
Skylanders, Inc. v. NLRC, G.R. No. 127374 affiliated but, instead, to the will of their
(2002)] members. [Philippine Skylanders, Inc. v.
NLRC, G.R. No. 127374 (2002)]
Nature of Relationship: Agency
The mother union, acting for and on behalf of A local union is free to serve the interests of all
its affiliate, had the status of an agent while the its members, including the freedom to
local union remained the basic unit of the disaffiliate or declare its autonomy from the
association, free to serve the common interest federation to which it belongs when
of all its members subject only to the restraints circumstances warrant, in accordance with the
imposed by the constitution and by-laws of the constitutional guarantee of freedom of
association. [...] The same is true even if the association. [Malayang Samahan ng mga
local is not a legitimate labor organization. Manggagawa sa M. Greenfield, Inc. v. Ramos ,
[Filipino Pipe and Foundry Corp v. NLRC, G.R. G.R. No. 113907 (2000)]
No. 115180 (1998)]
Period of Disaffiliation
Effect of Affiliation Generally, a labor union may disaffiliate from
Inclusion of [the federation’s initials] in the the mother union to form a local or independent
registration is merely to stress that they are its union only during the 60-day freedom period
affiliates at the time of registration. It does not immediately preceding the expiration of the
mean that said local unions cannot stand on CBA. However, even before the onset of the
their own. [Adamson v. CIR, G.R. No. L-35120 freedom period, disaffiliation may be carried
(1984)] out when there is a shift of allegiance on the
part of the majority of the members of the
 union. [Alliance of Nationalist and Genuine

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Labor Organization v. Samahan ng mga The “substitutionary” doctrine provides that the
Manggagawang Nagkakaisa sa Manila Bay employees cannot revoke the validly executed
Spinning Mills, G.R. No. 118562 (1996)] collective bargaining contract with their
employer by the simple expedient of changing
[A] local union which has affiliated itself with a their bargaining agent.
federation is free to sever such affiliation
anytime and such disaffiliation cannot be It is in the light of this that the phrase “said new
considered disloyalty. [Malayang Manggagawa agent would have to respect said contract”
sa M. Greenfield v. Ramos, G.R. No. 113907 must be understood. It only means that the
(2000)] employees, thru their new bargaining agent,
cannot renege on their collective bargaining
Effect of Disaffiliation contract, except of course to negotiate with
On legal personality management for the shortening thereof.
A registered independent union retains its legal [Benguet Consolidated v. BCI Employees and
personality while a chartered local loses its Workers Union-PAFLU, G.R. No. L-24711
legal personality unless it registers itself. (1968)]

No effect on CBA Conditions to apply the doctrine

A disaffiliation does not disturb the 1. Change of bargaining agent (through
enforceability and administration of a collective affiliation, disaffiliation, or other means);
agreement; it does not occasion a change of and
administrators of the contract nor even an 2. Existing CBA with the previous bargaining
amendment of the provisions thereof. agent [Benguet Consolidated v. BCI
[Volkschel Labor Union v. BLR, No. L-45824 Employees and Workers Union-PAFLU,
(1985)] G.R. No. L-24711 (1998)]

Obligation to pay union dues is Effects

coterminous with membership 1. New bargaining agent cannot revoke and
“The employees’ check-off authorization, even must respect the existing CBA; and
if declared irrevocable, is good only as long as 2. It may negotiate with management to
they remain members of the union concerned”. shorten the existing CBA’s lifetime.
A contract between an employer and the
parent organization as bargaining agent for the
employees is terminated by the disaffiliation of B. BARGAINING UNIT
the local of which the employees are members.
[Volkschel Labor Union v. BLR, No. L-45824
(1985)] Definition
“Bargaining Unit” refers to a group of
Power to represent principal severed employees sharing mutual interests within a
By [the local union’s disaffiliation from the given employer unit, comprised of all or less
federation], the vinculum that previously bound than all of the entire body of employees in the
the two entities was completely severed. [The employer unit or any specific occupational or
federation] was divested of any and all power geographical grouping within such employer
to act in representation of the union. Thus, any unit. [Sec. 1(e), Rule I, Book V, IRR]
act performed by [the federation] affecting the
interests and affairs of the [local union] is It is a group of employees of a given employer,
rendered without force and effect. [ANGLO v. comprised of all or less than all of the entire
Samana, G.R. No. 118562 (1996)]
body of ofemployees,
interests which the
all the employees collective
indicate to be
(b) Substitutionary Doctrine
 best suited to serve reciprocal rights and duties
of the parties consistent with equity to the

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employer. [Belyca Corp. v. Calleja, G.R. No. University v. DLSU Employees Association EA,
77395 (1988) citing Rothenberg] G.R. No. 109002, (2000)]

Functions of an Appropriate Bargaining Rationale

Unit A prior agreement as to the exclusion of
1. An ELECTORAL DISTRICT. – It marks the monthly-paid rank-and-file employees from the
boundaries of those who may participate in bargaining union of the daily-paid rank-and-file
a certification election. can never bind subsequent federations and
2. An ECONOMIC UNIT. – They are a group unions. as employees were not privy to that
of employees with community of interests. agreement. And even if [they were privy, it can
3. A SOVEREIGN BODY. –It selects the sole never bind subsequent federations and unions
and exclusive bargaining agent. because it is a curtailment of the right to self%-
organization guaranteed by the labor laws
Role of a bargaining unit [General Rubber & Footwear Corp. v. BLR,
The labor organization designated or selected G.R. No. 74262 (1987)]
by the majority of the employees in an
appropriate collective bargaining unit shall be Corporate Entities
the exclusive representative of the employees General Rule: Two companies having
in such unit for the purpose of collective separate juridical personalities shall NOT be
bargaining. [Art. 267] treated as a single bargaining unit. [Diatagon
Diatagon
Labor Federation Local v. Ople, G.R. No. L-
Right of individual or group of employees to 44493-94 (1980)]
present grievances
An individual employee or group of employees Exception: Pervasive Unitary Aspect of
shall have the right at any time to present Management Doctrine
grievances to their employer. [Art. 267] The cross-linking of the agencies’ command,
control, and communication systems indicate
CBA Coverage their unitary corporate personality. Accordingly,
It is a well-settled doctrine that the benefits of a the veil of corporate fiction [...] should be lifted
collective bargaining agreement extend to the for the purpose of allowing the employees of
laborers and employees in the collective the three agencies to form a single labor union.
bargaining unit, including those who do not A settled formulation of the doctrine of piercing
belong to the chosen bargaining labor the corporate veil is that when two business
organization. [Mactan Workers Union v. enterprises are owned, conducted, and
Aboitiz, G.R. No. L-30241 (1972)] controlled by the same parties, both law and
equity will, when necessary to protect the rights
Note: An employee employed, whether for a of third parties, disregard the legal fiction that
definite period is not, is an EE for purposes of these two entities are distinct and treat them as
joining a union [Art. 292(c)].But, whether or not identical or as one and the same. [Ang Lee v.
a union member, an EE part of the CBU is Samahang Manggagawa ng Super
entitled to CBA benefits unless excluded under Lamination, G.R. No. 193816 (2016)]
the CBA.
Determining whether or not to establish
Effect of Prior Agreement separate bargaining units
A prior CBA excluding a group of employees The fact that the businesses are related, that
from the bargaining unit of rank-and-file some of the employees are the same persons
employees does not bar the parties from working in the other company and the physical
renewing the existing CBA and proposing and plants, offices and facilities are in the same
discussing modifications or amendments compound are NOT sufficient to justify piercing
thereto during the freedom period. [De
De La Salle the corporate veil. [Indophil Textile Mills
 Page 138 of 262

U.P. LAW BOC LABOR 2 LABOR LAW

Workers Union v. Calica, G.R. No. 96490 the several categories to select the group
(1992)] which each chooses as a bargaining unit.
[Kapisanan ng mga Manggagawa sa Manila
Spun-off corporations Road Co. v. Yard Crew Union , G.R. Nos. L-
The transformation of the companies is a 16292-94 (1960)]
management prerogative and business
judgment which the courts cannot look into Rationale: Highly skilled or specialized
unless it is contrary to law, public policy or technical workers may choose to form their
morals. [...] Considering the spin-offs, the own bargaining unit because they may be in
companies would consequently have their better position to bargain with the employer
respective and distinctive concerns in terms of considering the market value of their skills.
the nature of work, wages, hours of work and
other conditions of employment. [...] The nature Community or Mutuality of Interests
of their products and scales of business may The basic test in determining the appropriate
require different skills, volumes of work, and bargaining unit is that a unit, to be appropriate,
working conditions which must necessarily be must affect a grouping of employees who have
commensurate by different compensation substantial, mutual interests in wages, hours,
packages. [San Miguel Union v. Confesor, working conditions, and other subjects of
G.R. No. 111262 (1996)] collective bargaining. [UP v. Ferrer-Calleja,
G.R. No. 96189, (1992)]
TEST TO DETERMINE THE CONSTITUENCY
OF AN APPROPRIATE BARGAINING UNIT – Rationale: There are greater chances of
4 Factors: success for the collective bargaining process.
1. Will of the Employees (Globe Doctrine) The bargaining unit is designed to maintain the
2. Affinity and unity of employees’ interest mutuality of interest among the employees in
(Substantial Mutual Interests Rule) such unit.
3. Prior collective bargaining history
4. Employment status [Democratic Labor When the interest between groups has
Association v. Cebu Stevedoring Co. Inc, changed over time, there is reason to dissolve,
G.R. No. L-10321 (1958); University of the change or expand a certain bargaining unit.
Philippines v. Ferrer-Calleja, G.R. No.
96189 (1992)] Prior Collective Bargaining History
The existence of a prior collective bargaining
Note: Where the employment status was not at history is neither decisive nor conclusive in the
issue but the nature of work of the employees determination of what constitutes an
concerned; the Court stressed the importance appropriate bargaining unit. [Sta. Lucia East
of the 2nd factor. [Belyca Corp. v. Calleja, G.R. Commercial Corporation v. SOLE, G.R. No.
No. 77395 (1988)] 162355 (2009)]

Other factors: Employment Status

1. Geography and Location Among the factors to be considered [is the]
2. Policy of avoiding fragmentation of the employment status of the employees to be
bargaining unit affected [regular, casual, seasonal,
probationary, etc.], that is the positions and
Globe Doctrine categories of work to which they belong [....]
A practice designated as the “Globe doctrine,” [Belyca Corp. v. Calleja, G.R. No. 77395
sanctions the holding of a series of elections, (1988)]
not for the purpose of allowing the group
receiving an overall majority of votes to Geography and Location
represent all employees, but for the specific Geography and location only play a significant
purpose of permitting the employees in each of role if:

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a. The separation between the camps [...] and

the different kinds of work in each [...] all
militate in favor of the system of separate C. BARGAINING
bargaining units; REPRESENTATIVE
b. [When] the problems and interests of the
workers are peculiar in each camp or The labor organization designated or selected
department; by the majority of the employees in an
c. The system of having one collective appropriate collective bargaining unit shall be
bargaining unit in each camp [...] [has the exclusive representative of the employees
operated satisfactorily in the past.] in such unit for the purpose of collective
[Benguet Consolidated Inc. and Balatok bargaining. [Art. 267]
Mining Co. v. Bobok Lumberjack
Association, G.R. No. L-11029 (1958)] Labor Management Council
Any provision of law to the contrary
Policy of Avoiding Fragmentation of the notwithstanding, workers shall have the right:
Bargaining Unit a. To participate in policy and decision-
It bears noting that the goal of the DOLE is making processes of the establishment
[geared] towards “a single employer wide unit where they are employed insofar as said
which is more to the broader and greater processes will directly affect their rights,
benefit of the employees working force.” benefits and welfare.
b. To form labor-management councils, for
The philosophy is to avoid fragmentation of the this purpose [Art. 267]
bargaining unit so as to strengthen the
employees’ bargaining power with the Selection of Representatives
management. To veer away from such goal In organized establishments,
would be contrary, inimical and repugnant to • the workers’ representatives to the council
the objectives of a strong and dynamic shall be nominated by the exclusive
unionism. [Phil. Diamond Hotel and Resort Inc bargaining representative.
v. Manila Diamond Hotel and Employees
In establishments where no legitimate labor
Union, G.R. No. 158075 (2006)]
organization exists,
• the workers representative shall be elected
Confidential employees lumped with
directly by the employees at large. [Sec. 2,
management
Rule XXI, Book V, IRR]
Since the confidential employees are very few
in number and are, by practice and tradition, Qualification of Voters
identified with the supervisors in their role as
Eligible Voter
representatives of management, such identity
Eligible voter refers to a voter belonging to the
of interest has allowed their inclusion in the
appropriate bargaining unit that is the subject
bargaining unit of supervisors-managers for
of the petition for certification election [Sec.
purposes of collective bargaining in turn as
1(q), Rule VIII, Book V, IRR]
employees in relation to the company as their
employer. [Filoil Refinery Corp. v. Filoil
All employees who are members of the
Supervisory and Confidential Employees
appropriate bargaining unit three (3) months
Union, G.R. No. L-26736 (1972)]
prior to the filing of the petition shall be eligible
to vote. [Sec. 6, Rule IX, Book V, IRR]

Note:Rule VIII, Sec. 14 (f) and Rule IX, Sec. 6

refer
monthsto prior
employees as those
to the issuance employed
of the 3
order/the
 filing of the petition for certification election

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while Rule IX, Sec. 2 reckon the period of Non-participation in previous election has
employment from the “time of filing the no effect
petition”. This difference has not been resolved [Failure to take part in previous elections is no
in any case before the Supreme Court. bar to the right to participate in future elections.]
No law, administrative rule or precedent
All rank and file employees in the appropriate prescribes forfeiture of the right to vote by
bargaining unit, whether probationary or reason of neglect to exercise the right in past
permanent are entitled to vote. The Code certification elections. [Reyes v. Trajano, G.R.
makes no distinction as to their employment No. 84433 (1992)]
status. [...] All they need to be eligible to
support the petition is to belong to a bargaining 1. Determination of Representation
unit. [Airtime Specialists, Inc. v. Ferrer-Calleja, Status
G.R. No. 80612-16 (1990)]
Methods of Establishing Majority Status
Rationale for Non-Distinction Policy a. Sole and Exclusive Bargaining Agent
Collective bargaining covers all aspects of the (SEBA) Certification
employment relation and the resultant CBA b. Consent Election
binds all employees in the bargaining unit. All c. Certification Election
rank and file employees, probationary or d. Run-Off Election
permanent, have a substantial interest in the e. Re-Run election
selection of the bargaining representative.
[Airtime Specialists, Inc. v Ferrer-Calleja, Note: D.O. No. 40-I-15 replaced Voluntary
supra.] Recognition with SEBA certification, as of
September 7, 2015.
Dismissed employees [Sec. 6, Rule IX, Book
V, IRR] a. SEBA Certification
General Rule: [Dismissed] employees [who]
contested legality of the dismissal in a forum of PROCEDURE [RULE VII, BOOK V, IRR]
appropriate jurisdiction at the time of the 1. File Request for SEBA Certification [Sec.
issuance of the order for conduct of a 1]
certification election
Who: Any legitimate labor organization
Exception: Dismissal was declared valid in a
final judgment at the time of the conduct of the File where: Regional Office which issued
certification election. its certificate of registration or certificate of
creation of chartered local
Disagreement over voters’ list over
eligibility of voters 2. Indicate in the request [Sec. 2]:
All contested voters shall be allowed to vote a. Name and address of the requesting
[but] their votes shall be segregated and sealed legitimate labor organization;
in individual envelopes. [Sec. 6, Rule IX, Book b. Name and address of the company
V, IRR] where it operates;
c. Bargaining unit sought to be
Voting List and Voters represented;
The basis of determining voters may be agreed d. Approximate number of employees in
upon by the parties (i.e. the use of payroll). the bargaining unit; and
[Acoje Workers Union v. NAMAWU , G.R. No. e. Statement of the existence/non-
L-18848 (1963)] existence of other labor
organization/CBA.
 Page 141 of 262

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certification shall be referred to the election

Certificate of Duly Certified by
officer for the conduct of election pursuant
Registration President of to Rule IX of this rules.
requesting union
Note: If there is more than one Legitimate
Creation of chartered President of the Labor Organization, Art. 269 applies
local local federation of
the local If Organized Establishment [Sec. 6]
If the Regional Director finds the establishment
organized he/she shall refer it to the mediator-
Both certificates should be attached to the
arbitrator for determination and propriety of
request
conducting a certification election.
3. Regional Director shall act on the request
4. Regional Director shall act on the
[Sec. 3]
submission [Sec. 4.1]
When: Within one (1) day from submission
of request Incomplete The request shall be
requirements referred to Election Officer
Action: for the conduct of election
pursuant to Rule IX.
a. Determine
compliant withwhether
Sec. 2 andrequest
whether theis
bargaining unit sought to be Complete Regional Director shall
represented is organized or not; and requirements issue a certification as
b. Request a copy of the payroll SEBA

If the Regional Director finds it deficient, 5. Regional Director shall post the SEBA
he/she shall advise the requesting union or Certification [Sec. 4.1]
local to comply within ten (10) days from
notice. Failure to comply within the Period:Fifteen (15) consecutive days
prescribed period shall be deemed
withdrawal of the request. Where: At least two (2) conspicuous
places in the establishment or covered
If Unorganized Establishment [Sec. 4] bargaining unit.
a. Finding
organization of – only 1 Director
Regional legitimateshalllabor
call EFFECT OF SEBA CERTIFICATION [Sec.
a conference within five (5) working days 4.2]
for the SUBMISSION of: Upon the issuance of the [SEBA Certification],
1. Names of employees in the covered the certified union or local shall enjoy all the
bargaining unit who signify support for rights and privileges of an exclusive bargaining
certification; [and these] employees agent of all the employees in the covered
comprise at least majority of the bargaining unit.
number of employees in the covered
bargaining unit; and The certification shall bar the filing of a [PCE]
2. Certification under oath by the by any labor organization for a period of one (1)
president of the requesting union or year from the date of its issuance.
local that all documents submitted are
true and correct based on personal Upon expiration of this one-year period, any
knowledge
b. Failure to Complete Requirements for legitimate labor organization may file a [PCE]
in the same bargaining unit represented by the
 SEBA Certification - the request for SEBA certified labor organization, unless a [CBA]

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between the employer and the certified labor organization. [Reyes v. Trajano, G.R. No.
organization was executed and registered with 84433 (1992)]
the Regional Office in accordance with Rule
XVII. BARS TO A CERTIFICATE ELECTION
Petition for certification may be filed:
b. Consent Election General Rule:Anytime
Exceptions:
Consent Election means the election 1. One-year bar rule
voluntarily agreed upon by the parties with or 2. Negotiation bar rule
without the intervention by DOLE [Sec. 1(i), 3. Deadlock bar rule
Rule I, Book V, IRR] 4. Contract bar rule

Procedure [Sec. 11, Rule VIII, Book V, IRR] See Grounds for denying a Petition for
1. The parties may agree to hold a consent Certification Election
election
a. Where no petition for certification (1) One-Year Bar Rule
election was filed; or
b. Where a petition for certification No certification election may be held within 1
election had been filed, and upon the year from the time a valid certification, consent
intercession of Med-Arbiter [Sec. 25, or run-off election has been conducted within
Rule VIII, Book V, IRR] the bargaining unit.
2. Mediator-Arbiter shall call for the consent
election, reflecting the parties’ agreement [If the order of the Med-Arbiter certifying the
and the call in the minutes of the results of the election has been appealed], the
conference. Regional Director or running of the one-year period shall be
authorized representative shall determine suspended until the decision on the appeal
the Election Officer by raffle in the becomes final and executory. [Sec. 3(a), Rule
presence of representatives of the VIII, Book V]
contending unions if they so desire
3. First pre-election conference is scheduled Note: This bar also applies to a SEBA
within ten (10) days from the date of the Certification under Rule VII. “The certification
agreement. Subsequent conferences may shall bar the filing of a petition for certification
be called to expedite and facilitate the election by any labor organization for a period
holding of the consent election. of one (1) year from the date of its issuance.”
[Sec. 4.2, Rule VII, Book V, IRR]
c. Certification Election
(2) Negotiation Bar Rule
Certification Election is the process of
determining, through secret ballot, the sole and No certification of election may be filed when:
exclusive representative of the employees in 1. Within 1 year after the valid certification
an appropriate bargaining unit for purposes of election
collective bargaining or negotiation. [Sec. 1(i), 2. The DULY CERTIFIED union has
Rule I, Book V, IRR] COMMENCED AND SUSTAINED
negotiations in good faith with the employer
PURPOSE 3. In accordance with Art. 261 of the Labor
The purpose of a certification election is Code Sec. 3(b), Rule VIII, Book V
precisely the ascertainment of the wishes of
the majority of the employees in the
appropriate bargaining unit: to be or not to be
represented by a labor organization, and in the
affirmative case, by which particular labor

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(3) Deadlock Bar Rule The five-year representation status acquired by

an incumbent bargaining agent either through
No certification of election may be filed when: single enterprise collective bargaining or multi-
1. The incumbent or certified bargaining employer bargaining shall not be affected by a
agent is a party; subsequent [CBA] executed between the same
2. A bargaining deadlock had been: bargaining agent and the employer during the
a. Submitted to conciliation or arbitration same five-year period. [Sec. 7, Rule XVII, Book
or; V, IRR]
b. Had become the subject of a valid
notice of strike or lockout [Sec. 3(c), Despite an agreement for a CBA with a life of
Rule VIII, Book V, IRR] more than five years, either as an original
provision or by amendment, the bargaining
A “deadlock” is defined as the “counteraction of union’s exclusive bargaining status is effective
things producing entire stoppage; only for five years and can be challenged within
• a state of inaction or of neutralization sixty (60) days prior to the expiration of the
caused by the opposition of persons or of CBA’s first five years. [FVC Labor Union-
factions (as in government or voting body): PTGWO v. SANAMA-FVC-SIGLO, G.R. No.
standstill.” [...] 176249 (2009)]
• The word is synonymous with the word
impasse which [...] “presupposes The rule is that despite the lapse of the formal
reasonable effort at good faith bargaining effectivity of the CBA the law still considers the
which, despite noble intentions, does not same as continuing in force and effect until a
conclude in agreement between the new CBA shall have been validly executed.
parties” [Divine World University v. SOLE, Hence, the contract bar rule still applies.
G.R. No. 91915 (1992)] [Colegio de San Juan de Letran v. Association
of Employees, G.R. No. 141471 (2000)]
(4) Contract Bar Rule
Petition for cancellation of union
BLR shall not entertain any petition for registration DOES NOT suspend or prevent
certification election or any other action which filing of certification election
may disturb the administration of DULY A petition for cancellation of union registration
REGISTERED existing collective bargaining shall not:
agreements affecting the parties, except under 1. suspend the proceedings for certification
Arts. 264, 265, and 268 [(60-day freedom election; nor
period)]. [Art. 238] 2. prevent the filing of a petition for
certification election. [Art. 246]
No petition for certification election may be filed
when a [CBA] between the employer and a A certification election can be conducted
SEBA has been registered in accordance with despite pendency of a petition to cancel the
Art. 237. union registration certificate.
certificate. For the fact is that
at the time the [union], whose registration
Where such [CBA] is registered, the petition certificate is sought to be cancelled, filed its
may be filed only within sixty (60) days prior to petition for certification, it still had the legal
its expiry. [Sec. 3(d), Rule VIII, Book V, IRR]. personality to perform such act absent an order
directing its cancellation. [Association of Court
The Contract-Bar Rule shall apply in any of the of Appeals Employees v. Calleja, G.R. No.
following: (1) when there exists an unexpired 94716, (1991)]
registered CBA; or (2) when there is no
challenge on the representation status of the
incumbent union during the freedom period.
[D.O. No. 40-1-15]

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Allegation of company union a prejudicial management. [Port Workers Union v.

question to a petition for certification Laguesma, G.R. Nos. 94929-30, (1992)]
election
A complaint for unfair labor practice may be
Certification Union Election
considered a prejudicial question in a
Election
proceeding for certification election when it is
charged therein that one or more labor unions To determine the To elect union
participating in the election are being aided, or Exclusive Bargaining officers
are controlled, by the company or employer Agent
[company union] [United CMC Textile Worker’s
Union v. BLR, G.R. No. 51337(1984)]. All members of the Only union members
appropriate may vote
Rationale: The certification election may lead bargaining unit
to the selection of an employer-dominated or
company union as the employees’ bargaining
WHO MAY VOTE [Sec. 6, Rule IX, Book V,
representative, and when the court finds that
IRR]
said union is employer-dominated in the unfair
All employees who are members of the
labor practice case, the union selected would
appropriate bargaining unit three (3) months
be decertified and the whole election
prior to the filing of the petition/request shall be
proceedings would be rendered useless and
nugatory. [B.F. Goodrich Phils. Marikina v. B.F. eligible to vote.
Goodrich Confidential and Salaried Employees
An employee who has been dismissed from
Union, G.R. No. L-34069-70 (1973)]
work but has contested the legality of the
dismissal in a forum of appropriate jurisdiction
NATURE OF PROCEEDING
at the time of the issuance of the order for the
Certification election is the most effective and
conduct of a certification election shall be
the most democratic way of determining which
considered a qualified voter, unless his/her
labor organization can truly represent the
dismissal was declared valid in a final judgment
working force in the appropriate bargaining unit
at the time of the conduct of the certification
of a company [Samangang Manggagawa sa
election.
PERMEX v SOLE, G.R. No. 107792 (1998)].
In case of disagreement over the voters’ list or
[It] is not a ‘litigation’ [...] but a mere
over the eligibility of voters, all contested voters
investigation of a non-adversary, fact-finding
character. [...] shall be allowed
segregated to vote.inBut
and sealed their votes
individual shall be
envelopes.
The determination of the proceeding does not
WHO MAY FILE [Sec. 1, Rule VIII, Book V,
entail the entry of remedial orders or redress of
IRR]
rights, but culminates solely in an official
1. Legitimate labor organization [Art. 219
designation of bargaining units and an
(h)]
affirmation of the employees’ expressed choice
2. Local/chapter that has been issued a
of bargaining agent. [Angat River Irrigation
charter certificate
System v. Angat River Worker’s Union
The chapter shall acquire legal personality
(PLUM), G.R. Nos. L-10943 and L-10944
only for purposes of filing a petition for
(1957)]
certification election from the date it was
issued a charter certificate. [Art. 241]
Technical rules and objections should not
3. National union or federation that has
hamper the correct ascertainment of the labor
union that has the support or confidence of the issued a charter certificate to its
local/chapter [in behalf of the latter]
majority of the workers and is thus entitled to
represent them in their dealings with

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4. A group of legitimate labor unions in a The employer is not a party to a certification

private establishment organized for election, which is the sole or exclusive concern
collective bargaining or for dealing with of the workers. [...]
employers concerning terms and
conditions of employment for their member The only instance when the employer may be
unions or for participating in the formulation involved in that process is when it is obliged to
of social and employment policies, file a petition for certification election on its
standards and programs, registered with workers’ request to bargain collectively
the BLR in accordance with Rule III Sec. 2- pursuant to Art. 258 [now Art. 270]. [Hercules
B. [Sec. 1 (ll), Rule I, Book V, IRR] Industries, Inc. v. Sec. of Labor, G.R. No.
5. Employer (when requested to bargain 96255 (1992)]
collectively and no existing CBA)
Requisites: [The employer] did not possess the legal
a. Employer is requested to bargain personality to file a motion to dismiss the
collectively; AND petition for certification election even if based
b. No existing registered CBA in the unit on the ground that its supervisory employees
[Art. 270] are in reality managerial employees.

BYSTANDER RULE It is well-settled that an employer has no

In all cases, whether the petition for standing to question a certification election
certification election is filed by an employer or since this is the sole concern of the workers.
a legitimate labor organization, the employer The only exception to this rule is Art. 258 [now
shall not be considered a party thereto with a Art. 270]. [PT&T v. Laguesma, G.R. No.
concomitant right to oppose a petition for 101730 (1993)]
certification election. [Art. 271]
[A] company’s interference in the certification
The employer’s participation shall be election below by actively opposing the same
limited to: [...] unduly creates a suspicion that it intends to
a. Being notified or informed of petitions of establish a company union. [Oriental Tin Can
such nature Labor Union v. Secretary of Labor , G.R. No.
b. Submitting the list of employees during the 116751 (1998)]
pre-election conference, should the Med-
Arbiter act favorably on the petition [Art. VENUE FOR FILING PETITION
271] File with the Regional Office which issued the
petitioning union’s certificate of registration or
The principle of the employer as by-stander certificate of creation of chartered local.
shall be strictly observed throughout the
conduct of certification election. At [petitioner’s option], [it may file] the petition
and its supporting documents [...] online. [Sec.
The employer shall not harass, intimidate, 2, Rule VIII, Book V, IRR]
threat[en], or coerce employees before, during
and after elections. [Sec. 1, Rule IX, Book V, Where two or more petitions involving the
IRR] same bargaining unit [Sec. 2, Rule VIII, Book
V, IRR]:
However, manifestation of facts that would aid
Filed in Automatically consolidated with
the [Med-Arbiter] in expeditiously resolving the
one [Med-Arbiter] who first acquired
petition such as existence of a contract-bar,
Regional jurisdiction.
one year bar or deadlock bar may be
considered. [Sec. 1, Rule VIII, Book V, IRR] Office
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U.P. LAW BOC LABOR 2 LABOR LAW

2. It must be filed within the 60-day period

Filed in The Regional Office in which
before expiration of CBA (freedom period).
different the petition was first filed shall
3. Supported by written consent of at least
Regional exclude all others; [...] the latter
25% of ALL employees in the bargaining
Offices shall indorse the petition to the
unit (substantial support).
former for consolidation.
4. Med-Arbiter shall automatically order an
election.
Procedure: CERTIFICATION ELECTION IN
AN UNORGANIZED ESTABLISHMENT WHEN PETITION MUST BE FILED
Freedom Period
Unorganized Establishment Within the sixty (60)-day period before the
[It is an] establishment where there is no expiration of the collective bargaining
certified bargaining agent. [Art. 269] agreement. [Art. 271]

Procedure [Art. 269] Note: The expiration referred to is the

1. File a petition for certification election.
el ection. expiration of the 5-year period for the
2. Upon filing of the petition, the Med-Arbiter representation aspect. (see Art. 265) [Prof.
shall automatically conduct a certification Battad]
election.
Rationale of Prohibition of Filing Outside
Filing of petition is by a legitimate labor the Freedom Period
organization To ensure industrial peace between the
It cannot be filed by an unregistered labor employer and its employees during the
organization. Art. 251 enumerates the rights existence of the CBA. [Republic Planters Bank
granted to a legitimate labor organization and Union v. Laguesma, G.R. No. 119675 (1996)]
one of those rights is the right to be chosen as
the exclusive bargaining representative. This is SIGNING OF AUTHORIZATION IS MERELY
one way the law encourages union registration. PREPARATORY
What is prohibited is the filing of the petition for
Note: Art. 269 should be related to SEBA certification election outside the 60-day
Certification. If there are multiple LLOs in an freedom period. [...] The signing of the
unorganized establishment, Art. 269 applies. If authorization to file was merely preparatory to
there is only one LLO in an unorganized the filing of the Petition for Certification
establishment, Rule VII on SEBA Certification Election, or an exercise of [the] right to self-
applies. Under this rule, when there is failure to organization. [PICOP Resources Inc. v.
complete requirements, the Regional Director Ricardo Dequita, G.R. No. 172666 (2011)]
will refer it to the Election Officer.
25% SUBSTANTIAL SUPPORT RULE
Procedure: CERTIFICATION ELECTION IN In organized establishments, the incumbent
AN ORGANIZED ESTABLISHMENT sole bargaining agent should not be easily
replaced for that would disturb industrial peace.
Organized Establishment To justify the disturbance, it must appear that
Refers to an enterprise where there exists a at least a substantial number (25%
recognized or certified sole and exclusive requirement) seeks to have a new exclusive
bargaining agent. [Sec. 1(ll), Rule I, Book V, bargaining unit.
IRR]
DISCRETIONARY RULE
Procedure [Art. 268] The [Med-Arbiter], in the exercise of sound
1. File a verified petition questioning the discretion, may order a certification election
 majority. notwithstanding the failure to meet the [25%]
requirement [in petitions for certification

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election in an organized establishment]. [Scout

Scout Unorganized establishment: any time prior to
Albano Memorial College v. Noriel, G.R. No. L- the decision of the Med-Arbiter [Sec. 9, Rule
48347 (1978)] VIII, Book V, IRR]

INAPPLICABLE TO MOTIONS FOR EFFECT OF WITHDRAWAL OF

INTERVENTION SIGNATURES
[The] requisite written consent of at least 20% The employees’ withdrawal from a labor
(now 25%) of the workers in the bargaining unit union made
applies to certification election only, and not to 1. Before the filing of the petition for
motions for intervention. Nowhere in the legal certification election is presumed voluntary
provisions [and in the Omnibus Rules] does it 2. After the filing of such petition is considered
appear that a motion for intervention in a to be involuntary and does not affect the
certification election must be accompanied by [petition]. [S.S. Ventures International v.
a similar written consent. [PAFLU v. Calleja, S.S. Ventures Labor Union, G.R. No.
G.R. No. 79347 (1989)] 161690 (2008)]

INTERVENORS
1. Incumbent bargaining agent as forced
intervenor: The incumbent bargaining
agent shall automatically be one of the
choices in the certification election as
forced intervenor. [Sec. 8, Rule VIII, Book
V, IRR]
2. Legitimate labor union other than the
incumbent bargaining agent operating
within the bargaining unit: When a
petition for certification election was filed in
an organized establishment, any legitimate
labor union other than the incumbent
bargaining agent operating within the
bargaining unit may file a motion for
intervention with the Med-Arbiter during the
freedom period of the collective bargaining
agreement.

In an unorganized establishment, the motion

shall be filed at any time prior to the decision of
the Med-Arbiter. The motion shall be resolved
in the same decision issued in the petition for
certification election.

In both cases, the form and contents of the

motion shall be the same as that of a petition
for certification election. [Sec. 9, Rule VIII,
Book V, IRR]

WHEN TO FILE MOTION FOR

INTERVENTION
Organized establishment: during the freedom
period of the collective bargaining agreement

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Organized v. Unorganized Establishments

Art. 268: Organized Art. 269: Unorganized

Sole and exclusive Existing None

bargaining agent

Petition filed Must be VERIFIED No need to be verified

Freedom period No petition for certification election Not applicable (i.e. no

EXCEPT within60 days before freedom period; petition can
the expiration of the collective be filed anytime)
bargaining agreement (SeeArts.
264 and 265)

Rationale: To keep industrial

peace in organized establishments

Substantial support rule Must be duly supported by 25%

25 % of NO substantial support rule
ALL THE MEMBERS OF THE
APPROPRIATE BARGAINING Rationale:Intention of law is
UNIT to bring in the union, to
implement policy behind Art.
Rationale: Law wants to know the 218A.
intention of the employees – if they
really want a certification election,
since they already have a
bargaining agent

Certification Election v. Consent Election

Certification Election Consent Election

Purpose "Certification Election" or "Consent Election" refers to the process of

determining through secret ballot the sole and exclusive representative of
the employees in an appropriate bargaining unit for purposes of collective
bargaining or negotiation. A certification election is ordered by the
Department, while a consent election is voluntarily agreed upon by the
parties, with or without the intervention by the Department[Book V, Rule
1, Sec. 1(h)]

General Procedure Rule IX Rule VII, Sec. 11, pars. 1, 2

SECTION 2. Raffle of the Case. — The contending unions may agree

Within twenty-four (24) hours from to the holding of an election, in
receipt of the notice of entry of final which case it shall be called a
judgment granting the conduct of a consent election. The mediator-
certification election, the Regional arbiter shall forthwith call for the
Director shall cause the raffle of the consent election, reflecting the
 case to an Election Officer who parties' agreement and the call in

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shall have control of the pre- the minutes of the conference. The
election conference and election mediator-arbiter shall immediately
proceedings. (1a) forward the records of the petition
to the regional director or his/her
authorized representative for the
determination of the election officer
who shall be chosen by raffle in the
presence of representatives of the
contending unions if they so desire.

With the exception of aforementioned provisions that specifically apply

only for Certification Election or Consent Election respectively, Rule IX,
on the Conduct of Certification, Secs. 3 – 21, applies to both certification
and consent elections

Conduct Ordered by the DOLE Voluntarily agreed upon by the

parties, with or without the
intervention of DOLE

d. Run-Off Election run-off will be between the labor unions

receiving “the two highest number of votes.”
Run-Off Election refers to an election Pursuant to Art. 268, when an election which
between the labor unions receiving the two (2) provides for three or more choices results in no
highest number of votes in a certification or choice receiving a majority of the valid votes
consent election when the following requisites cast, a run-off election shall be conducted
have been complied with: between the labor unions receiving the two
1. Valid election; highest number of votes. Thus, the run-off will
2. The certification or consent election be among Union “A”, “B”, and “C.” [Azucena]
provides for three (3) or more choices
(Note: “No Union” is considered one choice Procedure for Run-Off Election
– Prof. Battad); Election Officer shall motu proprio conduct a
3. None of the contending UNIONS received run-off election within ten (10) days from the
a majority of the VALID VOTES cast; close of the election proceedings between the
4. No objections or challenges which if labor unions receiving the two highest number
sustained, can materially alter the results; of votes.
and
5. The total number of votes for all contending “No Union” shall not be a choice in the run-off
UNIONS is at least fifty (50%) of the election [Sec. 1, Rule X, Book V, IRR].
number of VOTES cast [Art. 268; Sec.
1(uu), Rule I, Book V, IRR; Sec. 1, Rule X, Same voters’ list used in the certification
Book V, IRR] election shall be used in the run-off election.

Illustration The labor union receiving the GREATER

The CBU has 100 members and 80 of which number of VALID VOTES cast shall be certified
voted. Union “A”= 30; Union “B”= 15; Union as the winner [Sec. 2, Rule X, Book V, IRR].
“C”=15 and No Union= 20. There were no
invalid votes. Since none got the majority of the Note:Please note the difference between valid
80 valid votes (40) and the contending unions votes cast versus votes cast – valid votes
obtained 60 votes (which is at least 50% of the excludes spoiled votes.
VOTES cast), a run-off election is proper. The

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e. Re-Run Election The Regional Director or his/her duly

authorized representative shall immediately
Re-run Election refers to an election assign it by raffle to a [Med-Arbiter]. The raffle
conducted to break a tie between contending shall be done in the presence of the petitioner
unions, including between "no union" and one if the latter so desires. [Sec. 5, Rule VIII, Book
of the unions. It shall likewise refer to an V, IRR]
election conducted after a failure of election
has been declared by the election officer (2) Preliminary Conference
and/or affirmed by the mediator-arbiter. [Sec.
1(tt), Rule 1, Book V, as amended by DO 40-I- Med-Arbiter shall conduct a preliminary
15] conference and hearing within ten (10) days
from receipt of the petition to determine the
Situations Contemplated following:
1. A tie between two (2) choices. 1. The bargaining unit to be represented;
2. Failure of Elections [see Definition] 2. Contending labor unions
3. Possibility of a consent election
Duty of Election Officer 4. Existence of any of the bars to certification
1. Notify parties of a re-run election election under Sec. 3[, Rule VIII]; and
2. Cause posting of notice within five (5) days 5. Such other matters as may be relevant for
from said election. the final disposition of the case [Sec. 10,
Rule VIII, Book V, IRR]
When will re-run be conducted
Within ten (10) days after the posting of the Note: If contending unions agree to holding of
notice of the union declared as winner and an election, [...] it shall be called a consent
certified choice receiving the HIGHEST election. [Sec. 11, Rule VIII, Book V, IRR]
VOTES CAST.
(3) Med-Arbiter to Conduct Hearings
PROCEDURE AFTER FILING PETITION FOR
CERTIFICATION ELECTION If contending unions fail to agree to a consent
1. Raffling of case to Med-Arbiter election during the preliminary conference
2. Preliminary Conference and hearing • the Med-Arbiter may conduct as many
3. Conduct of hearings hearings as he/she may deem necessary
4. Determine if petition should be dismissed " but in no case shall the conduct thereof
on grounds stated in Sec. 15 exceed fifteen (15) days from date of
5. Order/Decision on the petition scheduled preliminary conference/
6. Appealing the order/decision on the hearing, after which the petition shall
petition be considered submitted for decision.
7. Raffling of the case to an Election Officer [...]
8. Pre-Election Conference
9. Conduct of election Within the same 15-day period [...], the
10. Challenging of votes and on the spot contending labor unions may file such
questions pleadings as they may deem necessary for the
11. Protesting immediate resolution of the petition.
12. Canvassing of votes Extensions of time shall not be entertained.
13. Nullification of Election Results [Sec. 12, Rule VIII, Book V, IRR]
14. Proclamation and Certification of the result
of the election
15. Appeal from Certification Election Order
(1) Raffling of Case to Med-Arbiter

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(4) Determine if Petition should be (5) Order or Decision on the Petition

dismissed based on Grounds Stated in
Sec. 15 [Med-Arbiter] shall issue a ruling granting or
denying the petition
The grounds to dismiss the petition are:
1. Petitioning union or national union/ When:
federation is: General rule: Within ten (10) days from last
a. Not listed in DOLE’s registry of hearing
legitimate labor unions; or
b. Registration certificate has been Exception:In organized establishments, grant
cancelled with finality of the petition can only be made after the lapse
2. Failure of a local/chapter or national of the freedom period [Sec. 14, Rule VIII, Book
union/federation to submit a duly issued V, IRR]
charter certificate upon filing of the petition
for certification election How:
3. Contract Bar rule 1. Personally to the parties
4. One-Year Bar rule 2. Copy furnished to the employer [Sec. 18,
5. Negotiation and Deadlock Bar Rule Rule VIII, Book V, IRR]
6. In an organized establishment, the failure
to submit the 25% signature requirement to The ruling for the conduct of a certification
support the filing of the petition. election shall state the following:
7. Non-appearance of the petitioner for two 1. Name of the employer or establishment;
(2) consecutive scheduled conferences 2. Description of the bargaining unit;
before the [Med-Arbiter] despite due 3. Statement that none of the grounds for
notice; and dismissal [...] in Sec. 14 exists;
8. Absence of employer-employee 4. Names of the contending labor unions [...]
relationship between all the members of in the following order:
the petitioning unit and the establishment a. Petitioner unions in the order of the
where the proposed bargaining unit is date of filing of their respective
sought to be represented. petitions
b. The forced intervenor
Note: See Bars to Certification Election under c. “No union”
“c. Certification Election” 5. [If] the local/chapter is one the contending
unions, a directive to an unregistered
Commingling is not a ground local/chapter or a federation/national union
The inclusion as union members of employees representing all unregistered local/chapter
outside the bargaining unit [is] not a ground for to personally submit to the Election Officer
cancellation of the registration of the union. its certificate of creation at least five (5)
Said employees are automatically deemed working days before the actual conduct of
removed from the list of membership. [Sec. 16, the certification election. [This is to afford
Rule VIII, Book V, IRR] an individual employee-voter an informed
choice.]
Posting of notice of Petition for Certificate 6. Non-submission of this requirement as
Election certified by Election Officer shall disqualify
The Regional Director or his/her authorized the local/ chapter from participating in the
DOLE personnel, and/or the petitioner shall be certification election
responsible for the posting of the notice of 7. Directive to the employer and the
petition for certification election. [Sec. 7, Rule contending unions to submit within ten (10)
VIII, Book V, IRR] days from receipt of order:
 a. The certified list of employees in the
bargaining unit, or where necessary,

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b. Payrolls covering the members of the Decision of the Secretary

bargaining unit for the last three (3) Period to decide: Fifteen (15) days from receipt
months prior to the issuance of the of entire records of the petition to decide the
order appeal.

