2 2020 Up Boc Labor Law Reviewer.pdf

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TABLE OF CONTENTS LABOR LAW 1 .......................................................... 1 I.

FUNDAMENTAL PRINCIPLES ........................ 1 A. 1. 2. 3. B.

II.

LEGAL BASIS ........................................... 1 1987 Constitution .................................. 1 Civil Code ............................................. 2 Labor Code ........................................... 3

STATE POLICY TOWARDS LABOR ........ 3 1. Security of tenure .................................. 3 2. Social justice ......................................... 4 3. Equal work opportunities ...................... 5 4. Right to self-organization and collective bargaining .................................................... 5 5. Construction in favor of labor ................ 6 6. Burden of proof and quantum of evidence .. 7

III.

LABOR STANDARDS ................................ 26 A. 1. 2. 3. B.

A.

DEFINITION OF RECRUITMENT AND PLACEMENT .............................................. 7

B. REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES ................................ 9 1. Regulatory Authorities .......................... 9 2. Ban on Direct Hiring ............................ 11 3. Entities Prohibited from Recruiting ..... 11 4. Suspension or Cancellation of License or Authority .................................................... 12 5. Prohibited Practices ............................ 13 C.

ILLEGAL RECRUITMENT ...................... 15 1. Elements ............................................. 15 2. Types .................................................. 17 3. Illegal Recruitment as Distinguished from Estafa ........................................................ 18

D. LIABILITY OF LOCAL RECRUITMENT AGENCY AND FOREIGN EMPLOYER .......... 18 1. Solidary Liability .................................. 18 2. Theory of Imputed Knowledge ............ 20

1. 2.

LEAVES .................................................. 57 Labor Code ......................................... 57 Special laws ........................................ 58

C.

D. SEXUAL HARASSMENT IN THE WORK ENVIRONMENT .................................................. 63 1. Definition ............................................. 63 2. Duties and Liabilities of Employers ..... 64 3. Applicable Laws .................................. 65 E. WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES ............................ 66 1. Apprentices and Learners ................... 66 2. Disabled Workers ................................ 69 3. Gender ................................................ 72 4. Minors ................................................. 74 5. Kasambahays ..................................... 77 6. Homeworkers ...................................... 80 7. Solo Parents ....................................... 81 8. Night Workers ..................................... 81 9. Migrant Workers .................................. 83 10. Security Guards .................................. 84 IV.

POST-EMPLOYMENT ................................ 85

A.

E. TERMINATION OF CONTRACT OF MIGRANT WORKER ........................................................ 21 F. EMPLOYMENT OF NON-RESIDENT ALIENS 21 1. Coverage ............................................ 21 2. Conditions for Grant of Permit ............ 23 3. Validity of AEP and Renewal .............. 24 4. Denial of Application ........................... 25 5. Revocation; Cancellation .................... 25 6. Appeal ................................................. 25 7. Penalty ................................................ 26

2. 3. 4. 5. 6.

WAGES ................................................... 40 Definition, Components, and Exclusions 40 Principles ............................................ 49 Minimum Wage ................................... 50 Payment of wages .............................. 51 Prohibitions regarding wages .............. 52 Wage determination ............................ 54

1.

RECRUITMENT AND PLACEMENT ............ 7

CONDITIONS OF EMPLOYMENT.......... 26 Hours of Work ..................................... 26 Rest Periods ....................................... 37 Service Charge ................................... 39

3.

EMPLOYER-EMPLOYEE RELATIONSHIP ................................................................ 85 Tests to Determine Existence ............. 86 Legitimate Subcontracting as distinguished from Labor-Only Contracting .......................................... 87 Kinds of Employment .......................... 91

1. 2. 3.

TERMINATION BY EMPLOYER ............. 99 Requisites for Validity ....................... 100 Preventive Suspension ..................... 113 Illegal Dismissal ................................ 114

1. 2.

B.

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4. Money Claims arising from EmployerEmployee Relationship ............................ 121 5. When Not Deemed Dismissed; Employee on Floating Status ........................................ 123 C.

TERMINATION BY EMPLOYEE ........... 124 1. With notice to the employer .............. 124 2. Without notice to the employer ......... 124 3. Distinguish voluntary resignation and constructive dismissal ............................. 124

D. 1. 2. 3. 4. 5.

RETIREMENT ....................................... 125 Eligibility and Coverage .................... 125 Amount of Retirement Pay ................ 126 Retirement Benefits for Workers Paid by Results .................................................... 127 Retirement Benefit of Part-Time Workers .......................................................... 127 Non-Taxable ..................................... 127

LABOR LAW 2 ...................................................... 129 V.

LABOR RELATIONS ................................ 130 A. 1. 2. 3.

RIGHT TO SELF-ORGANIZATION ...... 130 Who May or May Not Exercise the Right .......................................................... 130 Commingling or Mixture of Membership . .......................................................... 134 Rights and Conditions of Membership .... .......................................................... 134

B.

BARGAINING UNIT .............................. 137

C.

BARGAINING REPRESENTATIVE ...... 140

D.

2.

RIGHTS OF LABOR ORGANIZATIONS 158 Check off, Assessment, Agency Fees 158 Collective Bargaining ........................ 160

1. 2. 3.

UNFAIR LABOR PRACTICES .............. 169 Nature, Aspects ................................ 169 By Employers .................................... 170 By Labor Organizations .................... 176

1.

E.

F.

VI.

PEACEFUL CONCERTED ACTIVITIES178 1. By Labor Organization ...................... 178 2. By Employer ..................................... 188 3. Assumption of Jurisdiction by Secretary of Labor and Employment ............................. 189 MANAGEMENT PREROGATIVE ............. 191

A.

DISCIPLINE .......................................... 192

B.

TRANSFER OF EMPLOYEES ............. 193

C.

PRODUCTIVITY STANDARDS ............ 194

D.

BONUS ................................................. 194

E.

CHANGE OF WORKING HOURS ........ 194

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F. BONA FIDE OCCUPATIONAL QUALIFICATIONS ............................................. 195 G.

POST-EMPLOYMENT RESTRICTIONS .... .............................................................. 195

H.

MARRIAGE BETWEEN EMPLOYEES OF COMPETITOR-EMPLOYERS ................. 195

VII.

SOCIAL LEGISLATION ............................ 196

A. 1. 2. 3.

SOCIAL SECURITY SYSTEM LAW ..... 196 Coverage and Exclusions ................. 196 Dependents and Beneficiaries .......... 197 Benefits ............................................. 197

B. GOVERNMENT SERVICE INSURANCE SYSTEM LAW ................................................... 200 1. Coverage and Exclusions ................. 200 2. Dependents and Beneficiaries .......... 201 3. Benefits ............................................. 201 C.

LIMITED PORTABILITY LAW ............... 206

D.

DISABILITY AND DEATH BENEFITS .. 208 1. Labor Code ....................................... 208 2. Employees Compensation and State Insurance Fund ........................................ 213 3. Philippine Overseas Employment Administration-Standard Employment Contract ................................................... 215

E.

SOLO PARENTS .................................. 218

F.

KASAMBAHAY ..................................... 219

G.

AGRARIAN RELATIONS ...................... 219 1. Concept of Agrarian Reform ............. 219 2. Existence and Concept of Agricultural Tenancy ................................................... 219 3. Rights of Agricultural Tenants ........... 220 4. Concept of Farmworkers ................... 221

H. 1. 2. 3. VIII. A.

UNIVERSAL HEALTH CARE ................ 222 Policy ................................................ 222 Coverage .......................................... 222 National Health Insurance Program .. 223 JURISDICTION AND REMEDIES ........ 224

LABOR ARBITER ................................. 224 1. Jurisdiction of the Labor Arbiter as distinguished from the Regional Director . 224 2. Requirements to perfect appeal to National Labor Relations Commission ................... 225 3. Reinstatement and/or execution pending appeal ...................................................... 226

B. NATIONAL LABOR RELATIONS COMMISSION 226 1. Jurisdiction/Powers ........................... 226 2. Remedies .......................................... 227

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C.