(6) Appealing the Order Granting or Secretary’s decision shall be final and
Denying the Conduct of Certification executory within ten (10) days from receipt by
Election [Sec. 19-20, RULE VIII, BOOK V, parties. [Sec. 23, Rule VIII, Book V, IRR]
IRR]
Note:No motion for reconsideration of decision
Form of appeal shall be entertained. [Sec. 23, Rule VIII, Book
1. Verified under oath V, IRR]
2. Consists of a memorandum of appeal
specifically stating the grounds relied upon Implementation of decision
by appellant with the supporting arguments General Rule:Shall not be stayed
and evidence Exception: Restrained by appropriate court
[Sec. 24, Rule VIII, Book V, IRR]
Dismissed
Organized or denied (7) Raffling of the Case to an Election
Appeal to Officer
Granted Office of
Secretary Regional Director shall cause the raffle of the
Dismissed
or denied case to an Election Officer who shall have
Unorganized control of:
Granted Unappealable 1. Pre-election conference; and
2. Election proceedings
When: Within ten (10) days from receipt of the
When: Within twenty-four (24) hours from
order [of the Med-Arbiter].
receipt of notice of entry of final judgment
granting the conduct of a certification election
Where: Regional Office where the petition
[Sec. 2, Rule IX, Book V, IRR]
originated
(8) Pre-Election Conference
Effect of Filing Memorandum of Appeal
Stays the holding of any certification election. Notice of Pre-Election Conference [Sec. 3,
[Sec. 23, Rule VIII, Book V, IRR]
Rule IX, Book V, IRR]
The Election Officer shall cause the issuance
Reply to Appeal
of notice of pre-election conference upon the
Reply by any party to the petition shall be filed
contending unions
within ten (10) days from receipt of the
memorandum of appeal […] and filed directly
When: Within twenty-four (24) hours from the
with the office of the Secretary. [Sec. 22, Rule
[Election Officer’s] receipt of assignment for the
VIII, Book V, IRR]
conduct of a certification election
When no appeal is filed
Schedule of pre-election conference
The decision shall be final and executory if no
When: Within ten (10) days from receipt of the
appeal is filed within the ten (10) day period.
assignment
[Sec. 21, Rule VIII, Book V, IRR]
Completed within thirty (30) days from the date
 of the first hearing [Sec. 5, Rule IX, Book V,
IRR]

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Employer to Submit: [Sec. 3, Rule IX, Book 1. Date and time of the election;
V, IRR] 2. Names of all contending unions;
1. Certified list of employees in the bargaining 3. Description of the bargaining unit;
unit; or where necessary, 4. List of eligible and challenged voters.
2. Payrolls covering the members of the
bargaining unit at the time of the filing of Posting of the list of employees comprising the
petition bargaining unit shall be done by the DOLE
personnel.
Failure of party to appear during pre-
election conference despite notice [Sec. 4, What cannot be waived by contending
Rule IX, Book V, IRR] unions or employer:
This shall be considered a waiver of right to: 1. Posting of the notice of election
1. To be present; and 2. Information required to be included therein
2. To question or object to any of the 3. Duration of the posting
agreements reached in the pre-election
conference The parties agreed to conduct the election on
[...] a regular business day but a strike was held
Shall NOT deprive the non-appearing party of on that day. The alleged strike and/or picketing
the right to: of some employees at the company’s premises
1. Be furnished notices; and which coincided with the actual conduct of
2. To attend subsequent pre-election certification election might, perhaps have
conferences affected the actual performance of works by
some employees but did not necessarily make
Minutes of pre-election conference [Sec. 5, said date an irregular business day of the
Rule IX, Book V, IRR] company. [Asian Design and Manufacturing
Election Officer shall keep the minutes of Corp. v. Ferrer-Calleja, G.R. No. L-77415
matters raised and agreed upon. (1989)]

Parties shall acknowledge the completeness (9) Conduct of Election

and correctness of entries in the minutes by
affixing their signatures. Inspection to ensure secrecy and sanctity
When parties refuse to sign the minutes, the of ballot [Sec. 8, Rule IX, Book V, IRR]
Election Officer shall note such fact in the By whom:
minutes, including the reason for refusal to sign 1. Election Officer, together with
the same. 2. Contending unions’ authorized
representative; and
In all cases, parties shall be furnished a copy 3. Employer
of the minutes.
When: Before start of actual voting
Posting of Notices [Sec. 7, Rule IX, Book V,
IRR] Shall inspect:
Who: Election Officer and/or authorized DOLE 1. Polling place;
personnel shall cause the posting 2. Ballot boxes; and
What: Notice of election 3. Polling booths
Where: 2 most conspicuous places in the
company premises Prohibition on certain devices
When:At least ten (10) days before the actual General Rule: No device that could record or
[election date] identify the voter or otherwise undermine the
secrecy and sanctity of the ballot shall be
Contents of Notice [Sec. 7, Rule IX, Book V, allowed within the premises
IRR]

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Exception:Devices brought in by the Election 2. Have custody of all envelopes containing

Officer the challenged votes

Consequence: Any other device found within Opening of envelopes and question of
the premises shall be confiscated by the eligibility
Election Officer and returned to its owner after Shall be passed upon by the Med-Arbiter only
conduct of the certification election. if the number of segregated votes will
materially alter the results of the election.
el ection.
Spoiled Ballots
A ballot that is torn, defaced, or contains On-the-spot Questions
marking which can lead another to clearly What the Election Officer shall rule on: Any
identify the voter who casts such vote [Sec. question relating to and raised during the
1(ww), Rule I, Book V, IRR] conduct of election

If the voter inadvertently spoils a ballot, he shall What the Election Officer SHALL NOT rule
return it to the Election Officer who shall on: Question of eligibility which shall be
destroy it and give him/her another ballot.[Sec. decided by the Mediator-Arbiter
10, Rule IX, Book V, IRR]
Failure of representative/s of the
Member unintentionally omitted in the master contending unions to appear [Sec. 15, Rule
list of voters may either be: IX, Book V, IRR]
"# May be allowed to vote if both parties Considered a waiver of the right to be present
agree; [OR] and to question the conduct thereof
$# Allowed to vote but the ballot is segregated
(11) Protest [Sec. 13, Rule IX, Book V, IRR]
(10) Challenging of Votes and on the Spot
Questions [Sec. 11-12, Rule IX, Book V, Who may file: Any party-in-interest
IRR]
Ground: On the conduct or mechanics of the
Ballot of the voter who has been properly election
challenged during the pre-election conferences
shall be: When Protest is Perfected:
1. Placed in an envelope sealed by Election 1. [Record the protest] in the minutes of the
Officer in the presence of: election proceedings; AND
a. the voter; and 2. Formalize [the] protest with the Med-
b. representatives of the contending Arbiter, with specific grounds, arguments
unions. and evidence within five (5) days after the
2. Election Officer shall indicate on the close of the election proceedings
envelope the:
a. Voter’s name; Protests deemed dropped
b. Union challenging the voter; and Protests [which are]:
c. Ground for the challenge 1. Not recorded in the minutes; AND
3. Sealed envelope shall be signed by: 2. Formalized within the prescribed period
a. Election Officer; and
b. Representatives of the contending General reservation to file protest
unions prohibited
Protesting party shall specify the grounds for
Election Officer shall: protest.
1. Note all challenges in the minutes of the
 election proceedings; and

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Failure to formalize within 5-days cannot be Procedure [Sec. 14, Rule IX, Book V, IRR]
taken against the union 1. Election Officer shall count and tabulate
[The petitioner union misrepresented that they the votes in the presence of the
were independent which caused the members representatives of the contending unions.
to disaffiliate and form a new union and their 2. Upon completion of canvass, the Election
protest was not filed within the 5-day period. Officer shall give each representative a
The] failure to follow strictly the procedural copy of the minutes of the election
technicalities regarding the period for filing their proceedings and results of the election.
protest should not be taken against them. 3. Ballots and tally sheets shall be sealed in
an envelope and signed by the Election
Mere technicalities should not be allowed to Officer and the representatives of the
prevail over the welfare of the workers. What contending unions and transmitted to the
is essential is that they be accorded an Med-Arbiter together with the minutes and
opportunity to determine freely and intelligently results of the election within twenty-four
which labor organization shall act on their (24) hours from the completion of the
behalf. [DHL-URFA-FFW v. BMP, G.R. No. canvass.
152094 (2004)]
Election conducted in more than one region
Note:"Election Proceedings" refer to the period Consolidation of results shall be made within
during a certification election, consent or run- fifteen (15) days from the conduct thereof.
off election and election of union officers,
starting from the opening to the closing of the Double Majority Rule
polls, including the counting, tabulation and It is well-settled that under the so-called
consolidation of votes, but excluding the period "double majority rule,” for there to be a valid
for the final determination of the challenged certification election, majority of the bargaining
votes and the canvass thereof. [Book V, Rule unit must have voted AND the winning union
1, Sec. 1 (q)] must have garnered majority of the valid votes
cast. [NUWHRAIN-Manila Pavilion Hotel
Included: Chapter v. Secretary of Labor and
1. Starting from the opening to the closing of Employment , G.R. No. 181531 (2009)]
the polls
2. Counting, tabulation and consolidation of Requisites:
votes 1. There must be a valid certification or
consent election
Excluded:
1. Period for the final determination of the Valid Election: At least majority of the
challenged votes number of eligible voters have cast their
2. Canvass of the challenged votes [Sec. votes (VOTES CAST) [Sec. 17, Rule IX,
1(q), Rule I, Book V, IRR] Book V, IRR]

(12) Canvassing of Votes [Sec. 15, Rule IX, 2. The winning union must garner majority of
Book V, IRR] the VALID VOTES CAST [Sec. 16, Rule IX,
Book V, IRR]
Election precincts shall open and close on the
date and time agreed upon during the pre- Winning union certified as SEBA if there is
election conference. no protest [Sec. 16, Rule IX, Book V, IRR]
The [winning union] shall be certified as the
The opening and canvass of votes shall [SEBA] in the appropriate bargaining unit within
proceed immediately after the precincts have five (5) days from date of election, provided no
closed. protest is recorded in the minutes of the
election.

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Motion for another election after failure of

When winning choice is local chapter election [Sec. 20, Rule IX, Book V, IRR]
without certificate of creation of chartered Within twenty-four (24) hours from receipt of
local the motion, the Election Officer shall:
It must submit its DOLE issued certificate of 1. Immediately schedule another election
creation within five (5) days from the within fifteen (15) days from receipt of
conclusion of election motion
2. Cause posting of the notice of election
Note: Please note that valid votes differ from a. At least ten (10) days prior to the
mere votes as the former excludes spoiled scheduled date of election
ballots. b. In two (2) most conspicuous places in
the establishment
Abstention: refers to a blank or unfilled ballot
validly cast by an eligible voter. It is not Same guidelines and list of voters shall be
considered as a negative vote. However, it used.
shall be considered a valid vote for purposes of
determining a valid election. [Sec. 1(a), Rule I, Nullification of Election Results
Book V, IRR] It is precisely because respect must be
accorded to the will of labor thus ascertained
Spoiled Ballot: Refers to a ballot that is torn, that a general allegation of duress is not
defaced, or contains markings which can lead sufficient to invalidate a certification election; it
another to clearly identify the voter who casts must be shown by competent and credible
such vote. [Sec. 1(ww), Rule I, Book V, IRR] proof. [United Employees Union of Gelmart
Industries Philippines (UEUGIP) v. Noriel, No.
(13) Failure of Election [Sec. 17, Rule IX, L-40810 (1975)]
Book V, IRR]
(14) Proclamation and Certification of the
The Election Officer shall declare a failure of result of the election
election in the minutes of the election
proceedings when: Certification of the Collective Bargaining
1. Number of VOTES CAST is less than the Agent [Sec. 21, Rule IX, Book V, IRR]
majority of the number of eligible voters; Within 24 hours from final canvass of votes,
AND there being a VALID election, the Election
2. There are no material challenged votes Officer shall transmit the records of the case to
the Med-Arbiter.
Effect of Failure of Election [Sec. 19, Rule IX,
Book V, IRR] Within the same period from receipt of the
Shall not bar the filing of a motion for the minutes and results of election, [the Med-
immediate holding of a certification or consent Arbiter] shall issue an order proclaiming the
election within six (6) months from date of results of the election and certifying the union
declaration of failure of election. as the [SEBA] under any of the following
conditions:
Note: Under Sec. 1(tt), Rule I, Book V, a RE- 1. No protests were filed, or even if one was
RUN ELECTION “shall likewise refer to an filed, [it] was not perfected within the five-
election conducted after a failure of election day period
has been declared by the Election Officer 2. No challenge or eligibility issue was raised,
and/or affirmed by the [Med-Arbiter].” Thus, or even if one was raised, [its] resolution
under the Rules, this is the other definition of a will not materially change the results of the
Re-Run Election. elections.
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Winning union shall have the rights, privileges, The Bureau of Labor Relations has jurisdiction
and obligations of a duly certified collective to hear, decide and to mete out punishment
bargaining agent from the time the certification any violation under Art. 250 upon report of at
is issued. least 30% of the union membership OR
members specially concerned to the
Majority of valid votes cast results in “No Bureau.
Union” obtaining majority
Med-Arbiter shall declare such fact in the order Note:Secretary of Labor or his duly authorized
representative may inquire into financial
(15) Appeal from Certification Election activities of legitimate labor orgs
Orders [Art. 272] a. UPON filing of complaint under oath and
supported by written consent of at least
Who appeals: Any party to an election 20% of total membership,
b. Provided, such inquiry shall not be
What is appealed: Order or results of the conducted during (60)-day freedom period
election nor within the thirty (30) days immediately
preceding the date of election of union
Appeal to: Directly to SOLE officials. [Art. 289]

Ground: Rules and regulations established by ASSESSMENT

the SOLE for the conduct of the election have Special assessments are payments for a
been violated. special purpose, especially if required only for
a limited time. [Azucena]
No special assessment or other extraordinary
D. RIGHTS OF LABOR fees may be levied upon the members of a
ORGANIZATIONS labor organization
• unless authorized by a written resolution of
a majority of all the members at a general
1. Check off, Assessment, Agency
membership meeting duly called for the
Fees purpose. [Art. 250 (n)]
CHECK-OFF Other than for mandatory activities under the
A check-off is a process or device whereby the Code, the following may not be checked off
employer, on agreement with the Union, from any amount due to an employee without
recognized as the proper bargaining an individual written authorization duly signed
representative, or on prior authorization from by the employee:
the employees, deducts union dues or agency a. special assessments
fees from the latter’s wages and remits them b. attorney’s fees
directly to the Union. [Marino v. Gamilla, G.R. c. negotiation fees
No. 149763 (2009)] d. or any other extraordinary fees
The system of check-off is primarily for the The authorization should specifically state the
benefit of the Union and, only indirectly, for the amount, purpose and beneficiary of the
benefit of the individual employees. [Marino
Marino v. deduction. [Art. 250 (o)]
v Gamilla, G.R. No. 149763 (2009)]
Requisites for a Valid Special Assessment
Note:For a check-off to be valid, it must comply 1. Authorization by a written resolution of the
with the requirements of a valid special majority of ALL the members at the general
assessment. membership meeting called for the
 purpose;
Jurisdiction over Check-off Disputes

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U.P. LAW BOC LABOR 2 LABOR LAW

2. Secretary’s record of the minutes of the The legal basis of the union’s right to agency
meeting; AND fees is neither contractual nor statutory but
3. Individual written authorization for check off quasi-contractual, deriving from the
duly signed by the employees concerned established principle that non-union employees
which indicates the: may not unjustly enrich themselves by
a. Amount benefiting from employment conditions
b. Purpose negotiated by the bargaining union. [Holy Holy
c. Beneficiary of deduction [Gabriel v. Cross of Davao College, Inc v. Hon. Joaquin ,
SOLE, G.R. No. 115949 (2000)] G.R. No. 110007 (1996)]

Strict compliance for special assessment When Agency Fee Assessed

There must be strict and full compliance with If such non-union member accepts the benefits
be nefits
the requisites. Substantial compliance is not under the collective bargaining agreement.
enough. [Palacol v. Ferrer-Calleja, G.R. No. [Art. 259(e)]
85333 (1990)]
Measure of Fee
AGENCY FEES A reasonable fee equivalent to the dues and
Art. 259 (e) [2nd sentence to last sentence] other fees paid by members of the recognized
Nothing in this Code or in any other law shall collective bargaining agent. [Art. 259(e)]
stop the parties from requiring membership in
a recognized collective bargaining agent as a Requirements:
condition for employment 1. Non-member of SEBA
2. Member of Collective Bargaining Unit
EXCEPTION: Those employees who are 3. Reasonable fee equivalent to the dues and
already members of another union at the time other fees paid by members
of the signing of the collective bargaining 4. Acceptance of CBA benefits
agreement
UNION DUES
Employees of an appropriate bargaining unit Union dues are payments to meet the union’s
who are not members of the recognized general and current obligations. The payment
collective bargaining agent may be assessed must be regular, periodic, and uniform.
a reasonable fee [Azucena]
• Amount of reasonable fee: equivalent to
the dues and other fees paid by members Every payment of fees, dues or other
of the recognized collective bargaining contributions by a member shall be evidenced
agent by a receipt:
• Condition for assessment: If such non- a. signed by the officer or agent making the
union members accept the benefits under collection and
the collective bargaining agreement: b. entered into the record of the organization
o Provided, That the individual to be kept and maintained for the purpose.
authorization required under Article [Art. 250 (h)]
242, paragraph (o) shall not apply to
the non-members of the recognized ATTORNEY’S FEES
collective bargaining agent; Payment of Attorney’s fees cannot be imposed
in individual member.
An amount, equivalent to union dues, which a
non-union member pays to the union because No attorney’s fees, negotiation fees, or similar
he benefits from the CBA negotiated by the charges of any kind arising from any collective
union. [Azucena] bargaining agreement or conclusion of the
 collective agreement shall be imposed on any
Rationale for Allowing Agency Fees individual member. [Art. 228(b)]

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MANDATORY ACTIVITIES
Proper charging of attorney’s fees: Definition: A judicial process of settling
a. Charges against union funds; AND dispute laid down by the law. [Vengco v.
b. In an amount agreed upon by the parties Trajano, G.R. No. 74453 (1989)]

Any contract, agreement, or arrangement of Placement of re-negotiations for a CBA under

any sort to the contrary shall be void. [Art. compulsory arbitration does not make it a
228(b)] “mandatory activity”. [Galvadores v. Trajano,
G.R. No. 70067 (1986)]
Different types of Attorney’s Fees
Ordinary Extraordinary It dispenses with the requirement of the
Indemnity for individual written authorization duly signed by
Reasonable the employee [Art. 250(o)]
damages ordered by
compensation paid
the court to be paid
to a lawyer for legal
by the losing party to 2. Collective Bargaining
services rendered
the winning party
Agreed upon by the Awarded by the Definition, Nature, and Purpose
parties NLRC Collective bargaining is:
Payable to the • Defined as negotiations towards a
Payable to the client
lawyer collective agreement
Not limited • One of the democratic frameworks under
Limited by Art. 111
(freedom to the [Labor] Code
to 10%
contract) • Designed to stabilize the relations between
[Kaisahan at Kapatiran ng mga Manggagawa labor and management and to create a
at Kawani sa MWC-East Zone Union v. Manila climate of sound and stable industrial
Water, G.R. No. 174179 (2011)] peace.
• A mutual responsibility of the employer and
There are two concepts of attorney's fees: In the Union and is characterized as a legal
the ordinary sense, attorney's fees represent obligation. [Kiok Loy v. NLRC, G.R. No. L-
the reasonable compensation paid to a 54334 (1986)]
lawyer by his client for the legal services
rendered to the latter. a. Duty to Bargain Collectively

may extraordinary
In itsbe concept
awarded by the , attorney's
court as indemnityfees
for i. In General
damages to be paid by the losing party to the Definition
prevailing party, such that, in any of the cases The duty to bargain collectively
provided by law where such award can be Meaning: the performance of a mutual
made, e.g., those authorized in Art. 2208 of the obligation to meet and convene promptly and
Civil Code, the amount is payable not to the expeditiously in good faith
lawyer but to the client, unless they have
agreed that the award shall pertain to the Purpose: negotiating an agreement with
lawyer as additional compensation or as part respect to:
thereof. [Masmud v. NLRC, G.R. No. 183385 1. wages
(2009)] 2. hours of work,
3. and all other terms and conditions of
In Masmud, the contingency agreement employment including:

between lawyer and client consisting of 39% of a. proposals for adjusting any grievances,
the monetary award was deemed not or
unconscionable by the SC. b. questions arising under such
agreement, and

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U.P. LAW BOC LABOR 2 LABOR LAW

c. executing a contract incorporating such 2. The obligation to reach an agreement:

agreements, While the law makes it an obligation for the
d. if requested by either party, but such employer and the employees to bargain
duty does not compel any party to collectively with each other, such
agree to a proposal or to make any compulsion does not include the
concession. [Art. 263] commitment to precipitately accept or
agree to the proposals of the other. All it
Jurisdictional Preconditions on Duty To contemplates is that both parties should
Bargain approach the negotiation with an open
1. Possession of the status of majority mind and make reasonable effort to reach
representation of the employees’ a common ground of agreement. [Union of
representative in accordance with any of Filipro Employees v. Nestle, G.R. Nos.
the means of selection or designation 158930-31 (2008)]
provided for by the Code;
2. Proof of majority representation; AND Evading the Mandatory Subjects of
3. Demand to bargain under Art. 261(a) [Kiok
Kiok Bargaining
Loy v. NLRC, G.R. No. L-54334 (1986)] The refusal to negotiate a mandatory subject of
bargaining is an unfair labor practice, although
Only the labor organization designated or either party has every desire to reach
selected by the majority of the employees in an agreement and earnestly and in all good faith
appropriate collective bargaining unit is the bargains to that end. However, the duty to
exclusive representative of the employees in bargain does not obligate the parties to make
such unit for the purpose of collective concessions or yield a position fairly held.
bargaining. [Phil. Diamond Hotel and Resort [Azucena]
Inc v. Manila Diamond Hotel and Employees
Union, G.R. No. 158075 (2006); Art. 267] The duty to bargain is limited to mandatory
bargaining subjects; as to other matters, he is
Meaning of Bargaining in Good Faith free to bargain or not to bargain.
There is no per se test of good faith in
bargaining. Over mandatory subjects, a party may insist
on bargaining, even to the point of deadlock,
Good faith or bad faith is an inference to be and his insistence will not be construed as
drawn from the facts. [Union of Filipino bargaining in bad faith.
Employees v. Nestle Philippines, Inc., G.R.
Nos. 158930-31 (2008)] Over a non-mandatory subject, on the other
hand, a party may not insist on bargaining to
[T]he failure to reach an agreement after the point of impasse, otherwise his insistence
negotiations continued for a reasonable period can be construed as bargaining in bad faith.
does not establish a lack of good faith.
Blue-Sky Bargaining
The laws invite and contemplate a collective Blue-Sky Bargaining is defined as "unrealistic
bargaining contract, but they do not compel and unreasonable demands in negotiations by
one. [Tabangao Shell R efinery Employees either or both labor and management, where
Association v. Pilipinas Shell Petroleum neither concedes anything and demands the
Corporation , G.R. No. 170007 (2014)] impossible." It actually is not collective
bargaining at all. [Roberts Dictionary of
Duty to Bargain does NOT include: Industrial Relations as cited in Standard Bank
1. Any legal duty [on the employer] to initiate Chartered Employees Union v. Confesor, G.R.
contract negotiation [Kiok Loy v. NLRC, No. 114974 (2004)]
 G.R. No. L-54334 (1986)]

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Surface Bargaining ii. When there is an Absence of

Surface bargaining is defined as "going CBA
through the motions of negotiating," without
any real intent to reach an agreement. [Roberts Duty to bargain collectively in the absence
Dictionary of Industrial Relations as cited in of collective bargaining agreements
Standard Bank Chartered Employees Union v. Condition: In the absence of an agreement or
Confesor, supra.] other voluntary arrangement providing for a
more expeditious manner of collective
It violates the Act's requirement that parties bargaining
negotiate in "good faith." It is prohibited
because the bargaining status of a union can Who has the duty: Employer and the
be destroyed by going through the motions of representatives of the employees
negotiating almost as easily as by bluntly
withholding recognition […] As long as there What is their duty: To bargain collectively in
are unions weak enough to be talked to death, accordance with the provisions of this Code
there will be employers who are tempted to [Art. 262]
engage in the forms of collective bargaining
without the substance. [K-MART Corporation v. iii. When there is a CBA
NLRB, 1980 626 F.2d 704]
General Rule: The duty to bargain collectively
Individual Bargaining shall also mean that neither party shall
It is an unfair labor practice for an employer terminate nor modify such agreement during its
operating under a CBA to negotiate with his lifetime. [Art. 264]
employees individually.
Substitutionary Doctrine
That constitutes interference because the Note: See also discussion under V.b.2
company is still under obligation to bargain with
the union as the bargaining
bargaini ng representative. General Rule: Even during the effectivity of a
collective bargaining agreement executed
Individual bargaining contemplates a situation between employer and employees [through]
where the employer bargains with the union their agent, the employees can change said
through the employees instead of the agent but the contract continues to bind them
employees through the union. [The
The Insular Life up to its expiration date. They may bargain,
Assurance Co. Ltd., Employees Assn. v. however, for the shortening of said expiration
Insular Life Assurance Co. Ltd, G.R. No. L- date. [Elisco-Elirol Labor Union v. Noriel, G.R.
25291 (1971)] No. L-41955 (1977)].

Boulwarism Exception: At least sixty (60) days prior to the

A take-it-or-leave-it approach in negotiation expiration of the collective bargaining
constitutes bad faith. "Although the law cannot agreement, either party can serve a written
open a man's mind, it can at least compel him notice to terminate or modify the agreement
to conduct himself as if he were trying to [Art. 264].
persuade and were willing to be persuaded. To
offer the union a contract saying 'Take it or Note: During this 60-day period, a verified
leave it,' is not bargaining collectively within the petition questioning the majority status of the
meaning of the act.” [Herald Delivery Carriers incumbent bargaining agent may also be filed
Union v. Herald Publication Inc., G.R. No. L- [Art. 268].
29966 (1974), citing NLRB v. Pilling and Son
Co. US, 119 F2D 32 (1941)]
 Page 162 of 262

U.P. LAW BOC LABOR 2 LABOR LAW

Effect on existing CBA 5. Voluntary arbitration. The [NCMB] shall

It shall be the duty of both parties to keep the exert all efforts to settle disputes amicably
status quo and to continue in full force and and encourage the parties to submit their
effect the terms and conditions of the existing case to a voluntary arbitrator.
agreement during the 60-day period and/or 6. Prohibition against disruptive acts.
until a new agreement is reached by the During the conciliation proceedings in the
parties. [Art. 264] Board, the parties are prohibited from
doing any act which may disrupt or impede
iv. Bargaining Procedure [Art. the early settlement of the disputes. [Book
262] V, IRR Rule XII, Sec. 1]
7. Deadlock.Any certified or duly recognized
General Rule: Private Procedure - The bargaining representative may file a notice
bargaining procedure shall be governed by [the or declare a strike or request for preventive
parties’] agreement or other voluntary mediation in cases of bargaining deadlocks
arrangement providing for a more expeditious and unfair labor practices. The employer
manner of collective bargaining [Art. 262] may file a notice or declare lockout or
request for preventive mediation in the
Rationale: It is the policy of the state to same cases. In the absence of certified or
promote and emphasize the primacy of free duly recognized bargaining representative,
collective bargaining and negotiations [Art. any legitimate labor organization in the
218-A(a)] establishment may file a notice, request
preventive mediation or declare a strike but
Exception only on grounds of unfair labor practice
Labor Code Procedure – In absence of a [NCMB Manual of Procedure, Rule IV, Sec.
private agreement, the collective bargaining 3]
procedure under Art. 261 shall be followed.
1. Written notice and statement of Period to Reply; Bad Faith
proposals. When a party desires to [The period to reply] is merely procedural, and
negotiate an agreement, it shall serve a non-compliance cannot be automatically
written notice upon the other party with a deemed to be an act of unfair labor practice.
statement of its proposals. [National Union of Restaurant Workers v. CIR ,
2. Reply. The other party shall make a reply G.R. No. L-20044 (1964)]
thereto not later than ten (10) calendar
days from receipt of such notice. Failure to Reply as Indicia of Bad Faith
3. Conference. Should differences arise on [The employer’s] refusal to make a counter-
the basis of such notice and reply, either proposal [...] is an indication of its bad faith.
party may request for a conference which Where the employer did not even bother to
shall begin not later than ten (10) calendar submit an answer to the bargaining proposals
days from the date of request. of the union, there is a clear evasion of the duty
4. Board intervention and conciliation. If to bargain collectively, [...] making it liable for
the dispute is not settled, the [NCMB] shall unfair labor practice. [General Milling Corp. v.
intervene upon request of either or both CA, G.R. No. 146728 (2004)]
parties or at its own initiative and
immediately call the parties to conciliation v. Bargainable Issues
meetings. The [NCMB] shall have the
power to issue subpoenas requiring the Mandatory Bargainable Issues
attendance of the parties to such meetings. 1. Wages
It shall be the duty of the parties to 2. Hours of work
 participate fully and promptly in the 3. All other terms and conditions of
conciliation meetings the Board may call. employment including proposals for

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adjusting any grievances or questions desired provision as to a matter which is a

arising under such agreement [Art. 263] mandatory subject of collective bargaining.

Examples: [But] a refusal to contract is in substance a

1. Vacations and holidays refusal to bargain about matters which are
2. Bonuses mandatory subjects of collective bargaining
3. Seniority, Transfer, and Layoffs unlessthe agreement covers a matter which is
4. Employee workloads not a mandatory subject.
5. Work rules and regulations
6. Union security arrangements It is no answer to the charge of refusal to
7. Pension and insurance benefits for active bargain in good faith that the insistence on the
employees disputed clause was not the sole cause of the
failure to agree or that agreement was not
Permissive Issues reached with respect to other disputed clauses.
Unilateral benefits extended by the employer Such refusal will not be deemed as an unfair
[cf. Union of Filipino Employees v. Nestle , G.R. labor practice.
Nos. 158930-31 (2008)]
However, if a party refuses to contract based
As in all other contracts, the parties in a CBA on an issue which is not a mandatory
may establish such stipulations, clauses, terms bargainable issue, the party will be guilty of
and conditions as they may deem convenient ULP. [Samahang Manggagawa sa Top Form v.
provided they are not contrary to law, morals, NLRC, G.R. No. 113856 (1998)]
good customs, public order or public policy.
[Manila Fashions v. NLRC, G.R. No. 117878 Minutes of Negotiation
(1996)] Where a proposal raised by a contracting party
does not find print in the CBA, it is not a part
Test for Mandatory Bargainable Issues thereof and the proponent has no claim
The nexus between the Nature of Employment whatsoever to its implementation. [...]
and the Nature of the Demand: For “other
terms and conditions of employment” to The Minutes [only] reflects the proceedings
become a mandatory bargainable issue, they and discussions undertaken in the process of
must have a connection between the proposal bargaining for worker benefits in the same way
and the nature of the work. that the minutes of court proceedings show
what transpired therein.
In order for a matter to be subject to mandatory
collective bargaining, it must materially or At the negotiations, it is but natural for both
significantly affect the terms and conditions of management and labor to adopt positions or
employment. Whether the agreement concerns make demands and offer proposals and
a mandatory subject of bargaining depends not counter-proposals.
on its form, but on its practical effect. [Azucena]
However, nothing is considered final until the
Importance of Determining the Character of parties have reached an agreement.
the Bargaining Issue [Samahang Manggagawa sa Top Form v.
The question as to what are mandatory and NLRC, G.R. No. 113856 (1998)]
what are merely permissive subjects of
collective bargaining is of significance on the Suspension of Bargaining Negotiations
right of a party to insist on his position to the In order to allow the employer to validly
point of stalemate. suspend the bargaining process there must be
 a valid petition for certification election raising
A party may refuse to enter into a collective a legitimate representation issue.
bargaining contract unless it includes a

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Hence, the mere filing of a petition for [Pentagon Steel v. CA, G.R. No. 174141
certification election does not ipso facto justify (2009)]
the suspension of negotiation by the employer.
[Colegio de San Juan de Letran v. Association b. Collective Bargaining
of Employees, G.R. No. 141471 (2000)] Agreement

vi. Bargaining Deadlock Collective Bargaining Agreement or “CBA”

refers to the negotiated contract between a
Deadlock is defined as the “counteraction of legitimate labor organization and the employer
things producing entire stoppage: a state of concerning wages, hours of work and all other
inaction or of neutralization caused by the terms and conditions of employment in a
opposition of persons or of factions: a bargaining unit. [Sec. 1(k), Rule I, Book V, IRR]
standstill.
Nature of the CBA
There is a deadlock when there is a “complete The CBA is the law between the parties and
blocking or stoppage resulting from the action they are obliged to comply with its provisions.
of equal and opposed forces.” [Zuellig Pharma Corporation v. Alice Sibal ,
G.R. No. 173587 (2013)]
The word is synonymous with the word
impasse which, “presupposes reasonable Although it is a rule that a contract freely
effort at good faith bargaining which, despite entered between the parties should be
noble intentions, does not conclude in respected, since a contract is the law between
agreement between the parties.” [Divine World the parties, said rule is not absolute. [... Citing
Tacloban v. Secretary of Labor, G.R. No. Art. 1700,] the relations between capital and
91915 (1992)] labor are not merely contractual. They are so
impressed with public interest that labor
Collective Bargaining Deadlockis defined as contracts must yield to the common good.
the situation between the labor and the [Halagueña v. Philippine Airlines, G.R. No.
management of the company where there is 172013 (2009)]
failure in the collective bargaining negotiations
resulting in a stalemate. [San Miguel Corp. v Beneficiaries of the CBA
NLRC, G.R. No. 99266 (1999)]. The labor organization
a. Designated, or
Privileged Communication in Conciliation b. Selected by the majority of the employees
Proceedings in an appropriate collective bargaining unit,
Information and statements made at shall be the exclusive representative of the
conciliation proceedings shall be treated as employees in such unit for the purpose of
privileged communication and shall not be collective bargaining. [Art. 267]
used as evidence in the Commission.
Conciliators and similar officials shall not testify When a collective bargaining contract is
in any court or body regarding any matters entered into by the union representing the
taken up at conciliation proceedings conducted employees and the employer, even the non-
by them. [Art. 233] member employees are entitled to the benefits
of the contract.
Rationale:
1. A person is entitled to ‘buy his or her peace’ To accord its benefits only to members of the
without danger of being prejudiced in case union without any valid reason would constitute
his or her efforts fail undue discrimination against non-members.
2. Offers for compromise are irrelevant [New Pacific Timber and Supply v. NLRC, G.R.
because they are not intended as No. 124224 (2000)]
admissions by the parties making them

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Contract Interpretation They shall establish a machinery for the

adjustment and resolution of grievances
Art. 1702, Civil Code. In case of doubt, all 1. Arising from the interpretation or
labor legislation and all labor contracts shall implementation of their Collective
be construed in favor of the safety and Bargaining Agreement, and
decent living for the laborer. 2. Those arising from the interpretation or
enforcement of company personnel
A CBA, as a labor contract within the policies.
contemplation of Art. 1700 of the Civil Code of
the Philippines which governs the relations All grievances submitted to the grievance
between labor and capital, [it] is not merely machinery which are not settled within seven
contractual in nature but impressed with public (7) calendar days from the date of its
interest, thus, it must yield to the common submission shall automatically be referred to
good. voluntary arbitration prescribed in the
Collective Bargaining Agreement.
As such, it must be construed liberally rather
than narrowly and technically. For this purpose, parties to a Collective
Bargaining Agreement shall:
The courts must place a practical and realistic 1. name and designate in advance a
construction upon it, giving due consideration Voluntary Arbitrator or panel of Voluntary
to the context in which it is negotiated, and Arbitrators, or
purpose which it is intended to serve. [Davao 2. include in the agreement a procedure for
Integrated Port Stevedoring Services v. the selection of such Voluntary Arbitrator or
Abarquez, G.R. No. 102132 (1993)] panel of Voluntary Arbitrators, preferably
from the listing of qualified Voluntary
General Rule: [W]here the CBA is clear and Arbitrators duly accredited by the Board.
unambiguous, it becomes the law between the
parties and compliance therewith is mandated In case the parties fail to select a Voluntary
by the express policy of the law. [Zuellig Arbitrator or panel of Voluntary Arbitrators, the
Pharma Corporation v. Alice Sibal, G.R. Board shall designate the Voluntary Arbitrator
No.173587 (2013)] or panel of Voluntary Arbitrators
• When: as may be necessary
Exception: If the words appear to be contrary • How: pursuant to the selection procedure
to the evident intention of the parties, the latter agreed upon in the Collective Bargaining
shall prevail over the former. [Kimberly Clark Agreement
Phils. v. Lorredo, G.R. No. 103090 (1993)] • Effect: designated Voluntary Arbitrator or
panel of Voluntary Arbitrators shall act with
i. Mandatory provisions in a the same force and effect as if the
Collective Bargaining Arbitrator or panel of Arbitrators have been
Agreement selected by the parties as described above.

Note: See also v. Bargainable Issues under “a. ii. Administration and
Duty to bargain collectively” Enforcement of CBA

Art. 273. Grievance Machinery and Substandard CBA

Voluntary Arbitration A CBA that falls below the minimum standards
The parties to a Collective Bargaining required by law is prohibited. Nonetheless, RA
Agreement shallmutual
will ensure the include therein provisions
observance that
of its terms 9481 removed
for the substandard
cancellation CBAs as a
of registration ofground
union
and conditions. registration.

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Note:A substandard CBA cannot bar a petition Labor Relations Commission, G.R. No. 78524
for certification election under the contract-bar (1989)]
rule. [Prof. Battad]
Note:Ratification of the CBA by the employees
Ratification in the bargaining unit is not needed when the
Within thirty (30) days from the execution of a CBA is a product of an arbitral award as
a s a result
collective bargaining agreement of voluntary arbitration under Art. 275 or from
the secretary’s assumption of jurisdiction or
The parties shall submit copies of the same certification under Art. 278 (g).
directly to the Bureau or the Regional Offices
of the Department of Labor and Employment Registration
for registration, accompanied with: Within thirty (30) days from the execution of a
1. Verified proofs of its posting in two Collective Bargaining Agreement, the parties
conspicuous places in the place of work, shall submit copies of the same directly to the
and Bureau or the Regional Offices of the
2. Ratification by the majority of all the Department of Labor and Employment for
workers in the bargaining unit. [Art. 237; registration […]. [Art. 237]
Book V, IRR Rule XVII, Sec. 2 (c)]
iii. Requirements for Registration
[T]he posting of copies of the collective
bargaining agreement is the responsibility of The application for CBA registration shall be
the employer. accompanied by the original and two (2)
duplicate copies of the following documents
The fact that there were "no impartial members which must be certified under oath by the
of the unit" is immaterial. representative(s) of the employer(s) and labor
union(s) concerned:
The purpose of the requirement is precisely to "# The collective bargaining agreement
inform the employees in the bargaining unit of $# A statement that the collective bargaining
the contents of said agreement so that they agreement was posted in at least two (2)
could intelligently decide whether to accept the conspicuous places in the establishment or
same or not. [Associated Labor Unions v. establishments concerned for at least five
Ferrer-Calleja, G.R. No. L-77282 (1989)] (5) days before its ratification
%# A statement that the collective bargaining
Effect of Non-ratification agreement was ratified by the majority of
General Rule: The collective bargaining the employees in the bargaining unit of the
agreement should be ratified by the majority of employer or employees concerned. [Sec.
all the members of the bargaining unit. Non- 2, Rule XVII, Book V, IRR]
compliance with this requirement renders the
CBA ineffective. [Associated Trade Unions v. Specific information submitted in
Trajano, G.R. No. 75321 (1988)] confidence
General rule:Shall not be disclosed
Exception: Even if there was no ratification,
the CBA will not be invalid or void considering Exceptions:
that the employees have enjoyed benefits from "# authorized by Secretary of Labor
it. $# when it is at issue in any judicial litigation
%# public interest or national security requires
[The employees] cannot receive benefits under [Art. 237]
provisions favorable to them and later insist
that the CBA is void simply because other
provisions turn out not to the liking of certain
employees. [Planters Products Inc. v. National

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Effect of Unregistered CBA When there is a representational issue, the

An unregistered CBA is binding upon the status quo provision insofar as the need to
parties but cannot serve as a bar to a petition await the creation of a new agreement will not
for certification election under the contract-bar apply.
rule.
Otherwise, it will create an absurd situation
Sec. 3, Rule VIII, Book V states: A petition for where the union members will be forced to
certification election may be filed anytime, maintain membership by virtue of the union
except: [...] (d) when a collective bargaining security clause existing under the CBA and,
agreement between the employer and a duly thereafter, support another union when filing a
recognized or certified bargaining agent has petition for certification election.
been registered in accordance with Art. 231
[now 237] of the Labor Code. If we apply it, there will always be an issue of
disloyalty whenever the employees exercise
iv. CBA Effectivity their right to self-organization. The holding of a
certification election is a statutory policy that
If it is the first ever CBA, the effectivity date is should not be circumvented, or compromised.
whatever date the parties agree on. [PICOP Resources, Inc. v. Taneca et al., G.R.
No. 160828 (2010)]
If it is a renegotiated CBA, the retroactivity of Arbitrated CBA
the date of effectivity depends upon the In the absence of an agreement between the
duration of conclusion [Art. 265]: parties, an arbitrated CBA takes on the nature
"# If it is concluded within 6 monthsfrom the of any judicial or quasi-judicial award. [Manila
expiry date, the new CBA will retroact to the Electric Company v. Quisumbing, G.R. No.
date following the expiry date [Illustration: 127598 (1999)]
expiry date: December 13; renegotiations
concluded on November 30; effectivity [I]n the absence of the specific provision of law
date: December 14]. prohibiting retroactivity of the effectivity of the
$# If it is concluded beyond 6 months from arbitral awards issued by the Secretary of
the expiry date, the matter of retroaction Labor pursuant to Art. 263(g) of the Labor
and effectivity is left with the parties. Code, [the Secretary] is deemed vested with
plenary powers to determine the effectivity
Hold Over Principle thereof. [LMG Chemicals v. Secretary of Labor ,
It shall be the duty of both parties to keep the G.R. No. 127422 (2001)]
status quo and to continue in full force and
effect the terms and conditions of the existing v. CBA Duration
agreement:
a. during the 60-day period and/or Art. 265. Terms of a Collective Bargaining
b. until a new agreement is reached by the Agreement – Any Collective Bargaining
parties. [Art. 264, last sentence] Agreement that the parties may enter into
shall, insofar as the representation aspect is
The last sentence of Art. 264, which provides concerned, be for a term of five (5) years. [...]
for automatic renewal [upon expiry], pertains All other provisions of the Collective
only to the economic provisions of the CBA Bargaining Agreement shall be renegotiated
and does not include representational aspect not later than three (3) years after its
of the CBA. execution. [...]

A [CBA which continues to take effect beyond

its expiration date] cannot constitute a bar to a CBA Duration for economic provisions
3 years
filing of petition for certification election.

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CBA Duration for non-economic provisions past unfair labor practices of the previous
5 years for representational or political issues; owner.
cannot be renegotiated to extend beyond 5
years. [FVC Labor Union-PTGWO v. Exception: When the liability therefore is
SANAMA-FVC-SIGLO, G.R. No. 176249 assumed by the new employer under the
(2009)] contract of sale, or when liability arises
because of the new owner's participation in
CBA Duration: Freedom Period thwarting or defeating the rights of the
No petition questioning the majority status of employees.
the incumbent bargaining agent shall be
entertained and no certification election shall The most that the transferee may do, for
be conducted by the DOLE outside of the reasons of public policy and social justice, is to
sixty-day period immediately before the give preference to the qualified separated
date of the expiry of such five-year term of employees in the filling of vacancies in the
the Collective Bargaining Agreement. [Art. facilities of the purchaser. [Manlimos v. NLRC,
265] G.R. No. 113337 (1995)]

CBA and 3rd Party Applicability The general rule applies only to the sale and
Labor contracts such as employment contracts purchase of asset. If the method of acquisition
and CBAs are not enforceable against a is by way of purchase of controlling shares, the
transferee of an enterprise, labor contracts employer remains the same and the new
being in personam, is binding only between the owners must honor the existing contracts.
parties.

As a general rule, there is no law requiring a E. UNFAIR LABOR

bona fide purchaser of the assets of an on- PRACTICES
going concern to absorb in its employ the
employees of the latter.
1. Nature, Aspects
However, although the purchaser of the assets
Unfair labor practice refers to acts that violate
or enterprise is not legally bound to absorb in
the workers’ right to organize. The prohibited
its employ the employees of the seller of such
acts are related to the workers’ right to self-
assets or enterprise, the parties are liable to the
organization and to the observance of a
employees if the transaction between the
parties is colored or clothed with bad faith. CBA. Without that element, the acts, no matter
how unfair, are not unfair labor practices. The
[Sundowner Development Corporation v.
only exception is Art. 259(f) [i.e. to dismiss,
Drilon, G.R. No. 82341 (1989)]
discharge or otherwise prejudice or
discriminate against an employee for having
Where the change of ownership is in bad faith
given or being about to give testimony under
or is used to defeat the rights of labor, the
this Code]. [Philcom Employees Union v. Phil.
successor-employer is deemed to have
Global, G.R. No. 144315 (2006)]
absorbed the employees and is held liable for
the transgressions of his or her predecessor
Nature of ULP
[Philippine Airlines, Inc. v. NLRC, G.R. No.
a. inimical to the legitimate interests of both
125792 (1998)]
labor and management, including their
right to bargain collectively and otherwise
General Rule: An innocent transferee of a
deal with each other in an atmosphere of
business establishment has no liability to the
employees of the transferor to continue freedom and mutual respect
b. disrupt industrial peace
employing them. Nor is the transferee liable for

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c. hinder the promotion of healthy and stable language, in light of infinite combinations of
labor-management relations events, which may be charged as constituting
d. violations of the civil rights of both labor and an unfair labor practice. [HSBC Employee
management but are also criminal offenses Union v. NLRC, G.R. No. 125038 (1997)]
[Art. 258]
Note: Bargaining in bad faith constitutes Unfair
Four forms of Unfair Labor Practice in Labor Practice, which may be committed by
Collective Bargaining either Employer or Labor Organization.
1. Failure or refusal to meet and convene
2. Evading the mandatory subjects of 2. By Employers
bargaining
3. Bargaining in bad faith a. Interference/Restraint/Coercion
4. Gross violation of the CBA b. Yellow Dog Contracts
c. Contracting Out Services which
Purpose of the Policy Against ULPs Discourage Unionism
Protection of right to self-organization and/or d. Company Union
collective bargaining: e. Discrimination to Encourage/ Discourage
a. The employee is not only protected from Unionism
the employer but also from labor f. Discrimination for having given or about to
organizations. give testimony
b. The employer is also protected from ULP g. Violation of Duty to Bargain Collectively
committed by a labor organization. h. Payment of Negotiation or Attorney’s Fees
i. Violation of a Collective Bargaining
The public is also protected because it has an Agreement
interest in continuing industrial peace.
a. Interference/Restraint/Coercion
Employer-Employee Relationship Required
General Rule: An unfair labor practice may be Art. 259(a). Unfair Labor Practices of
committed only within the context of an Employers. – To interfere with, restrain or
employer-employee relationship [American
American coerce employees in the exercise of their
President Lines v. Clave, G.R. No. L-51641 right to self-organization
(1982)]
The fact that the resignations of the union
Exception: “Yellow Dog” condition or
contract: to require as a condition of members
case before occurred during
the labor the pendency
arbiter of the
shows GMC’s
employment that a person or an employee desperate attempts to cast doubt on the
shall not join a labor organization or shall legitimate status of the union. The ill-timed
withdraw from one to which he belongs. [Art. letters of resignation from the union members
259 (b)] indicate that GMC had interfered with the right
of its employees to self-organization. [General
General
Parties Not Estopped from Raising ULP by Milling Corporation v. Court of Appeals, G.R.
Eventual Signing of the CBA 146728 (2004)]
The eventual signing of the CBA does not
operate to estop the parties from raising unfair Interrogation
labor practice charges against each other. General rule: employer may interrogate its
[Standard Chartered Bank Union v. Confesor, employees regarding their union affiliation for
G.R. No. 114974 (2004)] legitimate purposes and with the assurance
Statutory Construction that no reprisals would be taken against the
unionists.
The Labor Code leaves to the court the work of
applying the law's general prohibitory

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Exception:when interrogation interferes with Blooming Mills Co., Inc., G.R. No. L-31195
or restrains employees' right to self- (1973)]
organization. [Phil. Steam Navigation Co. v.
Phil. Marine Officer’s Guild, G.R. Nos. L-20667 b. Yellow Dog Contracts
and 20669 (1965)]
Art. 259(b). Unfair Labor Practices of
Note: The interrogation of the ER should not be Employers. – To require as a condition of
persistent and/or hostile employment that a person or an employee
shall not join a labor organization or shall
Speech withdraw from one to which he belongs;
The acts of a company which subjects a union
to vilification and its participation in soliciting Yellow dog contracts require, as a condition of
membership for a competing union are also employment, that a person or an employee
acts constituting a ULP. [Phil. Steam shall not join a labor organization or shall
Navigation Co. v. Phil. Marine Officer’s Guild, withdraw from one to which he belongs.
G.R. Nos. L-20667 and 20669 (1965)]
Requisites of a Yellow Dog Contract:
An employer may not send letters containing 1. A representation by the employee that he
promises or benefits, nor of threats of obtaining is not a member of a labor organization
replacements to individual workers while the 2. A promise by the employee that he will not
employees are on strike due to a bargaining join a union
deadlock. This is tantamount to interference 3. A promise by the employee that upon
and is not protected by the Constitution as free joining a labor organization, he will quit his
speech. [Insular Life Assurance Co. employment [Azucena]
Employees Assn. v. Insular Life Assurance
Co. Ltd, G.R. No. L-25291 (1971)] c. Contracting Out Services which
Discourage Unionism
Espionage
Espionage and/or surveillance by the employer Art. 259(c). Unfair Labor Practices of
of union activities are instances of interference, Employers. – To contract out services or
restraint or coercion of employees in functions being performed by union
connection with their right to organize, form members when such will interfere with,
and join unions as to constitute unfair labor restrain or coerce employees in the exercise
practice. […] The information obtained by
means of espionage is invaluable to the of their right to self-organization;
employer and can be used in a variety of cases General Rule:contracting out is not a ULP, but
to break a union. [Insular Life Assurance Co. is covered by the employer’s management
Employees Assn. v. Insular Life Assurance prerogative.
Co. Ltd, G.R. No. L-25291 (1971)]
Exception [Art. 259 (c)]:
Concerted Activities 1. contracted-out services or functions are
The mass demonstration and stoppage of work performed by union members AND
of the Union is not ULP. They didn’t 2. contracting out will interfere with, restrain,
demonstrate against the employer, but against or coerce employees in the exercise of their
the Pasig police for alleged human rights right to self-organization.
abuses. This is merely an exercise of their
freedom of expression, assembly, and right to d. Company Union
redress of grievances enshrined in the
Constitution. [Philippine Blooming Mills Art. 259(d). Unfair Labor Practices of
Employment Organization v. Philippine Employers. – To initiate, dominate, assist or
otherwise interfere with the formation or

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administration of any labor organization, their own, must, however, suffer the
including the giving of financial or other consequences of their separation from the
support to it or its organizers or supporters; union under the security clause of the CBA.
[Villar v. Inciong, G.R. No. L-50283-84 (1983)].
Company union means any labor
organization whose formation, function or Statutory Basis and Rationale
administration has been assisted by any act
defined as unfair labor practice by this Code. Art. 259(e). Unfair Labor Practices of
[Art. 219(i)] Employers. – Nothing in this Code or in any
other law shall stop the parties from requiring
The employer commits ULP if it initiates, membership in a recognized collective
dominates, or otherwise interferes with the bargaining agent as a condition for
formation or administration of any labor employment, except those employees who
organization. are already members of another union at the
time of the signing of the collective
Example: giving out financial aid to any union's bargaining agreement.
supporters or organizers.
The law has allowed stipulations for 'union
e. Discrimination to Encourage/ shop' and 'closed shop' as means of
Discourage Unionism [Art. 259 encouraging workers to join and support the
(e)] union of their choice in the protection of their
rights and interests vis-a-vis the employer. [Del
General Rule: it is ULP to discriminate in Monte Philippines v. Salvidar, G.R. No. 158620
regard to wages, hours of work, and other (2006)]
terms and conditions of employment in order to
encourage or discourage membership in any Purpose
labor organization. To safeguard and ensure the existence of the
union and thus, promote unionism in general
Exception: Union security clauses as a state policy.

Union security is a generic term which is It is the policy of the State to promote unionism
applied to and comprehends “closed shop,” to enable the workers to negotiate with the
“union shop,” “maintenance of membership” or management on the same level and with more
any other form of agreement which imposes persuasiveness than if they were to individually
upon employees the obligation to acquire or and independently bargain for the
retain union membership as a condition improvement of their respective conditions. […]
affecting employment. [NUWHRAIN v. NLRC, For this reason, the law has sanctioned
G.R. No. 179402 (2008)] stipulations for the union shop and closed shop
as a means of encouraging the workers to join
[Union security clause] is an indirect restriction and support the labor union of their own choice
on the right of an employee to self- vis-à-vis the employer. [Liberty Flour Mills
organization. It is a solemn pronouncement of Employees v. Liberty Flour Mills, G.R. No.
a policy that while an employee is given the 58768-70 (1989)]
right to join a labor organization, such right
should only be asserted in a manner that will Coverage
not spell the destruction of the same General Rule: All employees in the bargaining
organization. [Tanduay Distillery Labor Union unit covered by the union security clause are
v. NLRC, G.R. No. 75037 (1987)] subject to its terms
[Employees], although entitled to disaffiliation
from their union to form a new organization of

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Exception: workers whom the union is supposed to protect

1. Employees who are already members of in the first place. Hence, any doubt as to the
another union at the time of the signing of existence of a closed shop provision in the CBA
the collective bargaining agreement may will be resolved in favor of the nonexistence of
not be compelled by any union security the closed shop provision. [Azucena]
clause to join any union. [Art. 254 (e)]
2. Employees already in service at the time 2. Maintenance of membership shop
the closed shop union security clause took
effect. Condition for continued employment
A closed shop provision in a CBA is not to An agreement where present and future
be given a retroactive effect as to preclude employees are not compelled to join the SEBA,
its being applied to employees already in but once so joined, they must maintain their
service. [Guijarno v. CIR, G.R. No. L- membership as a condition for continued
28791-93 (1973)] employment until they are promoted or
3. Any employee who, at the time the union transferred out of the bargaining unit or the
security clause took effect, is a bona fide agreement is terminated.
member of religious organization which
prohibits its members from joining labor There is maintenance of membership shop
unions on religious grounds [Reyes v. when employees, who are union members as
Trajano, 209 SCRA 484 (1992)]. of the effective date of the agreement, or who
4. Confidential employees who are excluded thereafter become members, must maintain
from the rank-and-file bargaining unit. union membership as a condition for [their]
5. Employees excluded from the union continued employment until they are promoted
security provisions by express terms of the or transferred out of the bargaining unit or the
agreement [BPI v. BPI Employees Union- agreement is terminated. [General Milling
Davao Chapter, G.R. No. 164301 (2010)]. Corporation
Corporatio n (GMC) v. Casio, G.R. No. 149552
(2010)]
TYPES OF UNION SECURITY CLAUSE
3. Union shop
1. Closed shop
Condition for continued employment
Condition for employment There is union shop when all new regular
An agreement where only union members may employees are required to join the union within
be employed and, for the duration of the a certain period as a condition for their
agreement, remains a member in good continued employment. [General Milling
standing of a union. n (GMC) v. Casio, G.R. No. 149552
Corporation
Corporatio
(2010)]
A closed shop may be defined as an enterprise
in which, by agreement between the employer Non-members may be hired, but to retain
and his employees or their representatives, no employment, they must become union
person may be employed in any or certain members after a certain period. The
agreed departments of the enterprise unless requirement applies to present and future
he or she is, becomes, and, for the duration of employees. [Azucena]
the agreement, remains a member in good
standing of a union entirely comprised of or of 4. Modified union shop
which the employees in interest are a part.
[General Milling Corporation (GMC) v. Casio , Condition for continued employment of
G.R. No. 149552 (2010)] future employees
Employees who are not union members at the
The closed shop provision can also be a potent time of signing the contract need not join the
weapon wielded by the union against the

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union, but all workers hired thereafter must Company must conduct separate
join. [Azucena] investigation or hearing
The enforcement of union security clauses is
5. Agency shop authorized by law provided such enforcement
is not characterized by arbitrariness, and
Employees belonging to an appropriate always with
with due process. Even if there are
collective bargaining unit who are not members valid grounds to expel the union officers, due
of the recognized collective bargaining agent process requires that these union officers be
may be assessed a reasonable fee equivalent accorded a separate hearing by respondent
to the dues and other fees paid by members of company. [Malayang Samahan ng
the recognized collective bargaining agent, if Manggagawa sa M. Greenfield v. Ramos, G.R.
such non-union members accept the benefits No. 113907 (2000)]
under the collective agreement.
Requirement of Due Process
Provided , That the individual authorization The requirements laid down by the law in
required under Art. [250], paragraph (o) of [the determining whether or not an employee was
Labor] Code shall not apply to non-members of validly terminated must still be followed even if
the recognized collective bargaining agent[Art. it is based on a [union security clause] of a
259(e)]. CBA, i.e. the substantive as well as the
procedural due process requirements. [Del Del
ENFORCEMENT OF UNION SECURITY Monte v. Saldivar, G.R. No. 158620 (2006)]
CLAUSE
Obligations and Liabilities
Termination due to Union Security Where the employer dismissed his employees
Provision in the belief in good faith that such dismissal
Termination of employment by virtue of a union was required by the [union security provision]
security clause strengthens the union and of the collective bargaining agreement with the
prevents disunity in the bargaining unit within union, he may not be ordered to pay back
the duration of the CBA. The authorized compensations to such employees although
bargaining representative gains more numbers their dismissal is found to be illegal.
and strengthens its position as against other [Confederated Sons of Labor v. Anakan
unions which may want to claim majority Lumber Co., G.R. No. L-12503 (1960)]
representation. [Alabang Country Club v.
NLRC, G.R. No. 170287 (2008)] As dictated by fairness, […] the union shall be
liable to pay their backwages. This is because
Requisites for the enforcement of Union management would not have taken the action
Security Clauses it did, had it not been for the insistence of the
In terminating the employment of an employee
e mployee labor union seeking to give effect to its
by enforcing the union security clause, the interpretation of a closed shop provision.
employer needs only to determine and prove [Guijarno v. CIR, G.R. No. L-28791-93 (1973)]
that:
1. The union security clause is applicable; f. Discrimination for having given
2. The union is requesting for the or about to give testimony
enforcement of the union security provision
in the CBA; Art. 259(f). Unfair Labor Practices of
3. There is sufficient evidence to support the Employers. — To dismiss, discharge or
union’s decision to expel the employee otherwise prejudice or discriminate against
 from
NLRC,the union.
G.R. No. [170287
Alabang(2008)]
Country Club v. an employee
to give for having given or being about
testimony;

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Note:This is broader than the prohibition under

unde r the Union and the school management, […]
Art. 118 because Art. 259 (f) covers testimony SJCI in effect admitted that it wanted to end the
under the whole Code, while Art. 118 only bargaining deadlock and eliminate the problem
covers testimony under Book I: Pre- dealing with the demands of the union. [S St.
t.
Employment, Title II: Wages. John Colleges Inc. v. St. John Academy
Faculty and Employees Union, G.R. No.
Note further: Includes not giving testimony 167892 (2006)]
[Azucena].
3. Implied refusal
g. Violation of Duty to Bargain
Collectively The school is guilty of unfair labor practice
when it failed to make a timely reply to the
Art. 259(g). Unfair Labor Practices of proposals of the union more than one month
Employers— To violate the duty to bargain after the same were submitted by the union. In
collectively as prescribed by this Code; explaining its failure to reply, the school merely
offered a feeble excuse that its Board of
Collective bargaining does not end with the Trustees had not yet convened to discuss the
execution of an agreement. Being a continuous matter. Clearly, its actuation showed a lack of
process, the duty to bargain necessarily sincere desire to negotiate. [Colegio de San
imposes on the parties the obligation to live up Juan de Letran v. Association of Employees
to the terms of such a collective bargaining and Faculty of Letran, G.R. No. 141471 (2000)]
agreement if entered into, it is undeniable that
non-compliance therewith constitutes an unfair ACTS NOT DEEMED REFUSAL TO
labor practice. [Shell Oil Workers Union v. Shell BARGAIN
Co., G.R. No. L-28607 (1971)] 1. Adoption of an adamant bargaining
position in good faith, particularly where the
Note:See ULP in Collective Bargaining above. company is operating at a loss
2. Refusal to bargain over demands for
ACTS DEEMED AS REFUSAL TO BARGAIN commission of unfair labor practices
3. Refusal to bargain during period of illegal
1. Refusal to bargain when there is an strike
unresolved petition for union 4. Not initiating the bargaining
cancellation 5. Refusal to bargain where the union
demands for recognition and bargaining
“That there is a pending cancellation within the year following a certification
proceedings against the union is not a bar to election, and the clear choice is no union
set in motion the mechanics of collective and no ad interim significant change has
bargaining. […] Unless [the union’s] certificate taken place in the unit
of registration and status as the certified 6. Refusal to bargain because the other party
bargaining agent is revoked, [the employer], by is making unlawful bargaining demands
express provision of the law, is duty bound to
collectively bargain with the Union.” [Capitol h. Payment of Negotiation or
Medical Center v. Trajano, G.R. No. 155690 Attorney’s Fees
(2005)]
Art. 259(h). Unfair Labor Practices of
2. Employer’s suspension of operations in Employers — To pay negotiation or
order to forestall a demand for attorney's fees to the union or its officers or
 collective bargaining agents as part
in collective of the settlement
bargaining of any
or any other issue
dispute;
By admitting that the closure [of the business]
was due to irreconcilable differences between

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Sweetheart contracts are favorable both to the An employer cannot be considered to have
union and the employer at the expense of the committed a gross and economic violation of
employees. The settlement of bargaining the CBA when it, in good faith, withheld union
issues must be made by fair bargaining in good dues and death benefits from the union upon
faith, and not through the payment of written request of the union members in light of
negotiation or attorney's fees which will the conflict between the members and the
ultimately lead to sweetheart contracts. union officers and instead deposited such
amount to the DOLE. [Arellano University
i. Violation of a Collective Employees and Workers Union v. Court of
Bargaining Agreement [Art. 259 Appeals, G.R. 139940 (2006)]
(i)]
Motive, Conduct, Proof
Art. 259(i) Unfair Labor Practices of To constitute ULP, the dismissals by the ER
Employers — To violate a collective need not be entirely motivated by union
bargaining agreement. activities or affiliations. It is enough that
discrimination was a factor. [Me-Shurn Corp. v.
Flagrant and/or Malicious Refusal to Me-Shurn Workers Union-FSM, G.R. No.
Comply with Economic Provisions 156292 (2005)]
Required
Art. 274. Jurisdiction of Voluntary Note: The basic inspiration of the dismissals
Arbitrators. – Accordingly, violations of a should concern the right to self-organization.
Collective Bargaining Agreement, except
those which are gross in character, shall no Totality of Evidence
longer be treated as unfair labor practice and Where the attendant circumstances, the history
shall be resolved as grievances under the of the employer's past conduct and like
Collective Bargaining Agreement. considerations, coupled with an intimate
connection between the employer's action and
For purposes of this Art., gross violations of the union affiliations or activities of the
Collective Bargaining Agreement shall mean particular employee or employees, taken as a
flagrant and/or malicious refusal to comply whole, raise a suspicion as to the motivation for
with the economic provisions of such the employer's action, the failure of the
agreement. employer to ascribe a valid reason therefor
may justify an inference that his unexplained
conduct in respect of the particular employee
Violations of collective
except flagrant and/orbargaining
maliciousagreements,
refusal to or employees was inspired by the latter's union
comply with its economic provisions, shall not membership or activities. [Royal Undergarment
be considered unfair labor practice and shall Corporation of the Philippines v. CIR , G.R. No.
not be strikeable. [Book V, Rule XXII, Sec. 5] L-39040 (1990)]

Note: The list in Art. 259 is not exhaustive. 3. By Labor Organizations

Other acts which are analogous to those
enumerated can be ULPs. a. Restraint or Coercion
b. Discrimination: Encourage/Discourage
The alleged violation of the CBA, even Unionism
assuming it was malicious and flagrant, is not c. Violation of Duty, or Refuse to Bargain
a violation of an economic provision, thus d. Illegal Exaction (Featherbedding)
not an Unfair Labor Practice. [BPI Employees e. Asking or Accepting Negotiation and other
Union-Davao
(2013)] FUBU v. BPI, G.R. No. 174912 f. Attorney's Fees
Violation of a Collective Bargaining
Agreement

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a. Restraint or Coercion d. Illegal Exaction

(Featherbedding)
Art. 260(a). Unfair Labor Practices of
Labor Organizations — To restrain or Art. 260(d). Unfair Labor Practices of
coerce employees in the exercise of their Labor Organizations — To cause or
right to self-organization. However, a labor attempt to cause an employer to pay or
organization shall have the right to prescribe deliver or agree to pay or deliver any money
its own rules with respect to the acquisition or other things of value, in the nature of an
or retention of membership; exaction, for services which are not
performed or not to be performed, including
“Interfere” is not included in Art. 260 simply the demand for fee for union
uni on negotiations;
because any act of a labor organization
amounts to interference to the right of self- The practice of the labor organization to cause
organization. or attempt to cause an employer to pay or
deliver or agree to pay or deliver money or
b. Discrimination: Encourage/ other things of value, in the nature of an
Discourage Unionism exaction, for services which are not performed
or are not to be performed, including the
Art. 260(b). Unfair Labor Practices of demand for a fee for union negotiations.

Labor
attempt Organizations — To
to cause an employer cause or
to discriminate e. Asking or Accepting
against an employee, including Negotiation and other
discrimination against an employee with Attorney's Fees
respect to whom membership in such
organization has been denied; or terminate Art. 260(e). Unfair Labor Practices of
an employee on any ground other than the Labor Organizations — To ask for or
usual terms and conditions under which accept negotiation or attorney's fees from
membership or continuation of membership employers as part of the settlement of any
is made available to other members; issue in collective bargaining or any other
dispute
General rule: It is a ULP for a labor
organization to cause an employer to See counterpart in ULP by Employers
discriminate against an employee. (sweetheart contracts).

Exception:Provisions of a valid union security f. Violation of a Collective

clause and other company policies applicable Bargaining Agreement
to all employees.
Art. 260(f). Unfair Labor Practices of
c. Violation of Duty, or Refuse to Labor Organizations — To violate a
Bargain collective bargaining agreement.

Art. 260(c) Unfair Labor Practices of Gross Violations of the CBA

Labor Organizations— To violate the duty, Art. 274. Jurisdiction of Voluntary
or refuse to bargain collectively with the Arbitrators. – Accordingly, violations of a
employer, provided it is the representative of Collective Bargaining Agreement, except
the employees; those which are gross in character, shall no
longer be treated as unfair labor practice and
Note:See ULP in Collective Bargaining above. shall be resolved as grievances under the
Note further: See discussion under 2(g). Collective Bargaining Agreement.

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For purposes of this Art., gross violations of workers it is supposed to protect. [Batangas
Collective Bargaining Agreement shall mean Laguna Tayabas Bus Co. v. NLRC , G.R. No.
flagrant and/or malicious refusal to comply 101858 (1992)]
with the economic provisions of such
agreement. FORMS OF CONCERTED ACTIVITIES
Concerted Activities by Labor
Seecounterpart in ULP by Employers. Organization:
a. Strike (includes slow downs, mass leaves,
sitdowns, attempts to damage destroy or
F. PEACEFUL CONCERTED sabotage plant equipment and similar
ACTIVITIES activities)
b. Picketing
c. Boycott
Definition
A concerted activity is one undertaken by two
Response to Concerted Activities available
or more employees to improve their terms and
to Employers:
conditions of work.
a. Lockout
Nature of the Right to Strike and Lockout
The right to strike is a constitutional and legal
right of the workers, as the employers have the 1. By Labor Organization
inherent and statutory right to lockout within the a. Strike
context of labor relations and collective
bargaining.
Definition
It is a means of last resort and presupposes Any temporary stoppage of work by the
that the duty to bargain in good faith has been concerted action of employees as a result of an
fulfilled and other voluntary modes of dispute industrial or labor dispute. [Art. 219(o)]
settlement have been tried and exhausted.
[Guidelines Governing Labor Relations (1987)] Labor Dispute
Includes any controversy or matter concerning
Non-abridgment of right to self- terms and conditions of employment or the
organization association or representation of persons in
It shall be unlawful for any person to restrain, negotiating, fixing, maintaining, changing or
coerce, discriminate against or unduly interfere arranging the terms and conditions of

with employees and workers in their exercise employment, regardless

disputants stand of whether relation
in the proximate or not the
of
of the right to self-organization. Such right shall
include the right to (…) engage in lawful employers and employees. [Solidbank Corp. v.
concerted activities for the same purpose or for EU Gamier, G.R. No. 159460 and G.R. No.
their mutual aid and protection, subject to the 159461 (2010)]
provisions of Art. [279] of this Code. [Art. 257]
Strikes not limited to work stoppages
Limitation: Concerted activities must be in The term “strike” shall comprise not only
accordance with law concerted work stoppages, but also
The strike is a powerful weapon of the working slowdowns, mass leaves, sit-downs, attempts
class. Thus, it must be declared only after the to damage, destroy or sabotage plant
most thoughtful consultation among them, equipment and facilities, and similar activities.
conducted in the only way allowed; that is, [Samahang Manggagawa v. Sulpicio Lines,
peacefully, and in every case conformably to G.R. No. 140992 (2004)]
reasonable regulation. Any violation of the As coercive measure by employees
legal requirements and strictures will render
the strike illegal, to the detriment of the very A strike is a coercive measure resorted to by
laborers to enforce their demands. The idea

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behind a strike is that a company engaged in a reinstatement are entitled to the losses of pay
profitable business cannot afford to have its they may have suffered by reason of the
production or activities interrupted, much less, employer’s discriminatory acts from the time
paralyzed. [Phil. Can Co. v. CIR, G.R. No. L- they were refused reinstatement. [Philippine
3021 (1950)] Marine Officers’ Guild v. Compania Maritima,
G.R. Nos. L-20662 and L-20663 (1968)]
Who may declare a strike
1. The certified or duly recognized bargaining No Strike No Lockout Clause
representative A "no strike, no lock-out" provision in the [CBA]
2. Any legitimate labor organization in the is a valid stipulation, although the clause may
absence of a certified or duly recognized be invoked by an employer only when the strike
bargaining representative, but only on is economic in nature or one which is
grounds of ULP [Sec. 6, Rule XXII, Book V, conducted to force wage or other concessions
IRR] from the employer that are not mandated to be
granted by the law itself.
No severance of employer-employee
relationship during lawful strike It would be inapplicable to prevent a strike
Although during a strike the worker renders no which is grounded on unfair labor practice.
work or service and receives no compensation, [Panay Electric Co. v. NLRC, G.R. No. 102672
yet his relationship as an employee with his (1995); Malayang Samahan ng mga
employer is not severed or dissolved. [Elizalde Manggagawa sa Greenfield v. Ramos, G.R.
Rope Factory, Inc. v. SSS, G.R. No. L-15163 No. 113907 (2000)]
(1962)]
Other Forms of Strike
Payment of wages during lawful strikes
General rule: Striking employees are not AS TO GROUNDS
entitled to the payment of wages for un-worked 1. Economic strike– one staged by workers
days during the period of the strike pursuant to to force wage or other economic
the “no work-no pay” principle. concessions from the employer which he is
not required by law to grant; not a
Exception: If there is no work performed by the strikeable ground [Consolidated Labor
employee there can be no wage or pay unless Association of the Phil. v. Marsman and
the laborer was able, willing and ready to work Company, G.R. No. L-17038 (1964)]
but was illegally locked out, suspended or 2. ULP strike – called against a company's
dismissed or otherwise illegally prevented from unfair labor practice to force the employer
working. For this exception to apply, it is to desist from committing such practices.
required that the strike be legal. [Visayas
Community Medical Center v. Yballe, G.R. No. AS TO HOW COMMITTED
196156 (2014)] 1. Slowdown strike– one by which workers,
without a complete stoppage of work,
Reinstatement after a lawful strike retard production or their performance of
When strikers abandon the strike and apply for duties and functions to compel
reinstatement despite the existence of valid management to grant their demands.
grounds, but the employer either:
a. refuses to reinstate them or A slowdown is inherently illicit and
b. imposes upon their reinstatement new unjustifiable because while the employees
conditions, continue to work, they, at the same time,
then the employer commits an act of ULP. select
perform.what part of they
In essence, theirwork
duties they
on their
The strikers who refuse to accept the new own terms. It is a strike on installment
conditions and are consequently refused

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basis. [Ilaw at Buklod ng Manggagawa v.

NLRC, G.R. No. 91980 (1991)] Strike cannot be converted to a lockout by
a return to work offer
2. Wild-cat strike– one declared and staged A strike cannot be converted into a pure and
without filing the required notice of strike simple lockout by the mere expedient filing
and without the majority approval of the before the trial court a notice of offer to return
recognized bargaining agent [NUWHRAIN
NUWHRAIN to work during the pendency of the labor
– The Peninsula Manila Chapter v. NLRC , dispute between the union and the employer.
G.R. No. 125561 (1998)] [Rizal Cement Workers Union v. CIR, G.R. No.
L-18442 (1962)]
3. Sit-down strike – one wherein workers
take over possession of the property of Requisites for a Valid Strike
such business to cease production and to A valid strike must have a lawful ground and
refuse access to owners. [Sukhothai must conform with the procedural requirements
Cuisine & Restaurant v. CA, G.R. No. set by law.
150437 (2006)]
Substantial Requirements/Grounds
4. Sympathetic strike – one in which the A strike or lockout may be declared in cases of:
striking workers have no demands of their 1. Bargaining deadlocks
own, but strike to make common cause 2. ULP [Art. 278(c)]
with other strikers in other establishments
(ex. Welga ng Bayan). This is illegal Note: A strike, justified by the employees’ belief
because there is no labor dispute between in good faith that ULP was done by the
workers who are joining the workers [Biflex employer at the time the strikers went on strike,
Phils. Inc. Labor Union v. Filflex Industrial is presumed valid even if the fact of ULP was
and Manufacturing Corporation, G.R. No. later found to be untrue [Master Iron Labor v.
155679 (2006)] NLRC,219 SCRA 47 (1993)].

5. Mass leave – one in which workers Procedural Requirements for Strike [Art.
collectively abandon or boycott regular 278]
work causing temporary stoppage of work 1. Effort to bargain (for bargaining deadlock
[Solidbank Corp. v. E.U. Gamier, G.R. No. strikes)
159460-61 (2010)] 2. Filing and service of notice of strike
3. Observance of cooling-off period
Conversion from economic to ULP strike a. 15 days for ULP
It is possible for a strike to change its character No cooling-off period when the ULP
from an economic to a ULP strike. can be considered union busting
(dismissal of duly elected union officers
In the instant case, initially, the strike staged by from employment)
the Union was meant to compel the Company b. 30 days for bargaining deadlock
to grant it certain economic benefits set forth in 4. Notice of strike vote meeting to NCMB
its proposal for collective bargaining. However, within 24 hours before the strike vote [Sec.
the strike changed its character from the time 10, Rule XXII, Book V, IRR]
the Company refused to reinstate 5. Strike vote
complainants because of their union activities 6. Strike vote report sent to NCMB
after it had offered to admit all the strikers and 7. Observance of the waiting period (7-day
in fact did readmit the others. It was then strike ban)
converted intoLabor
[Consolidated an unfair labor practice
Association strike.
of the Phil. v.
Marsman and Company, G.R. No. L-17038
(1964)]

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(1) EFFORT TO BARGAIN the union constitution and by-laws, which may
constitute union-busting, where the existence
No labor organization […] shall declare a strike of the union is threatened, the 15-day cooling-
[…] without first having bargained collectively off period shall not apply and the union may
in accordance with Title VII of this Book […] take action immediately.
[Art. 279(a)]
Notice to the Employer
In case of bargaining deadlocks, the notice In case of unfair labor practice and/or union
shall, as far as practicable: busting, the notice must be served to the
a. Further state the unresolved issues in the employer. Failure to do so will constitute
bargaining negotiations; and noncompliance with the procedural
b. Be accompanied by the written proposals requirements and will result to an illegal strike.
of the union, the counter-proposals of the [Filipino Pipe and Foundry Corp v. NLRC,G.R.
employer and the proof of a request for No. 115180 (1999)]
conference to settle differences.
Rationale:Due process. [IRR]
In cases of unfair labor practices, the notice
shall, as far as practicable, state the acts Contents of Notice of Strike
complained of, and efforts taken to resolve the 1. Names and addresses of the employer and
dispute amicably. [Sec. 4, Rule XXII, Book V, the union involved
IRR] 2. Nature of the industry to which the
employer belongs
The Implementing Rules use the words as far 3. Number of union members and of workers
as practicable. In this case, attaching the in the bargaining unit
counter-proposal of the company to the notice 4. Such other relevant data as may facilitate
of strike of the union was not practicable. It was the settlement of the dispute.
absurd to expect the union to produce the
company’s counter-proposal which it did not Additional Requirements
have. [Club Filipino, Inc. v. Bautista, G.R. No. In case of Bargaining Deadlocks:
168406 (2009)] 1. Statement of unresolved issues in the
bargaining negotiations
(2) FILING AND SERVICE OF NOTICE OF 2. Written proposals of the union
STRIKE 3. Counter-proposals of the employer

Ground: Bargaining Deadlocks [Art. 278(c)] 4. the

Proof of a request
differences. for4,conference
[Sec. to settle
Rule XXII, Book V,
Filed by: The duly certified or recognized IRR]
bargaining agent may file a notice of strike
Filed with: With the Ministry [now DOLE] In cases of ULP:
When: At least 30 days before the intended 1. Statement of acts complained of
date of the strike 2. Efforts taken to resolve the dispute
amicably. [Sec. 4, Rule XXII, Book V, IRR]
Ground: Unfair Labor Practice [Art. 278(c)]
Filed by: The duly certified or recognized Action on Notice:
bargaining agent, or in the absence of such 1. Upon receipt of a valid notice of strike or
agent, any legitimate labor organization in lockout, the NCMB, through its Conciliator-
behalf of its members may file a notice of strike Mediators, shall call the parties to a
Filed with: With the Ministry [now DOLE] conference the soonest possible time in
When:The period of notice shall be 15 days order to actively
possibilities assist them
for amicable to explore all
settlement.
Note: In case of dismissal from employment of 2. The Conciliator-Mediator may
union officers duly elected in accordance with suggest/offer proposals as an alternative

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avenue for the resolution of their

disagreement/conflict which may not (5) STRIKE VOTE
necessarily bind the parties.
3. If conciliation/mediation fails, the parties Art. 278 (f). Strikes, Picketing and
shall be encouraged to submit their dispute Lockouts. – A decision to declare a lockout
for voluntary arbitration. must be approved by a majority of the board
of directors of the corporation or association
(3) OBSERVANCE OF COOLING-OFF or of the partners in a partnership, obtained
PERIODS by secret ballot in a meeting called for that
Cooling off periods purpose […]
1. Bargaining deadlock – 30 days
2. ULP but not union busting – 15 days Requirements for a declaration of a strike in
3. ULP and union busting – no cooling-off a strike vote
period 1. approval by a majority of the total union
membership in the bargaining unit
Purpose of Cooling Off Period concerned
During the cooling-off period, it shall be the 2. approval is obtained by secret ballot in a
duty of the Ministry [now DOLE] to exert all meeting/referendum called for the purpose
efforts at mediation and conciliation to effect a
voluntary settlement.
Duration
Art. 278of the
(f). Validity
Strikes,of the Strike-Vote
Picketing and
Should the dispute remain unsettled until the Lockouts. – [T]he decision shall be valid for
lapse of the requisite number of days from the the duration of the dispute based on
mandatory filing of the notice, the labor union substantially the same grounds considered
may strike or the employer may declare a when the strike or lockout vote was taken.
lockout. [Art. 278 (e)] […]

The purpose of the cooling-off period is to (6) STRIKE VOTE REPORT

provide an opportunity for mediation and
conciliation. [National Federation of Sugar Art. 278 (f). Strikes, Picketing and
Workers v. Ovejera, G.R. No. L-59743 (1982)] Lockouts. – [I]n
[I]n every case, the
the union or the
employer shall furnish the Department the
(4) NOTICE OF STRIKE-VOTE MEETING results of the voting at least 7 days before

Art. 278 (f). Strikes, Picketing and the intended strike

the cooling-off periodor lockout,
herein subject to
provided.
Lockouts. – [T]he Department may, at its
own initiative or upon the request of any (7) OBSERVANCE OF THE 7-DAY WAITING
affected party, supervise the conduct of the PERIOD
secret balloting. […]
7 Day Observance of the Strike Ban
Sec. 10, Rule XXII, Book V. Strike or The waiting period, on the other hand, is
Lockout Vote. – In every case, the union or intended to provide opportunity for the
the employer shall furnish the regional members of the union or the management to
branch of the Board the notice of meetings take the appropriate remedy in case the strike
referred to in the preceding paragraph at or lockout vote report is false or inaccurate.
least twenty-four (24) hours before such [National Federation of Sugar Workers v.
meetings […] Ovejera, G.R. No. L-59743 (1982)]
The purpose of the notice is to allow the NCMB The waiting period is intended to give the
to decide whether or not they will send a DOLE an opportunity to verify whether the
representative to supervise the strike vote. projected strike really carries the imprimatur of

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the majority of the union members. [Lapanday b. Illegal strike – one staged for a purpose
Workers Union v. NLRC, G.R. Nos. 95494-97 not recognized by law, or if for a valid
(1995)] purpose, conducted through means not
sanctioned by law.
Compliance with Both Cooling-off and
Waiting Periods EFFECT OF ILLEGALITY / LIABILITY OF
The observance of both periods must be PARTICIPATING MEMBERS/OFFICERS OF
complied with, although a labor union may take THE UNION
a strike vote and report the same within the a. Ordinary Striking Worker – cannot be
statutory cooling-off period. The cooling-off and terminated for mere participation in an
7-day strike ban provisions of law constitute a illegal strike; proof must be adduced
valid exercise of police power of the State. showing that he or she committed illegal
[National Federation of Sugar Workers v. acts during the strike.
Ovejera, G.R. No. L-59743 (1982)] b. Participating Union Officer – may be
terminated, not only when he actually
Mutually exclusive periods (used in the commits an illegal act during a strike, but
NCMB Manual) also if he knowingly participates in an
The cooling off period and the 7-day period are illegal strike [Phimco Industries, Inc. v.
mutually exclusive. Thus, in the case of Capitol PILA, G.R. No. 170830 (2010)]
Medical Center v. NLRC [G.R. No. 147080
(2005)],the Court held that when the strike vote Prohibited Grounds for Strike
is conducted within the cooling-off period, the 1. Labor standards cases such as wage
7-day requirement shall be counted from the orders
day following the expiration of the cooling off 2. Issues involving wage distortion caused by
period. legislated wage orders
3. Inter or intra union disputes
Improved Offer Balloting 4. Execution and enforcement of final orders
In case of a strike, the regional branch of the or awards of cases pending at the DOLE
Board shall, at its own initiative or upon the Regional Offices, BLR, NLRC, VA, CA and
request of any affected party, conduct a SC and related offices
referendum by secret balloting on the improved 5. Violations of the CBA which are not gross
offer of the employer on or before the 30th day in character (not ULP) [BPI Employees
of strike. Union-Davao FUBU v. BPI, G.R. No.