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

D.

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

E. 1. 2. 3.

BUREAU OF LABOR RELATIONS ...... 230 Jurisdiction ........................................ 230 Appeals ............................................. 232 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. 1. 2.

VOLUNTARY ARBITRATOR .................... 244 Jurisdiction ........................................ 245 Remedies .......................................... 247

1. 2. 3. 4. 5.

PRESCRIPTION OF ACTIONS ................ 248 Money claims .................................... 248 Illegal dismissal ................................. 248 Unfair labor practice .......................... 248 Offenses under the Labor Code ....... 249 Illegal recruitment ............................. 249

J.

LAWS AND RULES OF PROCEDURE ................ 249

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FUNDAMENTAL PRINCIPLES A. LEGAL BASIS

1. 1987 Constitution ART. II: Declaration of Principles and State Policies The State shall: a. Promote full employment, a rising standard of living, and an improved quality of life for all [Sec. 9, Art. II] b. Promote social justice [Sec. 10, Art. II] c. Affirm labor as a primary social economic force [Sec. 18, Art. II] d. Protect rights of workers and promote their welfare [Sec. 18, Art. II] e. Recognize the indispensable role of the private sector [Sec. 20, Art. II.] f. Encourage private enterprise [Sec. 20, Art. II.] g. Provide incentives to needed investments [Sec. 20, Art. II.] SEC. 3, par. 1-2, ART. XIII: Social Justice and Human Rights The State shall: a. Afford full protection to labor, local and overseas, organized and unorganized b. Promote full employment and equality of employment opportunities for all. c. Guarantee the rights (also known as the “Cardinal Labor Rights”) of all workers to 1. Self-organization 2. Collective bargaining and negotiations 3. Peaceful concerted activities 4. Strike in accordance with law 5. Security of tenure, 6. Humane conditions of work 7. A living wage. 8. To participate in policy and decisionmaking processes affecting their rights and benefits as may be provided by law.

Labor as Protected Class; Presumption of Inherent Inequality The presumption is that the employer and the employee are on unequal footing, so the State has the responsibility to protect the employee. This presumption, however, must be taken on a case-to-case basis. In situations where special qualifications are required for employment, such as a Master's degree, prospective employees are at a better position to bargain with the employer. Employees with special qualifications would be on equal footing with their employers, and thus, would need a lesser degree of protection from the State than an ordinary rank-and-file worker. [Perfecto Pascua v. Bank Wise Inc., G.R. No. 191460 & 191464 (2018)]. SEC. 3, par. 3-4, ART. XIII: Social Justice and Human Rights The State shall: a. Promote the principle of shared responsibility between workers and employers b. Promote the preferential use of voluntary modes in settling disputes c. Regulate the relations between workers and employers, d. Recognize the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. Balancing of Interests While labor laws should be construed liberally in favor of labor, we must be able to balance this with the equally important right of the [employer] to due process [Gagui v. Dejero, G.R. No. 196036 (2013)] Due Process [Sec. 1, Art. III, 1987 Constitution] Under the Labor Code, as amended, the requirements for the lawful dismissal of an employee by his employer are two-fold: the substantive and the procedural. 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, Inc., G.R. No. 172589 (2010)] Procedural: an opportunity to be heard and to defend oneself must be observed before an employee may be dismissed [Metro Eye Security v. Salsona, G.R. No. 167367 (2007)] Labor as Property Right One’s employment is a property right, and the wrongful interference therewith is an actionable wrong. The right is considered to be property within the protection of the constitutional guarantee of due process of law. [Texon Manufacturing v. Millena, G.R. No. 141380 (2004)] The Right to Assemble Sec. 4, Art. III. No law shall be passed abridging the right of the people peaceably to assemble and petition the government for redress of grievances. Right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. [BAYAN, et al. v. Ermita, G.R. No. 169838, (2006)]. Wearing armbands and putting up placards to express one’s views without violating the rights of third parties, are legal per se and even constitutionally protected. [Bascon v. CA, G.R. No. 144899 (2004)] The Right to Form Associations [Sec. 8, Art. III, 1987 Constitution] The right to form associations shall not be impaired except through a valid exercise of police power. [Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer] Non-impairment of Contracts [Sec. 10, Art. III, 1987 Constitution] A law which changes the terms of a legal contract between parties, either in the time or mode or performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something

different from that provided in its terms, is a law which impairs the obligation of a contract and is null and void. [Clemens v. Nolting, G.R. No. L-17959 (1922)] Vis-à-vis the freedom of contract The prohibition to impair the obligation of contracts is not absolute and unqualified. In spite of the constitutional prohibition and the fact that both parties are of full age and competent to contract, it does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. [Leyte Land Transportation Co. v. Leyte Farmers & Workers Union, G.R. No. L-1377 (1948)] Labor Rights and Protection All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. [Sec. 16, Art. III.] No involuntary servitude in any form shall exist. [Sec. 18 (2), Art. III.] Except as a punishment for a crime whereof the party shall have been duly convicted. [Sec. 18 (2), Art. III.]

2. Civil Code Relations between labor and capital The relations between capital and labor are not merely contractual. [Art. 1700, CC] They are impressed with public interest that labor contracts: a. Must yield to the common good b. Are subject to special laws on 1. Labor unions, 2. Collective bargaining, 3. Strikes and lockouts, 4. Closed shop, 5. Wages, 6. Working conditions, 7. Hours of labor; and 8. Similar subjects

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C.

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

D.

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

E. 1. 2. 3.

BUREAU OF LABOR RELATIONS ...... 230 Jurisdiction ........................................ 230 Appeals ............................................. 232 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. 1. 2.

VOLUNTARY ARBITRATOR .................... 244 Jurisdiction ........................................ 245 Remedies .......................................... 247

1. 2. 3. 4. 5.

PRESCRIPTION OF ACTIONS ................ 248 Money claims .................................... 248 Illegal dismissal ................................. 248 Unfair labor practice .......................... 248 Offenses under the Labor Code ....... 249 Illegal recruitment ............................. 249

J.

LAWS AND RULES OF PROCEDURE ................ 249

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Note: The welfare of the people should be the supreme law.

2. Social justice Sec. 9, Art. II, 1987 Constitution: The State shall promote a just and dynamic social order that will: a. Ensure the prosperity and independence of the nation; b. Free the people from poverty through policies that provide adequate social services; and c. Promote: 1. Full employment, 2. A rising standard of living 3. Improved quality of life for all Sec. 10, Art. II, 1987 Constitution: The State shall promote social justice in all phases of national development. Social Justice as justification [Calalang v. Williams, G.R. No. 47800 (1940)] Social justice is neither communism, nor despotism, nor atomism, nor anarchy BUT: a. The humanization of laws; and b. The equalization of social and economic forces by the State. So that justice in its rational and objectively secular conception may at least be approximated. Social justice means: a. The promotion of the welfare of all the people, b. The adoption by the Government of measures calculated to insure economic stability of all the competent elements of society – 1. through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally; 2. through the adoption of measures legally justifiable, or extraconstitutionally; and 3. through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.

Limits of Social Justice Social justice should be used only to correct an injustice [Agabon v. NLRC, G.R. No. 158693 (2004)]. It is not intended to countenance wrongdoing simply because it is committed by the underprivileged. It cannot be permitted to be a refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. [Tirazona v. Phil EDS Techno-Service, Inc., G.R. 169712 (2009)]. Tilting the scales [Rivera vs. Genesis Transport Service, Inc., G.R. No. 215568 (2015)] Labor laws are meant to implement and effect social justice. Thus, such considerations should be taken into account when dealing with labor cases. The social justice suppositions underlying labor laws require that the statutory grounds justifying termination of employment should not be read to justify the view that employees should, in all cases, be free from any kind of error. Not every improper act should be taken to justify the termination of employment. To infer from a single error that an employee committed serious misconduct or besmirched his employer’s trust is grave abuse of discretion. It is an inference that is arbitrary and capricious. It is contrary to the high regard for labor and social justice enshrined in our Constitution and our labor laws. Welfare State [Alalayan v. National Power Corporation, G.R. No. L-24396 (1968)] The welfare state concept is found in the constitutional clause on the promotion of social justice. Purpose: a. To ensure the well-being and economic security of all the people, and

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b. In the pledge of protection to labor with specific authority to regulate the relations between landowners and tenants and between labor and capital. Separation pay as measure of social justice [PLDT v. NLRC, G.R. No. 80609 (1988)] The rule embodied in the Labor Code is that a person dismissed for lawful cause is not entitled to separation pay. Exception: Considerations of equity. Equity has been defined as justice outside law, being ethical rather than jural and belonging to the sphere of morals than of law. Strictly speaking, however, it is not correct to say that there is no express justification for the grant of separation pay to lawfully dismissed employees other than the abstract consideration of equity. Reason: Our Constitution is replete with positive commands for the promotion of social justice, and particularly the protection of the rights of the workers.

3. Equal work opportunities Declaration of Basic Policy [Art. 4, LC] The State shall: a. Afford protection to labor, b. Promote full employment, c. Ensure equal work opportunities regardless of: 1. Sex, 2. Race, or 3. Creed, d. Regulate the relations between workers and employers. The State shall assure the rights of workers to: a. Self-organization, b. Collective bargaining, c. Security of tenure, and d. Just and humane conditions of work. Note: Art. 4 of the Labor Code must be read in relation to the 1987 Constitution since this is still based on the 1973 Constitution.

Sec. 3, par. 1, Art. XIII, 1987 Constitution. The State shall: a. Afford full protection to labor 1. Local and overseas, 2. Organized and unorganized, and b. Promote full employment and equality of employment opportunities for all. Sec. 2, R.A. No. 10911. Declaration of Policies The State shall promote equal opportunities in employment for everyone. To this end, it shall be the policy of the State to: a. Promote employment of individuals on the basis of their – 1. Abilities, 2. Knowledge, 3. Skills, and 4. Qualifications, rather than their age b. Prohibit arbitrary age limitations in employment. c. Promote the right of all employees and workers, regardless of age, to be treated equally in terms of – 1. Compensation, 2. Benefits, 3. Promotion, 4. Training, and 5. Other employment opportunities.

4. Right to self-organization and collective bargaining 1987 Constitution The State shall guarantee: a. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law. [Sec. 8, Art. III.] b. The rights of all workers to – 1. Self-organization [Sec. 3, Art. XIII] 2. Collective bargaining and negotiations [Sec. 3, Art. XIII] 3. Peaceful concerted activities [Sec. 3, Art. XIII] 4. Strike in accordance with law. [Sec. 3, Art. XIII]

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Art. 253, Labor Code All persons employed: a. In commercial, industrial and agricultural enterprises, and b. In religious, charitable, medical or educational institutions, whether operating for profit or not, shall have the right to – a. Self-organization, b. Form, join, or assist labor organization of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. Art. 254, Labor Code Employees of government corporations established under the corporation code shall have the right to: a. Organize, and b. Bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. Infringement of the right to selforganization It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization [Art. 257, LC] Scope of right to self-organization 1. Right to form, join or assist labor organizations of their own choosing for the purpose of collective bargaining through representatives of their own choosing [Art. 257]; 2. Right to engage in lawful concerted activities for the same purpose (collective bargaining) or for their mutual aid and protection [Art. 257] 3. The right of any person to join an organization also includes the right to leave that organization and join another

one. [Heritage Hotel Manila v. PIGLASHeritage, G.R. No. 177024 (2009)] 4. The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising said right. It is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right. [Reyes v. Trajano, G.R. No. 84433 (1992)] 5. The right of the employees to selforganization is a compelling reason why their withdrawal from the cooperative must be allowed. As pointed out by the union, the resignation of the memberemployees is an expression of their preference for union membership over that of membership in the cooperative. [Central Negros Electric Cooperative v. SOLE, G.R. No. 94045 (1991)] 6. Their freedom to form organizations would be rendered nugatory if they could not choose their own leaders to speak on their behalf and to bargain for them. [PanAmerican World Airways, Inc v. PanAmerican Employees Association, G.R. No. L-25094 (1969)]

5. Construction in favor of labor All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor. [Art. 4, Labor Code] In case of doubt, all legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. [Art. 1702, Civil Code] Liberal Construction Of the laws Art. 4 of the Labor Code mandates that all doubts in the implementation and interpretation of the provisions thereof shall be resolved in favor of labor. This is merely in keeping with the spirit of our Constitution and laws which lean over backwards in favor of the working class, and mandate that every doubt must be resolved in their favor. [Hocheng Philippines

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Corporation v. Farrales, G.R. No. 211497 (2015)] Of labor contracts A CBA, as a labor contract within the contemplation of Art. 1700 of the Civil Code of the Philippines which governs the relations between labor and capital, is not merely contractual in nature but impressed with public interest, thus, it must yield to the common good. As such, it must be construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and purpose which it is intended to serve. [Cirtek Employees Labor Union-FFW v. Cirtek Electronics, G.R. No. 190515 (2010)] Mutual obligation The employer's obligation to give his workers just compensation and treatment carries with it the corollary right to expect from the workers adequate work, diligence and good conduct. [Judy Philippines, Inc. v NLRC, G.R. No. 111934 (1998)]

6. Burden of proof and quantum of evidence Summary on Burden of Proof 1. Existence of ER-EE Relationship: Employee 2. Fact of dismissal: Employee 3. Validity of Dismissal: Employer EE has burden of proving fact of employment and of dismissal Before a case for illegal dismissal can prosper, an employer-employee relationship must first be established by the employee. [Javier v. Fly Ace Corp., G.R. No. 192558 (2012)] The employee must first establish by substantial evidence the fact of his dismissal from service. If there is no dismissal, then there can be no question as to the legality or illegality thereof. [MZR Industries v. Colambot, G.R. No. 179001 (2013)]

ER has burden of proving valid dismissal Unsubstantiated accusations or baseless conclusions of the employer are insufficient legal justifications to dismiss an employee. The unflinching rule in illegal dismissal cases is that the employer bears the burden of proof. [Garza v. Coca-Cola Bottlers Philippines, Inc., G.R. No. 180972 (2014)] Penalty must be commensurate with gravity of offense Not every case of insubordination or willful disobedience by an employee reasonably deserves the penalty of dismissal. The penalty to be imposed on an erring employee must be commensurate with the gravity of his offense. [Joel Montallana v. La Consolacion College Manila, G.R. No. 208890 (2014)]

II.

RECRUITMENT AND PLACEMENT

A. DEFINITION OF RECRUITMENT AND PLACEMENT “Recruitment and placement" refers to any act of: [CETCHUP-R-CPA] 1. Canvassing, 2. Enlisting, 3. Contracting, 4. Transporting, 5. Utilizing 6. Hiring, or 7. Procuring workers And includes – 1. Referrals, act of passing along or forwarding of an applicant for employment after an initial interview of a selected applicant for employment to a selected employer, placement officer or bureau." [Rodolfo v. People, G.R. No. 146964 (2006)] 2. Contract services, 3. Promising, or 4. Advertising for employment, locally or abroad, whether for profit or not

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Provided, That any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement. [Art. 13 (b), Labor Code] The proviso provides for a presumption that a person or entity so described engages in recruitment and placement. [People v. Panis, G.R. No. 58674 (1988)] Number of persons: not essential The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in Art. 13(b) will constitute recruitment and placement even if only one prospective worker is involved. [People v. Panis, supra.] Worker – any member of the labor force, whether employed or unemployed. [Art.13 (a)] Overseas Filipino Worker/Migrant Worker – a person who is to be engaged, is engaged, or has been engaged in a remunerated activity: 1. in a state of which he or she is not a citizen, or 2. on board a vessel navigating the foreign seas other than a government ship used for military or non-commercial purposes, or 3. on an installation located offshore or on the high seas. [Sec. 2 (a), RA 8042, as amended]

License and Authority [Art. 13(d) and (f); Sec. 3 (h)(g), DO 141-14] License

Authority

document issued by the Department of Labor and Employment (DOLE) Authorize an entity to operate as a private employment agency

Authorize an entity to operate as a private recruitment entity

When a license is given, one is also authorized to collect fees

Does not entitle a private recruitment entity to collect fees.