When at least a majority of the union members 174912

Gross in(2013)]
character shall mean flagrant
vote to accept the improved offer: and/or malicious refusal to comply with the
a. The striking workers shall immediately economic provisions of such agreement.
return to work and; [Art. 274]
b. The employer shall thereupon re-admit
them upon the signing of the agreement PROHIBITED ACTIVITIES IN STRIKE
[Sec. 12, Rule XXII, Book V] 1. By anyone. No person shall obstruct,
impede, or interfere with, by force,
i. Valid Strikes as violence, coercion, threats, or intimidation,
distinguished from Illegal any peaceful picketing by employees [Art.
Strikes 279(b)];
a. Blocking the free ingress to/ egress
VALID v. ILLEGAL STRIKE from work premises for lawful purposes
a. Legal
purposestrike
and –conducted
one called for a means
through valid b. Obstruction ofcoercing
c. Threatening, public thoroughfares
and intimidating
allowed by law. non-striking employees, officers,
suppliers and customers

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d. Resistance and defiance of Intra-union and inter-union disputes are not

assumption of jurisdiction by the Labor proper grounds to strike.
Secretary or an injunction
e. Acts of violence [Association of Note: Good faith strike
Independent Unions in the Philippines Good faith may be used as a defense if the
(AIUP), et. al. v. NLRC, G.R. No. strike is held on the basis of an act of ULP by
120505 (1999)] the employer even if it turned out that there was
no act of ULP. However, the mandatory
The violence must be pervasive and procedural requirements cannot be dispensed
widespread, consistently and deliberately with (notice of strike, cooling-off period, strike
resorted to as a matter of policy [Shell Oil vote, strike vote report). [Grand Boulevard
Workers v. Shell Company of the Phil., 39 Hotel v. GLOWHRAIN, G.R. No. 153664
SCRA 276 (1971)] (if violence was resorted (2003)]
to by both sides, such violence cannot be a
ground for declaring the strike as illegal) Good faith strike requires rational basis
[Malayang Samahan ng Manggagawa sa A mere claim of good faith would not justify the
M. Greenfield v. Ramos, 357 SCRA 77 holding of a strike under the aforesaid
(2000)] exception as, in addition thereto, the
circumstances must have warranted such
2. By employer. No employer shall use or belief. It is, therefore, not enough that the union
employ any strike-breaker, nor shall any believed that the employer committed acts of
person be employed as a strike-breaker. ULP when the circumstances clearly negate
[Art. 279(c)] even a prima facie showing to sustain such
belief. [Interwood Employees Assoc. v. Int’l
3. By public official or police force. No Hardwood, G.R. No. L-7409 (1956)]
public official or employee, including
officers and personnel of the New Armed 3. Noncompliance with Procedural
Forces of the Philippines or the Integrated Requirements
National Police, or armed person, shall
bring in, introduce or escort in any manner, See: Procedural requirements of a valid strike
any individual who seeks to replace strikers previously discussed
in entering or leaving the premises of a
strike area, or work in place of the strikers. A strike which does not strictly comply with the

[Art. 279(d)] procedural

rules is an requirements
unlawful/illegalsetstrike.
by law and
[Sta. the
Rosa
CATEGORIES OF ILLEGAL STRIKE Coca-Cola Plant Employees Union v. Coca-
Cola Bottlers Philippines, Inc. , G.R. Nos.
1. Prohibited by Law (e.g. Strike By 164302-03 (2007)]
Government Employees)
Note: Good faith strike must still comply
Government employees with procedural requirements.
While the Constitution guarantees the right of Even if the union acted in good faith in the
government employees to organize, they are belief that the company was committing an
not allowed to strike. unfair labor practice, if no notice of strike and a
strike vote were conducted, the said strike is
2. Improper Grounds (e.g. Intra or Inter illegal. [Grand Boulevard Hotel v.
Union Dispute, Wage Distortion) GLOWHRAIN , G.R. No. 153664 (2003)]
A legal strike must be based on a bargaining General Rule: A strike based on a non-
deadlock and/or a ULP act only. strikeable ground is an illegal strike; a strike

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grounded on ULP is illegal if no such acts 2. Care is to be taken especially where an

actually exist. unfair labor practice is involved, to avoid
stamping it with illegality just because it is
Exception: Even if no ULP acts are committed tainted by such acts. To avoid rendering
by the employer, if the employees believe in illusory the recognition of the right to strike,
good faith that ULP acts exist so as to responsibility in such a case should be
constitute a valid ground to strike, then the individual and not collective.
strike held pursuant to such belief may be legal.
l egal. 3. A different conclusion would be called for if
[NUWHRAIN v. NLRC, G.R. No. 125561 the existence of force while the strike lasts
(1998)] is pervasive and widespread, consistently
and deliberately resorted to as a matter of
4. Unlawful Means and Methods policy. It could be reasonably concluded
then that even if justified as to ends, it
Purpose and means test becomes illegal because of the means
There must be concurrence between the employed.
validity of the purpose of the strike and the 4. This is not by any means to condone the
means of conducting it. utilization of force by labor to attain its
objectives. It is only to show awareness
To be valid, a strike must be pursued within that in labor conflicts, the tension that fills
legal bounds. The right to strike as a means the air as well as the feeling of frustration
for the attainment of social justice is never and bitterness could break out in sporadic
meant to oppress or destroy the employer . acts of violence.

The law provides limits for its exercise. Among It would be unjustified, considering all the facts
such limits are the prohibited activities under disclosed, to stamp the strike with illegality. It is
Art. [279], particularly paragraph (e), which enough that individual liability be incurred by
states that no person engaged in picketing those guilty of such acts of violence that call for
shall: loss of employee status. [Shell Oil Workers
1. commit any act of violence, coercion, or Union v. Shell Co. of the Phils, G.R. No. L-
intimidation or 28607 (1971)]
2. obstruct the free ingress to or egress from
the employer's premises for lawful It bears stressing that the requirements of
purposes or strike notice and strike-vote report are

3. obstruct public thoroughfares. mandatory,

therewith makesmeaning, non-compliance
the strike illegal. The evident
A legal strike may turn into an illegal strike intention of the law in requiring these is to
Even if the strike is valid because its objective reasonably regulate the right to strike.
or purpose is lawful, the strike may still be [Stamford Mark Corp. v. Julian, G.R. No.
declared invalid where the means employed 145496 (2004)]
are illegal. [Phil. Diamond Hotel and Resort,
Inc. v. Manila Diamond Hotel Employees 5. Violation of Injunction Order
Union, G.R. No. 158075 (2006)]
An automatic injunction under Art. 278(g) or a
Examples of unlawful means and methods valid injunction order under the exceptions to
1. Acts of violence and terrorism Art. 279 must be complied with. Otherwise, the
2. Destruction of property strike becomes illegal.
Guidelines
1. A strike,and balancingvalid,
otherwise of Interest
if violent in
character, may be placed beyond the pale.

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6. Those Contrary to an Existing under the circumstances to justify the penalty

Agreement of dismissal [Toyota Motors Philippines
Workers Association v. NLRC, 537 SCRA 171
(e.g. No strike/lockout provisions in the CBA) (2007)].
[Citing Ludwig Teller in Toyota Motors v.
NLRC, G.R. Nos. 158786 & 158787 (2007)] Note: The mere fact that the criminal
complaints against terminated Union members
No Strike/Lockout Provisions in the CBA were subsequently dismissed does not
A “no strike, no lock-out” is a valid provision in extinguish their liability under the Labor Code
the CBA. However, it only applies to economic [C. Alcantara & Sons, Inc. v. CA, G.R. No.
provisions. It cannot prevent a strike which is 155109 (2011)].
grounded on unfair labor practice. [Malayang
Malayang
Samahan ng mga Manggagawa sa Greenfield Liability of Employer
v. Ramos, G.R. No. 113907 (2000)] Any worker whose employment has been
terminated as a consequence of any unlawful
7. The Strikers do not belong to a lockout shall be entitled to reinstatement with
Legitimate Labor Organization [Magdala full backwages. [Art. 279(a)]
Multipurpose & Livelihood Coop. v.
Kilusang Manggagawa Ng LGS, G.R. Nos. WAIVER OF ILLEGALITY OF STRIKE/
191138-39 (2011)] CONDONATION DOCTRINE

Liabilities of Parties When defense of illegality of strike is

Any union officer who knowingly participates in deemed waived
an illegal strike and any worker or union officer An employer can be deemed to have waived
who knowingly participates in the commission the defense that a strike is illegal. In one case,
of illegal acts during a strike may be declared the Court held that: “Admitting for the sake of
to have lost his employment status. [Art. argument that the strike was illegal for being
279(a)] premature, this defense was waived by the
[Company], when it voluntarily agreed to
Note: Mere participation in an illegal strike by a reinstate the radio operators.” [ Bisaya Land
union officer is sufficient ground to terminate Transportation Co., Inc. v. CIR, G.R. No. L-
his employment. In case of a lawful strike, the 10114 (1957)]
union officer must commit illegal acts during a

strike for him to be terminated. [Art. 279(a)] When

deemed defense
waivedof illegality of strike is not
Procedural due process is still required for The ruling cited in the Bisaya case that the
dismissing union officers/ordinary workers. employer waives his defense of illegality of the
Where an opportunity to be heard either strike upon reinstatement of strikers is
through oral arguments or through pleadings is applicable only to strikers who signified their
accorded, there is no denial of procedural due intention to return to work and were accepted
process. [Equitable PCI Banking Corp. v. back. […]
RCBC Capital Corp, 574 SCRA 858 (2004)]
Condonation shall apply only to strikers who
Liability of Ordinary Workers signified their intention to return, and did return
General rule: Participation by a worker in a to work, since these strikers took the initiative
lawful strike is not ground for termination of his in normalizing relations with their employer and
employment. [Art. 279(a)] thus helped promote industrial peace.
Exception: When the worker participated in However,
decided to as regards
pursue with the strikers
the case , […]who
the
illegal acts during the strike; needs clear, employer could not be deemed to have
substantial and convincing proof available condoned their strike, because they had not

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shown any willingness to normalize relations Inc. v. Phimco Industries Labor Association
with it. [Philippine Inter-Fashion, Inc. v. NLRC , (PILA), et al.,628 SCRA 119 (2010)].
G.R. No. L-59847 (1982)]
PROHIBITED ACTIVITIES IN PICKETING
However, the mere act of entering into a 1. By any person. No person shall obstruct,
compromise agreement cannot be deemed to impede, or interfere with, by force,
be a waiver of the illegality of the strike, unless violence, coercion, threats or intimidation,
such a waiver is clearly shown in the any peaceful picketing by employees
agreement. [Filcon Manufacturing Corp v. during any labor controversy or in the
Lakas Manggagawa sa Filcon – Lakas exercise of the right to self-organization or
Manggagawa Labor Center, G.R. No. 150166 collective bargaining, or shall aid or abet
(2004)] such obstruction or interference. [Art.
279(b)]
b. Picket 2. By police force. The police force shall
keep out of the picket lines unless actual
The right of legitimate labor organizations to violence or other criminal acts occur
strike and picket and of employers to lockout, therein: Provided , That nothing herein shall
consistent with the national interest, shall be interpreted to prevent any public officer
continue to be recognized and respected.[Art. from taking any measure necessary to
278(b)] maintain peace and order, protect life and
property, and/or enforce the law and legal
Picketinginvolves merely the marching to and orders. [Art. 279(d)]
fro at the premises of the employer, usually 3. By person engaged in picketing. No
accompanied by the display of placards and person engaged in picketing shall commit
other signs making known the facts involved in any act of violence, coercion or intimidation
a labor dispute. or obstruct the free ingress to or egress
from the employer’s premises for lawful
As applied to a labor dispute, to picket means purposes, or obstruct public thoroughfares.
the stationing of one or more persons to [Art. 279(e)]
observe and attempt to observe. The purpose
of pickets is said to be a means of peaceable Picketing as Part of Freedom of
persuasion. [Sta. Rosa Coca-Cola Plant Speech/Expression
Employees Union v. Coca-Cola Bottlers General rule: picketing enjoys constitutional

Philippines, Inc., G.R. Nos. 164302-03 (2007)] protection

expression.as part of freedom of speech and/or
Peaceful Picketing is the right of workers
during strikes consisting of marching to and fro Exceptions/limitations:
before an establishment involved in a labor a. When picketing is coercive rather than
dispute generally accompanied by the carrying persuasive [Security Bank Employees
and display of signs, placards and banners Union v. Security Bank, G.R. No. L-28536
intended to inform the public about the dispute. (1968)]
[Guidelines Governing Labor Relations, b. When picketing is achieved through illegal
October 19, 1987; NCMB Manual, Sec. 1] means [Mortera v. CIR, G.R. No. L-1340
(1947)]
Purpose c. Courts may confine the communication/
The purpose of the picket line is to persuade demonstration to the parties to the labor
employers peacefully by publicizing the labor dispute [PCIB v. Philnabank Employees
dispute
happeningtoand
inform the public
thus cause of what
other workers not is
to d. Association, G.R. No. L-29630
Innocent bystander (1981)]may
rule. Courts
work in the establishment and for customers insulate establishments or persons with no
not to do business there [Phimco Industries, industrial connection or having interest

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totally foreign to the context of the dispute Procedural Requirements

[PCIB v. Philnabank Employees 1. Effort to bargain (in case of bargaining
Association, G.R. No. L-29630 (1981)] deadlock)
2. Filing and service of notice of lockout to the
Picketing and Libel NCMB
Libel laws are not applied strictly considering 3. Observance of cooling-off period
that there is emotional tension in the picket 4. 15 days for ULP
lines and expected discourteous and impolite 5. 30 days for bargaining deadlock
exchanges between the employees and the 6. Notice of lockout vote meeting within 24
employer. [PCIB v. Philnabank Employees hours before the intended vote [Sec. 10,
Association, G.R. No. L-29630 (1981)] Rule XXII, Book V, IRR]
7. Lockout vote
Peaceful picketing is legal even in the 8. Report of lockout vote
absence of employer-employee 9. Observance of the waiting period (7-day
relationship strike ban)
Picketing, peacefully carried out, is not illegal
even in the absence of employer-employee (1) Effort to Bargain
relationship, for peaceful picketing is a part of No employer shall declare a […] lockout
the freedom of speech guaranteed by the without first having bargained collectively in

Constitution. [De Leon

G.R. No. L-7586 v. National Labor Union,
(1957)] accordance with Title VII of this Book. [Art.
279(a)]

2. By Employer (2) Filing and Service of Notice of Lockout

Filed by: The duly certified or recognized
a. Lockout bargaining agent may file notice of lockout

Lockout is the temporary refusal of an Filed with: With the Department

employer to furnish work as a result of an
industrial or labor dispute. [Art. 219 (p)] When: At least 30 days before the intended
date of the lockout [Art. 278(c)]
Illegal strike and illegal lockout/In Pari
Delicto Doctrine Note: The notice must be served to the
When the employer engaged in illegal lockout employees through the SEBA or the legitimate

and
both the employee
parties are inengaged in illegal
pari delicto, and strike,
such labor organization (if no SEBA).
situation warrants the restoration of the status Contents of notice
quo ante and bringing the parties back to the 1. Names and addresses of the employer and
respective positions before the illegal strike the union involved
and illegal lockout. [Philippines Inter-Fashion 2. Nature of the industry to which the
Inc. v. NLRC, G.R. No. L-59847 (1982)] employer belongs
3. Number of union members and of workers
Similar to a strike, the proper grounds for a in the bargaining unit
lockout are 4. Such other relevant data as may facilitate
1. Bargaining deadlock the settlement of the dispute.
2. ULP by labor organizations
Additional Requirements [Sec. 8, Rule XXII,
Art. 278 (b). Strikes, Picketing and Book V, IRR]
 Lockouts. – [N]o employer may declare a In
1. cases of bargaining
Statement deadlocks
of unresolved issues in the
lockout on grounds involving inter-union and
intra-union disputes. bargaining negotiations
2. Written proposals of the union

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3. Counter-proposals of the employer substantially the same grounds considered

4. Proof of a request for conference to settle when the strike or lockout vote was taken.
the differences.
(6) Report of Lockout Vote
In cases of ULP
1. Statement of acts complained of
2. Efforts taken to resolve the dispute Art. 278 –(f).
Lockouts. Strikes,
In every case, Picketing
unio n orand
the union the
amicably. employer shall furnish the Ministry the
results of the voting at least seven days
Action on notice before the intended strike or lockout, subject
1. Upon receipt of a valid notice of strike or to the cooling-off period herein provided.
lockout, the NCMB, through its Conciliator-
Mediators, shall call the parties to a (7) Observance of Waiting Period (7 Days)
conference the soonest possible time in
order to actively assist them to explore all See notes under Strike.
possibilities for amicable settlement.
2. The Conciliator-Mediator may suggest/ Effect of Illegal Lockout
offer proposals as an alternative avenue for
the resolution of their disagreement/conflict Par. 3, Art. 279 (a). Prohibited Activities. –

3. which may not necessarilyfails,

If conciliation/mediation bind the
the parties.
parties Any worker as
terminated whosea employment
consequencehasof been
any
shall be encouraged to submit their dispute unlawful lockout shall be entitled to
for voluntary arbitration. [Sec. 9, Rule XXII, reinstatement with full backwages.
Book V, IRR]
3. Assumption of Jurisdiction by
(3) Observance of Cooling-off Periods
Secretary of Labor and
Lockout cooling-off periods:
1. Based on bargaining deadlock – 30 days Employment
2. Based on ULP – 15 days [Art. 278(c)]
When May the SOLE Assume Jurisdiction
(4) Notice of Lockout Vote Meeting When in his opinion, there exist a labor dispute
di spute
causing or likely to cause a strike or lockout in
Sec. 10, Rule XXII, Book V. Strick or an industry indispensable to the national
interest, the SOLE may assume jurisdiction
Lockout Vote –shall
the employer In every case,the
furnish the union or
regional over the dispute and decide it or certify the
branch of the Board the notice of meetings same to the Commission for compulsory
referred to in the preceding paragraph at arbitration. [Art. 278(g)]
least twenty-four (24) hours before such
meetings [...] Requisites for Assumption of Jurisdiction
1. Both parties have requested the SOLE to
assume jurisdiction; or
(5) Lockout Vote
2. After a conference called by the Office of
the SOLE on the propriety of its issuance,
Art. 278 (f). Strikes, Picketing and
motu proprio or upon a request or petition
Lockouts. – A decision to declare a lockout
by either parties to the labor dispute [Book
must be approved by a majority of the board
V, IRR Rule XXII, sec. 15, IRR as amended
of directors of the corporation or association
by D.O. No. 40-H-13 s 2013]
or of the partners in a partnership, obtained
 by secret ballot in a meeting called for that Immediately Executory
purpose. The decision shall be valid for the
The assumption and certification orders are
duration of the dispute based on
executory in character and must be strictly

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complied with by the parties. [Allied Banking v.

NLRC, G.R. No. 116128 (1996)] In such cases, therefore, the Secretary of
Labor and Employment may immediately
Effect of defiance of assumption or assume, within twenty-four (24) hours from
certification orders knowledge of the occurrence of such a strike or
No strike or lockout shall be declared after lockout, jurisdiction over the same or certify it
assumption of jurisdiction by the President or to the Commission for compulsory arbitration.
the Minister or after certification or submission [Art. 278, par. 2]
of the dispute to compulsory or voluntary
arbitration or during the pendency of cases Rationale: The highest respect is accorded to
involving the same grounds for the strike or the right of patients to life and health.
lockout. [Art. 279(a), par. 2]
b. Effects of Assumption of
A strike undertaken despite the issuance by the Jurisdiction
Secretary of Labor of an assumption or
certification order becomes a prohibited activity Automatic Injunction of Intended of
and thus, illegal, pursuant to Art. 279(a) of the Impending Strike or Lockout
Labor Code. [Allied Banking v. NLRC, G.R. No. The assumption of jurisdiction by the SOLE
116128 (1996)] automatically enjoins intended or impending

a. Industry Indispensable to the strike or lockout. [Art. 278 (g)]

National Interest Return-to-work and readmission if strike or
lockout has already taken place
1. Hospital sector If strike or lockout has already taken place at
2. Electric power industry the time of assumption or certification,
3. Water supply service, to exclude small 1. All striking or locked out employees shall
water supply services, such as bottling and immediately return-to-work; and
refilling stations 2. The employer shall immediately resume
4. Air traffic control operations and readmit all workers under
5. Other industries as may be recommended the same terms and conditions prevailing
by the National Tripartite Industrial Peace before the strike or lockout. [Art. 278 (g)]
Council (TIPC) [Sec. 16, Rule XXII, Book
V, IRR as amended by D.O. No. 40-H-13] The SOLE may also determine the retroactivity

Who determines industries indispensable of arbitral awards

jurisdiction as partpursuant
of his/hertoplenary
power to assume
powers to
to the national interest [Art. 278(g)] determine the effectivity thereof in absence of
1. Secretary of Labor and Employment specific provision of law [LMG Chemicals Corp.
2. President v. Sec. of Labor and Employment, 356 SCRA
577 (2001)]
Strikes and lockouts in hospitals, clinics
and similar medical institutions Nature of return-to-work order
It shall be the duty of the striking union or The return-to-work order not so much confers
locking-out employer to provide and maintain a right as it imposes a duty; and while as a right
an effective skeletal workforce of medical and it may be waived, it must be discharged as a
other health personnel, whose movement and duty even against the worker's and/or
services shall be unhampered and employers’ will.
unrestricted, as are necessary to insure the
proper
health and
of adequate protection
its patients, mostof the life and
especially The
his worker must return
co-workers so theto his job together
operations of with
the
emergency cases, for the duration of the strike company can be resumed and it can continue
or lockout. serving the public and promoting its interest.

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That is the real reason such return can be Definition

compelled. So imperative is the order in fact “Management Prerogative” is the right of an
that it is not even considered violative of the employer to regulate all aspects of
right against involuntary servitude. [Kaisahan employment.
ng Mga Manggagawa sa Kahoy v. Gotamco
Sawmills, G.R. No. L-1573 (1948)] Courts often decline to interfere in legitimate
business decisions of employers. In fact, labor
Note: It must be strictly complied with even laws discourage interference in employers’
during the pendency of any petition questioning judgment concerning the conduct of their
its validity. [Manila Hotel Employees business.
Association and its Members v. Manila Hotel
Corp., 517 SCRA 349 (2007)] Scope
Management prerogative gives employers the
The purpose of SOLE’s extraordinary power is freedom to regulate, according to their
aimed at arriving at a peaceful and speedy discretion and best judgment, all aspects of
solution to labor disputes without jeopardizing employment, including:
national interest [Union of Filipro Employees- a. Work assignment
Drug v. Nestle, 499 SCRA 521 (2006)] b. Working methods,
c. Processes to be followed,

VI. MANAGEMENT d.
e. Working
Transfer regulations,
of employees,
PREROGATIVE f. Work supervision, lay-off of workers and
the discipline, dismissal and recall of
Basis workers.
The State recognizes the indispensable role of
the private sector, encourages private Limits to Management Prerogative
enterprise, and provides incentives to needed 1. Good faith - So long as a company’s
investments. [Sec. 20, Art. II, 1987 management prerogatives are exercised in
Constitution] good faith for the advancement of the
employer’s interest and not for the purpose
The State shall regulate the relations between of defeating or circumventing the rights of
workers and employers, recognizing the right the employees under special laws or under
of labor to its just share in the fruits of valid agreements, this Court will uphold

production and the right of enterprises to them. [Ernesto

Broadcasting G. ] Ymbong v. ABS-CBN
Corp.
reasonable returns to investments, and to
expansion and growth. [Sec. 3, pars. 4, Art.
XIII, 1987 Constitution] It is incumbent upon the company to show
that decisions made under management
The law in protecting the rights of the prerogative are in good faith and not
employees authorizes neither oppression nor intended to circumvent employees’ rights.
self-destruction of the employer. It should be [San Miguel Brewery Sales Force Union
made clear that when the law tilts the scale of (PTGWO) v. Ople, G.R. No. L-53515
justice in favor of labor, it is but a recognition of (1989)]
the inherent economic inequality between labor
and management. Never should the scale be The exercise of management prerogative
so tilted if the result is an injustice to the is valid, provided it is not performed in a
employer. [Panuncillo v. CAP, G.R. No. malicious, harsh, oppressive, vindictive or
161305 (2007)] [wanton manner
Magdadaro or out
v. PNB of malice
, G.R. No. or spite.
166198
(2009)]

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U.P. LAW BOC LABOR 2 LABOR LAW

2. Without grave abuse of discretion - The

managerial prerogative to transfer 5. Equity and/or Substantial Justice – The
personnel must be exercised without grave Court should still ensure that the employer
abuse of discretion, bearing in mind the exercises the prerogative to discipline
basic elements of justice and fair play. humanely and considerately, and that the
Having the right should not be confused sanction imposed is commensurate to the
with the manner in which the right is offense involved and to the degree of the
exercised. [Tinio v. CA, G.R. No. 171764 infraction. [Dongon v. Rapid Movers and
(2007)] Forwarders Co., Inc., G.R. No. 163431
(2013)]
3. Law – The privilege of management
prerogative is not absolute, but subject to
limitations imposed by law. A. DISCIPLINE
Management prerogative is limited by Sec.
236(g), which gives the Secretary the Management has the prerogative to discipline
power to assume jurisdiction and resolve its employees and to impose appropriate
labor disputes involving industries penalties on erring workers pursuant to
indispensable to national interest. The company rules and regulations. [Jose
Jose P.
company’s
not being management prerogatives
unjustly curtailed are
but duly Artificio v. NLRC, G.R. No. 172988 (2010)]
tempered by the limitations set by law, Among the employer’s management
taking into account its special character prerogatives is the right to prescribe
and the particular circumstances in the reasonable rules and regulations necessary or
case at bench. [Metrolab Industries, Inc. v. proper for the conduct of its business or
Roldan-Confesor , G.R. No. 108855 (2013); concern, to provide certain disciplinary
University of Immaculate Concepcion Inc. measures to implement said rules and to
v. Sec. of Labor, G.R. No. 151379 (2005)] assure that the same would be complied with.
[St. Luke’s Medical Center, Inc. v. Sanchez,
Although management prerogative refers G.R. 212054 (2015)]
to the right to regulate all aspects of
employment, it cannot be understood to The employer’s right to conduct the affairs of
include the right to temporarily withhold his business, according to its own discretion
salary/wages
employee. without
To the consent
sanction suchof thean and judgment, includes the prerogative to instill
discipline in its employees and to impose
interpretation would be contrary to Art. 116 penalties, including dismissal, upon erring
of the Labor Code. [SHS Perforated employees. [Consolidated Food Corporation v.
Materials, Inc. v. Diaz, G.R. No. 185814 NRLC, G.R. No. 118647 (1999))]
(2010)]
Right to dismiss or otherwise impose
4. Collective Bargaining – The CBA disciplinary sanctions upon an employee for
provisions agreed upon by the Company just and valid cause, pertains in the first place
and the Union delimit the free exercise of to the employer, as well as the authority to
management prerogative. The parties in a determine the existence of said cause in
CBA may establish such stipulations, accordance with the norms of due process.
clauses, terms and conditions as they may [Makati Haberdashery, Inc. v. NLRC , G.R. Nos.
deem convenient provided these are not 83380-81 (1989)]
 contrary to law, morals, good customs,
public order or public policy. [Goya Inc. v.
Goya, Inc., Employees Union-FFW, G.R.
No. 170054 (2013)]

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U.P. LAW BOC LABOR 2 LABOR LAW

Corollary Duty of Employees another, or one office to another or in pursuit of

The employee has the corollary duty to obey all its legitimate business interest.
reasonable rules, orders, and instructions of
the employer; and willful or intentional Management has the prerogative on whether
disobedience thereto, as a general rule, or not to renew the contract of a fixed-term
justifies termination of the contract of service employee. [Fonterra Brands Phils., Inc. v.
and the dismissal of the employee. [St. Luke’s Largado, G.R. No. 205300 (2015)]
Medical Center, Inc. v. Sanchez, G.R. 212054
(2015)] Criteria
Provided there is no demotion in rank or
Criteria diminution of salary, benefits and other
The policies, rules and regulations on work- privileges and not motivated by discrimination
related activities of the employees must or made in bad faith, or effected as a form of
always be fair and reasonable and the punishment or demotion without sufficient
corresponding penalties, when prescribed, cause. [Westin Phil. Plaza Hotel v. NLRC, G.R.
commensurate to the offense involved and No. 121621 (1999)]
to the degree of the infraction. [Consolidated
Food Corporation v. NRLC, G.R. No. 118647 When the transfer is not unreasonable, or
(1999); St. Michael’s Institute v. Santos, G.R. inconvenient, or prejudicial to the employee,

No. 145280 (2001)] and it does of

diminution notsalaries,
involve abenefits,
demotionand
in rank or
other
Although the right of employers to shape their privileges, the employee may not complain that
own work force is recognized, this it amounts to a constructive dismissal. [Bisig ng
management prerogative must not curtail the Manggagawa sa TRYCO v. NLRC, G.R. No.
basic right of employees to security of 151309 (2008)]
tenure. [Alert Security & Investigation Agency,
Inc. v. Saidali Pasawilan, et. al., G.R. No. It is management prerogative for employers to
182397 (2011)] transfer employees on just and valid grounds
such as genuine business necessity. [William
Disciplinary action against an erring employee Barroga v. Data Center College of the
is a management prerogative which, generally, Philippines,G.R. No. 174158 (2011)]
is not subject to judicial
j udicial interference. However,
this policy can be justified only if the disciplinary Re-assignments

action
reasons dictated
is and byoppressive
is not legitimate. business
[Areno v. Re-assignments made
pending investigation by management
of irregularities allegedly
Skycable, G.R. No 180302 (2010)] committed by an employee fall within the ambit
of management prerogative. The purpose of
reassignments is no different from that of
B. TRANSFER OF preventive suspension which management
EMPLOYEES could validly impose as a disciplinary measure
for the protection of the company's property,
pending investigation of any alleged
An employee’s right to security of tenure does malfeasance or misfeasance committed by the
not give him such a vested right in his position, employee. [Ruiz v. Wendel Osaka Realty
as would deprive the company of its Corp., G.R. No. 189082 (2012)]
prerogative to change his assignment or
transfer him where he will be most useful. Employer Bears the Burden of Proof
The employer has the right to transfer or assign In cases of
is settled a transfer
that of an is
the employer employee, the rule
charged with the
employees from one area of operation to burden of proving that its conduct and action
are for valid and legitimate grounds such as

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U.P. LAW BOC LABOR 2 LABOR LAW

genuine business necessity and that the

transfer is not unreasonable, inconvenient or D. BONUS
prejudicial to the employee. If the employer
cannot overcome this burden of proof, the
employee’s transfer shall be tantamount to
A bonusis "a gratuity or act of liberality of the
unlawful constructive dismissal. [Jonathan
Morales v. Harbor Centre Port Terminal Inc., giver which the recipient has no right to
demand as a matter of right" [Philippine
G.R. No. 174208 (2012)]
National Construction Corp. v. National Labor
Relations Commission, 345 Phil. 324, 331
C. PRODUCTIVITY (1997)]. It is something given in addition to
what is ordinarily received by or strictly due the
STANDARDS recipient.

The employer has the right to demote and The granting of a bonus is basically a
transfer an employee who has failed to observe management prerogative which cannot be
proper diligence in his work and incurred forced upon the employer "who may not be
habitual tardiness and absences and indolence obliged to assume the onerous burden of
in his assigned work. [Petrophil Corporation v. granting bonuses or other benefits aside from
NLRC, G.R. No. L-64048 (1986)] the employee's basic salaries or wages" xxx.
[Kamaya Point Hotel v. National Labor
In the consolidated cases of Leonardo v. NLRC Relations Commission, Federation of Free
[G.R. No. 125303 (2000)] and Fuerte v. Aquino Workers and Nemia Quiambao, G.R. No.
[G.R. No. 126937 (2000)], the employer 75289, (1989); Traders Royal Bank v. NLRC,
claimed that the employee was demoted G.R. No. 120592 (1990)]
pursuant to a company policy intended to foster
competition among its employees. Under this The matter of giving a bonus over and above
scheme, its employees are required to comply the worker’s lawful salaries and allowances is
with a monthly sales quota. Should a entirely dependent on the financial capability of
supervisor such as the employee fail to meet the employer to give it. [Kimberly-Clark
his quota for several consecutive months, he Philippines, Inc. v. Dimayuga, G.R. No. 177705
will be demoted, whereupon his supervisor’s (2009)]
allowance will be withdrawn and be given to the
individual who takes his place. When the
employee concerned succeeds in meeting the E. CHANGE OF WORKING
quota again, he is re-appointed supervisor and HOURS
his allowance is restored.
Management retains the prerogative,
The Supreme Court held that this arrangement whenever exigencies of the service so require,
is an allowable exercise of company rights to change the working hours of its employees.
since an employer is entitled to impose So long as such prerogative is exercised in
productivity standards for its workers. In fact, good faith for the advancement of the
non-compliance may be visited with a penalty employer’s interest and not for the purpose of
even more severe than demotion. defeating or circumventing the rights of the
employees under special laws or under valid
agreements, this Court will uphold such
exercise. [Sime Darby Pilipinas Inc. v. NLRC,
 G.R. No. 119205 (1998)]

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Glaxo only aims to protect its interests against

F. BONA FIDE OCCUPATIONAL the possibility that a competitor company will
QUALIFICATIONS gain access to its secrets and procedures.
[Star Paper Corp. v. Simbol, G.R. No. 164774
General Rule: Employment in particular jobs (2006)]

may not be limited to persons of a particular A requirement that a woman employee must
sex, religion, or national origin unless the
employer can show that sex, religion, or remain unmarried could be justified as a "bona
national origin is an actual qualification for fide occupational qualification," or BFOQ,
performing the job. where the particular requirements of the job
would justify the same, but not on the ground
Exception: The exception is called a bona fide of a general principle, such as the desirability
occupational qualification (BFOQ). of spreading work in the workplace. A
requirement of that nature would be valid
In the United States, there are a few federal provided it reflects an inherent quality
and many state job discrimination laws that reasonably necessary for satisfactory job
contain an exception allowing an employer to performance. [Phil. Telegraph and Telephone
engage in an otherwise unlawful form of Company v. NLRC, G.R. No. 118978 (1997)]
prohibited discrimination when the action is
based on a BFOQ necessary to the normal G. POST-EMPLOYMENT
operation of a business or enterprise. BFOQ is
valid "provided it reflects an inherent quality RESTRICTIONS
reasonably necessary for satisfactory job
performance." [Yrasuegui v. PAL, G.R. No. In cases where an employee assails a contract
168081 (2008)] containing a provision prohibiting him or her
from accepting competitive employment as
BFOQ in Philippine Jurisdiction against public policy, the employer has to
The concept of a bona fide occupational adduce evidence to prove that the restriction is
qualification is not foreign in our jurisdiction. reasonable and not greater than necessary to
We employ the standard of reasonableness of protect the employer’s legitimate business
the company policy which is parallel to the interests. The restraint may not be unduly
bona fide occupational qualification harsh or oppressive in curtailing the
requirement. employee’s legitimate efforts to earn a
livelihood, and must be reasonable in light of
In Duncan Association of Detailman-PTGWO sound public policy. [Rivera v. Solidbank, G.R.
and Pedro Tecson v. Glaxo Wellcome No. 163269 (2006)]
Philippines, Inc., we passed on the validity of
the policy of a pharmaceutical company
prohibiting its employees from marrying H. MARRIAGE BETWEEN EMPLOYEES
employees of any competitor company. We OF COMPETITOR-EMPLOYERS
held that Glaxo has a right to guard its trade
secrets, manufacturing formulas, marketing See F. Bonafide Occupational Qualifications,
strategies and other confidential programs and above
information from competitors. We considered
the prohibition against personal or marital
relationships with employees of competitor
companies upon Glaxo’s employees
reasonable under the circumstances because
relationships of that nature might compromise
the interests of Glaxo. In laying down the
assailed company policy, we recognized that

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U.P. LAW BOC LABOR 2 LABOR LAW

(2) Self-employed persons as may be

VII. SOCIAL LEGISLATION determined by the Commission,
including but not limited to:
a. All self-employed professionals
A. SOCIAL SECURITY b. Partners and single proprietors of

SYSTEM LAW businesses

c. Actors and actresses, directors,
scriptwriters and news correspondents
[Republic Act 8282, as amended by RA 11199] who do not fall within the definition of
the term “employee” under Sec. 8 (d) of
1. Coverage and Exclusions this Act;

a. Compulsory Employee [Sec 8(d), RA 11199] - Any

person who performs services for an
(1) Employees not over 60 years old and employer in which either or both mental
their employers, including domestic or physical efforts are used and who
helpers [Sec. 9(1), RA 11199] receives compensation for such
services, where there is an employer-
Provided , That any benefit already earned by employee relationship: Provided , That
the employees under private benefit plans
existing at the time of the approval of this Act a self-employed
employer person at
and employee shall
the be an
same
shall not be discontinued, reduced or otherwise time.
impaired.
d. Professional atheism coaches, trainers
Private plans which are existing and in force at and jockeys
the time of compulsory coverage shall be e. Individual farmers and fishermen [Sec.
integrated with the plan of the SSS, in such a 9-A, RA11199]
way where the employer’s contribution to his
private plan is more than required of him in (3) All sea-based and land-based Overseas
this Act: Filipino Workers (OFWs) not over 60
a. He shall pay to the SSS only the years of age [Sec. 9-B, RA 11199]
contribution required of him; and
b. He shall continue his contribution to such b. Voluntary

private
c. So thatplan less his contribution
the employer’s to the SSS
total contribution to 1. Spouses who devote full time to managing
his benefit plan and to the SSS shall be the household and family affairs, unless they
same as his contribution to his private are also engaged in another vocation or
benefit plan before the compulsory employment (in which case, coverage will
coverage. [Sec. 9(1), RA 11199] be mandatory). [Sec. 9(b), RA 11199]
2. Employees previously under compulsory
Domestic workers or “kasambahays” as coverage) already separated from
defined under RA10361 or the Batas employment or those self-employed (under
Kasambahay, who are receiving a monthly compulsory coverage) with no realized
income lower than minimum salary credit income for a given month, who chose to
prescribed under this Act, shall pay continue with contributions to maintain the
contributions based on their actual monthly right to full benefit. [Sec. 11, RA 11199]
salary. [Sec. 4(a)(9), RA 11199] 3. Self-employed members realizing no
 income in any given month, who choose to
continue paying contributions under the
same rules and regulations applicable to a

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U.P. LAW BOC LABOR 2 LABOR LAW

separated employee member. [Sec. 11-A, legitimate children, the illegitimate children
RA 11199] get 100%.

Note: Foreign governments and international Secondary

organizations or their wholly owned 1. Receives only when the primary

instrumentality
Philippines employingFilipinos
or employing workersoutside
in the
of beneficiariesparents
2. Dependent are absent
the Philippines, may enter into an agreement
with the Philippine Government for the Others
inclusion of such employees in the SSS, except 1. Receives only when primary and
those already covered by their civil service secondary beneficiaries are absent
retirement system. [Sec. 8(j)(3), RA 11199] 2. Any other person designated by member
as his/her secondary beneficiary. [Sec. 8
c. Exclusions (k), RA 11199]

1. Services where there is no employer- 3. Benefits

employee relationship in accordance with
existing labor laws, rules, regulations and a. Monthly Pension [Sec. 12, RA
jurisprudence; 11199]
2. Service
Philippineperformed in the
Government or employ of the
instrumentality The monthly pension shall be the highest of the
or agency thereof; following amounts:
3. Service performed in the employ of a 1. P300 + [20% x (average monthly credit)] +
foreign government or international [2% x (average monthly credit) x (# of cash
organization, or their wholly-owned credit years of service in excess of 10
instrumentalities; and years)]
2. 40% x [average monthly credit]
Note: Foreign governments and international 3. P1000, provided that the monthly pension
organizations may enter into an agreement shall in no case be paid for an aggregate
with the PH government to include their amount of less than 60 months [Sec. 12 (a)]
employees in the Philippines in the SSS. 4. Notwithstanding the above mentioned,
minimum pension is:
4. Services performed by temporary and a. P1,200 - members with at least 10
other employeesofwhich
by regulation the may be excluded
Social Security years credit service
b. P 2,400 - members with at least 20
Commission. Employees of bona fide years
independent contractors shall not be
deemed employees of the employer b. Dependents' Pension [Sec. 12-
engaging the services of said contractors. A, RA 11199]
[Sec. 8(j), RA 11199]
1. Paid on account of members’
2. Dependents and Beneficiaries a. Death
b. Permanent total disability, or
Primary c. Retirement
1. Dependent spouse - until remarriage 2. Paid to each child conceived on or prior to
2. Dependent children [legitimate, contingency, but not exceeding 5,
legitimated, legally adopted and beginning with the youngest and preferring
 illegitimate] - Illegitimate children are the legitimate
entitled only to 50% of the share of 3. Amount is either P250 or 10% of the
legitimate children. Where there are no monthly pension as computed above,
whichever is higher.

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c. Retirement benefits [Sec. 12-B, Monthly pension

RA 11199] The monthly pension of a member who retires
after reaching age 60 shall be the highest of
Requisites for Eligibility either:
1. 120 monthly contributions 1. The monthly pension computed at the

2. Age
a. Has reached the age of 60 years and is earliestseparated
been time he could have
from retired had he
employment or
already separated from employment or ceased to be self-employed plus all
has ceased to be self-employed; or adjustments thereto; or
b. Has reached the age of 65 years 2. The monthly pension computed at the time
when he actually retires.
Period of entitlement - From retirement until
death d. Permanent disability benefits
[Sec. 13-A, RA 11199]
The monthly pension shall be suspended upon
the reemployment or resumption of self- Eligibility
employment of a retired member who is less 1. 36 monthly contributions prior to the
than 65 years old. semester of disability

In Case
1. of Death
His/her primaryofbeneficiaries
Member as of the date Note: This is the
permanent same aspension
disability death benefit,
is paidbut
of his/her retirement shall be entitled to directly to the member.
receive the monthly pension;
2. If he/she has no primary beneficiaries AND 2. In case the permanently disabled member
he/she dies within 60 months from the start dies, he/she is given the same treatment as
of his/her monthly pension, his/her a retiree dying.
secondary beneficiaries shall be entitled to
a lump sum benefit equivalent to the total 3. For permanent partial disability, the
monthly pensions corresponding to the pension is not lifetime. It shall be paid in
balance of the 5 year guaranteed period, lump sum if the period is less than 12
excluding the dependents’ pension. months.