Private employment agency (PEA) v. Private recruitment entity (PRE) [Art. 13 (c), (e)] Private Employment Agency

Private Recruitment Entity

Definition

Any person or entity engaged in recruitment and placement of workers for a fee which is charged, directly or indirectly, from the workers or employers or both

Any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee

Requirement

License

Authority

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, which provided for the deregulation of recruitment activities. Page 8 of 262

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Recruitment of Local and Migrant Workers: Policy of Selective Deployment The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipino workers: 1. It has existing labor and social laws protecting the rights of workers, including migrant workers; 2. It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers; and 3. It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino Workers: Provided, That the receiving country is taking positive, concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c) hereof. [Sec. 3, RA 8042, as amended] [..] The Department of Foreign Affairs, through its foreign posts, shall issue a certification to the POEA, specifying therein the pertinent provisions of the receiving country's labor/ social law, or the convention/ declaration/ resolution, or the bilateral agreement/ arrangement which protect the rights of migrant workers. The State shall also allow the deployment of overseas Filipino workers to vessels navigating the foreign seas or to installations located offshore or on high seas, whose owners/employers are compliant with international laws and standards that protect the rights of migrant workers. The State shall likewise allow the deployment of overseas Filipino workers to companies and contractors with international operations: Provided, That they are compliant with standards, conditions and requirements, as embodied in the employment contracts prescribed by the POEA and in accordance

with internationally-accepted standards. [Sec. 3, RA 8042, as amended]

B. REGULATION OF RECRUITMENT AND PLACEMENT ACTIVITIES

1. Regulatory Authorities a. Philippine Overseas Employment Administration POEA supersedes OEDB and NSB Executive Order 797, Reorganizing the Ministry of Labor and Employment, Creating the Philippine Overseas Employment Administration (POEA), and for other purposes, has superseded Art. 17 and 20, and provides for the POEA to take over the functions of the Overseas Employment Development Board (OEDB) and the National Seamen Board (NSB). POEA Powers and Functions a. Regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system; b. Formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements; c. Protect the rights of Filipino workers for overseas employment to fair and equitable recruitment and employment practices and ensure their welfare;
 d. Exercise original and exclusive jurisdiction to hear and decide all claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas employment including the disciplinary cases; and all pre employment cases which are administrative in character involving or arising out of violation or requirement laws, rules and regulations including money claims arising therefrom,

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e. f.

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or violation of the conditions for issuance of license or authority to recruit workers. All prohibited recruitment. activities and practices which are penal in character as enumerated and defined under and by virtue of existing laws, shall be prosecuted in the regular courts in close coordination with the appropriate Departments and agencies concerned; Maintain a registry of skills for overseas placement; 
 Recruit and place workers to service the requirements 
for trained and competent Filipino workers by foreign governments and their instrumentalities and such other employers as public interest may require; Promote the development of skills and careful selection of Filipino workers;
 Undertake overseas market development activities for placement of Filipino workers; Secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith; Promote and protect the well-being of Filipino workers overseas; 
Develop and implement programs for the effective monitoring of returning contract workers, promoting their re-training and reemployment or their smooth re-integration into the mainstream of national economy in coordination with other government agencies; Institute a system for ensuring fair and speedy disposition of cases involving violation or recruitment rules and regulations as well as violation of terms and conditions of overseas employment; Establish a system for speedy and efficient enforcement of decisions laid down through the exercise of its adjudicatory function; Establish and maintain close relationship and enter into joint projects with the Department of Foreign Affairs, Philippine Tourism Authority, Manila International Airport Authority, Department of Justice, Department of Budget and Management and other relevant government entities, in the pursuit of its objectives.

The Administration shall also establish and maintain joint projects with private organizations, domestic or foreign, in the furtherance of its objectives. [Sec. 3, EO 247] POEA Standard Contract Deemed Integrated in every Employment Contract While the seafarers and their employers are governed by their mutual agreements, the POEA rules and regulations require that the POEA SEC, which contains the standard terms and conditions of the seafarers' employment in foreign ocean-going vessels, be integrated in every seafarer's contract. [Wallem Maritime Services, Inc. v. Tanawan, G.R. No. 160444, (2012)] POEA Jurisdiction vis-a-vis NLRC and RTC

POEA

Administrative cases arising out of violations of rules and regulations relating to licensing and registration of recruitment and employment agencies and entities. [Sec. 28(a), Omb. Rules Implementing RA 8042]

NLRC

Claims arising out of an EREE relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including actual, moral, and exemplary and other forms of damage. [Sec. 10, RA 8042]

RTC

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Disciplinary action cases and other special cases, involving employers, principals, contracting partners, and Filipino migrant workers [Sec. 28(b), Omb. Rules Implementing RA 8042]

Criminal actions arising from illegal recruitment [Sec. 9, RA 8042]

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2. Ban on Direct Hiring b. Regulatory and Visitorial Powers of the Department of Labor and Employment Secretary

General Rule: No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. [Art. 18]

Reports on Employment Status Whenever the public interest requires, the Secretary of Labor may direct all persons or entities within the coverage of this Title to submit a report on the status of employment, including job vacancies, details of job requisitions, separation from jobs, wages, other terms and conditions and other employment data. [Art. 33] SOLE’s regulatory Power The SOLE shall have the power: a. To restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title. [Title 1, Recruitment and Placement of Workers] b. To issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title. [Art. 36] SOLE’s visitorial Power The SOLE or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violation of any provisions of this Title. [Art. 37] SOLE’s arrest and seizure power declared unconstitutional After the promulgation of the 1987 Constitution, only judges may issue search and arrest warrants. The Secretary of Labor, not being a judge, may no longer issue search of arrest warrants. Article 38(c) of the Labor Code is declared unconstitutional and of no force or effect. [Salazar v. Achacoso, G.R. No. 81510, (1990)]

No employer shall directly hire an Overseas Filipino Worker for overseas employment. [Sec. 123, 2016 Revised POEA Rules and Regulations] Exemptions: a. Members of the diplomatic corps; b. International organizations; c. Heads of state and government officials with the rank of at least deputy minister; d. Other employers as may be allowed by the Secretary of Labor and Employment, such as: 1. Those provided in (a), (b) and (c) who bear a lesser rank, if endorsed by the Philippine Overseas Labor Office (POLO), or Head of Mission in the absence of the POLO; 2. Professionals and skilled workers with duly executed/authenticated contracts containing terms and conditions over and above the standards set by the POEA. The number of professional and skilled Overseas Filipino Workers hired for the first time by the employer shall not exceed five (5). For the purpose of determining the number, workers hired as a group shall be counted as one; OR 3. Workers hired by a relative/family member who is a permanent resident of the host country. [Sec. 124, 2016 Revised POEA Rules and Regulations]

3. Entities Prohibited from Recruiting Entities disqualified from Engaging in the Business of Recruitment and Placement of Workers for Local Employment 1. Travel agencies and sales agencies of airline companies, whether for profit or not. [Art. 26]