Lump Sum Alternative Ex. loss of thumb entitles member to 10

The member
monthly may in
pensions optlump
to receive
sum but thesuch
first is
8 months
member of pension;
to 50 months.loss of arm entitles
discounted at a preferential rate of interest to
be determined by the SSS. 4. For multiple partial disabilities, they shall
be additive when related or deteriorating -
Lump Sum Eligibility (Equal to total the percentage shall be equal to the
contributions) number of months the partial disability is
A covered member who is 60 years old at entitled to, divided by 75 months.
retirement and who does not qualify for
pension benefits (see requisites for eligibility) Ex. loss of sight in 1 eye - 25/75; loss of
shall be entitled to a lump sum benefit equal to arm = 50/75
the total contributions paid by him and on his
behalf: Provided, That he is separated from If both occur due to same cause then 25/75
employment and is not continuing payment of + 50/75 = 100% (as if it were a permanent
contributions to the SSS on his own. total disability)

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U.P. LAW BOC LABOR 2 LABOR LAW

Lump Sum Alternative b. (monthly pension) x (# of monthly

A member is entitled to a lump sum benefit contributions)
equivalent to the monthly pension x number of
monthly contributions paid to the SSS or 12 f. Funeral benefits [Sec. 13-B, RA
times the monthly pension, whichever is 11199]

higher.
least 36To be entitled,
monthly he must not have paid at
contributions. P12,000 in cash or in kind, upon the death of
member.
Subject to compulsory coverage again
A member who: g. Loan
1. Received a lump sum benefit, and
2. Is reemployed or resumed self- Social Security Commission Reso. No. 669,
employment not earlier than 1 year from SSS Circular No. 21-P and 52 pertain to
date of disability , treatment of salary loans, which sometimes
shall be subject to compulsory coverage and provide for more flexible payment terms or
considered a new member. condonation for delinquent payers.

Death of Member h. Sickness benefits [Sec. 14, RA

1. His/her primary beneficiaries as of the date 11199]

of his/her
receive theretirement shall be entitled to
monthly pension; Eligibility
2. If he/she has no primary beneficiaries
be neficiaries AND 1. Inability to work due to sickness or injury,
he/she dies within 60 months from the start 2. Confined for more than 3 days either in a
of his/her monthly pension, his/her hospital or elsewhere with SSS approval
secondary beneficiaries shall be entitled to 3. At least 3 months of contribution paid in the
a lump sum benefit equivalent to the total 12 month period immediately before the
monthly pensions corresponding to the semester of sickness or injury
balance of the 6 year guaranteed period, 4. All company sick leaves with pay for the
excluding the dependents’ pension. current year have been used up;
5. Maximum of 120 days per 1 calendar year
e. Death Benefits [Sec. 13, RA (i.e. max permissible for the same sickness
11199] and confinement is 240 days for 2
consecutive years)
Eligibility
36 monthly contributions prior to the semester 6. Employer
separated, has been notified,
voluntary or, if a
or self-employed
of death member, the SSS has been directly notified
within 5 days from confinement.
Benefit
1. Monthly pension to primary beneficiaries, Notice to employers or SSS is not needed
or when confinement is in a hospital.
2. If no primary beneficiaries, lump sum
equivalent to 36 times the monthly pension Notice to employer is not required when
to secondary beneficiaries employee became sick or injured while working
or within the premises of the employer.
If ineligible/has not paid 36 monthly
contributions Benefit
A lump sum benefit which shall be that which is Daily cash allowance paid for the number of
higher between the ff. will be given to the days a member is unable to work due to
beneficiaries: sickness of injury equivalent to 90% x (average
a. (monthly pension) x 12, or daily salary credit)

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Reimbursement of SSS to Employer Full payment shall be advanced by the

Upon satisfactory proof of payment and legality employer within 30 days from filing the
of sickness benefits, reimbursement shall be maternity leave application.
made by the SSS if the following conditions are
met: SSS shall reimburse the employer of 100% of

1. Employer notified days

within 5 calendar SSS of thereceipt
after confinement
of the the
uponamount
receipt of maternity benefits
of satisfactory proof ofadvanced
payment
notification from the employee-member - and legality thereof.
100% reimbursement
2. If the notification to SSS is made beyond 5 Note: All benefits herein mentioned are tax-
calendar days after receipt of notification exempt.
from the employee-member -
reimbursement only for each day of j. Unemployment Insurance or
confinement starting from the 10th Involuntary Separation Benefits
calendar day immediately preceding the [Sec. 14-B, RA 11199]
date of notification to SSS
Eligibility
SSS shall reimburse the employer or pay the 1. Not over 60 years of age
unemployed member only for confinement 2. At least 36 months contributions, 12

within thethe
the date 1 year
claimperiod immediately preceding
for benefit/reimbursement
ben efit/reimbursement is months of which
month period should be
immediately in the 18th
preceding the
received by SSS. involuntary unemployment or separation

Exception: Confinement in a hospital - the Benefit

claim for benefit or reimbursement must be Monthly cash payments equivalent to 50% of
filed within 1 year from the last day of the average monthly salary credit for a
confinement maximum of 2 months

i. Maternity Leave benefits [Sec. Frequency of claiming benefit

14-A, RA 11199] An employee who is involuntarily unemployed
can only claim unemployment benefits once
Eligibility every 3 years.
1. Female member
2. Paid at least
12-month 3 monthly
period contributions
immediately in the
preceding In case of contingencies,
compensable concurrence of only2 the
or highest
more
the semester of her childbirth or benefit shall be paid, subject to the rules and
miscarriage regulations that the Commission may
3. Member notified her employer of her prescribe.
pregnancy and probable date of childbirth,
which notice shall be transmitted to the
SSS B. GOVERNMENT SERVICE
INSURANCE SYSTEM LAW
Full payment shall be advanced by the [Republic Act 8291]
employer within 30 days from filing the
maternity leave application.
1. Coverage and Exclusions
Coverage
 Coverage
Covers only the first four deliveries or All public sector employees below the
miscarriages.
compulsory retirement age of 65, irrespective
of employment status. [Sec. 3]
Employer’s reimbursement

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Exclusions a. Monthly Pension [Sec. 9]

1. AFP and PNP
2. Members of the Judiciary and The amount shall be [37.5% x (revalued
Constitutional Commissions who are average monthly compensation)] + [2.5 x
covered only by life insurance as they have (revalued average monthly compensation) x

3. separate retirement
Contractual schemes
employees with no employer- (years in service in excess of 15 years)]
employee relationship [Sec. 3] Provided, the monthly pension shall not exceed
90% of the average monthly compensation.
2. Dependents and Beneficiaries
It shall not be less than P24,000 for those with
Primary 20 years of service and not less than P1,300
1. Dependent spouse - until remarriage for everyone else.
2. Dependent children (legitimate,
legitimated, legally adopted and b. Retirement Benefits [Sec. 13]
illegitimate)
Eligibility
Note: Unlike the SSS law, the GSIS law does 1. At least 15 years of service
not distinguish between the share of legitimate
legi timate 2. At least 60 years of age

and illegitimate children. 3. Not receiving

permanent pension
total disability benefit from
Secondary
In the absence of primary beneficiaries, Compulsory Retirement [Sec. 13-A]
1. Dependent parents Retirement is compulsory for employees:
2. Legitimate descendants (excluding 1. 60 years of age
dependent children) 2. Who have rendered at least 15 years of
service
3. Benefits
If employee has less than 15 years of service,
Computation of service [Sec. 10] he may be allowed to continue in accordance
From date of original appointment/election with civil service laws.
including periods of service at different times
under 1 or more employers, those performed Benefit [Sec. 13]
overseas under the authority of the Republic of The member
1. 60 maymonthly
x (basic choose pension)
between lump sum
the Philippines, and those that may be
prescribed by the GSIS in coordination with the payment at the time of retirement + basic
Civil Service Commission. monthly pension payable monthly for life
after expiry of the 5-year guaranteed period
In case of reinstatement in the service of an which is already covered by the lump sum,
employer and subsequent retirement or or
separation which is compensable under this 2. Cash payment equal to 18 x (basic monthly
Act, all service credited for retirement, pension) + monthly pension for life
resignation or separation for which immediately but with no 5-year guarantee
corresponding benefits have been awarded
under this Act or other laws shall be excluded
in the computation.
GSIS may prescribe rules for the inclusion of
part time and other services with
compensation.

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c. Permanent Disability Benefits

Ineligible members
If member has rendered at least 3 years of
Total and Partial and
service, he shall receive cash payment equal
Permanent Permanent
to 100% of average monthly compensation for
[Sec. 16] [Sec. 17]
each year of service
of contributions made)(essentially
or P12,000total amount
whichever is
1. Complete loss of 1. Complete and
sight of both permanent loss higher [Sec. 16].
eyes of the use of
2. Loss of 2 limbs a. Any finger Partial Disability
at or above the b. Any toe Paid according to GSIS prescribed schedule.
ankle or wrist c. One arm Member must satisfy conditions regarding the
3. Permanent d. One hand disability not being due to his own fault and
complete e. One foot regarding employment status and services
paralysis of 2 f. One leg rendered.
limbs g. One/both
4. Brain injury ears d. Death benefits [Sec. 21]
resulting in h. Hearing of
incurable one/both When member dies, the primary beneficiaries

imbecility or ears are entitled to only

1. Survivorship ONE of the following:
pension
insanity i.Sight of one
5. Other cases as eye a. He was in service when he died, or
determined by 2. Other cases as b. Even if separated from service, he has
GSIS determined by at least 3 years of service and has paid
GSIS 36 monthly contributions within the 5
years preceding death, or
c. Even if separated from the service, he
Eligibility for Permanent Total Disability has paid 180 monthly contributions
1. Disability not due to employee’s own grave prior to death.
misconduct, notorious negligence, habitual 2. Survivorship pension + cash payment of
intoxication, or willful intention to kill himself 100% of average monthly compensation
for another [Sec. 15] for every year of service [pension + total
2. Employee is: contributions made]
a.
b. In service
Even at time ofhas
if separated, disability
paid at least 36 a.
b. He
Withwas in service
3 years when he died, and
of service
monthly contributions within the 5-year 3. Cash payment equivalent to 100% average
period immediately prior to disability or monthly compensation for each year of
has paid a total of at least 180 monthly service he paid contributions or P12,000
contributions prior to disability whichever is higher
c. Not enjoying old-age retirement benefit a. With 3 years of service
[Sec. 16]. b. He has failed to qualify in the prior 2
schemes.
Benefit for Permanent Total Disability
1. Monthly income benefit for life equal to e. Funeral Benefits [Sec. 23]
basic monthly pension, from date of
disability Eligibility
2. If member is in service at time of disability 1. Active member
 and has paidhe atreceives
contributions, least 180 monthly
an additional 2. Member separated from service but still
entitled to the benefit
cash payment of 18 x basic monthly 3. Pensioner
pension

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4. Retiree who at time of retirement was of i. Unemployment Benefits [Sec.

pensionable age but opted to retire under 12]
RA 1616
Eligibility
f. Loan 1. Employee separated from service due to

The following are the loans provided: 2. abolition

Employeeof his
hasoffice
been or position
paying and
integrated
1. Consolidated Loan contributions for at least 1 year prior to
2. Policy loan separation
3. Emergency loan
4. Pension loan Benefit
Monthly cash payments of 50% x average
g. Temporary Disability Benefits monthly compensation for a duration which is
[Sec. 18] proportional to years rendered, ranging from 2
to 6 months.
Eligibility
1. Employee must be: j. Survivorship Benefits
a. In service at time of disability, or
b. If separated, he has rendered at least Benefit

3 years of
monthly service andinpaid
contributions at least
the 12 month6 1. Basic survivorship
monthly pension
pension (see Death-Benefits)
50% x basic
and
period immediately prior to disability 2. Dependent children’s pension not
2. All sick leave credits including those in the exceeding 50% of the basic monthly
CBA for the current year have been used pension
3. Maximum of 120 days per 1 calendar year
k. Life Insurance Benefits
Ex. maximum for the same sickness and
confinement is 240 days for 2 consecutive Members of the Judiciary and Constitutional
years Commissions are only entitled to life insurance.

Benefit
75% x current daily compensation for every
day or fraction thereof of disability
disabil ity OR P70.00,
whichever is higher.
h. Separation Benefits [Sec. 11]

Eligibility and benefit received

1. 60 years of age, or separation from service
with at least 3 years but not over 15 years
served – cash payment of 100% of ave.
monthly compensation for each year of
service (total amount of all contributions
paid) or P12,000 whichever is higher
2. Below 60 years of age, but at least 15 years
of service rendered – cash payment of 18
x (monthly pension) at time of
 resignation/separation + old age pension
benefit (equal to basic monthly pension)

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SSS GSIS

RA 1161 as amended by RA 8282 or the PD 1146 as amended by RA 8291

Enabling
Social Security Act of 1997, and RA11199
law
or the Social Security Act of 2018
Employer – any person, natural or Employer – National government, its
juridical, domestic or foreign, who carries political subdivisions, branches, agencies
on in the Philippines any trade business, or instrumentalities, including
industry, undertaking, and uses the government- owned or controlled
services of another person who is under his corporations and financial institutions
orders as regards the employment, except with original charters [GOCCs];
those considered as employer under the constitutional commissions; and judiciary
GSIS. A self- employed person shall be
both employer and employee at the same
time.

Employee – any person who performs Employee – any person receiving

services for an employer in which either or compensation while in service of an
both mental and physical efforts are used employer whether by election or
and who receives compensation for such appointment, irrespective of status of
services, where there is an employer— appointment; barangay officials; and
employee relationship; also, a self- sanggunian officials
employed person who is both employee
and employer at the same time.

Self-employed - any person whose No counterpart

Definition
income is not derived from employment,
of terms
including but not limited to
a. Self-employed professionals
b. Partners and single proprietors of
businesses
c. Actors, directors,not
correspondents scriptwriters,
considerednews
as
employees under the above definition
d. Individual farmers and fishers

Dependents Same, except child here is below 18

a. Legal spouses entitled by law to years old.
receive support
b. Child - unmarried, not gainfully
employed, and below 21 or
c. Child over 21 if he or she became
permanently incapacitated and
incapable of self-support, physically or
mentally; child may be legitimate,
 legitimated,
illegitimate legally adopted or
d. Parent who is receiving legal support

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Beneficiaries Same except no distinction in the share

Primary of legitimate and illegitimate children
1. Dependent spouse - until remarriage
2. Dependent children [legitimate,
legitimated, legally adopted and
illegitimate] - Illegitimate children are
entitled only to 50% of the share of
legitimate children. Where there are no
legitimate children, the illegitimate
children get 100%
Secondary
1. Receives only when the primary
beneficiaries are absent
2. Dependent parents
Others
1. Receives only when primary and
secondary beneficiaries are absent
2. Any other person designated by
member as his/her secondary
beneficiary.

Compensation – all actual remuneration Compensation – basic pay received

for employment, including mandated cost- excluding per diems, bonuses, overtime,
of-living allowance, as well as the cash honoraria, allowances and other
value of any remuneration paid in any emoluments not integrated into the basic
medium other than cash except that portion pay under existing laws.
already above the max salary credit as
provided in this Act.

Compulsory Public sector employees below the

1. Employers as defined above compulsory retirement age of 65.
2. Employees not over 60 years including
household helpers Exceptions:
3. Self-employed 1. AFP & PNP
2. Members of Judiciary and
Voluntary Constitutional Commissions who are
1. Spouses who devote full time to covered only by life insurance
managing household and family affairs 3. Contractual employees with no EER
2. Employers already separated form with the agency they serve
employment or those self-employed
with no realized income for a given
month, who chose to continue with
contributions to maintain right to full
benefit
Note: Foreign governments, international
organizations or their wholly owned
 instrumentality employing workers in the
Philippines may enter into an agreement
with the Philippine government to include
their employees in the SSS except those

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already covered by their civil service

retirement system.

1. Monthly pension 1. Monthly pension

2. Dependents’ pension 2. Dependents’ pension
3. Retirement benefits 3. Retirement benefits
4. Permanent disability benefits 4. Permanent disability benefits
5. Death benefits 5. Death benefits
6. Funeral benefits 6. Funeral benefits
Summary 7. Loan 7. Loan
of 8. Sickness benefits 8. Separation benefits
Benefits 9. Maternity leave benefits 9. Unemployment benefits
10. Unemployment benefit 10. Survivorship benefits
11. Life insurance benefits

Note: Members of the Judiciary and

Constitutional Commissions are entitled
to life insurance only.

1. Employer’s contribution, and Continued membership for the

Effects of employee’s obligation to pay unemployed member, and entitlement to
separa- contribution both cease at the end of whatever benefits he has qualified to in
tion from the month of separation the event of any compensable
employ- 2. Employee shall be credited with all contingency.
ment contributions paid on his behalf and
entitled to all benefits set forth by law.

Dispute Social Security Commission ! CA (Rule GSIS ! CA (Rule 43) ! SC (Rule 45);
settle- 43, questions of law & fact) !SC (Rule 45, appeal does not stay execution
ment questions of law only)

Prescrip- 20 years 4 years

tive
period

conditions by providing benefits for their long

C. LIMITED PORTABILITY years of contribution to the national economy.
LAW Towards this end, the State shall institute a
scheme for totalization and portability of social
[RA 7699: “An Act Instituting Limited Portability security benefits, with the view of establishing
Scheme in the Social Security Insurance within a reasonable period a unitary social
Systems by Totalizing the Workers Creditable
"
security system [Section 1, RA 7699].
Services or Contributions in each of the
Systems”] Coverage
All worker&members of the Government
 Service Insurance System (GSIS) and/or
Policy declaration
To promote the welfare of our workers by Social Security System (SSS) who transfer
recognizing their efforts in productive from one sector to another, and who wish to
endeavors and to further improve their retain their membership in both Systems.

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Portability purposes of eligibility and computation of

Refers to the transfer of funds for the account benefits [Rule V, Sec. 1, RA 7699 Rules and
and benefit of a worker who transfers from one Regulations].
system to the other [Section 2(b), RA 7699].
Totalization shall apply in the following

Provisions
rules and of regulations
any general to
or special law or
the contrary instances:
a. If a worker is not qualified for any benefits
notwithstanding, a covered worker shall have from both Systems;
his credible services or contributions in both b. If a worker in the public sector is not
Systems credited to his service or contribution qualified for any benefits in the GSIS; or
record in each of the Systems and shall be c. If a worker in the private sector is not
totalized for purposes of old-age, disability, qualified for any benefits from the SSS.
survivorship and other benefits in case the
covered member does not qualify for such For the purpose of computation of benefits,
benefits in either or both Systems without totalization shall apply in all cases so that the
totalization. contributions made by the worker&member in
both Systems shall provide maximum benefits
Provided : That overlapping periods of which otherwise will not be available. In no
membership shall be credited only once for case shall the contribution be lost or forfeited
purposes of totalization [Section 4, RA 7699]. [Rule V, Sec. 3, RA 7699 Rules and
Regulations].
Totalization
Refers to the process of adding up the period If after totalization the worker&member still
of creditable services or contributions under does not qualify for any benefit listed in Rule III,
each of the Systems, for purposes of eligibility Section 1 (j), the member will then get whatever
and computation of benefits [Section 2(e), RA benefits correspond to his/her contributions in
7699]. either or both Systems [Rule V, Sec. 4, RA
7699 Rules and Regulations].
Totalization of service credits is only resorted
to when the retiree does not qualify for benefits If a worker qualifies for benefits in both
in either or both of the System. In this case, Systems, totalization shall not apply [Rule V,
since the petitioner may be entitled to some Sec. 5, RA 7699 Rules and Regulations].
benefits from the GSIS, he cannot avail of the
benefits under RA 7699 [Gamogamo v. PNOC The process of totalization of creditable
Shipping and Transport Corp, G.R. No. 141707 services or periods of contributions and
(2002)]. computation of benefits provided for under the
Act shall be the joint responsibility of the GSIS
All contributions paid by such member and the SSS [Rule V, Sec. 6, RA 7699 Rules
personally, and those that were paid by his and Regulations].
employers to both Systems shall be considered
in the processing of benefits which he can Overlapping periods of creditable services or
claim from either or both Systems: Provided, contributions in both Systems shall be credited
however, that the amount of benefits to be paid only once for purposes of totalization [Rule V,
by one System shall be in proportion to the Sec. 7, RA 7699 Rules and Regulations].
number of contributions actually remitted to
that System. [Section 4, RA 7699].
All creditable services or periods of
contributions made continuously or in the
aggregate of a worker under either of the
Sectors shall be added up and considered for

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equivalent of ninety percent (90%) of the

D. DISABILITY AND DEATH average salary credit, provided:
BENEFITS 1. The daily income benefit is not less than
Ten (10) pesos nor more than Ninety (90)
pesos, nor paid for a continuous period
1. Labor Code
2. longer than 120income
The monthly days. [Art. 197] shall be
benefit
Under the Labor Code, employees' suspended if the employee fails to submit
compensation (EC) benefits are granted to a monthly medical report certified by its
employees or their dependents for work- attending physician [Art.194]
connected disability or death, or those
resulting from accident arising out of and in Period of Entitlement
the course of employment. [Art. 166, LC in The employee is entitled to the benefit from the
rel. to Sec. 1, Rule III, IRR] day of the start of the disability. It shall not be
paid longer than 120 consecutive days except
Types of disability where such injury or sickness still requires
1. Temporary Total Disability [Art. 197] medical attendance beyond 120 days but not
2. Permanent Total Disability [Art. 198] to exceed 240 days from onset of disability.
3. Permanent Partial Disability [Art. 199]

a. Disability Benefits When

disabilityafter the period
had ceased, of temporary
an employee total
was found
to be suffering from a permanent partial
Disability does not refer to the injury nor to the disability, he was entitled to an award based
pain and suffering it has occasioned, but to the upon partial disability permanent in character.
loss and impairment of earning capacity. [Cañete v. Insular Lumber Co., 61 Phil. 592
There is disability when there is a loss or (1935)]
diminution of earning power because of actual
absence from work due to injury or illness PERMANENT TOTAL DISABILITY
arising out of and in the course of employment. A disability is total and permanent if as a result
The basis of compensation is reduction of of the injury or sickness the employee is unable
earning power. [Azucena, p. 525] to perform any gainful occupation for a
continuous period exceeding 120 days. [Art.
TEMPORARY TOTAL DISABILITY 198 in rel. to Sec. 2(b), Rule VII]
A total
the disability
injury is temporary
or sickness, if as a isresult
the employee of
unable The test of whether or not an employee suffers
to perform any gainful occupation for a from ‘permanent total disability’ is a showing of
continuous period not exceeding 120 days the capacity of the employee to continue
[Art. 197 in rel. to Sec. 2(a), Rule VII, Amended performing his work notwithstanding the
Rules on Employees’ Compensation]. disability he incurred. It does not mean an
absolute helplessness but rather an incapacity
The object of the law in allowing
al lowing compensation to perform gainful work which is expected to be
during temporary disability is to compensate permanent. [Vicente vs. ECC, G.R. No. 85024,
the laborer or employee for what he might have (1991)]
earned during the period of the treatment of his
injury. [Cañete v. Insular Lumber Co., 61 Phil. The Labor Code enumerates six instances
592 (1935)] considered to be a permanent total disability:
 1. Temporary total disability lasting
Amount of benefit
An employee suffering from temporary total continuously for more than one hundred
twenty days, except as otherwise provided
disability shall be paid by the System an for in the Rules;
2. Complete loss of sight of both eyes;

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3. Loss of two limbs at or above the ankle or period of diagnosis and treatment shall be
wrist; extended to 240 days. The employer has
4. Permanent complete paralysis of two the burden to prove that the company-
limbs; designated physician has sufficient
5. Brain injury resulting in incurable imbecility justification to extend the period; and

6. or insanity;
Such casesandas determined by the Medical 4. If thetocompany-designated
fails give his assessment physician still
within the
Director of the System and approved by the extended period of 240 days, then the
Commission. [Art. 197(c)] seafarer's disability becomes permanent
and total, regardless of any justification.
Rules for the determination of disability
(120-day or 240-day) It must be emphasized that the company-
Initially, there was confusion as to the designated physician must:
application of the 120-day period found in 1. ISSUE a final medical assessment of the
Article 192 (c) (1) of the Labor Code vis-à-vis seafarer's medical condition; AND
the application of the 240-day period found in 2. GIVE his assessment to the seafarer
Section 2, Rule X of the Amended Rules on concerned.
Employees' Compensation Implementing Title
II, Book IV of the Labor Code. That is to say that the seafarer must be fully
and properly
condition. informed of his medical
Permanent disability:
Article 192(c)(1): Temporary total disability
lasting continuously for more than one hundred The results of his/her medical examinations,
twenty days, except as otherwise provided in the treatments extended to him/her, the
the Rules. diagnosis and prognosis, his/her disability
grading must be fully explained to him/her by
Section 2, Rule X: …where such injury or no less than the company-designated
sickness still requires medical attendance physician.
beyond 120 days but not to exceed 240 days
from onset of disability. The company-designated physician is
mandated to issue a medical certificate,
To reconcile these provisions, the Supreme which should be personally received by the
Court laid down the following rules in the case seafarer, or, if not practicable, sent to him/her
of Dagasdas v. Grand Placement and General by any other means sanctioned by present
Services Corporation. [G.R. No. 205727, rules.
(2017)]
1. The company-designated physician must To require the seafarer to seek the decision of
issue a final medical assessment on the a neutral third-party physician without primarily
seafarer's disability grading within a period being informed of the assessment of the
of 120 days from the time the seafarer company-designated physician is a clear
reported to him; violation of the tenets of due process.
2. If the company-designated physician fails
to give his assessment within the period of Amount of Benefit
120 days, without any justifiable reason, The employee suffering from a permanent total
then the seafarer's disability becomes disability shall be entitled to an amount
permanent and total; equivalent to the monthly income benefit, plus
3. If the company-designated physician fails ten percent thereof for each dependent child,
to give his assessment within the period of but not exceeding five, beginning with the
120 days with a sufficient justification (e.g. youngest and without substitution: Provided,
seafarer required further medical treatment That the monthly income benefit shall be the
or seafarer was uncooperative), then the

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new amount of the monthly benefit for all

One big toe 6
covered pensioners. [Art. 198]

Period of Entitlement One toe 3

An employee with permanent total disability
shall beyears.
five (5) entitled to receive benefits monthly for One arm 50
One hand 39
However, Art. 198(b) provides that the benefits
may be suspended if the employee is gainfully One foot 31
employed, or recovers from his permanent total
disability, or fails to present himself for One leg 46
examination at least once a year.
One ear 10
PERMANENT PARTIAL DISABILITY
A disability is partial and permanent if as a
result of the injury or sickness the employee Both ears 20
suffers a permanent partial loss of the use of
any part of his body. [Art. 199 in rel. to Sec. Hearing of one ear 10

2(c), Rule VII, Amended Rules on Employees’

Compensation]. Hearing of both ears 50

The object of the law in granting compensation

Sight of one eye 25
for a permanent partial disability is to
compensate the injured laborer or employee
for the actual and permanent loss of a member Notes:
of the body, or the use thereof. [Cañete v. 1. A loss of a wrist shall be considered as a
Insular Lumber Co., 61 Phil. 592 (1935)] loss of the hand, and a loss of an elbow
shall be considered as a loss of the arm.
Amount of benefits 2. A loss of an ankle shall be considered as
For an employee who has suffered a loss of a foot, and a loss of a knee shall be
permanent partial disability, the amount of considered as a loss of the leg.
benefits, as well as the period of entitlement to 3. A loss of more than one joint shall be
receive such benefits is based upon the degree
de gree considered as a loss of one-half of the
of disability, as well as the lost body part. The whole finger or toe: Provided, That such a
body parts and the corresponding period of loss shall be either the functional loss of the
equivalent disability are specified in Art 199. use or physical loss of the member. [Art.
199(c)]
Table of benefits [Art. 199(b)]
Body part/s Number of months In case of permanent partial disability less
than the total loss of the member specified
One thumb 10 in Art. 199(b), the same monthly income
benefit shall be paid for a portion of the period
One index finger 8 established for the total loss of the member, in
accordance with the proportion that the partial
One middle finger 6 loss bears to the total loss. If the result is a
 decimal fraction, the same shall be rounded off
One ring finger 5 to the next higher integer [Art. 199(d)].

In cases of simultaneous loss of more than

One little finger 3
one member or a part thereof as specified

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in Art. 199(b) the same monthly income factors. [Central Azucarera Don Pedro v. C. de
benefit shall be paid for a period equivalent to Leon, in his capacity as Workmen’s
the sum of the periods established for the loss Compensation Commissioner and L. Alla, G.R.
of the member or the part thereof. If the result No. L-10036 (1957)].
is a decimal fraction, the same shall be
rounded
199(e)]. off to the next higher integer [Art. b. Death Benefits
Monthly Income Benefit
In cases of injuries or illnesses resulting in Under such regulations as the Commission
a permanent partial disability not listed in may approve, the System shall pay to the
the Art. 199(b), the benefit shall be an income primary beneficiaries:
benefit equivalent to the percentage of the 1. Upon the death of the covered
permanent loss of the capacity to work [Art. employee under this Title:
199(f)]. a. An amount equivalent to his monthly
income benefit;
Distinguished from permanent total b. Plus 10% thereof for each dependent
disability child, but not exceeding five, beginning
While “permanent total disability” invariably with the youngest and without
results in an employee’s loss of work or inability substitution, except as provided for in
to perform on
disability,” histhe
usual work,
other “permanent
hand, partial
occurs when an par.
That(j)
– of Article 167 hereof: Provided,
employee loses the use of any particular i. The monthly income benefit shall
anatomical part of his body which disables him be guaranteed for five years;
to continue with his former work. [Vicente v. ii. If he has no primary beneficiary,
ECC, G.R. No. 85024, (1991)] the System shall pay to his
secondary beneficiaries the
Conversion from permanent partial monthly income benefit but not to
disability to permanent total disability exceed sixty months; and
A person’s disability may not manifest fully at iii. The minimum death benefit shall
one precise moment in time but rather over a not be less than fifteen thousand
period of time. It is possible that an injury which pesos. (As amended by Section 4,
at first was considered partial disability may Presidential Decree No. 1921).
become totally and permanently disabled from 2. Upon the death of a covered employee
the same cause. There is nothing in the law who is under permanent total disability
that prohibits the conversion of permanent under this Title: 80% of the monthly
partial disability benefit to permanent total income benefit and his dependents to the
disability benefit, if it is shown that the dependents’ pension: Provided, That –
employee’s ailment qualifies as such. [GSIS v. a. The marriage must have been validly
Court of Appeals and R. Balais, G.R. No. subsisting at the time of disability;
117572 (1998)]. b. If he has no primary beneficiary, the
System shall pay to his secondary
When salary is higher after the injury beneficiaries the monthly pension
In a case where the employee filed a claim for excluding the dependents’ pension, of
permanent partial disability but the ECC denied the remaining balance of the five-year
the claim because in fact his salary was higher guaranteed period; and
than before, the Court ruled that the fact of c. The minimum death benefit shall not be
higher earning capacity fact would not in itself less than fifteen thousand pesos. (As
necessarily affect the laborer’s claim for amended by Section 4, Presidential
compensation for a permanent partial Decree No. 1921).
disability. The amount of his salary may be
affected by various extraneous matters or

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Note: The monthly income benefit provided Dependents

herein shall be the new amount of the monthly "Dependent" means:
income benefit for the surviving beneficiaries 1. The legitimate, legitimated or legally
upon the approval of this decree. [Art. 200 (a)- adopted or acknowledged natural child
(c)] who is:

Condition to entitlement a.
b. Unmarried,
Not gainfully employed, and
The beneficiaries of a deceased employee c. Not over twenty-one (21) years of age
shall be entitled to an income benefit if all of the or over twenty-one (21) years of age
following conditions are satisfied: provided he is incapacitated and
1. The employee has been duly reported to incapable of self-support due to a
the System; physical or mental defect which is
2. He died as a result of an injury or sickness; congenital or acquired during minority;
and 2. The legitimate spouse living with the
3. The System has been duly notified of his employee and the parents of said
death, as well as the injury or sickness employee wholly dependent upon him for
which caused his death. His employer shall regular support. [Art. 173(i)]
be liable for the benefit if such death
occurred before the employee is duly The test of dependency is not merely whether
reported for coverage to the System. [Sec.
1(a), Rule XIII, IRR]
the contributions
subsistence. were necessary
Dependency may exist toif such
bare
contributions were relied on by claimant for
Notes: his/her means of living as determined by
1. If the employee has been receiving his/her position in life. [Malate Taxicab v. Del
monthly income benefit for permanent total Villar, G.R. No. L-7489 (1956)]
disability at the time of his death, the
surviving spouse must show that the Period of entitlement
marriage has been validly subsisting at the For primary beneficiaries
time of his disability. The income benefit shall be paid beginning at
2. In addition, the cause of death must be a the month of death and shall continue to be
complication or natural consequence of the paid for as long as the beneficiaries are entitled
compensated Permanent Total Disability. thereto. [Sec. 2, Rule XII, IRR]
[Sec. 1(b), Rule XIII, IRR]
For secondary beneficiaries
Beneficiaries The income benefit shall be sixty (60) times the
The beneficiaries are: monthly income benefit of a primary beneficiary
be neficiary
1. Primary beneficiaries: which in no case be less than P 15,000.00,
a. Dependent spouse until he/she which shall likewise be paid in monthly
remarries; pension. [Sec. 2(a), Rule XII, IRR]
b. Dependent children (legitimate,
legitimated, natural-born, or legally Manner of payment
adopted). Death benefits are paid in the form of cash
2. Secondary beneficiaries: monthly pension:
1. Illegitimate children and legitimate 1. For life to the primary beneficiaries,
descendants; guaranteed for five years;
2. Parents, grandparents, grandchildren. 2. For not more than 60 months to the
 [Azucena, p. 541] secondary beneficiaries in case there are
no primary beneficiaries;
3. In no case shall the total benefit be less
than P15,000. [Art. 200]

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Amount of benefits receiving permanent total disability benefit,

For primary beneficiaries dies.
Monthly income benefit shall be equivalent to
the monthly income benefit for permanent total Prescription of claims
disability, which shall be guaranteed for five All money claims arising from employer-
years, increased
dependent child butby
notten percent5, beginning
exceeding for each employee relations
(3) years from the shall be filed
time the causewithin three
of action
with the youngest and without substitution. accrued; otherwise they shall forever be
[Sec. 3, Rule XII, IRR] barred. [Art. 306]

Notes: 2. Employees Compensation and

1. The aggregate monthly benefit payable in State Insurance Fund
the case of the GSIS shall in no case
exceed the monthly wage or salary actually Policy
received by the employee at the time of his To promote and develop a tax-exempt
death; employees’ compensation program whereby
2. The minimum income benefit shall not be employees and their dependents, in the
less than Fifteen Thousand Pesos event of work-connected disability or death,
(P15,000.00). [Sec. 3, Rule XII, IRR] may promptly secure adequate income
benefit and medical related benefits [Art.
For secondary beneficiaries 172 [166]]
Income benefit is payable in monthly pension
which shall not exceed the period of 60 months "Dependent" means:
and the aggregate income benefit shall not be 1. The legitimate, legitimated or legally
less than P15, 000.00. [Sec. 3, Rule XII, IRR] adopted or acknowledged natural child
who is:
Death benefits after retirement are allowed a. Unmarried,
Generally, the term “covered employees” b. Not gainfully employed, and
refers to an employee who, at the time of his c. Not over twenty-one (21) years of age
death, is still covered by the GSIS. However, or over twenty-one (21) years of age
the implementing rules and regulations of the provided he is incapacitated and
Employees’ Compensation Commission allows incapable of self-support due to a
death benefits to those retired employees physical or mental defect which is
whose retirement was brought about by congenital or acquired during minority;
permanent disability. 2. The legitimate spouse living with the
employee and the parents of said
The Court is aware that death benefits must be employee wholly dependent upon him for
granted to the primary beneficiaries of the regular support. [Art. 173(i)]
decedent to help the family of a permanent and
totally disabled person who was so disabled The beneficiaries are:
because of causes that are work-oriented. The 1. Primary beneficiaries:
rule applies all the more when the disabled a. Dependent spouse until he/she
person later dies because of the same cause remarries;
or related cause. [Manuzon v. ECC, G.R. No. b. Dependent children (legitimate,
88573, (1990)] legitimated, natural-born, or legally
adopted).
Death of a person receiving permanent total 2. Secondary beneficiaries:
disability benefits a. Illegitimate children and legitimate
Under Art. 200(b), death benefit shall be paid descendants;
to the beneficiaries if an employee, while b. Parents, grandparents, grandchildren.
[Art. 173(j)]

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Compulsory coverage remit to the System a contribution

Coverage in the State Insurance Fund shall be equivalent to one percent of his monthly
compulsory upon all employers and their salary credit.
employees not over sixty (60) years of age: b. The rate of contribution shall be reviewed
Provided, That an employee who is over (60) periodically and subject to the limitations
years of age
for the and paying
retirement contributions
or life insuranceto benefit
qualify herein provided,
experience in risk,may
costbeofrevised as the
administration
administered by the System shall be subject to and actual or anticipated as well as
compulsory coverage [Art. 174[168]](“System” unexpected losses, may require.
- SSS or GSIS, as the case may be). c. Contributions under this Title shall be paid
in their entirety by the employer, and any
Foreign employment - Filipino employees contract or device for the deductions of any
employed abroad shall be adequately covered, portion thereof from the wages or salaries
subject to regulations as the Commission may of the employees shall be null and void.
prescribe [Art. 175[169]] (“Commission” - d. When a covered employee dies, becomes
Employees Compensation Commission) disabled or is separated from employment,
his employer’s obligation to pay the
Limitation of liability monthly contribution arising from that
The State Insurance fund shall be liable for employment shall cease at the end of the
compensation to the employee or his month of contingency and during such
dependents, except when the disability or months that he is not receiving wages or
death was occasioned by the employees’ salary [Art. 189[183]].
intoxication, willful intention to injure or kill
himself or another, notorious negligence, or Medical benefits
otherwise provided in this title. [Art. 178 [172]] Immediately after an employee contracts
sickness or sustains an injury, he shall be
Extent of liability provided by the System during the subsequent
Unless otherwise provided, the liability of the period of his disability with such medical
State Insurance Fund under this Title shall be services and appliances as the nature of his
exclusive and in place of all other liabilities of sickness or injury and progress of his recovery
the employer to the employee, his dependents may require, subject to the expense limitation
or anyone otherwise entitled to receive prescribed by the Commission [Art. 191[185]]
damages on behalf of the employee or his
dependents. The payment of compensation Rehabilitation services
under this Title shall not bar the recovery of The System shall establish:
benefits as provided for in Section 699 of the a. A continuing program, for the
Revised Administrative Code, Republic Act rehabilitation of injured and handicapped
Numbered Eleven hundred sixty-one, as employees who shall be entitled to
amended, Republic Act Numbered Forty-eight rehabilitation services, which shall consist
hundred sixty-four as amended, and other laws of medical, surgical or hospital treatment,
whose benefits are administered by the including appliances to help them become
System or by other agencies of the government physically independent.
[Art. 179 [173]]. b. Centersequipped and staffed to provide a
balanced program of remedial treatment,
Employer’s contributions vocational assessment and preparation
a. Under such regulations as the System may designed to meet the individual needs of
 prescribe, beginning as of the last day of each handicapped employee to restore him
the month when an employee’s to suitable employment, including
compulsory coverage takes effect and assistance to help each rehabilitee to
every month thereafter during his develop his mental, vocational or social
employment, his employer shall prepare to potential. [Art. 196 [190]]

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3. Philippine Overseas Employment LIABILITIES OF EMPLOYER IN CASE OF

Administration-Standard WORK-RELATED INJURY OR ILLNESS
Employment Contract
1. Medical expenses
As part of a seafarer's deployment for overseas
work, he/she and the vessel owner or its If the injury
dental or illness
treatment requires
in a foreign medical
port, and/or
the employer
representative local manning agency are
shall be liable for the full cost of such medical,
required to execute the POEA-SEC.
serious dental, surgical and hospital treatment
Containing the standard terms and conditions
as well as board and lodging until the seafarer
of seafarers' employment, the POEA-SEC is
is declared fit to work or to be repatriated.
deemed included in their contracts of
employment in foreign ocean-going vessels.
[Sharpe Sea Personnel Inc. v. Mabunay, G.R. However, if after repatriation, the seafarer still
requires medical attention arising from said
No. 206113 (2017)]
injury or illness, he/she shall be so provided at
cost to the employer until such time he/she is
a. Compensation and benefits for
declared fit or the degree of his/her disability
injury or illness
has been established by the company-
designated physician. [Sec. 20, A.2, POEA-
There are two requisites for a seafarer’s injury
or disability to be considered compensable: (1) SEC]
“the injury or illness must be work-related;” and
2. Sickness allowance
(2) “the work-related injury or illness must have
existed during the term of the seafarer's
The seafarer shall also receive sickness
employment contract.” [Magsaysay Maritime
allowance from his/her employer in an amount
Services v. Laurel,707 Phil. 210 (2013)]
equivalent to his/her basic wage computed
from the time he/she signed off until he is
Work-related injury or illness
declared fit to work, or the degree of disability
For an illness to be compensable, "it is not
has been assessed by the company-
necessary that the nature of the employment
designated physician.
be the sole and only reason for the illness
suffered by the seafarer."
The period within the seafarer shall be entitled
to sickness allowance shall not exceed 120
It is enough that there is "a reasonable linkage
between the disease suffered by the employee days. Payment of the sickness allowance shall
be made on a regular basis, but not less than
and his work to lead a rational mind to conclude
once a month. [Sec. 20. A.3, POEA-SEC]
that his work may have contributed to the
establishment or, at the very least, aggravation
3. Cost of medicines, mode of
of any pre-existing condition he might have
transportation and accommodation
had.” [Madridejos v. NYK-FIL Ship
Management, Inc.,810 Phil. 704 (2017)]
The seafarer shall be entitled to reimbursement
of the cost of medicines prescribed by the
SeeSec. 32 of POEA-SEC for the schedule of
company-designated physician.
disability or impediment for injuries suffered
and diseases including occupational diseases
of illness contracted in the course of work. In case treatment of the seafarer is on an out-
patient basis as determined by the company-
 designated physician, the company shall
Those illnesses not listed in Sec. 32 are
disputably presumed as work-related. [Sec. 20, approve the appropriate mode of transportation
and accommodation.
A.4, POEA-SEC]

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The reasonable cost of actual traveling Rationale: It is understandable that a company-

expenses and/or accommodation shall be paid designated physician is more positive than that
subject to liquidation and submission of official
o fficial of a physician of the seafarer's choice. It is on
receipts and/or proof of expenses. [Sec. 20, this account that a seafarer is given the option
A.3, POEA-SEC] by the POEA Standard Employment Contract