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2. Those who are convicted of illegal recruitment, trafficking in persons, antichild labor violation, or crimes involving moral turpitude; 3. Those against whom probable cause or prima facie finding of guilt for illegal recruitment or other related cases exist particularly to owners or directors of agencies who have committed illegal recruitment or other related cases. 4. Those agencies whose licenses have been previously revoked or cancelled by the Department under Sec. 54 of these rules. 5. Cooperatives whether registered or not under the Cooperative Act of the Philippines. 6. Law enforcers and any official and employee of the Department of Labor and Employment (DOLE). 7. Sole proprietors of duly licensed agencies are prohibited from securing another license to engage in recruitment and placement. 8. Sole proprietors, partnerships or corporations licensed to engage in private recruitment and placement for local employment are prohibited from engaging in job contracting or subcontracting activities. [Sec. 5, DO 141-14, Revised Rules and Regulations Governing Recruitment and Placement for Local Employment] Entities disqualified from Engaging or Participating in the Business of Recruitment and Placement of Workers for Overseas Employment 1. Travel agencies and sales agencies of airline companies, whether for profit or not. [Art. 26] 2. Officers or members of the Board of any corporation or partners in a partnership engaged in the business of a travel agency; 3. Corporations and partnerships, where any of its officers, members of the board or partners is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency; 4. Individuals, partners, officers, or directors of an insurance company who make,

propose or provide an insurance contract under the compulsory insurance coverage for agency-hired OFWs; 5. Sole proprietors, partners or officers and members of the board with derogatory records, such as, but not limited to the ff: a. Those convicted or against whom probable cause or prima facie finding of guilt is determined by a competent authority for illegal recruitment or for other related crimes or offenses committed in the course of, related to, or resulting from, illegal recruitment, or for crimes involving moral turpitude; b. Those agencies whose licenses have been revoked for violation of RA 8042, PD 442, RA 9208, and their IRRs; c. Those agencies whose licenses have been cancelled, or those who, pursuant to the order of the Administrator, were included in the list of persons with derogatory record for violation of recruitment laws and regulations; 6. Any official employee of the DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI, PNP, Civil Aviation Authority of the Philippines, international airport authorities, and other government agencies directly involved in the implementation of RA 8042, as amended, and/or any of his/her relatives within the fourth civil degree of consanguinity or affinity. [Part II, Rule I, Sec. 3, 2016 Revised POEA Rules and Regulations]

4. Suspension or Cancellation of License or Authority The Secretary of Labor shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for: a. violation of rules and regulations issued by the Department of Labor, the Overseas Employment Development Board, and the National Seamen Board; b. violation of the provisions of this and other applicable laws, General Orders and Letters of Instructions. [Art. 35]

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Acts prohibited under Art. 34 are grounds for suspension or cancellation of license. Note that these acts likewise constitute illegal recruitment under RA 8042 as amended by RA 10022. Who can suspend or cancel the license? 1. DOLE Secretary 2. POEA Administrator The power to suspend or cancel any license or authority to recruit employees for overseas employment is concurrently vested with the POEA and the Secretary of Labor. [People v. Diaz, G.R. 112175 (1996)]

5. Prohibited Practices Recruitment of Local Workers: Prohibited Practices under Art. 34 a. To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance; b. To furnish or publish any false notice or information or document in relation to recruitment or employment; c. To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code; d. To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another, unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; e. To influence or to attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; f. To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines;

g. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; h. To fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information, as may be required by the Secretary of Labor; i. To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; j. To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and k. To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. Recruitment of Migrant Workers: Prohibited Acts under Sec. 6, R.A. No. 8042 a. To charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance; b. To furnish or publish any false notice or information or document in relation to recruitment or employment; c. To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer

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whether registered or not with the POEA; To include or attempt to induce a worker already employed to quit his employment in order to offer him another, unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization; To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his duly authorized representative To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the Department of Labor and Employment; For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency; To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;

l.

Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment; m. Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and n. To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency. [Sec. 6, R.A. No. 8042] Note: Bold parts differ from those stated in the prohibited practices under Art. 34. Prohibited Acts Added by Amendment a. Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan; b. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons; c. Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own; d. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner; e. Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training,

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seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings; f. For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and g. For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage. [Sec. 6, R.A. No. 8042 as amended by R.A. No. 10022]

C. ILLEGAL RECRUITMENT 1. Elements FIRST MAIN Recruitment

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TYPE:

Simple

Illegal

a. Illegal Recruitment of Local Workers Two Types Accdg. to the Kind of Offender The following are the types of illegal recruitment of local workers and the elements for each type: 1. By a licensee/holder of authority a. Offender has a valid license or authority required by law to enable one to lawfully engage in the recruitment and placement of workers; b. Offender undertakes any of the prohibited acts under Art. 34 2. By a non-licensee/non-holder of authority a. Offender has no valid license or authority required by law to enable one to lawfully engage in the recruitment and placement of workers; b. Offender undertakes either –

1. Any activity within the meaning of recruitment and placement under Art. 13(b) 2. Any of the prohibited practices under Art. 34. [Art. 34 and 38] Profit Immaterial Recruitment may be "for profit or not." It is the lack of the necessary license or authority, and not the fact of payment, that renders recruitment illegal. [Sharp v. Espanol, G.R. No. 155903 (2007)] b. Illegal Recruitment of Migrant Workers “Illegal Recruitment” Defined Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or nonholder of authority contemplated under Art. 13(f), P.D. No. 442 or LC. [Sec. 5, R.A. No. 10022] Note: The Migrant Workers’ Act (R.A. No. 8042) expanded the concept of illegal recruitment found in the LC and provided stiffer penalties, especially for when it constitutes economic sabotage. [People v. Ocden, G.R. No. 173198 (2011)] Two Types Accdg. to the Offense (Elements) 1. Undertakes any recruitment activity defined in Art. 13(b), LC without a valid license/authority Note: Can only be committed by one who has no valid license or authority to engage in recruitment and placement 2. Commits any of the prohibited acts in Sec. 6, R.A. No. 8042, as amended by R.A. 10022 a. Note: Immaterial whether an offender is a holder or a non-holder of a license or authority Contract Substitution = Illegal Recruitment The reduced salaries and employment period in the new employment contract contradicted

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the POEA-approved employment contract. By this act of contract substitution, respondents committed a prohibited practice; consequently, engaged in illegal recruitment. [PERT/CPM Manpower Exponent Co. v. Vinuya, G.R. No. 197528 (2012)] Possible Liability of Employee Even the employee of a company engaged in illegal recruitment can be held liable (along with the employer) as a principal once it is shown that he had actively and consciously participated in the illegal recruitment. [People v. Bayker, G.R. No. 170192 (2016)] Accused must give the impression of ability to send complainant abroad for work It must be shown that the accused gave complainants the distinct impression that she had the power or ability to send them abroad for work such that the latter were convinced to part with their money in order to be employed. [People v. Ochoa, G.R. No. 173792 (2011)] Lack of Receipts Not Fatal Mere failure of the complainant to present written receipts for money paid for acts constituting recruitment activities is not fatal to the prosecution, provided payment can be proved by clear and convincing testimonies of credible witnesses. [People v. Alvarez, G.R. 142981 (2002)] c. Comparison of Local and Migrant

LOCAL

Licensee/ holder of authority

Nonlicensee/ nonholder of authority

Recruitment and placement

Allowed

Not allowed [Art. 13(b); Art. 38]

Prohibited practices

Not allowed [Art. 34; 38,]

MIGRANT

Licensee/ holder of authority

Nonlicensee/ nonholder of authority

Recruitment and placement

Allowed

Not allowed [Sec. 6, R.A. No. 8042, as amended]

Prohibited practices

Not allowed [Sec. 6, R.A. No. 8042, as amended]

Prohibited acts

Not allowed [7 acts under Sec. 6, R.A. No. 8042 as amended by R.A. No. 10022]

SECOND MAIN TYPE: Illegal Recruitment as Economic Sabotage Two Types Accdg. to Qualifying Circumstance Illegal recruitment is considered economic sabotage when attended by the ff. qualifying circumstances: 1. By a syndicate - carried out by a group of 3 or more persons conspiring and confederating with one another; 2. In large scale - committed against 3 or more persons individually or as a group. [Art. 38(b), LC; Sec. 6 of R.A. No. 8042 as amended] Note re: In Large Scale – 3+ complainants must be in a single case “Committed against 3 or more persons individually or as a group” must be understood as referring to the number of complainants in each case; otherwise, prosecutions for single crimes of illegal recruitment can be cumulated to make it in large scale .[People v. Reyes, G.R. No. 105204 (1995)].

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Number of victims must be alleged The information for illegal recruitment done in large scale must allege the number of victims. [People v. Fernandez, 725 SCRA 152 (2014)] a. For Local Workers (Elements) By a Syndicate 1. Offender undertakes either: a. Any activity within the meaning of "recruitment and placement" defined under Art. 13(b) b. Any of the prohibited practices under Art. 34 2. Offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers 3. Illegal recruitment is committed by a group of 3 or more persons conspiring or confederating with one another. [People v. Gallo, G.R. No. 187730 (2010)] In Large Scale 1. Offender undertakes either: a. Any activity within the meaning of "recruitment and placement" defined under Art. 13(b) b. Any of the prohibited practices under Art. 34 2. Offender has not complied with the guidelines issued by the SOLE, particularly with respect to the securing of license or an authority to recruit and deploy workers, either locally or overseas 3. Offender commits the unlawful acts against 3 or more persons individually or as a group [Art. 38 (b)] b. For Migrant Workers (Elements) By a Syndicate 1. Offender does not have the valid license or authority required by law to engage in recruitment and placement of workers 2. Offender undertakes either: a. Any of the "recruitment and placement" activities defined in Art. 13(b) b. Any of the prohibited practices under Sec. 6 of R.A. No. 8042

3. Illegal recruitment is carried out by a group of 3 or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme. [People v. Sison, G.R. No. 187160 (2017)] In Large Scale 1. Offender undertook any recruitment activity as defined under Sec. 6 of R.A. No. 8042 2. Offender did not have the license or the authority to lawfully engage in the recruitment of workers 3. Offender committed the same against 3 or more persons individually or as a group. [People v. De los Reyes, G.R. No. 198795 (2017)]

2. Types Summary of Types & Elements There are at least 4 kinds of illegal recruitment. [People v. Sadiosa [G.R. No. 107084 (1998)] Simple Illegal Recruitment 1. Licensed/ Authorized

1. Licensee/Holder of authority 2. Undertakes prohibited practices under Art. 34, LC (Local) or Sec. 6 of R.A. No. 8042 as amended (Migrant)

2.Unlicensed/ 1. Non-licensee/-holder of Unauthorized authority 2. Undertakes either: a. Recruitment and placement under Art. 13(b) b. Prohibited practices/activities under Art. 34, LC (Local) or Sec. 6, R.A. No. 8042 (Migrant) Economic Sabotage 3. In a large scale

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1. Undertakes either:

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a. Recruitment and placement under Art. 13(b) b. Prohibited practices/activities under Art. 34 (Local) or Sec. 6 of R.A. No. 8042 (Migrant) 2. No valid license or an authority to recruit and deploy workers, either locally or overseas 3. Committed against 3 or more persons individually or as a group 4. By a syndicate

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1. Undertakes either: a. Any activity within the meaning of "recruitment and placement" under Art. 13(b) b. Any of the prohibited practices enumerated under Art. 34 (Local) or Sec. 6 of R.A. No. 8042 (Migrant) 2. No valid license or authority to recruit and deploy workers, either locally or overseas 3. Committed by a group of 3 or more persons conspiring and confederating with one another

3. Illegal Recruitment as Distinguished from Estafa Conviction for Illegal Recruitment NOT a Bar to Conviction for Estafa and Vice versa A person who commits illegal recruitment may be charged and convicted separately of illegal recruitment under the LC and estafa under Art. 315(2a), RPC. The offense of illegal recruitment is malum prohibitum where the

criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is crucial for conviction. Conviction for offenses under the LC does not bar conviction for offenses punishable by other laws. Conversely, conviction for estafa does not bar a conviction for illegal recruitment. One's acquittal of the crime of estafa will not necessarily result in his acquittal of the crime of illegal recruitment in large scale, and vice versa. [People v. Ochoa, G.R. No. 173792 (2011); People v. Ocden, G.R. No. 173198 (2011)] As such, the filing of criminal cases for both does not constitute double jeopardy. In illegal recruitment, profit is immaterial; on the other hand, a conviction for estafa requires a clear showing that the offended party parted with his money or property upon the offender’s false pretenses, and suffered damage thereby. The two are then completely different and distinct crimes. [People v. Melissa Chua, G.R. No. 187052 (2012)] D. LIABILITY OF LOCAL RECRUITMENT AGENCY AND FOREIGN EMPLOYER

1. Solidary Liability a. Local Recruitment Agency Illegal recruitment of local workers [Art. 39] Act

Penalty

License/authority holder violating or causing another to violate Title 1, Book 1 (Art. 34)

2-5 years imprisonment or P10K-P50K fine or both

Nonlicense/authority holder violating or causing another to violate Title 1, Book 1 (Art. 38)

4-8 years imprisonment or P20K-P100K fine or both

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Illegal recruitment constituting economic sabotage (Art. 38)

2. For aliens, in addition to the penalties herein prescribed, deportation without further proceedings.

Life imprisonment and P100K fine

If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers responsible for the violation.

Employees of a company or corporation engaged in illegal recruitment may be held liable as PRINCIPAL, together with his employer if it is shown that he actively and consciously participated in illegal recruitment. [People v. Sagayaga, GR 143726 (2004)]

In every case, conviction carries with it: 1. Automatic revocation of license/authority and all permits and privileges granted under this Title 2. Forfeiture of cash and surety bonds in favor of POEA or the Regional Department with jurisdiction over the place where the agency or branch office is located 3. For aliens, in addition to the penalties herein prescribed, deportation without further proceedings. [Art. 39 (3)]

Two jurisdiction rule A criminal action arising from illegal recruitment of migrant workers shall be filed with the RTC of the province or city: 1. Where offense was committed, or 2. Where the offended party actually resides at the time of the commission of the offense. [Sec. 9, RA 8042]

Illegal recruitment of migrant workers [Sec. 7, RA 8042 as amended] Act

Penalty

Prescription

Prohibited Acts

6 years and 1 day - 12 years imprisonment and P500K-P1M fine

Illegal Recruitment

12 years and 1 day - 20 years imprisonment and P1M-P2M fine

Illegal recruitment constituting economic sabotage

Provided, the court where such action is first filed acquires jurisdiction to the exclusion of other courts. [Sec. 6, Rule IV, Omnibus Rules implementing RA 8042, as amended]

Life imprisonment and P2M-P5M fine Max penalty: 1. Illegally recruited person is below 18 years old, or 2. Offense is committed without license/ authority

In every case, conviction carries with it: 1. Automatic revocation of license or registration of the recruitment/manning agency, lending institutions, training school or medical clinic.

Crime

Classification

Prescriptive Period

Local workers

Simple/economic 3 years [Art. sabotage 305 LC]

Migrant workers

Simple

5 years [Sec. 12, RA 8042]

Economic Sabotage

20 years [Sec. 12, RA 8042]

b. Foreign Employer Foreign employers shall assume joint and solidary liability with the recruitment/ placement agency for all claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for damages. [Sec. 10 of RA 8042, as amended]

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c. Solidary Liability of Agent & Principal Coverage The liability of the principal/employer and the recruitment/placement agency for the claims involving Filipino workers for overseas deployment including claims for damages is joint and several. Incorporation into the contract This shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. Performance bond The performance bond filed by the recruitment/placement agency shall be answerable for all money claims or damages awarded to workers. Corporate officers and directors and partners solidarily liable If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall be joint and severally liable with the corporation or partnership for the claims and damages. [Sec. 10, RA 8042 as amended]

2. Assume joint and several liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to unpaid wages, death, disability compensation and repatriation. 3. Assume full and complete responsibility for all acts of its officers, employees and representatives done in connection with recruitment and placement [Part II, Rule II, Sec. 4 (f) (7-9), 2016 Revised POEA Rules and Regulations]. For corporations or partnerships, a duly notarized undertaking by the corporate officers and directors, or partners, that they shall be joint and severally liable with the corporation or partnership for claims and/or damages awarded to workers is also required. [Part II, Rule II, Sec. 4 (g), 2016 Revised POEA Rules and Regulations]

2. Theory of Imputed Knowledge This is a doctrine in agency stating that the principal is chargeable with and bound by the knowledge of or notice to his agent received while the agent was acting as such. Notice to the agent is notice to the principal.