Mandatory post-employment medical to seek a [Abante

physician secondv.opinion from Management
KJGS Fleet his preferred
examination; strict compliance Manila, G.R. No. 182430 (2009)]
General rule: The seafarer shall submit
himself/herself to a post-medical examination Mandatory reporting requirement
by a company-designated physician within In the course of the treatment, the seafarer
three working daysupon his return. shall also report regularly to the company-
designated physician specifically on the dates
Exceptions: as prescribed by the company-designated
a. When the seafarer is physically physician and agreed to by the seafarer.
incapacitated to do so. In which case, a Failure of the seafarer to comply with the
written notice to the agency within the mandatory reporting requirement shall result in
same period is deemed as compliance. his forfeiture of the right to claim the above
[Sec. 20, A.3, POEA-SEC] benefits. [Sec. 20, A.3, POEA-SEC]
b. When the non-compliance with the
mandatory post-employment medical GUIDELINES FOR THE CLAIM OF
examination was “not due to the seafarer’s PERMANENT TOTAL DISABILITY
fault but to the inadvertence or deliberate BENEFITS
refusal of the [employer].” [Interorient The employer must also compensate the
Maritime Enterprises, Inc. v. Remo, 636 seafarer for his/her permanent total disability
Phil. 240 (2010)] as finally determined by the company-
designated physician.
Rationale
The rationale for the rule [on the mandatory The following guidelines shall govern
post-employment medical examination] is that seafarers' claims for permanent and total
reporting the illness or injury within three days disability benefits:
from repatriation fairly makes it easier for a 1. The company-designated physician must
physician to determine the cause of the illness issue a final medical assessment on the
or injury. To ignore the rule might set a seafarer's disability grading within a period
precedent with negative repercussions, like of 120 days from the time the seafarer
opening floodgates to a limitless number of reported to him.
seafarers claiming disability benefits. [Wallem 2. If the company-designated physician fails
Maritime Services, Inc. v. Tanawan, 693 Phil. to give his/her assessment within the
416 (2012)] period of 120 days, withoutany justifiable
reason, then the seafarer's disability
Third Doctor Opinion Rule becomes permanent and total;
If a doctor appointed by the seafarer disagrees 3. If the company-designated physician fails
with the assessment [of the company- to give his/her assessment within the
designated physician], a third doctor may be period of 120 days with a sufficient
agreed jointly between the employer and the justification, then the period of diagnosis
seafarer. and treatment shall be extended to 240
 days. The employer has the burden to
The third doctor’s decision shall be final and prove that the company-designated
binding on both parties. [Sec. 20, A.4, POEA- physician has sufficient justification to
SEC] extend the period; and

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4. If the company-designated physician still Other liabilities of the employer when the
fails to give his assessment within the seafarer dies as a result of work-related injury
extended period of 240 days, then the or illness during the term of employment are as
seafarer's disability becomes permanent follows:
and total, regardless of any justification. a. The employer shall pay the deceased’s
[Jebsens(2017)]
218871
Maritime Inc. v. Rapiz, G.R. No. beneficiary
the seafarerall outstanding
under obligations due
this Contract.
b. The employer shall transport the remains
b. Compensation and benefits for and personal effects of the seafarer to the
death Philippines at employer’s expense, except
if the death occurred in a port where local
In case of work-related death of the seafarer, government laws or regulations do not
during the term of his contract, the employer permit the transport of such remains. In
shall pay his/her beneficiaries the Philippine case death occurs at sea, the disposition of
currency equivalent to the amount of Fifty the remains shall be handled or dealt with
Thousand US dollars (US$50,000) and an in accordance with the master’s best
additional amount of Seven Thousand US judgment. In all cases, the
dollars (US$7,000) to each child under the age employer/master shall communicate with
of twenty-one (21) but not exceeding four (4) the manning agency to advise for
children, at the exchange rate prevailing during disposition of seafarer’s remains.
the time of payment. [Sec. 20, B.1, POEA- c. The employer shall pay the beneficiaries of
SEC] the seafarer the Philippine currency
equivalent to the amount of One Thousand
Requisites US dollars (US$1,000) for burial expenses
For death to be compensable, the claimant at the exchange rate prevailing during the
bears the burden to establish that: time of payment. [Sec. 20, B.4, POEA-
1. The seafarer died during the duration of SEC]
his/her contract, and
2. His/her illness was work-related. [Sec. 20, When compensation is not payable (applies
B.1, POEA-SEC] to both disability and death benefits)
No compensation and benefits shall be
Exception: When the seafarer’s death payable in respect of any injury, incapacity,
occurred after the termination of his/her disability or death of the seafarer resulting from
contract after medical repatriation repatriation his willful or criminal act or intentional breach of
on account of a work-related injury or illness his duties, provided however, that the employer
can prove that such injury, incapacity, disability
di sability
Rationale: The 2000 POEA-SEC must be or death is directly attributable to the seafarer.
liberally construed, as impelled by the plight of [Sec. 20, D, POEA-SEC]
the bereaved heirs who stand to be deprived of
a just and reasonable compensation for the Prescription of claims
seafarer’s death, notwithstanding its evident All claims arising from this contract shall be
work-connection. [Racelis v. United Philippine made within three (3) years from the date the
Lines, 746 Phil. 758 (2014)] cause of action arises, otherwise the same
shall be barred. [Sec. 30, POEA-SEC]
When compensation payable is double
Where death is caused by warlike activity while
sailing within a declared war zone or war risk
area, the compensation payable shall be
doubled. [Sec. 20, B.2, POEA-SEC]

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d. Critical incidence stress debriefing, which

includes preventive stress management
E. SOLO PARENTS strategy designed to assist solo parents in
coping with crisis situations and cases of
abuse;
[RA 8972: Solo Parents’ Welfare Act] e. Special projects for individuals in need of
protection which include temporary shelter,
See also III. C. 2. a. and III. E. 7. for work counseling, legal assistance, medical care,
entitlements of solo parents self-concept or ego-building, crisis
management and spiritual enrichment.
Non work-related support for solo parents [Sec. 15, IRR]
1. Comprehensive Package of Social
Development and Welfare Services [Sec. Educational benefits
5] The DepEd, CHED, and TESDA shall provide
2. Educational Benefits [Sec. 9] the following benefits and privileges:
3. Housing Benefits [Sec. 10] 1. Scholarship programs for qualified solo
4. Medical Assistance [Sec. 11] parents and their children in institutions of
basic, tertiary, and technical/skills
Criteria for Support education;
1. Solo parent, 2. Non-formal education programs
2. Income in the place of domicile falls below appropriate for solo parents and their
the poverty threshold as set by the NEDA, children. [Sec. 22, IRR]
and
3. Assessed by the DSWD. Housing benefits
Solo parents who meet the eligibility criteria for
Note: If the solo parent’s income is above the housing assistance under R.A. No. 7279
poverty threshold, he shall still enjoy the (Urban Development and Housing Act of 1992)
benefits of Flexible Work Schedule, Protection and other related rules and regulations of
against Work Discrimination, and Parental participating housing agencies shall be
Leave [Sec. 4]. provided with liberal terms of payment on
government low-cost housing projects, in
Comprehensive Package of Social accordance with housing law provisions,
Development and Welfare Services prioritizing applicants below the poverty line as
The package will initially include: declared by the NSCB. [Sec. 23, IRR]
a. Livelihood development services, which
include training on livelihood skills, basic The National Housing Authority shall make
business management, value orientation available housing units to solo parents in its
and the provision of seed capital or job housing projects, subject to existing disposition
placement; policies, or may refer them to other housing
b. Counseling services, which include projects, as appropriate, provided:
individual, peer group or family counseling. a. The identified solo parent must be eligible
These will focus on the resolution of for assistance under the provisions of this
personal relationship and role conflicts; Act;
c. Parent effectiveness services which b. Solo parents applying for housing benefits
include the provision and expansion of must meet the qualification criteria for
housing assistance under Republic Act
 knowledge and skills of the solo parent on
early childhood development, behavior 7279, or the Urban Development and
management, health care and proper Housing Act (UDHA) and other NHA
nutrition, rights and duties of parents and eligibility criteria under existing policies,
children; rules and regulations; and

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c. Eligible solo parents shall file their 1. The totality of factors and support services
application for housing unit directly with the designed to lift the economic status of the
concerned NHA Project Offices. [Sec. 24, beneficiaries; and
IRR] 2. All other arrangements alternative to the
physical redistribution of lands, such as:
Medical Assistance a.
The DOH shall develop a comprehensive b. Production or profit-sharing,
Labor administration, and
health care program for solo parents and their c. The distribution of shares of stocks,
children. [Sec. 25, IRR] which will allow beneficiaries to receive
a just share of the fruits of the lands
Health/medical services shall be made they work. [Sec. 3(a), RA 6657]
available at all times, in all levels of health care
delivery system as mentioned in the previous 2. Existence and Concept of
section. [Sec. 26, IRR] Agricultural Tenancy

Agricultural tenancy – The physical

F. KASAMBAHAY possession by a person of land devoted to
agriculture belonging to, or legally possessed
by another:
[RA 10361: Batas Kasambahay or Domestic 1. For the purpose of production through the
Workers Act] labor of the former and of the members of
his immediate farm household
See III. E. 5. Kasambahays 2. In consideration of which the former agrees
to:
a. Share the harvest with the latter; OR
G. AGRARIAN RELATIONS b. Pay a price certain, either in produce or
in money, or both. [Sec. 3, RA 1199,
Agricultural Tenancy Act]
1. Concept of Agrarian Reform Tenancy relationship defined [Sec. 6,
RA1199]
Declaration of Policy Tenancy relationship is a juridical tie which
The agrarian reform program is founded on the arises between a landholder and a tenant,
right of farmers and regular farmworkers, who wherein:
are landless, to own directly or collectively the a. They agree, expressly or impliedly, to
lands they till or, in the case of other farm undertake jointly the cultivation of land
workers, to receive a just share of the fruits belonging to the former, either under the
thereof. share tenancy or leasehold tenancy
system;
To this end, the State shall encourage and b. The tenant acquires the right to continue
undertake the just distribution of all agricultural working on and cultivating the land, until
lands, subject to the payment of just and unless he is dispossessed of his
compensation. [Sec. 2, RA 6657, holdings for any of the just causes, or the
Comprehensive Agrarian Reform Law] relationship is terminated in accordance
with [the Agricultural Tenancy Act].
Definition
Agrarian Reform– The redistribution of lands, Requisites for the existence of agricultural
regardless of crops or fruits produced to tenancy relationship
farmers and regular farmworkers who are 1. The parties are landowner and the tenant
landless, irrespective of tenurial arrangement, or agricultural lessee;
including:

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2. The subject of the relationship is 3. Rights of Agricultural Tenants

agricultural land;
3. There is mutual consent to the tenancy Rights common to both share and
between the parties; leasehold tenants [Sec. 22, RA 1199, as
4. The purpose of the relationship is amended by RA 2263]
agricultural production; The tenant shall:
5. There is personal cultivation by the tenant 1. Be free to work elsewhere whenever the
or agricultural lessee; and nature of his farm obligation;
6. There is a sharing of harvests between the 2. Have the right to provide any of the
parties. [Fuentes v. Caguimbal, G.R. No. contributions for production, aside from his
150305 (2007)] labor, whenever he can do so adequately
and on time subject to the provisions of
Establishment of tenancy relationship [Sec. Sec. 14 of this Act
7, RA 1199]
Tenancy relationships may be established Sec. 14, RA 1199, as amended by RA 2263
either verbally or in writing, expressly or – The tenant shall have the right to change
impliedly. Once such relationship is the tenancy contract from one of share
established, the tenant shall be entitled to tenancy to leasehold tenancy and vice versa
security of tenure. and from one crop sharing arrangement to
another of the share tenancy. If the share
Types of agricultural tenancy [Sec. 4, RA tenancy contract is in writing and is duly
1199, as amended by RA 2263] registered, the right to change from one crop
1. Share tenancy exists when sharing arrangement to another or from one
a. Two persons agree on a joint tenancy system or another may be exercised
undertaking for agricultural production; at least one month before the beginning of
b. Wherein one party furnishes land and the next agricultural year after the expiration
the other his labor; of the period of the contract, the right may be
c. With either or both contributing any one exercised at least one month before the
or several of the items of production; agricultural year when the change shall be
d. The tenant cultivating the land effected.
personally with the aid of labor
available to members of his immediate 3. Have the right to demand for a home lot
farm household; suitable for dwelling with an area:
e. And the produce thereof to be divided a. not more than 3% of the area of his
between the landholder and the tenant landholding; provided
in proportion to their respective b. it does not exceed 1000 sq. m.; and
contributions. that
2. Leasehold tenancy exists when c. it shall be located at a convenient and
a. A person, who either personally or with suitable place within the land of the
the aid of labor available from the landholder to be designated by the
members of his immediate farm latter where the tenant shall construct
household; his dwelling and may raise vegetables,
b. Undertakes to cultivate a piece of poultry, pigs and other animals and
agricultural land susceptible of engage in minor industries, the
cultivation by a single person, together products of which shall accrue to the
with members of his immediate farm
 tenant exclusively.
household; d. The tenant’s dwelling shall not be
c. Belonging to or legally possessed by, removed from the lot already assigned
another, in consideration of a fixed to him by the landholder,
landholde r, except:
amount in money or in produce or in i. If the landholder designates
both. another site for the tenant’s home

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lot and the tenant agrees to the 2. Work the land according to his best
transfer [Sec. 26, RA1199, as judgment, provided this manner and
amended by RA2263] method of cultivation and harvest are in
ii. There is a severance of the accordance with proven farm practices.
tenancy relationship
iii. The tenant is ejected for cause Upon termination of the relationship, have $of
the value of the improvements made by him,
In any case, the tenant shall only be removed provided they are reasonable and adequate to
after the expiration of 45 days following such the purposes of the lease.
severance of relationship or dismissal for
cause. 4. Concept of Farmworkers

Specific rights of rice share tenants [Sec. A farmworker is a natural person who renders
36, RA 1199] services for value as an employee or laborer in
The rice share tenant shall have the right to: an agricultural enterprise or farm regardless of
1. Determine when to scatter the seeds, to whether his compensation is paid on a daily,
transplant the seedlings, and to reap the weekly, monthly or “pakyaw” basis.
harvest, provided they shall be in
accordance with proven farm practices and The term includes an individual whose work
after due notice to the landholder. has ceased as a consequence of, or in
2. Choose the thresher which shall thresh the connection with, a pending agrarian dispute
harvest whenever it is the best available in
in and who has not obtained a substantially
the locality and the best suited to the equivalent and regular farm employment.[Sec.
landholder’s and tenant’s needs and 3(g), RA 6657, Comprehensive Agrarian
provided that the rate charged by the Reform Law]
owner of other threshers under similar
circumstances. Types of farmworkers
1. Regular Farmworker - a natural person
If there are multiple tenants, the choice of who is employed on a permanent basis by
the majority of the tenants shall prevail. an agricultural enterprise or farm. [Sec.
3(h), RA 6657]
If the landholder is the owner of a thresher 2. Seasonal Farmworker - a natural person
and is ready and willing to grant equal or who is employed on a recurrent, periodic or
lower rates under the same conditions, the intermittent basis by an agricultural
use of the landholder’s thresher shall be enterprise or farm, whether as a permanent
given preference. or a non-permanent laborer, such as
“dumaan,” “sacada,” and the like. [Sec. 3(i),
3. Apply appropriate pest, insect, disease and RA 6657]
rodent control measures whenever in his 3. Other Farmworker - a farmworker who
judgment such action is necessary. does not fall under Sec. 3(g) (farmworker),
4. Apply fertilizer of the kind or kinds shown Sec. 3(h) (regular farmworker), and Sec.
by proven farm practices to be adapted to 3(i) (seasonal farmworker). [Sec. 3(j), RA
the requirements of the land, provided the 6657]
landholder has not exercised his right to
require the use of such fertilizer. Entitlements of different farmworkers under
the Constitution
 the Constitution
Specific rights of leasehold tenants [Sec.
43, RA 1199] Sec. 4, Art. XIII, 1987 Constitution – The
The tenant-lessee shall have the right to: State shall, by law, undertake an agrarian
1. Enter the premises of the land, and to the reform program founded on the right of
adequate and peaceful enjoyment thereof; farmers and regular farm workers, who are

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landless, to own directly or collectively the of-society approach in the development,

lands they till on, or in the case of other farm implementation, monitoring, and
workers, to receive a just share of the fruits evaluation of health policies, programs and
thereof. plans; and
d. A people-oriented approach for the delivery
The 1987 Constitution distinguishes between of health services that is centered on
regular farmworkers and other farmworkers. people's needs and well-being, and
1. Farmers and regular farmworkers have the cognizant of the differences in culture,
right to own directly or collectively the lands
l ands values, and beliefs. [Sec. 2]
they till on.
2. Other farmworkers have the right to receive The Universal Health Care Act seeks to:
a just share of the fruits thereof. a. Progressively realize universal health care
in the country through a systemic approach
Seasonal farm workers have no and clear delineation of roles of key
constitutional right to own land agencies and stakeholders towards better
Seasonal farm workers, not having a performance in the health system; and
constitutional right to own land, do not have a b. Ensure that all Filipinos are guaranteed
legal or actual and substantial interest in the equitable access to quality and affordable
land subject of agrarian reform. They may not health care goods and services, and
be allowed to intervene in the case concerning protected against financial risk. [Sec. 3]
the land. [Fortich v. Corona, G.R. No. 131457
(1998)] 2. Coverage

Population coverage [Sec. 5]

H. UNIVERSAL HEALTH CARE Every Filipino citizen shall be automatically
included into the National Health Insurance
Program.
[RA 11223]
Service coverage [Sec. 6]
Every Filipino shall be granted immediate
1. Policy
eligibility and access to preventive, promotive,
curative, rehabilitative, and palliative care for
It is the policy of the State to promote and
medical, dental, mental and emergency health
protect the right
instill health to health of allamong
consciousness Filipinosthem.
and services, delivered either as population-based
or individual-based health services.
Towards this end, the State shall adopt:
a. An integrated and comprehensive
Provided , That the goods and services to be
approach to ensure that all Filipinos are
included shall be determined through a fair and
health literate, provided with healthy living
transparent Health Technology Assessment
conditions, and protected from hazards
(HTA) Process. [Sec. 6(a)]
and risks that could affect their health;
b. A health care model that provides all
HTA - The systematic evaluation of properties,
Filipinos access to a comprehensive set of
effects, or impact of health-related
quality and cost-effective, promotive,
technologies, devices, medicines, vaccines,
preventive, curative, rehabilitative and
procedures and all other health-related
palliative health services without causing
 systems developed to solve a health problem
financial hardship, and prioritizes the
and improve quality of lives and health
needs of the population who cannot afford
such services; outcomes. [Sec. 4(n)]
c. A framework that fosters a whole-of-
Every Filipino shall register with a public or
system, whole-of-government, and whole-
private primary care provider of choice. The

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DOH shall promulgate the guidelines on the subsidized as a result of special laws [Sec.
licensing of primary care providers and the 4(o)]
registration of every Filipino to a primary care
provider. [Sec. 6(d)] Direct contributors
1. Employees with formal employment
Financial coverage [Sec. 7] characterized by the existence of an
Population-based health services shall be employer-employee relationship, which
financed by the National Government through include workers in the government and
the DOH and provided free of charge at point private sector, whether regular, casual, or
of service for all Filipinos. [Sec. 7(a)] contractual, are occupying either an
elective or appointive position, regardless
Population-based health service - of the status of appointment, whose
interventions such as health promotion, premium contribution payments are equally
disease surveillance, and vector control, which shared by the employee and the employer;
have population groups as recipients. [Sec. 2. Kasambahays , as defined in the
4(p)] Kasambahay Law;
3. All other workers who are not covered by
Individual-based health services shall be formal contracts or agreements or who
financed primarily through prepayment have no employee-employer relationship
mechanisms such as social health insurance, and whose premium contributions are self-
private health insurance, and HMO plans to paid, and with capacity to pay premiums,
ensure predictability of health expenditures. such as the following:
[Sec. 7(b)] a. Self-earning individuals; and
b. Professional practitioners;
Individual-based health services - services 4. Overseas Filipino Workers
which can be accessed within a health facility 5. Filipinos living abroad;
or remotely that can be definitively traced back 6. Filipinos with dual citizenship;
to 1 recipient, has limited effect at a population 7. Lifetime members as defined in RA 10606
level and does not alter the underlying cause of (National Health Insurance Act); and
illness such as ambulatory and inpatient care, 8. All Filipinos aged 21 years and above who
medicines, laboratory tests and procedures, have the capacity to pay premiums. [Sec.
among others [Sec. 4(p)] 8, IRR]

3. National Health Insurance Indirect contributors

Program 1. Indigents identified by the DSWD;
2. Beneficiaries of Pantawid Pamilyang
Membership into the NHIP falls under 2 Pilipino Program/Modified Conditional
categories [Sec. 8] Cash Transfer (4Ps/MCCT);
1. Direct contributors - Those who have the 3. Senior citizens who are not currently
capacity to pay premiums, are gainfully covered by the Program;
employed and are bound by an employer- 4. Persons with disability, as defined in RA
employee relationship, or are self-earning, 10754 (An Act Expanding the Benefits and
professional practitioners, migrant workers, Privileges of Persons with Disability);
including their qualified dependents, and 5. All Filipinos aged 21 years old and above
lifetime members [Sec. 4(f)] without the capacity to pay premiums;
6. Sangguniang Kabataan officials, as
2. Indirect contributors - All others not
included as direct contributors, as well as defined in RA 10742 (Sangguniang
their qualified dependents, whose premium KabataanReform Act); and
shall be subsidized by the national 7. Those previously identified at point-of-
government including those who are service (POS) or during registration,
members previously sponsored by LGUs

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and those who are not yet in the PhilHealth employers and not exceeding 1.5% for self-
database and are financially incapable to earning, professional practitioners, and
pay premiums. [Sec. 8, IRR] migrant workers.

Dependents
VIII. JURISDICTION AND
1. Legal spouse/s who is/are not an active
member; REMEDIES
2. Unmarried and unemployed legitimate,
illegitimate children, and legally adopted or
stepchildren below twenty-one (21) years A. LABOR ARBITER
of age;
3. Foster children as defined in RA 10165
(Foster Care Act of 2012); and 1. Jurisdiction of the Labor Arbiter
4. Parents who are sixty (60) years old and as distinguished from the
above, not otherwise an enrolled member. Regional Director
[Sec. 8, IRR]
JURISDICTION OF THE LABOR ARBITER
Benefits [Sec. 9] Except as otherwise provided under the Code,
Every member shall be granted immediate the Labor Arbiters shall have original and
eligibility for health benefit package under the exclusive jurisdiction to hear and decide:
NHIP under the following rules: a. Unfair labor practices cases;
1. The PhilHealth ID Card shall not be b. Termination disputes;
required in the availing of any health c. Cases that workers may file involving
service. wages, rates of pay, hours of work and
2. No co-payment shall be charged for other terms and conditions of employment,
services rendered in basic or ward if accompanied with a claim for
accommodation. reinstatement;
3. Co-payments and co-insurance for d. Claims for actual, moral, exemplary and
amenities in public hospitals shall be other forms of damages arising from the
regulated by the DOH and PhilHealth employer-employee relations;
e. Cases arising from any violation of Art.
Co-payment - a flat fee or predetermined [279] of this Code, including questions
rate paid at point of service [Sec. 4(e)] involving the legality of strikes and
lockouts;
Co-insurance - a percentage of a medical f. Except claims for Employees
charge that is paid by the insured, with the Compensation, Social Security, Medicare
rest paid by the health insurance plan [Sec. [Philhealth] and maternity benefits, all other
4(d)] claims, arising from employer-employee
relations, including those of persons in
4. The current PhilHealth package for domestic or household service, involving
members shall not be reduced. an amount exceeding P5,000 regardless of
whether accompanied with a claim for
PhilHealth shall provide additional NHIP reinstatement. [Art. 224]
benefits for direct contributors, where g. Money claims arising out of employer-
applicable: Provided, employee relationship or by virtue of any
1. Failure to pay premiums shall not prevent
1. Failure to pay premiums shall not prevent law or contract, involving claims for actual,
the enjoyment of NHIP benefits. moral, exemplary and other forms of
2. Employers and self-employed direct damages, as well as employment
contributors shall be required to pay all termination of OFWs;
missed contributions with an interest,
compounded monthly, of at least 3% for

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h. Wage distortion disputes in unorganized to report back after a temporary detail,

establishments not voluntarily settled by assignment, or travel.
the parties. [Art. 124] b. In the case of field employees, ambulant or
i. Enforcement of compromise agreements itinerant workers, their workplace is (a)
when there is non-compliance by any of the where they are regularly assigned or (b)
parties. [Art. 233] where they are supposed to regularly
j. Other cases as may be provided by law. receive their salaries and wages or work
instructions from, and report the results of
Requisites of LA’s jurisdiction over Money their assignment to their employers.
Claims
1. Money claims arose from ER-EE relations; NATURE OF THE PROCEEDING
Note: If not, regular courts have jurisdiction Proceedings before the LA are non-litigious.
2. Money claims arose from law or contracts The Labor Arbiter is not bound by the technical
other than a CBA. rules of procedure.
Note: If not, Voluntary Arbitrator has
jurisdiction The Labor Arbiter shall use all reasonable
means to ascertain the facts in each speedily
LABOR ARBITER v. REGIONAL DIRECTOR and objectively. [Art. 227]
[Art. 129]
A money claim arising from employer- 2. Requirements to perfect appeal to
employee relations, except SSS, National Labor Relations
ECC/Medicare [Philhealth] claims, is within the Commission
jurisdiction of a Labor Arbiter if:
a. The claim, regardless of amount, is Period of Appeal
accompanied with a claim of reinstatement;
Labor Arbiter to NLRC: Decisions, awards, or
or orders of the [LA] shall be final and executory
b. The claim exceeds P5,000, whether or not
unless appealed to the [NLRC] by any or both
there is a claim for reinstatement. parties within 10 calendar days from receipt
[thereof]. [Art. 229]
The Regional Director has jurisdiction if:
a. Money claim arose out of employer- Note:If the last day of the reglementary period
employee relationships;
falls on a Sunday or a holiday, the last day shall
b. Money claim is NOT accompanied by a be the next working day.
claim for reinstatement; AND
c. Money claim does not exceed P5,000, Grounds of Appeal [Art. 229]
whether or not claim arose from ER-EE
a. If there is prima facie evidence of abuse of
relationships. discretion on the part of the Labor Arbiter
or Regional Director;
PROCEDURE BEFORE LABOR ARBITER
b. If the decision, resolution or order was
Where to File [Sec. 1, Rule IV, 2011 NLRC
secured through fraud or coercion,
Rules of Procedure]
including graft and corruption;
All cases which Labor Arbiters have authority
c. If made purely on questions of law; and/or
to hear and decide may be filed in the Regional d. If serious errors in the findings of fact are
Arbitration Branch (RAB) having jurisdiction
raised which, if not corrected, would cause
over the workplace of the complainant or grave or irreparable injury to the appellant.
petitioner.
a. Workplace – place or locality where the
employee is regularly assigned at the time When Appeal
Judgment is Perfected
involving a monetary award
the cause of action arose. It shall include
An appeal by the employer may be perfected
the place where the employee is supposed only upon the posting of a cash or surety bond

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issued by a reputable bonding company duly During the period of appeal until reversal by the
accredited by the Commission in the amount higher court, it is obligatory on the part of the
equivalent to the monetary award in the employer to:
judgment appealed from. [Art. 229] 1. Reinstate, and
2. Pay the wages of the dismissed employee.
It is clear from the NLRC Rules of Procedure
that appeals must be verified and certified If the employee has been reinstated during the
against forum-shopping by the parties-in- appeal period and such reinstatement order is
interest themselves. [Antonio B. Salenga, et al. reversed with finality, the employee is NOT
v. CA, G.R. No. 174941 (2012)] required to reimburse whatever salary he
received. He is entitled to such especially if he
Note: Decisions of the Labor Arbiter are actually rendered services during the period.
appealable to the NLRC. Decisions by the [Garcia v. Philippine Airlines, Inc., G.R. No.
NLRC are appealable to the CA via Rule 65. 164856 (2009)]
[St. Martin’s Funeral Homes v. NLRC, 295
SCRA 494 (1998)]
B. NATIONAL LABOR
Memorandum of Appeal RELATIONS COMMISSION
In all cases, the appellant shall furnish a copy
of the memorandum of appeal to the other 1. Jurisdiction/Powers
party who shall file an answer not later than ten
(10) calendar days from receipt thereof. [Art.
229] NLRC en banc
a. To promulgate rules and regulations
governing the hearing and disposition of
3. Reinstatement and/or execution
cases
pending appeal b. To formulate policies affecting its
administration and operations
Reinstatement Pending Appeal and Effect c. To allow cases within the jurisdiction of any
of NLRC reversal of Labor Arbiter’s order of division to be heard and decided by
reinstatement another division
In any event, the decision of the Labor Arbiter d. To recommend appointment of a Labor
reinstating a dismissed or separated Arbiter
employee, insofar as the reinstatement aspect
is concerned, shall immediately be NLRC in divisions (8 divisions with 3
executory, even pending appeal. commissioners each)
a. Exclusive appellate jurisdiction from
The employee shall either be: decisions of LA (within respective territorial
a. Admitted back to work under the same jurisdiction)
terms and conditions prevailing prior to his b. Jurisdiction over petitions for injunction or
dismissal or separation; or temporary restraining order under Art.
b. Merely reinstated in the payroll, at the 225(e)
option of the employer. c. Certified cases: “national interest” labor
disputes certified (or referred) to the
The posting of a bond by the employer shall not Commission by the SOLE for compulsory
stay the execution for reinstatement provided arbitration under Art. 278 (g)
herein. [Art. 229]

Reversal of the order of reinstatement of Exclusive Appellate

cases decided Jurisdiction:
by Labor Arbiters [Art.over all
224(b)]
the Labor Arbiter and the DOLE Regional Directors under Art.
129.

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and deciding only the specific issues that

2. Remedies were elevated on appeal.

Appeal: Appeal from decisions of the NLRC EXTRAORDINARY REMEDY

after denial of Motion for Reconsideration Verified Petition: A party aggrieved by any
appealed via Rule 65 to CA then Rule 45 to the order or resolution of the Labor Arbiter,
SC. [St. Martin’s Funeral Homes v. NLRC, 295 including a writ of execution and others issued
SCRA 494 (1998)] during execution proceedings, may file a
verified petition to annul or modify the same.
Requisites for Perfection of Appeal to the
Court of Appeals [Rule VI, 2011 NLRC Rules The petition may be accompanied by an
of Procedure] application for the issuance of a temporary
1. The appeal shall be: restraining order and/or writ of preliminary or
a. Filed within the reglementary period; permanent injunction:
b. Verified by the appellant himself in a. To enjoin the Labor Arbiter, or any person
accordance with Sec. 4, Rule 7 of the acting under his/her authority
Rules of Court; b. To desist from enforcing said resolution,
c. In the form of a memorandum of appeal order or writ. [Rule XII, Sec. 1, 2011 NLRC
which shall state the grounds relied Rules of Procedure, as amended by En
upon and the arguments in support Banc Resolution No. 07-14]
thereof, the relief prayed for, and with a
statement of the date the appellant CERTIFIED CASES
received the appealed decision, Definition
resolution or order; Certified labor disputes are cases certified to
d. In three (3) legibly typewritten or the Commission for compulsory arbitration
printed copies; and under Art. 278(g) of the Labor Code. [Sec. 2,
e. Accompanied by (a) proof of payment The 2011 NLRC Rules and Procedures]
of the required appeal fee; (b) posting
of a cash or surety bond as provided in Power of the Secretary of Labor to Certify
Sec. 6 of the NLRC Rules; and (c) proof Cases
of service upon the other parties. When, in his opinion, there exists a labor
2. A mere notice of appeal without complying dispute causing or likely to cause a strike or
with the other requisites aforestated shall lockout in an industry indispensable to the
not stop the running of the period for national interest, the Secretary of Labor and
perfecting an appeal. Employment may:
3. The appellee may file with the Regional 1. Assume jurisdiction over the dispute; and
Arbitration Branch or Regional Office 2. Decide it or certify the same to the
where the appeal was filed, his answer or Commission for compulsory arbitration.
reply to appellant’s memorandum of
appeal, not later than 10 calendar days Such assumption or certification shall have the
from receipt thereof. effect of automatically enjoining the intended or
a. Failure on the part of the appellee
app ellee who impending strike or lockout as specified in the
was properly furnished with a copy of assumption or certification order. [Art. 278(g)]
the appeal to file his answer or reply
within the said period may be Function of the NLRC
 construed as a waiver on his part to file When sitting in a compulsory arbitration
the same. certified to by the Secretary of Labor, the NLRC
4. Subject to the provisions of Art. [225] of the is tasked:
Labor Code, once the appeal is perfected a. To implement the order of the Secretary as
in accordance with these Rules, the an administrative body, not as a judicial
Commission shall limit itself to reviewing court

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b. To formulate the terms and conditions of located in different regions, the Division
the CBA, staying within the scope of the having territorial jurisdiction over the
order principal office of the company shall
c. To act within the earliest time possible and acquire jurisdiction to decide such labor
with the end in view that its action
a ction would not dispute; unless the certification order
only serve the interests of the parties provides otherwise. [Sec. 3, Rule VIII, 2011
alone, but would also have favorable NLRC Rules and Procedures]
implications to the community and to the
economy as a whole. [Art. 278(g); Union of Effects of Defiance
Filipino Employees v. NLRC, G.R. No. Non-compliance with the certification order of
91025 (1990)] the SOLE shall:
1. Be considered as an illegal actcommitted
Effects of Certification in the course of the strike or lockout; and
1. Upon certification, the intended or 2. Authorize the Commission to enforce the
impending strike or lockout is automatically same under pain of immediate disciplinary
enjoined, notwithstanding: action, including:
a. The filing of any motion for a. Dismissal or loss of employment
reconsideration of the certification status; or
order; b. Payment by the locking-out employer
b. The non-resolution of any such motion, of backwages, damages; and/or
which may have been duly submitted to c. Other affirmative relief, even criminal
the Office of the Secretary of Labor and prosecution against the liable parties.
Employment.
2. If a work stoppage has already taken place The Commission may also seek the assistance
at the time of the certification: of law enforcement agencies to ensure
a. All striking or locked out employees compliance and enforcement of its orders and
shall immediately return to work; and resolutions. [Sec. 4, Rule VIII, 2011 NLRC
b. The employer shall immediately Rules and Procedures]
resume operations and readmit all
workers under the same terms and Strict Compliance of Assumption and
conditions prevailing before the strike Certification Orders
or lockout. The Secretary's assumption and certification
3. All cases between the same parties, shall orders being executory in character are to be
be considered subsumed or absorbed by strictly complied with by the parties even during
the certified case, and shall be decided by the pendency of a petition questioning their
the appropriate Division of the validity.
Commission, EXCEPT where the
certification order specifies otherwise the The extraordinary authority given by law to the
issues submitted for arbitration which are: Secretary of Labor is "aimed at arriving at a
a. Already filed or may be filed, and peaceful and speedy solution to labor disputes,
b. Relevant to or are proper incidents of without jeopardizing national interests." [Union
Union
the certified case. of Filipino Employees v. NLRC, G.R. No.
4. The parties to a certified case, under pain 91025 (1990)]
of contempt, shall inform their counsels
and the Division concerned of all cases Procedure in certified cases
 pending with the Regional Arbitration a. When there is no need to conduct a
Branches and the Voluntary Arbitrators clarificatory hearing, the Commission
relative or incident to the certified case shall resolve all certified cases within 30
before it. calendar days from receipt by the assigned
5. When a certified labor dispute involves a Commissioner of the complete records,
business entity with several workplaces which shall include the position papers of

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the parties and the order of the SOLE The petition shall be accompanied by:
denying the motion for reconsideration of 1. A certified true copy of the judgment, order
the certification order, if any. or resolution subject thereof;
b. Where a clarificatory hearing is needed, 2. Copies of all pleadings and documents
the Commission shall, within 5 calendar relevant and pertinent thereto; and
days from receipt of the records, issue a 3. A sworn certification of non-forum
notice to be served on the parties through shopping as provided in the third
the fastest means available, requiring them paragraph of Sec. 3, Rule 46.
to appear and submit additional evidence,
if any. All certified cases shall be resolved Petition for prohibition
by the Commission within 60 calendar days A person may file a verified petition in the
from receipt of the complete records by the proper court, alleging the facts with certainty
assigned Commissioner. and praying that judgment be rendered
commanding the any tribunal, corporation,
No motion for extension or postponement shall board, officer or person, whether exercising
be entertained. [Sec. 5, Rule VIII, 2011 NLRC judicial, quasi-judicial or ministerial
ministerial functions
functionsto
Rules and Procedures] desist from further proceedingsin the action
or matter specified therein, or otherwise
Execution of Judgment granting such incidental reliefs as law and
Upon issuance of the entry of judgment, the justice may require:
Commission motu proprio or upon motion by 1. When the proceedings of such tribunal,
the proper party, may cause the execution of corporation, board, officer or person are:
the judgment in the certified case. [Sec. 6, a. Without or in excess of its or his
Rule VIII, 2011 NLRC Rules and Procedures] jurisdiction; or
b. With grave abuse of discretion
amounting to lack or excess of
C. COURT OF APPEALS jurisdiction, AND
2. When there is no appeal or any other plain,
speedy, and adequate remedy in the
Appeal via Rule 65, Rules of Court ordinary course of law.
Petition for certiorari
A person may file a verified petition in the The petition shall be accompanied by:
proper court, alleging the facts with certainty 1. A certified true copy of the judgment, order
and praying that judgment be rendered or resolution subject thereof;
annulling or modifying the proceedings of 2. Copies of all pleadings and documents
any tribunal, board or officer exercising judicial relevant and pertinent thereto; and
or quasi-judicial functions, and granting such 3. A sworn certification of non-forum
incidental reliefs as law and justice may shopping as provided in the third
require: paragraph of Sec. 3, Rule 46.
1. When such tribunal, board or officer has
acted: Petition for mandamus
a. Without or in excess its or his A person may file a verified petition in the
jurisdiction, or proper court, alleging the facts with certainty
b. With grave abuse of discretion and praying that judgment be rendered
amounting to lack or excess of commanding any tribunal, corporation, board,
 jurisdiction; AND officer or person, immediately or at some other
2. When there is no appeal, or any plain, time to be specified by the court, to do the act
speedy, and adequate remedy in the required to be doneto protect the rights of the
ordinary course of law. petitioner, and to pay the damages sustained
by the petitioner by reason of the wrongful acts
of the respondent:

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1. When any tribunal, corporation, board, accordingly becomes final and executory, he
officer or person: cannot avail himself of the writ of certiorari, his
a. Unlawfully neglects the performance of predicament being the effect of his deliberate
an act which the law specifically inaction. [Tirazona v Phil EDS Techno-Service
enjoins as a duty resulting from an Inc, G.R. No. 169712 (2009)]
office, trust, or station; or
b. Unlawfully excludes another from the Note: Review of decisions of the NLRC shall be
use and enjoyment of a right or office done through (in order):
to which such other is entitled; AND 1. Motion for reconsideration
2. When there is no other plain, speedy and 2. Rule 65 to the CA
adequate remedy in the ordinary course of 3. Rule 45 to the SC
law.
E. BUREAU OF LABOR
D. SUPREME COURT RELATIONS

1. Jurisdiction
All references in the amended Sec. 9 of B.P.
No. 129 to supposed appeals from the NLRC The Bureau of Labor Relations and the Labor
to the Supreme Court are interpreted and Relations Divisions in the regional offices of the
hereby declared to mean and refer to petitions Department of Labor and Employment shall
for certiorari under Rule 65. have original and exclusive authority:
a. To act –
Consequently, all such petitions should hence 1. At their own initiative, or
forth be initially filed in the Court of Appeals, in 2. Upon request of either or both parties,
strict observance of the doctrine on the b. On all inter-union and intra-union conflicts,
hierarchy of courts,as the appropriate forum and
for the relief desired. [St. Martin Funeral Home c. All disputes, grievances or problems
v. NLRC, G.R. No. 130866 (1998)] arising from or affecting labor-management
relations in all workplaces –
Rule 45, Rules of Court 1. Whether agricultural or non-agricultural
Filing of petition with Supreme Court 2. Except those arising from the
A party desiring to appeal by certiorari from a
judgment or final order or resolution of the implementation
collective or interpretation
bargaining agreementsof
Court of Appeals, the Sandiganbayan, the which shall be the subject of grievance
Regional Trial Court or other courts whenever procedure and/or voluntary arbitration.
authorized by law, may file with the Supreme [Art. 232]
Court a verified petition for review on certiorari.
The petition shall raise only questions of law The Bureau shall have fifteen (15) calendar
which must be distinctly set forth. [Sec. 1] days to act on labor cases before it, subject to
extension by agreement of the parties.

Since the Court of Appeals had jurisdiction Original Jurisdiction

over the petition under Rule 65, any alleged a. Inter-union and intra-union disputes and
errors committed by it in the exercise of its other related labor relations disputes.
jurisdiction would be errors of judgment which b. All disputes, grievances or problems

are reviewable
special by of
civil action timely appeal, and not by a
certiorari. arising frominor affecting
relations labor-management
all workplaces whether
agricultural or non-agricultural, except
If the aggrieved party fails to do so within the those arising from the implementation or
reglementary period, and the decision

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interpretation of collective bargaining e. Or disagreements over any provision in

agreements which shall be the subject of a union or workers' association
grievance procedure and/or voluntary constitution and by-laws [Sec. 1(j)]
arbitration. [Art. 232] 6. Opposition to application for union and
CBA registration [Sec. 1(i)]
Note: If the complaint involves an independent 7. Disagreements over chartering or
union, chartered local or worker’s association, registration of labor organizations and
file with the DOLE Regional Office but if the collective bargaining agreements [Sec.
complaint involves a federation or an 1(k)]
industry/national union, file with the BLR. 8. Violations of –
a. The rights and conditions of union or
Inter-Union Dispute: one which occurred workers' association membership [Sec.
between or among legitimate labor unions 1(l)]
involving representation questions for b. The rights of legitimate labor
purposes of collective bargaining or to any organizations, except interpretation of
other conflict or dispute between legitimate collective bargaining agreements [Sec.
labor unions [IRR Book V, IRR Rule 1, Sec. 1 1(m)];and
(x)] 9. Such other disputes or conflicts involving
the rights to self-organization, union
Intra-Union Dispute: conflict within and inside membership and collective bargaining
a union between and among union members a. Between and among legitimate labor
including grievances from any violation of organizations; or
rights and conditions of membership or b. Between and among members of a
provisions from the union’s constitution and by- union or workers' association [Sec.
laws and chartering of unions [D.O. No. 40-03, 1(n)]
Rule I, Sec. 1 (bb)]
Appellate Jurisdiction
Inter/Intra – Union Disputes shall include: The BLR Director exercises exclusive
[DO No. 040-I-15, Book V, Rule XI] appellate jurisdiction over:
1. Cancellation of registration of a labor 1. All decisions of the Med-Arbiter in:
organization filed by its members or by a. Inter/Intra-union disputes (Note:
another labor organization [Sec. 1a] Complaints involving Federations,
2. Conduct of election of union and workers' National Unions, etc. pursuant to Rule
association officers/nullification of election XI Sec. 4, formerly Sec. 5, as amended
of union and workers' association officers by D.O. 40-F-03).
[Sec. 1(b)] b. Other related labor relations disputes.
3. Audit/accounts examination of union or 2. All decisions from the DOLE Regional
workers' association funds [Sec. 1(c)] Director in the cases falling under their
4. Deregistration of collective bargaining original jurisdiction as enumerated. [Sec.
agreements [Sec. 1(d)] 14, Rule XI, Book V, IRR]
5. Validity/invalidity
a. Of union affiliation or disaffiliation [Sec. Decisions of the BLR through its appellate
1(e)] jurisdiction are final and executory 10 days
b. Of acceptance/non-acceptance for after receipts by the parties. [Sec. 20, Rule XI,
union membership [Sec. 1(f)] Book V, IRR].
 c. Of impeachment/expulsion of union
and workers' association officers and
members [Sec. 1(g)]
d. Of the SEBA certification [Sec. 1(h)]

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2. Appeals or if bothparties so agree, refer the unresolved

issues to voluntary arbitration. [Art. 228]
Decisions of the BLR through its original
jurisdiction are appealable to the Secretary of Nature of proceedings
Labor and Employment. [Sec. 15, Rule XI, Conciliation and mediation is non-litigious/non-
Book V, IRR]. adversarial, less expensive, and expeditious.
Under this informal set-up, the parties find it
Decisions of the BLR in its appellate jurisdiction more expedient to fully ventilate their
are final and executory, unless appealed to the respective positions without running around
CA via Rule 65 and later to the SC via Rule 45. with legal technicalities and, in the course
[Abbot Laboratories Philippines, Inc. v. Abbot thereof, afford them wider latitude of possible
Laboratories Employees Union, 323 SCRA 392 approaches to the problem.
(2000)]
SENA
3. Administrative Functions of the The Single-Entry Approach (SENA) is a
BLR prescribed 30-day Mandatory Conciliation-
Mediation Services to be made operational
through the Single Entry Approach Desk
a. Regulation of registration of the labor
(SEAD) for all labor and employment cases
unions;
b. Keeping a registry of legitimate labor except:
1. cases on notices of strikes or lock-outs, or
unions;
on preventive mediation cases (NCMB)
c. Maintenance of a file of CBAs;
2. interpretation and implementation of CBA
d. Maintenance of a file of all settlements or
(Grievance Machinery) [D.O. No. 107-10]
final decisions in the SC, CA, NLRC and
other agencies on labor disputes.
1. Jurisdiction

F. NATIONAL CONCILIATION The NCMB is an agency attached to the DOLE

AND MEDIATION BOARD principally in charge of the settlement of labor
disputes through conciliation, mediation and of
All issues arising from labor and employment the promotion of voluntary approaches to labor
shall be subject to mandatory conciliation- dispute prevention and settlement. [NCMB

mediation. Manual of Procedures for Conciliation and

Preventive Mediation Cases, Rule III, sec. 1]
Exception: As provided in Title VII-A, Book V
of this Code, as amended, or as may be The following procedures shall be observed in
excepted by the Secretary of Labor and collective bargaining:
Employment. 1. When a party desires to negotiate an
agreement, it shall serve a written notice
The Labor Arbiter or the appropriate DOLE upon the other party with a statement of its
agency or office that has jurisdiction over the
proposals [Art. 261(a)].
dispute shall entertain only endorsed or
a. The other party shall make a reply
referred cases by the duly authorized officer.
thereto not later than ten (10) calendar
days from receipt of such notice [Art.
Any or both parties involved in the dispute may
pre-terminate the conciliation-mediation 261(a)];
proceedings and request referral or b. Should differences arise on the basis of
endorsement to the appropriate DOLE agency such notice and reply, either party may
or office which has jurisdiction over the dispute, request for a conference which shall
begin not later than ten (10) calendar

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days from the date of request [Art. days unless otherwise agreed
261(b)]. upon by parties in writing
2. If the dispute is not settled, the Board shall b. If unorganized establishments without
intervene upon request of either or both CBA:
parties or at its own initiative and i. Submit issue before the NCMB for
immediately call the parties to conciliation conciliation after endeavors to
meetings [Art. 261(c)]. correct have failed
a. The Board shall have the power to ii. If not fruitful within 10 days, refer to
issue subpoenas requiring the the NLRC for arbitration to be
attendance of the parties to such decided within 20 days from
meetings. submission [Rule VII, Rules of
i. It shall be the duty of the parties to Procedure of Minimum Wage
participate fully and promptly in the Fixing]
conciliation meetings the Board
may call [Art. 261(c)]; 2. Conciliation as distinguished from
b. During the conciliation proceedings in mediation
the Board, the parties are prohibited
from doing any act which may disrupt Conciliation Mediation
or impede the early settlement of the Both refer to a process where a third
disputes [Art. 261(d)]; and person called a Conciliator/Mediator
c. The Board shall exert all efforts to intervenes in a dispute to reconcile
settle disputes amicably and differences or persuade them to adjust or
encourage the parties to submit their settle their dispute
case to a voluntary arbitrator [Art. C-M facilitates C-M assists parties
261(e)]. disputants to keep to voluntarily reach
things calm, delivers mutually
messages back and acceptable
In Collective Bargaining:
forth between the settlement.
1. If the dispute is not settled, the NCMB will parties.
intervene upon request of either party or at [Conciliation-Mediation, DOLE – NCMB
its own initiative to call for conciliation with Website, available at:
the power to issue subpoenas requiring
attendance: http://ncrwp.ncmb.ph/?page_id=99]
a. During conciliation proceedings, Conciliator-Mediator [C-M] — Official of the
parties are prohibited from doing any NCMB whose principal function is to settle and
act which may disrupt or impede the dispose potential and actual labor disputes
early settlement of the dispute; through conciliation and preventive mediation
b. NCMB will exert all efforts to settle including the promotion and encouragement of
disputes amicable and encourage voluntary approaches to labor disputes
submission to a voluntary Arbitrator. prevention and settlement. [Sec. 1, Rule III,
NCMB Manual of Procedure for Conciliation
[Art. 261(c)(d)]
and Preventive Mediation Cases]
2. Procedure for Correction of Wage
Distortion:
 Pre Termination of Conciliation Mediation:
a. In organized establishments with CBA Any or both parties in the dispute may pre-
i. Submit
machinery issue to grievance terminate the proceedings and request referral
or endorsement to the appropriate DOLE
ii. If unresolved, refer to voluntary agency or office with jurisdiction or to the
arbitration who will decide within 10 voluntary arbiter if both parties agreed.

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Privileged Communication not Available as

Evidence: Any statement made in conciliation G. DEPARTMENT OF LABOR AND

proceedings shall be treated as privileged EMPLOYMENT REGIONAL DIRECTORS

communication, and shall not be used as

evidence in the NLRC. Conciliators may not
testify in any court or body regarding any 1. Jurisdiction
matter during the conciliation proceedings.
[D.O. No. 40-03, Rule XXII, Sec. 2] The DOLE Regional Directors shall have
original and exclusive jurisdiction over:
a. Labor standards enforcement cases under
3. Preventive mediation
Art. 128;
Note: as the duly authorized representative
Note: Refer also to Sec. 3 (Action on Non-
of the SOLE
Strikeable Issues) & Sec. 4 (Notice Converted
b. Small money claims from labor standards
to Preventive Mediation) of Rule V of the
violations not exceeding P5,000 and not
NCMB Manual of Procedure for Conciliation
accompanied with a claim for
and Preventive Mediation Cases involving non-
reinstatement under Art. 129;
strikeable issues.
c. Operational safety and health conditions
(can order stoppage or suspension of
Definition [Sec. 1(20), Rule III, NCMB Manual
of Procedure for Conciliation and Preventive operations) [Art. 128; Bk. IV, Rule II, Sec.
8];
Mediation Cases]
d. Registration of unions and cancellations
thereof, cases filed against unions and
Preventive Mediation Cases - refer to the
other labor relations related cases [Sec. 4,
potential labor disputes which are the subject
Rule XI (renumbered, D.O. 40-F-03];
of a formal or informal request for conciliation
Note: only if against an independent labor
and mediation assistance –
union, chartered local or workers’
a. Sought by either or both parties, or
association;
b. Upon the initiative of the NCMB to avoid the
e. Complaints against private recruitment and
occurrence of actual labor disputes.
placement agencies (PRPAs) for local
employment [Secs. 45/46, D.O. 141-14];
Purpose of Preventive Mediation — to
and
remedy, contain or prevent potential labor
f. Cases submitted to voluntary arbitration in
disputes’ degeneration into a full-blown
dispute through amicable settlement. It can be their capacity
Arbiters as 83-07
under D.O Ex Officio Voluntary
(2007).
initiated by:
a. Filing a notice or request of preventive
Note: The DOLE Regional Director, as the duly
mediation; or
authorized representative of the SOLE, also
b. Conversion of the notice of strike/lockout
has visitorial and enforcement power under:
into at preventive mediation case.
1. Art. 37, Art. 128 (have access to
employer’s records and premises with right
Note: If the subject of the strike is non-
to copy or investigate to determine
strikeable, the NCMB can motu proprio convert
violations of law); and
the notice into preventive mediation or refer the
2. Art. 289 (where it can inquire into the
issues to voluntary arbitration
financial activities of any legitimate labor
 organization and examine their books and
records to determine compliance with the
law if requested by at least 20% of total
membership).

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Appeal: Appeal of decisions from visitorial and Exception: Shall be held as a special fund of
enforcement power to the SOLE within 10 the Department of Labor and Employment to
calendar days from receipt thereof [Rule IV, be used exclusively for the amelioration and
sec. 1, Rules on Disposition of Labor Standard benefit of workers –
Cases in the Regional Offices] • When any such sum not paid to the
employee or househelper because he
2. Recovery and adjudicatory power cannot be located after diligent and
reasonable effort to locate him within a
Art. 129. Recovery of Wages, Simple Money period of three (3) years [Art. 129, par. 4]
Claims and Other Benefits.
Who: The Regional Director of the Department Appeal of decision or resolution [Art. 129,
of Labor and Employment or any of the duly par. 5]:
authorized hearing officers of the Department Any decision or resolution of the Regional
[par. 1] Director or hearing officer pursuant to this
provision may be appealed on the same
What: They are empowered to hear and grounds provided in Article 223 of this Code.
decide any matter involving the recovery of
wages and other monetary claims and benefits Period: Within five (5) calendar days from
• including legal interest, owing to an receipt of a copy of said decision or resolution
employee or person employed in domestic
or household service or househelper under To whom: To the National Labor Relations
this Code, arising from employer-employee Commission which shall resolve the appeal
relations within ten (10) calendar days from the
submission of the last pleading required or
How: Through summary proceeding and after allowed under its rules.
due notice
The Secretary of Labor and Employment or his
When: Upon complaint of any interested party duly authorized representative may supervise
the payment of unpaid wages and other
Conditions: monetary claims and benefits, including legal
a. Provided that such complaint does not interest, found owing to any employee or
include a claim for reinstatement; househelper under this Code [Art. 129, par. 6].
b. Provided, further, That the aggregate
money claims of each employee or Small money claims
househelper do not exceed five thousand Note: See also discussion in VI.F. on Money
pesos (P5,000). Claims arising from Employer-Employee
Relationship
Period to decide: The Regional Director or
hearing officer shall decide or resolve the Period of Appeal to NLRC: Decisions of the
complaint within thirty (30) calendar days from Regional director on recovery of wages, simple
the date of the filing of the same [Art. 129, par. money claims and other benefits, shall be final
2]. and executory unless appealed within 5 days
from receipt thereof. [Art. 129]
Effects of decision to the recovered sum on
behalf of any employee or househelper Definition: Recovery/adjudicatory power is the
General rule: Shall be held in a special deposit power of the Regional Director or any duly
account by, and shall be paid, on order of the authorized hearing officer of DOLE to
Secretary of Labor and Employment or the adjudicate on recovery of wages of
Regional Director directly to the employee or employees/househelpers employed in a
househelper concerned [Art. 129, par. 3]. domestic household for claims not exceeding

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P5,000 and without seeking reinstatement. by either party to the labor dispute. [Book
[Art. 129]. V, IRR Rule XXII, sec. 15, IRR as amended
by D.O. No. 40-H-13 s 2013]
If any of the requisites are missing, the Labor
Arbiter shall have jurisdiction over claims Industries Indispensable to the National
arising from ER-EE relations except claims for Interest
employees’ compensation, SSS, PhilHealth a. Hospital sector
and maternity benefits. [Art. 224] b. Electric power industry
c. Water supply service, to exclude small
Money claims should be filed within 3 years water supply services such as bottling and
from the time the cause of action accrued. [Art. refilling stations
306] d. Air traffic control
e. Other industries as may be recommended
by the National Tripartite Industrial Peace
H. DEPARTMENT OF LABOR AND Council (TIPC) [Sec. 16, Rule XXII, Book
EMPLOYMENT SECRETARY V, IRR as amended by D.O. No. 40-H-13]

POWERS Who determines industries indispensable

1. Visitorial (access to employer’s records to the national interest [Art. 278(g)]
and premises and to copy therefrom) and a. Secretary of Labor and Employment
enforcement powers (to question any b. President
employee and investigate any fact which
may be necessary to determine violations) Power of the Secretary of Labor to Assume
2. Power to suspend effects of termination Jurisdiction (alternative)
3. Assumption of jurisdiction a. Decide the labor dispute himself/herself.
4. Appellate jurisdiction b. Certify the labor dispute to the NLRC for
5. Voluntary arbitration powers compulsory arbitration.

Scope: The authority of the Secretary to

1. Jurisdiction
assume jurisdiction over a labor dispute
includes and extends to all questions and
a. Assumption of jurisdiction
controversies arising from such labor dispute.
The power is plenary and discretionary in
When May the
Art. 278 (g).SOLE Assume
Strikes, Jurisdiction
Picketing and nature to enable him to effectively and
efficiently dispose of the dispute. [Philcom
Lockouts. – The SOLE may:
Employees Union v. Philippine Global
a. Assume jurisdiction over the dispute and
Communications , 495 SCRA 214 (2006)]
decide it; or
b. Certify the same to the Commission for
Powers of the President (Not precluded by
compulsory arbitration,
the powers of the Secretary of Labor)
when in his opinion there exists a labor dispute
a. Determine the industries indispensable to
causing, or likely to cause, a strike or lockout in
the national interest
an industry indispensable to the national
b. Assume jurisdiction over any such labor
interest.
dispute to settle or terminate such dispute
di spute
Requisites for Assumption of Jurisdiction
Effects of Assumption of Jurisdiction:
1. Both parties have requested the SOLE to
Automatically enjoins intended or impending
2. assume jurisdiction;called
After a conference or by the Office of strike or lockout. If one has already taken place
at the time of assumption or certification, all
the SOLE on the propriety of its issuance,
striking or locked out employees shall
motu proprio or upon a request or petition
immediately return-to-work and the employer

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shall immediately resume operations and The worker must return to his job together with
readmit all workers under the same terms and his co-workers so the operations of the
conditions prevailing before the strike or company can be resumed and it can continue
lockout. [Art. 278 (g)] serving the public and promoting its interest.

The SOLE may also determine the retroactivity That is the real reason such return can be
of arbitral awards pursuant to power to assume compelled. So imperative is the order in fact
jurisdiction as part of his/her plenary powers to that it is not even considered violative of the
determine the effectivity thereof in absence of right against involuntary servitude. [Kaisahan
specific provision of law. [LMG Chemicals ng Mga Manggagawa sa Kahoy v. Gotamco
Corp. v. Sec. of Labor and Employment, 356 Sawmills, G.R. No. L-1573 (1948)]
SCRA 577 (2001)]
Note: It must be strictly complied with even
i. Automatic Injunction of during the pendency of any petition questioning
Intended Of Impending Strike its validity. [Manila Hotel Employees
or Lockout Association and its Members v. Manila Hotel
Corp., 517 SCRA 349 (2007)]; the purpose of
Art. 278 (g). Strikes, Picketing and SOLE’s extraordinary power is aimed at
Lockouts. – [S]uch assumption or arriving at a peaceful and speedy solution to
certification shall have the effect of labor disputes without jeopardizing national
automatically enjoining the intended or interest. [Union of Filipro Employees-Drug v.
impending strike or lockout as specified in Nestle,499 SCRA 521 (2006)]
the assumption or certification order. […]
The SOLE also has plenary powers to
ii. Return-to-work and determine the retroactivity of its arbitral
readmission if strike or
awards. [LMG Chemicals Corp. v. Sec. of
Labor and Employment, 356 SCRA 577
lockout has already taken
place (2001)]

Immediately Executory
Art. 278 (g). Strikes, Picketing and
The assumption and certification orders are
Lockouts. – [I]f
[I]f one has already taken place executory in character and must be strictly
at the time of assumption or certification, all complied with by the parties. [Allied Banking v.
striking or locked
immediately out employees
return-to-work and shall
the NLRC, G.R. No. 116128 (1996)]
employer shall immediately resume Strikes and lockouts in hospitals, clinics
operations and readmit all workers under the and similar medical institutions
same terms and conditions prevailing before It shall be the duty of the striking union or
the strike or lockout. […] locking-out employer to provide and maintain
an effective skeletal workforce of medical and
Nature of return-to-work order other health personnel, whose movement and
[T]he return-to-work order not so much confers services shall be unhampered and
a right as it imposes a duty; and while, as a unrestricted, as are necessary to insure the
right, it may be waived, it must be discharged proper and adequate protection of the life and
as a duty even against the worker's and/or health of its patients, most especially
employers’ will. emergency cases, for the duration of the strike
or lockout.
Returning to work in this situation is not a
matter of option or voluntariness but of In such cases, therefore, the Secretary of
obligation. Labor and Employment may immediately
assume, within twenty-four (24) hours from

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knowledge of the occurrence of such a strike or Stricter penalties for non-compliance with
lockout, jurisdiction over the same or certify it orders, prohibitions, and/or injunctions
to the Commission for compulsory arbitration. issued by the Secretary of Labor in strikes
[Art. 278, par. 2] involving hospitals, clinics, and similar
medical institutions
Rationale: The highest respect is accorded to 1. Immediate disciplinary action against both
the right of patients to life and health. union and employer
2. Dismissal/loss of employment for members
Effect of defiance of assumption or of the striking union
certification orders 3. Payment by employer of backwages,
Par. 2, Art. 279 (a). Prohibited Activities. – damages, and other affirmative relief
No strike or lockout shall be declared: 4. Criminal prosecution against either or both
a. after assumption of jurisdiction by the the union and employer
President or the Minister;
b. after certification or submission of the INJUNCTIONS
dispute to compulsory or voluntary
arbitration; or Art. 266. Injunction Prohibited. – No
c. during the pendency of cases involving the temporary or permanent injunction or
same grounds for the strike or lockout. restraining order in any case involving or
growing out of labor disputes shall be issued
Strike/lockout becomes illegal by any court or other entity, except as
A strike undertaken despite the issuance by the otherwise provided in Arts. [225] and [279]
Secretary of Labor of an assumption or of this Code.
certification order becomes a prohibited activity
and thus, illegal, pursuant to Art. 279(a) of the General Rule: Injunctions are prohibited.
Labor Code. [Allied Banking v. NLRC, G.R. No.
116128 (1996)] Exceptions: Those provided under Art. 225
(referring to the Powers of the NLRC) in
See notes on Liabilities of employer, union connection with Art. 279 (on Prohibited
officers, and ordinary workers under illegal Activities) under the Labor Code.
strike.
Findings of fact by the NLRC for an
SUMMARY OF LIABILITIES OF
PARTICIPANTS IN AN ILLEGAL STRIKE/ Injunction
Art. 225(e) to issue of the Commission
Powers
LOCKOUT [Art. 279] a. To enjoin or restrain any actual or
1. Employer in an illegal lockout – workers threatened commission of any or all
terminated due to illegal lockout shall be prohibited or unlawful acts; or
entitled to reinstatement plus full b. To require the performance of a particular
backwages. act in any labor dispute which, if not
2. Union officers who knowingly restrained or performed forthwith, may
participated in illegal strike– deemed to cause grave or irreparable damage to any
have lost their employment party or render ineffectual any decision in
3. Union officers who knowingly favor of such party
participated in illegal acts during a
LAWFUL strike – deemed to have lost
 Provided, That no temporary or permanent
their employment. injunction in any case involving or growing out
4. Ordinary workers – deemed to have lost
their employment only if they knowingly of
beaissued
labor dispute
except: as defined in this Code shall
participated in illegal acts. 1. After hearing the testimony of witnesses

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2. With opportunity for cross-examination, in b. After certification or submission of the

support of the allegations of a complaint dispute to compulsory or voluntary
made under oath, and testimony in arbitration or during the pendency of
opposition thereto, if offered, and cases involving the same grounds for
3. Only after a finding of fact by the the strike or lockout.
Commission, to the effect:
a. That prohibited or unlawful acts have Any worker whose employment has been
been threatened and will be committed terminated as a consequence of any
unless restrained, or have been unlawful lockout shall be entitled to
committed and will be continued unless reinstatement with full backwages.
restrained
i. But no injunction or temporary Any union officer who knowingly
restraining order shall be issued on participates in an illegal strike, and any
account of any threat, prohibited or worker or union officer who knowingly
unlawful act participates in the commission of illegal
ii. Except against the person or acts during a strike may be declared to
persons, association or have lost his employment status:
organization making the threat or Provided, That mere participation of a
committing the prohibited or worker in a lawful strike shall not
n ot constitute
unlawful act or actually authorizing sufficient ground for termination of his
or ratifying the same after actual employment, even if a replacement had
knowledge thereof; been hired by the employer during such
b. That substantial and irreparable injury lawful strike.
to complainant's property will follow;
c. That as to each item of relief to be 2. No person shall:
granted, greater injury will be inflicted a. Obstruct, impede, or interfere with, by
upon complainant by the denial of relief force, violence, coercion, threats or
than will be inflicted upon defendants intimidation, any peaceful picketing by
by the granting of relief; employees during any labor
d. That complainant has no adequate controversy or in the exercise of the
remedy at law; and right to self-organization or collective
e. That the public officers charged with bargaining; or
the duty to protect complainant's b. Aid or abet such obstruction or
property are unable or unwilling to interference.
furnish adequate protection.
3. No employer shall use or employ any
Prohibited Activities [Art. 279] strike-breaker, nor shall any person be
1. No labor organization or employer shall employed as a strike-breaker.
declare a strike or lockout:
a. Without first having bargained 4. No public official or employee, including
collectively in accordance with Title VII officers and personnel of the New Armed
of this Book or without first having filed Forces of the Philippines or the Integrated
the notice required in the preceding National Police, or armed person, shall:
Art.; or a. Bring in, introduce or escort in any
b. Without the necessary strike or lockout manner, any individual who seeks to
 vote first having been obtained and replace strikers in entering or leaving
reported to the Ministry [DOLE]. the premises of a strike area, or work in
place of the strikers.
No strike or lockout shall be declared:
a. After assumption of jurisdiction by the
President or the Minister; or

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5. The police force shall keep out of the picket TRO

lines unless actual violence or other Art. 225, last 2 pars. – A temporary restraining
criminal acts occur therein: order may be issued.
a. Provided,That nothing herein shall
be interpreted to prevent any public Why issued: If a complainant shall also allege
officer from taking any measure that a substantial and irreparable injury to
necessary to maintain peace and complainant's property will be unavoidable
order, protect life and property, unless a temporary restraining order shall be
and/or enforce the law and legal issued without notice/
order.
When issued: Upon testimony under oath,
6. No person engaged in picketing shall sufficient, if sustained, to justify the
commit any act of violence, coercion or Commission in issuing a temporary injunction
intimidation or obstruct the free ingress to upon hearing after notice.
or egress from the employer’s premises for
lawful purposes, or obstruct public Conditions before issuing the TRO:
thoroughfares. The complainant shall first file an undertaking
with adequate security in an amount to be fixed
INNOCENT BYSTANDER RULE by the Commission –
Test to Determine if a Party is an “Innocent a. Sufficient to recompense those enjoined
Bystander” for any loss, expense or damage caused
An "innocent bystander," who seeks to enjoin a by the improvident or erroneous issuance
labor strike, must satisfy the court that aside of such order or injunction;
from the grounds specified in Rule 58 of the b. Including all reasonable costs, together
Rules of Court, it is entirely different from, with a reasonable attorney's fee, and
without any connection whatsoever to, expense of defense against the order or
either party to the dispute and, its interests against the granting of any injunctive relief
are totally foreign to the context thereof. sought in the same proceeding and
[MSF Tire and Rubber Inc. v. CA , G.R. No. subsequently denied by the Commission.
128632 (1999)]
Effectivity of TRO:
Injunction Available to Innocent Bystanders Period:It shall be effective for no longer than
An innocent by-stander is entitled to injunction twenty (20) days and shall become void at the
if it is affected by the activities of a picketing expiration of said twenty (20) days.
union.
Effect: It shall be understood to constitute an
Rationale agreement entered into by the complainant and
The right [to picket] may be regulated at the the surety –
instance of […] `innocent bystanders' if it a. Upon which an order may be rendered in
appears that the inevitable result of its exercise the same suit or proceeding against said
is: complainant and surety upon a hearing to
a. To create an impression that a labor assess damages, of which hearing,
dispute with which they have no connection complainant and surety shall have
or interest exists between them and the reasonable notice, the said complainant
picketing union; or and surety submitting themselves to the
b. Constitute an invasion of their rights. jurisdiction of the Commission for that
[Liwayway Publishing v. Permanent purpose.
Concrete Worker's Union, G.R. No. L- b. But nothing herein contained shall deprive
25003 (1981)] any party having a claim or cause of action
under or upon such undertaking from

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electing to pursue his ordinary remedy by authorized representative as Voluntary

suit at law or in equity: Arbitrator…
1. Provided, further,That the reception of
evidence for the application of a writ of
DOLE Circular No. 1 Series of 2006. –
injunction may be delegated by the
…this administrative procedure for the
Commission to any of its Labor Arbiters voluntary settlement of labor disputes is
who shall conduct such hearings in
hereby established:
such places as he may determine to be
accessible to the parties and their
1. Either or both the employer and the
witnesses and shall submit thereafter
certified collective bargaining agent (or
his recommendation to the
representative of the employees where
Commission.
there is no certified bargaining agent)
may voluntarily bring to the Office of the
b. Appellate Jurisdiction
SOLE through a REQUEST FOR
INTERVENTION, any potential or
1. Orders issued by the duly authorized ongoing dispute defined below.
representative of the SOLE under Art. 128
may be appealed to the latter.
A potential or ongoing dispute refers to:
2. Denial of application for union registration
or cancellation of union registration a. that
b. live and
mayactive
lead todispute;
a strike or lockout or
originally rendered by the BLR may be
to massive labor unrest;
appealed to the SOLE (if originally
c. is not the subject of any complaint or
rendered by the Regional Office, appeal
notice of strike or lockout at the time
should be made to the BLR)
a REQUEST FOR INTERVENTION
3. POEA — The Office of the SOLE shall
is made.
have exclusive jurisdiction to act on
appeals from the Orders of the
This recourse is separate from the
Administration. [Sec. 185, Rule VII,
established dispute resolution modes of
Revised POEA Rules and Regulations
mediation, conciliation and arbitration
Governing The Recruitment And
under the Labor Code, and is an
Employment Of Landbased Overseas
alternative to other voluntary modes of
Filipino Workers Of 2016]
dispute resolution such as the voluntary
4. Decisions of the Med-Arbiter in certification
election cases are appealable to the SOLE. submission
Director for of a disputetotothe
mediation, theNCMB
Regional
for
[Art. 272] (decisions of med-arbiters in
preventive mediation, or to the
intra-union disputes are appealable to the
intervention of a regional or local
BLR [Sec. 15, Rule XI, Book V, IRR])
tripartite peace council for the same
purpose.
c. Voluntary Arbitration Powers
2. All REQUESTS shall be in writing and
Art. 278 (h). Strikes, Picketing and
filed with the Office of the Secretary. A
Lockouts. – The parties may opt to submit
REQUEST shall state:
their dispute to voluntary arbitration.
a. the name and address of the
employer;
When: Before or at any stage of the
 b. the name of the certified bargaining
compulsory arbitration process.
agent, or the employee
Sec. 15, Rule XXII, Book V. Assumption by representative
writing by a duly designated
majority in
of the
the Secretary of Labor and Employment. –
employees where there is no
… parties to the case may agree at any time to collective bargaining agent;
submit the dispute to the SOLE or his/her duly

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c. the number of employees affected by submissions or positions made by the

the potential or ongoing dispute; and parties in these proceedings.
d. a brief description of the potential a. If the intervention fails, either or both
or ongoing dispute. parties may avail themselves of the
remedies provided under the Labor
3. Upon receipt of the REQUEST, the Code. Alternatively, the parties may
Office of the Secretary shall forthwith submit their dispute to the Office of
notify the parties and invite them for the Secretary for voluntary
conference. The conference for arbitration. Such voluntary arbitration
REQUESTS coming from the National shall be limited to the issues defined
Capital Region, Regions III, IV-A or IV- B in the parties’ submission to
shall be held at the Office of the voluntary arbitration agreement and
Secretary of Labor and Employment shall be decided on the basis of the
unless the Secretary otherwise directs. parties’ position papers and
The conference for REQUESTS coming submitted evidence. The Office of
from the other regions shall be the Secretary shall resolve the
conducted by the Regional Director for dispute within sixty (60) days from
the Secretary. the parties’ submission of the dispute

4. The Office of the Secretary or the b. for

Thisresolution.
circular shall take effect fifteen
Regional director, in the proper case, (15) days after publication in a
shall proceed to intervene after the newspaper of general publication.
parties shall have manifested that; Done in the City of Manila,
a. they voluntarily submit their potential Philippines, 11 August 2006.
or ongoing dispute to intervention by
the Office of the Secretary of Labor
Administrative Intervention for Dispute
and Employment;
Avoidance: Separate from established modes
b. there is no pending notice of strike or
of mediation, conciliation and arbitration and is
lockout or any related complaint in
an alternative to other voluntary modes of
relation with their potential or
dispute resolution [DOLE Circular No. 1, series
ongoing dispute;
of 2006]
c. they shall refrain from any strike or

lockout
or from or any any
filing formrelated
of work complaint
stoppage Pre-Requisite for the Intervention by the
SOLE: The parties must have manifested that:
while the SOLE’s intervention is in a. They voluntarily submit their potential or
effect; and
ongoing dispute to intervention by the
d. they shall abide by the agreement
Office of the SOLE;
reached, whose terms may be
b. No pending notice of strike or lockout or
enforced through the appropriate
any related complaint in relation to their
writs issued by the SOLE
potential or ongoing dispute;
c. They shall refrain from any strike or lockout
All agreements settling the dispute shall
or any form of work stoppage or filing any
be in writing and signed by the parties as
related complaint while the SOLE’s
well as the official who mediated the
intervention is in effect;
 dispute.
d. They shall abide by the agreement reached
whose terms may be enforced through the
5. The
the parties
DOLE and officials
who tookor part
employees of
in the appropriate writs issued by the SOLE;
proceedings shall not testify in any court
or body regarding the disclosures,

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Note: DOLE Regional Directors and Assistant 2. Require it to submit reports regularly on
Regional Directors may act as ex-officio prescribed forms, and
voluntary arbitrators [D.O No. 83-07, 2007] 3. Act on violation of any provisions of this
Title.
2. Visitorial and enforcement powers
Art. 289. Visitorial Power. –The Secretary of
Art. 128. Visitorial and Enforcement Power - Labor and Employment or his duly authorized
The Secretary of Labor and Employment or his representative is hereby empowered:
duly authorized representatives, including 1. To inquire into the financial activities of
labor regulation officers, shall: legitimate labor organizations
1. Have access to employer’s records and a. Upon the filing of a complaint under
premises at any time of the day or night oath and duly supported by the written
whenever work is being undertaken therein consent of at least twenty percent
a. And the right: (20%) of the total membership of the
i. To copy therefrom, labor organization concerned
ii. To question any employee and 2. To examine their books of accounts and
iii. To investigate any fact, condition or other records to determine compliance or
matter which may be necessary to non-compliance with the law
determine violations or which may 3. To prosecute any violations of the law and
aid in the enforcement of this Code the union constitution and by-laws
and of any labor law, wage order or
rules and regulations issued Provided , That such inquiry or examination
pursuant thereto. shall not be conducted during the sixty (60)-day
2. Have the power to issue compliance orders freedom period nor within the thirty (30) days
a. Purpose: to give effect to the labor immediately preceding the date of election of
standards provisions of this Code and union officials.
other labor legislation based on the
findings of labor employment and The visitorial and enforcement powers of the
enforcement officers or industrial DOLE Regional Director to order and enforce
safety engineers made in the course of compliance with labor standard laws can be
inspection. exercised even where the individual claim
b. Notwithstanding the provisions of Arts. exceeds P5,000.00. [Cirineo Bowling Plaza,
129 and [224] of this Code to the Inc. v. Sensing, G.R. No. 146572 (2005)].
contrary, and in cases where the
relationship of employer-employee still If a complaint is brought before the DOLE to
exists give effect to the labor standards provisions of
3. Issue writs of execution to the appropriate the Labor Code or other labor legislation, and
authority for the enforcement of their orders there is a finding by the DOLE that there is an
a. Exception: cases where the employer existing employer-employee relationship, the
contests the findings of the labor DOLE exercises jurisdiction to the exclusion of
employment and enforcement officer the NLRC.
and raises issues supported by
documentary proofs which were not The findings of the DOLE, however, may still
considered in the course of inspection. be questioned through a petition for certiorari
under Rule 65 of the Rules of Court.
Art. 37. Visitorial Power. – The Secretary of
Labor or his duly authorized representatives The DOLE's labor inspection program can now
may, at any time – proceed without being sidetracked by
1. Inspect the premises, books of accounts unscrupulous employers who could render
and records of any person or entity covered nugatory the "expanded visitorial and
by this Title enforcement power of the DOLE granted by RA

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7730 . . . by the simple expedient of disputing

the employer-employee relationship [and] force I. VOLUNTARY ARBITRATOR
the referral of the matter to the NLRC.”
[People's Broadcasting Service v. Secretary of
the Department of Labor and Employment, Automatic Referral If Grievance Machinery
G.R. No. 179652 (2012 Resolution)] Fails
All grievances submitted to the grievance
The factual findings of the SOLE or the machinery which are not settled within 7
Regional Directors made in the exercise of calendar days from the date of its submission
their visitorial and enforcement powers are shall automatically be referred to voluntary
binding on Labor Arbiters and the NLRC under arbitration prescribed in the CBA. [Art. 273]
the doctrine of res judicata [Norkis Trading v.
Buenavista, G.R. No. 182018, (2012)] Constitutional Basis
Sec. 3, Art. XIII, 1987 Constitution - The State
3. Power to suspend effects of shall promote:
termination 1. The principle of shared responsibility
between workers and employers and
Art. 292 (b). Visitorial and Enforcement 2. The preferential use of voluntary modes in
Power - The SOLE may suspend the effects of settling disputes, including conciliation,
a termination pending resolution of the dispute 3. And shall enforce their mutual compliance
in the event of a prima facie finding by the therewith to foster industrial peace.
appropriate official of the DOLE that:
a. The termination may cause a serious labor Who is a voluntary arbitrator
dispute (may or may not be a strike or a A “voluntary arbitrator” is:
lockout) 1. Any person accredited by the [National
b. The termination is in implementation of a Conciliation and Mediation Board] as such;
mass lay-off. or
2. Any person named or designated in the
4. Remedies Collective Bargaining Agreement by the
parties to act as their Voluntary Arbitrator;
The aggrieved party from a decision of the or
SOLE may file one motion for reconsideration 3. One chosen, with or without the assistance

within ten (10) days from receipt thereof. of the National

Board, pursuantConciliation and procedure
to a selection Mediation
If the motion for reconsideration is denied, the agreed upon in the Collective Bargaining
party may appeal via Rule 65 to the CA 60 days Agreement; or
from receipt of the denial. Upon denial, the 4. Any official that may be authorized by the
party may proceed via Rule 45 to the SC. [Rule
Rule Secretary of Labor and Employment to act
65, ROC; St. Martin Funeral Home v. NLRC, as Voluntary Arbitrator upon the written
G.R. No. 130866 (1998)] request and agreement of the parties to a
labor dispute. [Art. 219 (n)]
Clearly, before a petition for certiorari under
Rule 65 of the Rules of Court may be availed Provision for Voluntary Arbitration in the
of, the filing of a motion for reconsideration is a CBA
condition sine qua nonto afford an opportunity 1. Parties to a CBA shall:
for the correction of the error or mistake a. Name and designate in advance a
complained of. v. PWU
Enterprises Inc [PIDLTRANCO Service
– AGLO, G.R. No. Voluntary Arbitrator ORor
Voluntary Arbitrators, panel of
180962 (2014)] b. Include in the agreement a procedure
for the selection of such Voluntary
Arbitrator or panel of Voluntary

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Arbitrators, preferably from the listing

of qualified Voluntary Arbitrators duly Termination Cases: Plenary Jurisdiction of
accredited by the Board. Voluntary Arbitrator vis-à-vis Labor Arbiter
2. In case the parties fail to select a Voluntary Termination cases arising in or resulting from
Arbitrator or panel of Voluntary Arbitrators, the interpretation and implementation of CBAs
the Board shall designate the Voluntary and interpretation and enforcement of
Arbitrator or panel of Voluntary Arbitrators, company personnel policies which were initially
as may be necessary, pursuant to the processed at the various steps of the plant-
selection procedure agreed upon in the level Grievance Procedures under the parties'
[CBA], which shall act with the same force CBAs fall within the original and exclusive
and effect as if the has been selected by jurisdiction of the VA.
the parties as described above. [Art. 273]
If such is filed before the LA, these cases shall
Voluntary Arbitration as a Condition be dismissed by the LA for lack of jurisdiction
Precedent and referred to the concerned NCMB Regional
The stipulation to refer all future disputes to an Branch for appropriate action towards an
arbitrator or to submit an ongoing dispute to expeditious selection by the parties of a VA or
one is valid. Being part of a contract between Panel of Arbitrators based on the procedures
the parties, it is binding and enforceable in agreed upon in the CBA. [Policy Instruction #56
court in case one of them neglects, fails or (April 6, 1993)]
refuses to arbitrate.
Even if the specific issue brought before the
In the event that they declare their intention to arbitrators merely mentioned the question of
refer their differences to arbitration first before “whether an employee was discharged for just
taking court action, this constitutes a condition cause,” they could reasonably assume that
precedent, such that where a suit has been their powers extended beyond the
instituted prematurely, the court shall suspend determination thereof to include the power to
the same and the parties shall be directed reinstate the employee or to grant back wages.
forthwith to proceed to arbitration. [...] A court
action may likewise be proper where the In the same vein, if the specific issue brought
arbitrator has not been selected by the parties. before the arbitrators referred to the date of
[Chung Fu Industries v. CA, G.R. No. 96283 regularization of the employee, law and
(1992)] jurisprudence gave them enough leeway as
well as adequate prerogative to determine the
1. Jurisdiction entitlement of the employees to higher benefits
in accordance with the finding of regularization.
EXCLUSIVE AND ORIGINAL JURISDICTION [Manila Pavilion Hotel, etc. v. Henry Delada,
OVER UNRESOLVED GRIEVANCES G.R. No. 189947 (2011)]
a. Interpretation or implementation of the
CBA [Art. 274] Other Labor Disputes
b. Interpretation or enforcement of company
personnel policies [Art. 274] Art. 275. Jurisdiction Over Other Labor
c. Violations of a CBA which are not gross in Disputes. – The VA or panel of VAs, upon
character (gross being flagrant and/or agreement of the parties, shall also hear and
 malicious refusal to comply with the decide all other labor disputes including ULP
economic provisions of [the CBA]) [Art. and bargaining deadlocks.
274]
Art. 274. Jurisdiction of Voluntary
Note: Gross violations of the CBA shall mean Arbitrators or Panel of Voluntary
flagrant and/or malicious refusal to comply with Arbitrators. – The Commission, its Regional
the economic provisions of such agreement.

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Offices and the Regional Directors of the In general, the arbitrator [“VA”] is expected to
DOLE: decide those questions expressly stated and
1. Shall not entertain disputes, grievances limited in the submission agreement.
or matters under the exclusive and However, since arbitration is the final resort for
original jurisdiction of the Voluntary the adjudication of disputes, the arbitrator can
Arbitrator or panel of Voluntary assume that he has the power to make a final
Arbitrators and settlement.
2. Shall immediately dispose and refer the
same to the grievance machinery or [The VA has] plenary jurisdiction and authority
Voluntary Arbitration provided in the to interpret the [CBA] and to determine the
Collective Bargaining Agreement. scope of his [or her]
her] own authority. [...] Subject
to judicial review, this leeway of authority [and]
Art. 224 (c). Jurisdiction of the Labor adequate prerogative is aimed at
Arbiters and the Commission. – Cases accomplishing the rationale of the law on
arising from the interpretation or voluntary arbitration – speedy labor justice.
implementation of CBAs and those arising [Goya, Inc. v. Goya, Inc. Employees Union-
from the interpretation or enforcement of FFW, G.R. No. 170054 (2013)]
company personnel policies shall be
disposed of by the LA by referring the same PROCEDURE
to the grievance machinery and VA as may Art. 276. Procedures. — The Voluntary
be provided for in said agreements. Arbitrator or panel of Voluntary Arbitrators shall
have the power to:
Option – Voluntary Arbitration a. Hold hearings,
b. Receive evidences, and
Art. 278 (h). Strikes, Picketing and c. Take whatever action is necessary to
Lockouts. – Before or at any stage of the resolve the issue or issues subject of the
compulsory arbitration process, the parties dispute,
may opt to submit their dispute to voluntary d. Including efforts to effect a voluntary
arbitration. settlement between parties.