Purpose of solidary liability The termination of agreement between the manning agency and its principal does not relieve the former of its liability. The agency agreement extends until the expiration of the employment contracts of the employees recruited and employed. Otherwise, this renders nugatory the purpose of the law which is to assure aggrieved workers of immediate and sufficient payment of what is due them. Requisite undertaking for application of 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;

A local employment agency is considered the agent of the foreign employer, the principal. Knowledge of the former of existing labor and social legislation in the Philippines in binding on the latter. Notice to the former of any violation thereof is notice to the latter. But, notice to the principal is NOT notice to the agent. Notice to the foreign employer, therefore, is not notice to the local employment agency.

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E. TERMINATION OF CONTRACT OF MIGRANT WORKER In case of – a. Termination of overseas employment without just, valid, or authorized cause as defined by law or contract, or b. Any unauthorized deductions from the migrant worker’s salary . ... the worker shall be entitled to full reimbursement of: a. His placement fee and the deductions made with interest at twelve percent (12%) per annum; AND b. His salaries for the unexpired portion of his employment contract (*or for three (3) months for every year of the unexpired term, whichever is less) [Sec. 10, RA8042, as amended by RA 10022] Rule before Serrano (19952009): 3-month salary rule applied

Rule after Serrano: invalidated the 3month salary cap clause

The employment contract involved in the instant case covers a two-year period but the overseas contract worker actually worked for only 26 days prior to his illegal dismissal. Thus, the three months’ salary rule applies [Flourish Maritime Shipping v. Almanzor, G.R. No. 177948 (2008)]

The SC there held that “said clause is unconstitutional for being an invalid classification, in violation of the equal protection clause.” Thus, the present rule is that OFWs whose contracts are terminated without just cause are entitled to all the salaries for the entire unexpired portion of their employment contract, irrespective of the stipulated term or duration thereof.

In the case of Yap v. Thenamaris Ship’s Management and Intermare Maritime Agencies, Inc [G.R. No. 179532, (May 30, 2011)], the SC affirmed the Serrano ruling, but did not apply the Operative Fact doctrine: “As an exception to the general rule, the doctrine applies only as a matter of equity and fair play.” Note: In 2010, a year after Serrano, RA 10022, in amending RA 8042, reincorporated the nullified 3-month salary cap clause. However, the SC did not allow this and again struck the revived clause as unconstitutional in the 2014 case of Sameer Overseas Placement Agency v. Cabiles [G.R. No. 170139, (August 05, 2014)]. There, the SC said that: “when a law or a provision of law is null because it is inconsistent with the Constitution, the nullity cannot be cured by a reincorporation or reenactment of the same or a similar law or provision. A law or provision of law that was already declared unconstitutional remains as such unless circumstances have so changed as to warrant a reverse conclusion.” Hence, the case of Serrano holds as binding precedent, even after the passage of RA 10022.

F. EMPLOYMENT OF NONRESIDENT ALIENS 1. Coverage Who should apply for an Alien Employment Permit a. Any alien seeking admission to the Philippines for employment purposes, and b. Any domestic or foreign employer who desires to engage an alien for employment in the Philippines. [Art. 40, Labor Code] Art. 40 of the Labor Code which requires employment permit refers to non-resident aliens. Resident aliens do not fall within the ambit of the provision [Almodiel v. NLRC, 223 SCRA 341 (1993)] An alien cannot file a labor complaint without having obtained an employment permit.

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[Andrew James McBurnie v. Eulalio Ganzon, 707 SCRA 646 (2013)] Who are exempted from securing an Alien Employment Permit [DOISIPRRL] 1. All members of the Diplomatic service and foreign government Officials accredited by and with reciprocity arrangement with the Philippine government; 2. Officers and staff of International organizations of which the Philippine government is a member, and their legitimate Spouses desiring to work in the Philippines; 3. Owners and representatives of foreign principals whose companies are accredited by the POEA, who come to the Philippines for a limited period and solely for the purpose of Interviewing Filipino applicants for employment abroad; 4. Foreign national who comes to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct Professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government: provided that the exemption is on a reciprocal basis; 5. Permanent Resident foreign nationals, probationary or temporary resident visa holders; 6. Refugees and stateless persons recognized by DOJ; and 7. All foreign nationals granted exemption by Law. [Section 2, D.O. No. 186-17] Who are excluded from securing an Alien Employment Permit [BPTCICR] 1. Members of the governing Board with voting rights only and do not intervene in the management of the corporation or in the day to day operation of the enterprise. 2. President and Treasurer, who are partowner of the company. 3. Those providing Consultancy services who do not have employers in the Philippines. 4. Intra corporate transferee who is a Manager, Executive or Specialist

5. Contractual service supplier who is a Manager, Executive, or Specialist 6. Representative of the Foreign Principal/Employer assigned in the Office of Licensed Manning Agency (OLMA) in accordance with the POEA law, rules and regulations. [Section 3, D.O. No. 186-17] Intracorporate Transferee: Requisites for exclusion 1. Must be an Executive, Manager, or Specialist Executive: primarily directs the management of the organization and exercises wide latitude in decision making and receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the business; an executive would not directly perform tasks related to the actual provision of the service or services of the organization Manager: a natural person within the organization who primarily directs the organization/department/ subdivision and exercises supervisory and control functions over other supervisory, managerial or professional staff; does not include first line supervisors unless employees supervised are professionals; does not include employees who primarily perform tasks necessary for the provision of the service Specialist: a natural person within the organization who possesses knowledge at an advanced level of expertise essential to the establishment/provision of the service and/or possesses proprietary knowledge of the organization’s service, research equipment, techniques or management; may include, but is not limited to, members of a licensed profession. 2. At least 1 year of continuous employment prior [Section 3, D.O. No. 186-17]

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Contractual Service Supplier: Requisites for exclusion 1. Must be an Executive, Manager, or Specialist 2. Enters the Philippines temporarily to supply a service pursuant to a contract between his/her employer and a service consumer in the Philippines 3. Must possess the appropriate educational and professional qualifications; and 4. Employed for at least 1 year prior [Section 3, D.O. No. 186-17] Certificate of Exclusion All foreign nationals excluded from securing AEP shall secure Certificate of Exclusion from the Regional Office. Further, Regional Offices shall issue the Certificate of Exclusion within two (2) working days after receipt of complete documentary requirements and fees. [Section 4, D.O. No. 186-17]

2. Conditions for Grant of Permit Non-availability of Competent, Able, and Willing persons [CAW] The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise. [Art 40, Labor Code] Where to file Applications All applications for AEP shall be filed and processed at the DOLE Regional Office or Field Office having jurisdiction over the intended place of work. [Sec. 5(a), D.O. No. 186-17] When to file Applications Newly hired/appointed officers may file the application for new AEP without penalty:

a. General Rule (GR): within 15 working days after signing of contract/appointment b. If commencement of employment is later that the 15 working day grace period: before the commencement of employment [Sec. 17, D.O. No. 186-17] What documents should be submitted 1. Application form 2. Photocopy of passport with visa, or Cert of Recognition for Refugees or Stateless Persons 3. Original copy of notarized appointment or contract of employment enumerating the duties and responsibilities, annual salary, and other benefits of the foreign national 4. Photocopy of Mayor’s Permit to operate business, in case of locators in economic zones, certification from the PEZA or the Ecozone Authority that the company is located and operating within the ecozone, while in case of a construction company, photocopy of license from PCAB or D.O. No. 174-17 Registration should be submitted in lieu of Mayor’s Permit; and 5. Business Name Registration and Application Form with the Department of Trade and Industry (DTI) or SEC Registration and GIS; 6. If the position title of the foreign national is included in the list of regulated professions, a Special Temporary Permit (STP) from the Professional Regulations Commission (PRC); and 7. If the employer is covered by the AntiDummy Law, an Authority to Employ Foreign National (ATEFN) from the DOJ or from the DENR in case of mining. [Section 5a, D.O. No. 186-17] In case of additional position of change in position Additional position of the foreign national in the same company or subsequent assignment in related companies during the validity or renewal of the AEP will be subject for publication requirement. A change of position or employer shall require an application for new AEP [Section 5(c), D.O. No. 186-17]