Summary of Arbitrable Issues All parties to the dispute shall be entitled to

a. Interpretation or implementation of the attend the arbitration proceedings. The
CBA [Art. 274] attendance of any third party or the exclusion
b. Interpretation or enforcement of company of any witness from the proceedings shall be
personnel policies [Art. 274] determined by the Voluntary Arbitrator or panel
c. Violations of a CBA which are not gross in of Voluntary Arbitrators. Hearing may be
character (gross being flagrant and/or adjourned for cause or upon agreement by the
malicious refusal to comply with the parties.
economic provisions of [the CBA]) [Art.
274] Unless the parties agree otherwise, it shall be
d. All other labor disputes including ULP and mandatory for the Voluntary Arbitrator or panel
bargaining deadlock, if the parties agree of Voluntary Arbitrators to render an award or
[Art. 275] decision within twenty (20) calendar days from
e. Wage distortions arising from application of the date of submission of the dispute to
 any wage orders in organized voluntary arbitration.
establishments [Art. 124]
The award or decision of the Voluntary
f. Unresolved grievances
interpretation arising from
and implementation of the
the Arbitrator or panel of Voluntary Arbitrators shall
productivity incentives program under RA contain the facts and the law on which it is
6971 [Book V, IRR Rule XIX. Sec. 4] based. It shall be final and executory after ten

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(10) calendar days from receipt of the copy of absence or incapacity of the Voluntary
the award or decision by the parties. Arbitrator or panel of Voluntary Arbitrators, for
any reason, may issue a writ of execution
Upon motion of any interested party, the requiring either the sheriff of the Commission
Voluntary Arbitrator or panel of Voluntary or regular courts or any public official whom the
Arbitrators or the Labor Arbiter in the region parties may designate in the submission
where the movant resides, in case of the agreement to execute the final decision, order
absence or incapacity of the Voluntary or award.
Arbitrator or panel of Voluntary Arbitrators, for
any reason, may issue a writ of execution Costs
requiring either of the following to execute the The parties to a Collective Bargaining
final decision, order or award: Agreement shall provide therein a
a. The sheriff of the Commission or regular proportionate sharing scheme on the cost of
courts; or the voluntary arbitration including the Voluntary
b. Any public official whom the parties may Arbitrator’s fee. [Art. 277]
designate in the submission agreement.
Voluntary Arbitrator's Fee
[Rule XI, Book V, IRR] The fixing of the fee of the Voluntary Arbitrators
or panel of Voluntary Arbitrators, whether
Hearing shouldered wholly by the parties or subsidized
All parties to the dispute shall be entitled to by the special voluntary arbitration fund, shall
attend the arbitration proceedings. The take into account the following factors:
attendance of any third party or the exclusion a. Nature of the case;
of any witness from the proceedings shall be b. Time consumed in hearing the case;
determined by the VA or panel of
o f VAs. Hearing c. Professional standing of the voluntary
may be adjourned for cause or upon arbitrator;
agreement by the parties. d. Capacity to pay of the parties;
e. Fees provided for in the Rules of Court[Art.
Days to render an award/decision 277]
Unless the parties agree otherwise, it shall be
mandatory for the VA or panel of VAs to render 2. Remedies
an award or decision within 20 calendar days
from the date of submissionof the dispute to Motion for Reconsideration
voluntary arbitration. The absence of a categorical language in Art.
[276] does not preclude the filing of a motion
Form of award/decision for reconsideration of the VA’s decision within
The award or decision of the VA or panel of the 10-day period. [Teng v Pahagac, G.R.
VAs must state in clear, concise and definite 169704 (2010)]
terms the facts, the law and/contract upon
which it is based. Appeal
The decision of a Voluntary Arbitrator or panel
Finality of Voluntary Arbitrators is appealable by
It shall be final and executory after 10 calendar ordinary appeal under Rule 43 of the Rules of
days from the receipt of the copy of the award Civil Procedure directly to the Court of Appeals.
or decision by the parties. [AMA Computer College-Santiago City, Inc. v.
Nacino, G.R. No. 162739 (2008)]
Execution of award/decision
Upon motion of any interested party, the But See: Guagua National Colleges v. CA ,
Voluntary Arbitrator or panel of Voluntary G.R. 188412, Aug. 28, 2018, the 10-day period
Arbitrators or the Labor Arbiter in the region under Article 276 of the Labor Code refers to
where the movant resides, in case of the the filing of a motion for reconsideration vis-à-

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vis the Voluntary Arbitrator's decision or award, The day the action may be brought is the day a
while the 15 days is the period to file petition for claim started as a legal possibility. [ Anabe v.
review under Rule 43 of the Rules of Court. Asian Construction, G.R. No. 183233 (2009)]

2. Illegal dismissal
J. PRESCRIPTION OF
ACTIONS Art. 1146, Civil Code. – The following
actions must be instituted within four years:
1. Money claims a. Upon an injury to the rights of the
plaintiff;
Art. 306. Money claims. – All money claims b. Upon a quasi-delict;
arising from employer-employee relations
accruing during the effectivity of this Code shall However, when the action arises from or out
be filed within three (3) years from the time of any act, activity, or conduct of any public
the cause of action accrued; otherwise they officer involving the exercise of powers or
shall be forever barred. authority arising from Martial Law including
the arrest, detention and/or trial of the
All money claims accruing prior to the plaintiff, the same must be brought within
one year. [As amended by PD No. 1755,
effectivity
a. Shall beof this
filedCode
with the appropriate entities Dec. 24, 1980.]
established under this Code within one (1)
year from the date of effectivity, and 4 years from dismissal
b. Shall be processed or determined in In illegal dismissal cases, the employee
accordance with the implementing rules concerned is given a period of four years from
and regulations of the Code; the time of his dismissal within which to institute
c. Otherwise, they shall be forever barred. a complaint. This is based on Art. 1146 of the
Civil Code which states that actions based
Workmen's compensation claims accruing upon an injury to the rights of the plaintiff must
prior to the effectivity of this Code and during be brought within four years. [Victory Liner, Inc.
the period from November 1, 1974 up to v. Race, G.R. No. 164820 (2007)]
December 31, 1974,
a. Shall be filed with the appropriate regional 3. Unfair labor practice
offices of the Department of Labornot later All unfair labor practice arising from Book V
than March 31, 1975;
b. Otherwise, they shall forever be barred. a. Shall be filed with the appropriate agency
c. The claims shall be processed and within one (1) year from accrual of such
adjudicated in accordance with the law and unfair labor practice;
rules at the time their causes of action b. Otherwise, they shall be forever barred.
accrued.
Art. 258. Concept of unfair labor practice
The Labor Code has no specific provision on and procedure for prosecution thereof – No
when a monetary claim accrues. Thus, again criminal prosecution under this Title may be
the general law on prescription applies. Art. instituted without a final judgment finding that
1150 of the Civil Code provides that, “The time an unfair labor practice was committed, having
for prescription for all kinds of actions, when been first obtained in the preceding paragraph.
there is no special provision which ordains
otherwise, shall be counted from the day they During the pendency
proceeding, of such
the running administrative
of the period of
may be brought.”
prescription of the criminal offense herein
penalized shall be considered interrupted:

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a. The final judgment in the administrative Article 1701. Neither capital nor labor shall
proceedings shall not be binding in the act oppressively against the other, or impair
criminal case nor be considered as the interest or convenience of the public.
evidence of guilt
b. But merely as proof of compliance of the Article 1702. In case of doubt, all labor
requirements therein set forth. legislation and all labor contracts shall be
construed in favor of the safety and
4. Offenses under the Labor Code decent living for the laborer.

Art. 305, LC. – Offenses penalized under Article 1703. No contract which practically
this Code and the rules and regulations amounts to involuntary servitude, under any
issued pursuant thereto shall prescribe in guise whatsoever, shall be valid.
three (3) years.
Migrant Workers and Overseas Filipinos
Art. 305, Civil Code. – Offenses penalized Act of 1995
under this Code and the rules and See II. Recruitment and Placement, and III. E.
regulations issued pursuant thereto shall 9. Migrant workers
prescribe in three (3) years .
Anti-Trafficking in Persons Act of 2003
3 years, except ULP (see: above)
SECTION 4. Acts of Trafficking in
Persons. — It shall be unlawful for any
5. Illegal recruitment
person, natural or juridical, to commit any of
the following acts:
Illegal recruitment cases under this Act shall
(a) To recruit, obtain, hire, provide, offer,
prescribe in five (5) years.
transport, transfer, maintain, harbor, or
receive a person by any means,
Provided , however, that illegal recruitment
including those done under the pretext of
cases involving economic sabotage as defined
domestic or overseas employment or
herein shall prescribe in twenty (20) years.
training or apprenticeship, for the
[Migrant Workers and Overseas Filipinos Act of
purpose of prostitution, pornography, or
1995, Sec. 12]
sexual exploitation;

LAWS AND RULES OF (b) or

To introduce
material,or match for money,
economic or profit,
other
consideration, any person or, as
PROCEDURE provided for under Republic Act No.
6955, any Filipino women to a foreign
The Civil Code of the Philippines national, for marriage for the purpose of
acquiring, buying, offering, selling or
Article 1700. The relations between capital trading him/her to engage in prostitution,
and labor are not merely contractual. They pornography, sexual exploitation, forced
are so impressed with public interest that labor, slavery, involuntary servitude or
labor contracts must yield to the common debt bondage;
good. Such contracts are subject to the (c) To offer or contract marriage, real or
 special laws on labor unions, collective simulated, for the purpose of acquiring,
bargaining, strikes and lockouts, closed buying, offering, selling, or trading them

shop, wages,
labor and working
similar conditions, hours of
subjects. to engage
sexual in prostitution,
exploitation, pornography,
forced labor or
slavery, involuntary servitude or debt
bondage;

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(d) To undertake or organize tours and consideration or for barter for purposes
travel plans consisting of tourism of exploitation. Trafficking for purposes
packages or activities for the purpose of of exploitation of children shall include:
utilizing and offering persons for (1) All forms of slavery or practices
prostitution, pornography or sexual similar to slavery, involuntary
exploitation; servitude, debt bondage and forced
(e) To maintain or hire a person to engage labor, including recruitment of
in prostitution or pornography; children for use in armed conflict;
(f) To adopt persons by any form of (2) The use, procuring or offering of a
consideration for exploitative purposes child for prostitution, for the
or to facilitate the same for purposes of production of pornography, or for
prostitution, pornography, sexual pornographic performances;
exploitation, forced slavery, involuntary (3) The use, procuring or offering of a
servitude or debt bondage; child for the production and
(g) To adopt or facilitate the adoption of trafficking of drugs; and
persons for the purpose of prostitution, (4) The use, procuring or offering of a
pornography, sexual exploitation, forced child for illegal activities or work
labor, slavery, involuntary servitude or which, by its nature or the
debt bondage; circumstances in which it is carried
(h) To recruit, hire, transport, obtain, out, is likely to harm their health,
transfer, harbor, maintain, provide, offer, safety or morals; and
receive, or abduct a person, by means of (5) To organize or direct other persons
threat or use of force, fraud, deceit, to commit the offenses defined as
violence, coercion, or intimidation for the acts of trafficking under this Act.
purpose of removal or sale of organs of
said person; SECTION 4-A. Attempted Trafficking in
(i) To recruit, transport, obtain, transfer, Persons. — Where there are acts to initiate
harbor, maintain, offer, hire, provide, the commission of a trafficking offense but
receive or adopt a child to engage in the offender failed to or did not execute all
armed activities in the Philippines or the elements of the crime, by accident or by
abroad; reason of some cause other than voluntary
(j) To recruit, transport, transfer, harbor, desistance, such overt acts shall be deemed
obtain, maintain, offer, hire, provide or as an attempt to commit an act of trafficking
receive a person by means defined in in persons. As such, an attempt to commit
Section 3 of this Act for purposes of any of the offenses enumerated in Section 4
forced labor, slavery, debt bondage and of this Act shall constitute attempted
involuntary servitude, including a trafficking in persons.
scheme, plan, or pattern intended to
cause the person either: In cases where the victim is a child, any of
(1) To believe that if the person did not the following acts shall also be deemed as
perform such labor or services, he or attempted trafficking in persons:
she or another person would suffer (a) Facilitating the travel of a child who
serious harm or physical restraint; or travels alone to a foreign country or
(2) To abuse or threaten the use of law territory without valid reason therefor
 or the legal processes; and and without the required clearance or
(k) To recruit, transport, harbor, obtain, permit from the Department of Social
transfer, maintain, hire, offer, provide, Welfare and Development, or a written
adopt or receive a child for purposes of permit or justification from the child's
exploitation or trading them, including parent or legal guardian;
but not limited to, the act of buying
and/or selling a child for any

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(b) Executing, for a consideration, an establishment for the purpose of

affidavit of consent or a written consent promoting trafficking in persons;
for adoption; (b) To produce, print and issue or distribute
(c) Recruiting a woman to bear a child for unissued, tampered or fake counseling
the purpose of selling the child; certificates, registration stickers,
(d) Simulating a birth for the purpose of overseas employment certificates or
selling the child; and other certificates of any government
(e) Soliciting a child and acquiring the agency which issues these certificates,
custody thereof through any means from decals and such other markers as proof
among hospitals, clinics, nurseries, of compliance with government
daycare centers, refugee or evacuation regulatory and pre-departure
centers, and low-income families, for the requirements for the purpose of
purpose of selling the child. promoting trafficking in persons;
(c) To advertise, publish, print, broadcast or
SECTION 4-B. Accomplice Liability. — distribute, or cause the advertisement,
Whoever knowingly aids, abets, cooperates publication, printing broadcasting or
in the execution of the offense by previous distribution by any means, including the
or simultaneous acts defined in this Act shall use of information technology and the
be punished in accordance with the internet, of any brochure, flyer, or any
provisions of Section 10(c) of this Act. propaganda material that promotes
trafficking in persons;
SECTION 4-C. Accessories. — Whoever (d) To assist in the conduct of
has the knowledge of the commission of the misrepresentation or fraud for purposes
crime, and without having participated of facilitating the acquisition of
therein, either as principal or as clearances and necessary exit
accomplices, take part in its commission in documents from government agencies
any of the following manners: that are mandated to provide pre-
(a) By profiting themselves or assisting the departure registration and services for
offender to profit by the effects of the departing persons for the purpose of
crime; promoting trafficking in persons;
(b) By concealing or destroying the body of (e) To facilitate, assist or help in the exit and
the crime or effects or instruments entry of persons from/to the country at
thereof, in order to prevent its discovery; international and local airports, territorial
(c) By harboring, concealing, or assisting in boundaries and seaports who are in
the escape of the principal of the crime, possession of unissued, tampered or
provided the accessory acts with abuse fraudulent travel documents for the
of his or her public functions or is known purpose of promoting trafficking in
to be habitually guilty of some other persons;
crime. (f) To confiscate, conceal, or destroy the
passport, travel documents, or personal
Acts defined in this provision shall be documents or belongings of trafficked
punished in accordance with the provision of persons in furtherance of trafficking or to
Section 10(d) as stated thereto. prevent them from leaving the country or
seeking redress from the government or
 SECTION 5. Acts that Promote appropriate agencies; and
Trafficking in Persons. — The following (g) To knowingly benefit from, financial or
otherwise, or make use of, the labor or
acts which
persons promote
shall or facilitate trafficking in
be unlawful: services of a person held to a condition
(a) To knowingly lease or sublease, use or of involuntary servitude, forced labor, or
allow to be used any house, building or slavery.

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(h) To tamper with, destroy, or cause the member of the military or law
destruction of evidence, or to influence enforcement agencies;
or attempt to influence witnesses, in an (f) When the offender is a member of the
investigation or prosecution of a case military or law enforcement agencies;
under this Act; (g) When by reason or on occasion of the
(i) To destroy, conceal, remove, confiscate act of trafficking in persons, the offended
or possess, or attempt to destroy, party dies, becomes insane, suffers
conceal, remove, confiscate or possess, mutilation or is afflicted with Human
any actual or purported passport or other Immunodeficiency Virus (HIV) or the
travel, immigration or working permit or Acquired Immune Deficiency Syndrome
document, or any other actual or (AIDS);
purported government identification, of (h) When the offender commits one or more
any person in order to prevent or restrict, violations of Section 4 over a period of
or attempt to prevent or restrict, without sixty (60) or more days, whether those
lawful authority, the person's liberty to days are continuous or not; and
move or travel in order to maintain the (i) When the offender directs or through
labor or services of that person; or another manages the trafficking victim in
(j) To utilize his or her office to impede the carrying out the exploitative purpose of
investigation, prosecution or execution trafficking.
of lawful orders in a case under this Act.
SECTION 10. Penalties and Sanctions. —
SECTION 6. Qualified Trafficking in The following penalties and sanctions are
Persons. — The following are considered hereby established for the offenses
as qualified trafficking: enumerated in this Act:
(a) When the trafficked person is a child; (a) Any person found guilty of committing
(b) When the adoption is effected through any of the acts enumerated in Section 4
Republic Act No. 8043, otherwise known shall suffer the penalty of imprisonment
as the "Inter-Country Adoption Act of of twenty (20) years and a fine of not less
1995" and said adoption is for the than One million pesos (P1,000,000.00)
purpose of prostitution, pornography, but not more than Two million pesos
sexual exploitation, forced labor, (P2,000,000.00);
slavery, involuntary servitude or debt (b) Any person found guilty of committing
bondage; any of the acts enumerated in Section 4-
(c) When the crime is committed by a A of this Act shall suffer the penalty of
syndicate, or in large scale. Trafficking is imprisonment of fifteen (15) years and a
deemed committed by a syndicate if fine of not less than Five hundred
carried out by a group of three (3) or thousand pesos (P500,000.00) but not
more persons conspiring or more than One million pesos
confederating with one another. It is (P1,000,000.00);
deemed committed in large scale if (c) Any person found guilty of Section 4-B of
committed against three (3) or more this Act shall suffer the penalty of
persons, individually or as a group; imprisonment of fifteen (15) years and a
(d) When the offender is a spouse, an fine of not less than Five hundred
ascendant, parent, sibling, guardian or a thousand pesos (P500,000.00) but not
 person who exercises authority over the more than One million pesos
trafficked person or when the offense is (P1,000,000.00);
committed by a public officer or In every case, conviction shall cause
employee; and carry the automatic revocation of the
(e) When the trafficked person is recruited license or registration of the recruitment
to engage in prostitution with any agency involved in trafficking. The
license of a recruitment agency which

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trafficked a child shall be automatically counseling certificates, marriage

revoked. license, and other similar documents to
(d) Any person found guilty of committing persons, whether juridical or natural,
any of the acts enumerated in Section 5 recruitment agencies, establishments or
shall suffer the penalty of imprisonment other individuals or groups, who fail to
of fifteen (15) years and a fine of not less observe the prescribed procedures and
than Five hundred thousand pesos the requirement as provided for by laws,
(P500,000.00) but not more than One rules and regulations, shall be held
million pesos (P1,000,000.00); administratively liable, without prejudice
(e) Any person found guilty of qualified to criminal liability under this Act. The
trafficking under Section 6 shall suffer concerned government official or
the penalty of life imprisonment and a employee shall, upon conviction, be
fine of not less than Two million pesos dismissed from the service and be
(P2,000,000.00) but not more than Five barred permanently to hold public office.
million pesos (P5,000,000.00); His or her retirement and other benefits
(f) Any person who violates Section 7 shall likewise be forfeited; and
hereof shall suffer the penalty of (k) Conviction, by final judgment of the
imprisonment of six (6) years and a fine adopter for any offense under this Act
of not less than Five hundred thousand shall result in the immediate rescission
pesos (P500,000.00) but not more than of the decree of adoption.
One million pesos (P1,000,000.00);
(g) If the offender is a corporation, SECTION 12. Prescriptive Period. —
partnership, association, club, Trafficking cases under this Act shall
establishment or any juridical person, prescribe in ten (10) years: Provided,
the penalty shall be imposed upon the however, That trafficking cases committed
owner, president, partner, manager, by a syndicate or in a large scale as defined
and/or any responsible officer who under Section 6, or against a child, shall
participated in the commission of the prescribe in twenty (20) years.
crime or who shall have knowingly
permitted or failed to prevent its The prescriptive period shall commence to
commission; run from the day on which the trafficked
(h) The registration with the Securities and person is delivered or released from the
Exchange Commission (SEC) and conditions of bondage, or in the case of a
license to operate of the erring agency, child victim, from the day the child reaches
corporation, association, religious the age of majority, and shall be interrupted
group, tour or travel agent, club or by the filing of the complaint or information
establishment, or any place of and shall commence to run again when the
entertainment shall be cancelled and proceedings terminate without the accused
revoked permanently. The owner, being convicted or acquitted or are
president, partner or manager thereof unjustifiably stopped for any reason not
shall not be allowed to operate similar imputable to the accused.
establishments in a different name;
(i) If the offender is a foreigner, he or she Handbook for OFWs Act of 2018
shall be immediately deported after
 serving his or her sentence and be SECTION 2. Creating a Handbook for
barred permanently from entering the Overseas Filipino Workers. — The
country;
(j) Any employee or official of government handbook
known for Act
in this overseas Filipino workers,
as "Handbook," shall be
agencies who shall issue or approve the created and issued to every land-based and
issuance of travel exit clearances, sea-based worker free of charge. It shall
passports, registration certificates, serve as a ready reference for migrant

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workers when they need to assert their rights

and responsibilities. It shall also deal with SECTION 4. Telecommuting Program. —
key issues that they need to know in order to An employer in the private sector may offer
maintain decent employment conditions a telecommuting program to its employees
overseas. on a voluntary basis, and upon such terms
and conditions as they may mutually agree
PAR. b.1, SEC. 23 (Migrant Workers and upon: Provided, That such terms and
Overseas Filipinos Act of 1995, amended conditions shall not be less than the
by Handbook for OFWs Act of 2018). The minimum labor standards set by law, and
[POEA] is hereby mandated to develop, shall include compensable work hours,
publish, disseminate and update periodically minimum number of work hours, overtime,
a Handbook on the rights and rest days, and entitlement to leave benefits.
responsibilities of migrant workers as
provided by Philippine laws and the existing The employer shall provide the
labor and social laws of the countries of telecommuting employee with relevant
destination that will protect and guarantee written information in order to adequately
the rights of migrant workers. The Handbook apprise the individual of the terms and
shall be written in simple words that can be conditions of the telecommuting program,
easily understood with translation in local and the responsibilities of the employee.
language as may be necessary.
SECTION 5. Fair Treatment. — The
It shall also be responsible for the employer shall ensure that the
implementation, in partnership with other law telecommuting employees are given the
enforcement agencies, of an intensified same treatment as that of comparable
program against illegal recruitment activities. employees working at the employer's
For this purpose, the POEA shall provide premises. All telecommuting employees
comprehensive gender-sensitive Pre- shall:
employment Orientation Seminars (PEOS) (a) Receive a rate of pay, including overtime
that will discuss topics not only on the and night shift differential, and other
prevention of illegal recruitment but also on similar monetary benefits not lower than
the content of the Handbook on the rights those provided in applicable laws, and
and responsibilities of migrant workers. collective bargaining agreements.
(b) Have the right to rest periods, regular
Amending Certain Articles of the Labor holidays, and special nonworking days.
Code (c) Have the same or equivalent workload
[amendments already incorporated into the and performance standards as those of
aforecited provisions of the Labor Code] comparable workers at the employer's
premises.
13th Month Pay Law (d) Have the same access to training and
See III. B. 1. c. Bonus, 13th month pay career development opportunities as
those of comparable workers at the
Telecommuting Act employer's premises, and be subject to
the same appraisal policies covering
SECTION 3. Telecommuting Defined. — these workers.
 As used in this Act, the term (e) Receive appropriate training on the
"telecommuting" refers to a work technical equipment at their disposal,
and the characteristics and conditions of
arrangement
private sectorthat
to allows an employee
work from in the
an alternative telecommuting.
workplace with the use of (f) Have the same collective rights as the
telecommunication and/or computer workers at the employer's premises, and
technologies.

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shall not be barred from communicating 105 Day Expanded Maternity Leave Law
with workers' representatives. See III. C. 2. b. Expanded Maternity Leave

The employers shall also ensure that Paternity Leave Act of 1996
measures are taken to prevent the See III. C. 2. c. Paternity Leave
telecommuting employee from being
isolated from the rest of the working Solo Parents’ Welfare Act
community in the company by giving the See III. C. 2. a., Parental Leave for Solo
telecommuting employee the opportunity to Parents, III. E. 7. Solo Parents, and VII. E. Solo
meet with colleagues on a regular basis, and Parents
allowing access to company information.
Magna Carta of Women
SECTION 6. Data Protection. — The See III. E. 3. a. Discrimination
employer shall be responsible for taking the
appropriate measures to ensure the Amending Art. 135 of the Labor Code Re:
protection of data used and processed by Prohibition on Discrimination Against
the telecommuting employee for Women
professional purposes. The employer shall See III. E. 3. c. Prohibited Acts
inform the telecommuting employee of all
relevant laws, and company rules Anti-Violence Against Women and Their
concerning data protection. The Children Act of 2004
telecommuting employee shall ensure that See III. C. 2. e. Battered women leave
confidential and proprietary information are
protected at all times. Safe Spaces Act
For this purpose, the provisions of the Data See III. D. Sexual Harassment in the Work
Privacy Act of 2012 shall have suppletory Environment
effect.
Special Protection of Children Against
SECTION 7. Administration. — The parties Abuse, Exploitation, and Discrimination Act
to a telecommuting work arrangement shall See III. E. 4. Minors
be primarily responsible for its
administration. In case of differences in Batas Kasambahay
SeeIII. E. 5. Kasambahays
interpretation,
be observed: the following guideline shall
(a) The differences shall be treated as Anti-Sexual Harassment Act of 1995
grievances under the applicable See III. D. Sexual Harassment in the Work
grievance mechanism of the company. Environment
(b) If there is no grievance mechanism or if
the mechanism is inadequate, the Portability Law
grievance shall be referred to the See VII. C. Limited Portability Law
regional office of the Department of
Labor and Employment (DOLE) which New Labor Relations Law
has jurisdiction over the workplace for [amended certain Articles in the Labor Code;
conciliation. already incorporated into the provisions
 (c) To facilitate the resolution of grievances, previously cited]
employers shall keep and maintain, as
Wage Rationalization Act
part of their
proving records,
that the the documents
telecommuting work See III. B. Wages
arrangement was voluntarily adopted.

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Productivity Incentives Act of 1990 the terms and conditions agreed upon by
labor and management, be integrated in the
SECTION 5. Labor-Management collective bargaining agreement that may be
Committee. — a) A business enterprise or entered into between them.
its employees, through their authorized
representatives, may initiate the formation of SECTION 7. Benefits and Tax Incentives.
a labor-management committee that shall be — (a) Subject to the provisions of Section 6
composed of an equal number of hereof, a business enterprise which adopts
representatives from the management and a productivity incentives program, duly and
from the rank-and-file employees: Provided , mutually agreed upon by parties to the labor-
That both management and labor shall have management committee, shall be granted a
equal voting rights: Provided , further, That at special deduction from gross income
the request of any party to the negotiation, equivalent to fifty percent (50%) of the total
the National Wages and Productivity productivity bonuses given to employees
Commission of the Department of Labor and under the program over and above the total
Employment shall provide the necessary allowable ordinary and necessary business
studies, technical information and deductions for said bonuses under the
assistance, and expert advice to enable the National Internal Revenue Code, as
parties to conclude productivity agreements. amended.

(b) In business enterprises with duly (b) Grants for manpower training and special
recognized or certified labor organizations, studies given to rank-and-file employees
the representatives of labor shall be those pursuant to a program prepared by the labor-
designated by the collective bargaining management committee for the
agent(s) of the bargaining unit(s). development of skills identified as necessary
by the appropriate government agencies
(c) In business enterprises without duly shall also entitle the business enterprise to a
recognized or certified labor organizations, special deduction from gross income
the representatives of labor shall be elected equivalent to fifty per cent (50%) of the total
by at least a majority of all rank-and-file grants over and above the allowable
employees who have rendered at least six ordinary and necessary business deductions
(6) months of continuous service. for said grants under the National Internal
Revenue Code, as amended.
SECTION 6. Productivity Incentives
Program. — a) The productivity incentives (c) Any strike or lockout arising from any
program shall contain provisions for the violation of the productivity incentives
manner of sharing and the factors in program shall suspend the effectivity thereof
determining productivity bonuses: Provided, pending settlement of such strike or lockout:
That the productivity bonuses granted to Provided, That the business enterprise shall
labor under this program shall not be less not be deemed to have forfeited any tax
than half of the percentage increase in the incentives accrued prior to the date of
productivity of the business enterprise. occurrence of such strike or lockout, and the
workers shall not be required to reimburse
b) Productivity agreements reached by the the productivity bonuses already granted to
 parties as provided in this Act supplement them under the productivity incentives
existing collective bargaining agreements. program. Likewise, bonuses which have

c) If, during the existence of the productivity already

shall beaccrued before
paid the the strike
workers or lockout
within six (6)
incentives program or agreement, the months from their accrual.
employees will join or form a union, such
program or agreement may, in addition to

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(d) Bonuses provided for under the vested with the special function of
productivity incentives program shall be developing and implementing welfare
given to the employees not later than every programs and services that respond to the
six (6) months from the start of such program needs of its member-OFWs and their
over and above existing bonuses granted by families. It is endowed with powers to
the business enterprise and by law: administer a trust fund to be called the
Provided, That the said bonuses shall not be OWWA Fund. Being a chartered institution,
deemed as salary increases due the the OWWA shall not fall under any of the
employees and workers. following categories: government
(e) The special deductions from gross instrumentalities with corporate powers
income provided for herein shall be allowed (GICPs), government corporate entities
starting the next taxable year after the (GCEs), government financial institutions
effectivity of this Act. (GFIs) and/or government- owned or -
controlled corporations (GOCCs).
SECTION 9. Disputes and Grievances.—
Whenever disputes, grievances, or other The OWWA shall be an attached agency of
matters arise from the interpretation or the Department of Labor and Employment
implementation of the productivity incentives (DOLE). Its officials and employees are
program, the labor-management committee covered by the Salary Standardization Law.
shall meet to resolve the dispute, and may
seek the assistance of the National SECTION 6. Functions . — The OWWA
Conciliation and Mediation Board of the shall exercise the following functions:
Department of Labor and Employment for (a) To protect the interest and promote the
such purpose. Any dispute which remains welfare of member-OFWs in all phases
unresolved within twenty (20) days from the of overseas employment in recognition
time of its submission to the labor- of their valuable contribution to the
management committee shall be submitted overall national development effort;
for voluntary arbitration in line with the (b) To protect the interest and promote the
pertinent of the Labor Code, as amended. welfare of member-OFWs in all phases
of overseas employment in recognition
The productivity incentives program shall of their valuable contribution to the
include the name(s) of the voluntary overall national development effort;
arbitrator or panel of voluntary arbitrators (c) To facilitate the implementation of the
previously chosen and agreed upon by the provisions of the Labor Code of the
labor-management committee. Philippines (Presidential Decree No.
442, as amended) and the Migrant
SSS Law Workers and Overseas Filipinos Act of
See VII. A. Social Security System Law 1995 (Republic Act No. 8042, as
amended), concerning the responsibility
GSIS Law of the government to promote the well-
See VII. B. Government Service Insurance being of OFWs. Pursuant thereto, and in
Service Law furtherance thereof, it shall provide legal
assistance to member-OFWs;
Social Security Act of 2018 (d) To provide social and welfare programs
See VII. A. Social Security System Law and services to member-OFWs,
including social assistance, education

Overseas
Act Workers Welfare Administration and training, cultural
management, services, financial
reintegration, and
entrepreneurial development services;
SECTION 4. Nature of the OWWA. — The (e) To provide prompt and appropriate
OWWA is a national government agency response to global emergencies or crisis

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situations affecting OFWs and their years from the last membership contribution
families; made.
(f) To ensure the efficiency of collections
and the viability and sustainability of the SECTION 10. Power of the Board to
OWWA Fund through sound, judicious, Adjust the Membership Contribution. —
and transparent investment and Based on actuarial studies and taking into
management policies; consideration the welfare and interest of the
(g) To undertake studies and researches for member-OFWs, the OWWA Board may
the enhancement of the social, adjust or modify the amount of membership
economic, and cultural well-being of contribution.
member-OFWs and their families;
(h) To develop, support and finance specific SECTION 11. Proof of Membership. —
projects for the welfare of member- Upon payment of the required contribution,
OFWs and their families; and an OWWA member shall be issued an
(i) To ensure the implementation of all laws official receipt, an OWWA E-Card,
and ratified international conventions identification card, or other proof of
within its jurisdiction. membership. No additional or extra charges
shall be levied on the member-OFW.
SECTION 8. Registration of Membership.
— Membership in the OWWA may be The OWWA shall maintain a comprehensive
obtained in two (2) ways: database of member-OFWs, which shall be
(a) By compulsory registration upon updated regularly.
processing of employment contracts of
OFWs at the POEA; and SECTION 13. Authorized Collecting
(b) By voluntary registration of OFWs at job Officers. — (a) Membership contributions
sites, or through electronic registration. shall be collected by duly authorized
au thorized OWWA
collecting officers, deputized collecting
SECTION 9. Amount of Contribution and officers, or accredited collecting agents. The
Effectivity of Membership.— Membership collection of membership contributions shall
in the OWWA, either through the compulsory be made at the POEA contract processing
or voluntary coverage, shall be effective hub, OWWA regional and overseas offices,
upon payment of membership contribution in and other accredited collection centers.

the amountor its

(US$25.00) of equivalent
twenty-five USprevailing
in the dollars (b) In case of voluntary members who
foreign exchange rates. Such membership register at the job site, membership
shall be considered active until the expiration contributions shall be made directly to the
of the OFWs existing employment contract OWWA Overseas Offices located in the
or after two (2) years from contract respective foreign service posts of the
effectivity, whichever comes first. Philippines.

In case of voluntary registration, SECTION 14. Reportorial Requirements.

membership shall be considered active until — The collecting officer, deputized collecting
the expiration of the OFWs existing officer, or the accredited collecting agent
employment contract or after two (2) years shall prepare and submit the required
 shall prepare and submit the required
from the date of voluntary registration, monthly reports to the OWWA Central Office
whichever comes first. in the Philippines.

The OWWA shall be allowed to collect a SECTION 17. Prohibition against

subsequent membership contribution from Discrimination on Membership. — No
the member-OFW only after every two (2) OFW shall be denied membership to the

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OWWA by reason of age, gender, religious (b) Repatriation Assistance. — Consistent

belief, or political affiliation. The OWWA shall with the provisions of Republic Act No.
take affirmative steps to enhance the access 8042, as amended, the OWWA shall
of OFWs to its programs and services. assist the Department of Foreign Affairs
in providing OFWs with services
SECTION 18. Payment of Contribution or necessary to facilitate repatriation, as
OWWA Fee by Employer. — Contributions may be required.
to the OWWA Fund must be paid by the
employers or principals, or in their default, by (c) Loan and Other Credit Assistance. —
the recruitment/manning agency in the case The OWWA shall provide low-interest
of new hires. The POEA shall ensure that loans to member-OFWs. It shall have the
this stipulation is made an integral part of the authority to hire experts in finance or
overseas employment contract. banking to assist in implementing the
said loan programs.
SECTION 19. Penalty for Violation by (d) Workers Assistance and On-site
Recruitment/Manning Agency. — Services. — The OWWA shall sustain
Violation by a recruitment/manning agency and maintain assistance to member-
of the preceding section shall constitute an OFWs in all its overseas and regional
offense punishable by revocation of its offices. Services shall be gender-
license and all its officers and directors shall responsive and shall include information
be perpetually disqualified from engaging in regarding the names, occupation/job
the business of recruitment/placement of categories and addresses of the
overseas workers. Such penalty is without member-OFWs; legal assistance
prejudice to any other liability which the providing guidance and information on
officers and directors may have incurred protection of migrant rights, including the
under existing laws, rules and regulations. prevention of gender-based violence;
developing materials for the
SECTION 35. Benefits and Services to predeparture orientation seminars;
OFWs. — conducting psycho-social counseling
(a) Reintegration of OFWs. — The services; conciliation services;
reintegration of OFWs, taking into appropriate services and intervention for
consideration the needs of women victims of gender-based violence, and
outreach missions, among others. The
migrant workers,
programs shall be one
of the OWWA. of the
In this core
regard, OWWA shall likewise make competent
and for purposes of policy and program representations with employers, agents,
coordination, the National Reintegration and host government authorities to
Center for OFWs created under assist member-OFWs in obtaining relief
Republic Act No. 10022 shall be an from grievances and work-related
attached office of the OWWA. It shall be issues, including claims for unpaid
headed by an Executive Director who wages, and illegal recruitment cases
shall be under the supervision of the among others.
OWWA Administrator.
(e) Social Benefits. — A member-OFW shall
To be able to sustain the viability of this be covered with the following social
 program, not less than ten percent (10%) benefits:
of OWWA's collection of contribution for (1) Death and Disability Benefits:
(i) Death Benefits. — A member
the immediately
allocated preceding
annually for the year shall be
reintegration shall be covered with life insurance
program. for the duration of his or her
employment contract. The coverage
shall include one hundred thousand

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pesos (P100,000.00) for natural (i) Death Benefits. — A member

death and two hundred thousand shall be covered with life insurance
pesos (P200,000.00) for accidental for the duration of his or her
death; employment contract. The coverage
shall include one hundred thousand
(ii) Disability and Dismemberment pesos (P100,000.00) for natural
Benefits. — Disability and death and two hundred thousand
dismemberment benefits shall be pesos (P200,000.00) for accidental
included in a member's life death;
insurance policy, as provided for in
the impediment schedule contained (ii) Skills-for-Employment
in the OWWA Manual of Systems Scholarship Program. — For
and Procedures. The coverage is technical or vocational training
within the range of two thousand scholarship;
pesos (P2,000.00) to fifty thousand
pesos (P50,000.00); (iii) Education for Development
Scholarship Program. — For
(iii) Total Disability Benefit. — In baccalaureate programs; and
case of total permanent disability, a
member shall be entitled to one (iv) Seafarers' Upgrading Program.
hundred thousand pesos — To ensure the competitive
(P100,000.00); and advantage of Filipino seafarers in
meeting competency standards, as
(iv) Burial Benefit. — A burial benefit required by the International
of twenty thousand pesos Maritime Organization (IMO),
(P20,000.00) shall be provided in International Labor Organization
case of the member's death. (ILO) conventions, treaties and
agreements, sea-based members
Based on actuarial studies, the shall be entitled to one upgrading
Board may increase the amount of program for every three (3)
the abovementioned benefits. membership contributions.

(2) Health Care Benefits. — Within two The annual scholarship lists of all
(2) years from the effectivity of this these programs shall be submitted to
Act, the OWWA shall develop and the Board.
implement health care programs for
the bene
bene t of memb
member-
er-OF
OFWsWs and
and Universal Health Care Act
their families, taking into See VII. H. Universal Health Care
consideration the health care needs
of women as provided for in Rules 45 and 65
Republic Act No. 9710, or the
Magna Carta of Women, and other RULE 45
relevant laws. Appeal by Certiorari to the Supreme Court
(3) Education and Training Benefits. —
 A member, or the member's Section 1. Filing of petition with Supreme
designated beneficiary, may avail Court. — A party desiring to appeal by
any of the following scholarship
programs, subject to a selection certiorari from
resolution a judgment
of the Court ofor Appeals,
final orderthe
or
process and accreditation of Sandiganbayan, the Regional Trial Court or
participating institutions: other courts whenever authorized by law,
may file with the Supreme Court a verified

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petition for review on certiorari. The petition person aggrieved thereby may file a verified
shall raise only questions of law which must petition in the proper court, alleging the facts
be distinctly set forth. with certainty and praying that judgment be
rendered annulling or modifying the
Section 2. Time for filing; extension. — proceedings of such tribunal, board or
The petition shall be filed within fifteen (15) officer, and granting such incidental reliefs
days from notice of the judgment or final as law and justice may require.
order or resolution appealed from, or of the
denial of the petitioner's motion for new trial The petition shall be accompanied by a
or reconsideration filed in due time after certified true copy of the judgment, order or
notice of the judgment. On motion duly filed resolution subject thereof, copies of all
and served, with full payment of the docket pleadings and documents relevant and
and other lawful fees and the deposit for pertinent thereto, and a sworn certification of
costs before the expiration of the non-forum shopping as provided in the third
reglementary period, the Supreme Court paragraph of section 3, Rule 46.
may for justifiable reasons grant an
extension of thirty (30) days only within Section 2. Petition for prohibition. —
which to file the petition. When the proceedings of any tribunal,
corporation, board, officer or person,
Section 6. Review discretionary. — A whether exercising judicial, quasi-judicial or
review is not a matter of right, but of sound ministerial functions, are without or in excess
judicial discretion, and will be granted only of its or his jurisdiction, or with grave abuse
when there are special and important of discretion amounting to lack or excess of
reasons thereof. The following, while neither jurisdiction, and there is no appeal or any
controlling nor fully measuring the court's other plain, speedy, and adequate remedy in
discretion, indicate the character of the the ordinary course of law, a person
reasons which will be considered: aggrieved thereby may file a verified petition
a. When the court a quo has decided a in the proper court, alleging the facts with
question of substance, not theretofore certainty and praying that judgment be
determined by the Supreme Court, or rendered commanding the respondent to
has decided it in a way probably not in desist from further proceedings in the action
accord with law or with the applicable or matter specified therein, or otherwise
granting such incidental reliefs as law and
b. decisions
When theof the Supreme
court a quoCourt;
has orso far justice may require.
departed from the accepted and usual
course of judicial proceedings, or so far The petition shall likewise be accompanied
sanctioned such departure by a lower by a certified true copy of the judgment,
court, as to call for an exercise of the order or resolution subject thereof, copies of
power of supervision. all pleadings and documents relevant and
pertinent thereto, and a sworn certification of
RULE 65 non-forum shopping as provided in the third
Certiorari, Prohibition and Mandamus paragraph of section 3, Rule 46.

mandamus. —
Section 3. Petition for mandamus.
 Section 1. Petition for certiorari. When Section 3. Petition for mandamus.
any tribunal, board or officer exercising When any tribunal, corporation, board,
judicial or quasi-judicial functions has acted officer or person unlawfully neglects the
without or in
with grave excess
abuse its or his jurisdiction,
of discretion amounting or to performance of an
specifically enjoins as act which
a duty the from
resulting law
lack or excess of jurisdiction, and there is no an office, trust, or station, or unlawfully
appeal, or any plain, speedy, and adequate excludes another from the use and
remedy in the ordinary course of law, a enjoyment of a right or office to which such

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other is entitled, and there is no other plain,

speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby
may file a verified petition in the proper court,
alleging the facts with certainty and praying
that judgment be rendered commanding the
respondent, immediately or at some other
time to be specified by the court, to do the
act required to be done to protect the rights
of the petitioner, and to pay the damages
sustained by the petitioner by reason of the
wrongful acts of the respondent.

The petition shall also contain a sworn

certification of non-forum shopping as
provided in the third paragraph of section 3,
Rule 46.