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Only one AEP at a time At any given time only one AEP shall be issued to a foreign national. A foreign national may be issued one AEP only at any given time. [Sec. 5d, D.O. No. 186-17] Fees 1. Upon filing: a. One year validity: P9000 b. More than 1 year: plus P4000 per year c. Renewal: P4000 per year 2. Courier fee: P200 3. Loss/change of info, AEP replacement: P1500 4. Certificate of exclusion: P500 [Sec. 6, D.O. No. 186-17] Labor Market Test [Sec. 7, D.O. No. 186-17] AEP application (new/change in or additional position/subsequent assignment) should be published by the DOLE Regional Office in: 1. Newspaper of general circulation within 2 working days from receipt of application 2. DOLE Website (30 days) 3. PESO (30 days) Contents of the Publication: 1. Name, 2. Position, 3. Employer and address, 4. A brief description of the functions to be performed by the foreign national, 5. Qualifications, 6. Monthly salary range and other benefits, if there are any. 7. Indicate that any person in the Philippines who is competent, able and willing at the time of the application to perform the services for which the foreign national is desired may file an objection at the DOLE Regional Office. Where to file objection Regional Office within publication.

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30

days

after

Other information that DOLE may refer to a. Philjobnet and PESO Information System (PEIS), the PRC Registry of professionals, and the TESDA registry of certified workers

to establish availability or non availability of able and qualified Filipino workers. b. Information or criminal offense and grave misconduct in dealing with or ill treatment of workers filed with the Regional Offices any time. Processing and Issuance AEP shall be issued: a. Within three working days after publication and payment of fees: new AEP b. One day after receipt: renewal of AEP [Sec. 8, D.O. No. 186-17] Verification Inspection The authorized representatives of the Regional Director may conduct inspection to verify legitimacy of employment of the foreign national as deemed necessary, based on the documents submitted within two working days upon payment of fees. [Sec. 9, D.O. No. 18617]

3. Validity of AEP and Renewal Duration of Validity The AEP shall be valid for the position and the company for which it was issued for GR: 1 year Exception: period not exceeding 3 years; if the employment contract/mode of engagement provides otherwise. [Sec. 10, D.O. No. 186-17] When to apply for renewal GR: not earlier than 60 days before expiration Exceptions: a. Alien needs to leave the country; b. Other similar circumstances that will hinder the filling of renewal within this prescribed period. In case of officers to be appointed/elected a. Before AEP expiration: not later than 15 working days after appointment, or before its expiration, whichever comes later b. After AEP expiration: before the expiration of the AEP, renewed for 1 year c. Within 15 working days after the date of appointment or election, the foreign national shall submit to the issuing

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Regional Office the Board Secretary’s Certification 1. The Regional Director shall revoke the AEP after 1 month from its issuance, if no Certification is filed. [Sec. 11, D.O. No. 186-17] Expired AEP Expired AEP shall be processed as a new application subject to the payment of required fees and penalties in relation to Section 17 (Penalty for Working without AEP). [Sec. 11, D.O. No. 186-17]

4. Denial of Application Grounds for Denial [Mi-Fa-Co-Mi-CAW-WoEx]: a. Misrepresentation of facts in the application including fraudulent misrepresentation 1. i.e. false statement that has a negative effect in the evaluation of the application made knowingly, or without belief in its truth, or recklessly whether it is true or false; b. Submission of Falsified documents; c. Conviction to a criminal offense or a fugitive from justice in the country or abroad; d. Grave Misconduct in dealing with or ill treatment of workers; e. Availability of a Filipino who is Competent, Able and Willing to do the job; f. Worked without valid AEP for more than a year; g. Application for renewal with Expired visa or with temporary visitor’s visa [Sec. 112, D.O. No. 186-17] Effect of Denial Denial of application for AEP shall cause the forfeiture of the fees paid by the applicant. [Sec. 12, D.O. No. 186-17]

5. Revocation; Cancellation Grounds for Cancellation [Non-Mi-Fa-MeCon-Te-Mi] a. Non-compliance with any of the requirements or conditions for which the AEP was issued; b. Misrepresentation of facts in the application including fraudulent misrepresentation; c. Submission of Falsified or tampered documents; d. Meritorious objection or information against the employment of the foreign national; e. Foreign national has been Convicted of a criminal offense or a fugitive from justice; f. Employer Terminated the employment of foreign national; g. Grave Misconduct in dealing with or ill treatment of workers. [Sec. 13, D.O. No. 186-17] Effect of denial/revocation or cancellation Disqualified to re-apply for 10 years in case the ground for denial or cancellation is: a. Conviction of criminal offense or fugitive from justice in the country or abroad; or b. Grave misconduct in dealing with or ill treatment of workers [Sec. 14, D.O. No. 186-17] Effect of fraudulent application Employers, employer’s or foreign national’s representatives, and/or agents acting in behalf of the applicant found to have filed fraudulent application for AEP for three (3) counts shall be barred from filing application for a period of five (5) years after due process. [Sec. 15, D.O. No. 186-17]

6. Appeal When and where to file 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

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reconsideration shall be allowed. D.O. No. 186-17]

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[Sec. 16,

7. Penalty Fines Working without valid AEP: P10,000 for every year or fraction thereof Employing aliens without valid AEP: P10,000 for every year or fraction thereof Failure to pay penalty: not allowed to employ foreign national for any position [Sec. 17, D.O. No. 186-17]

III. LABOR STANDARDS Labor Standards refers to the minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost-of-living allowance and other monetary and welfare benefits, including occupational, safety and health standards. [Maternity Children’s Hospital v. Secretary of Labor, G.R. 78909 (1989)] Note: All Articles from hereon refer to the Labor Code, unless otherwise indicated.

A. CONDITIONS OF EMPLOYMENT 1. Hours of Work a. Principles in determining hours worked and employees exempted or not covered Principles in determining hours worked Hours worked shall include: 1. All time during which an employee is required to be on duty or to be at a prescribed workplace; AND 2. All time during which an employee is suffered or permitted to work. [Art. 84]

General principles in determining if time is considered as hours worked All hours are hours worked which the employee is required to give their employer, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. An employee need not leave the premises of the work place in order that their rest period shall not be counted, it being enough that they stop working, may rest completely and may leave their work place to go elsewhere, whether within or outside the premises of their work place. [Sec. 4(b), Rule I, Book III, IRR] If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent for such work shall be considered as hours worked, if the work was with the knowledge of his employer or immediate supervisor. [Sec. 4(c), Rule I, Book III, IRR] The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either: a. If the imminence of the resumption of work requires the employee’s presence at the place of work, or b. If the interval is too brief to be utilized effectively and gainfully in the employee’s own interest. [Sec. 4, Rule I, Book III, IRR] Employees exempted or not covered General rule: Title I: Working Conditions and Rest Periods shall apply to employees in all establishments and undertakings whether for profit or not. [Art. 82] Note: Article 82 applies to the whole of Title I. This includes Service Incentive Leaves, which will be discussed in a separate section. Exceptions (i.e. those NOT covered by Title I): 1. Government employees [Art. 82; Art. 76] (exception to the exception: Employees

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2. 3. 4. 5. 6.

7. 8.

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of GOCCs created under the Corporation Code) Managerial Employees [Art. 82] Members of the managerial staff [Art. 82] Field Personnel [Art. 82] Members of the family of the employer who are dependent on him for support [Art. 82]; Domestic workers or kasambahay [Art. 141, RA 10361] (exception to the exception: Assignment in a Commercial, Industrial or Agricultural Enterprise) Persons in the personal service of another Workers who are paid by result as determined by DOLE regulation [Art. 82]

(1) Government Employees The terms and conditions of employment of all government employees, including employees of GOCCs, are governed by the Civil Service rules and regulations, not by the Labor Code [Art. 291]. However, not all GOCCs are governed by the Civil Service Rules; only those created by original charter are governed by the Civil Service rules: “Following Sec. 2(i) Art. IX-B of 1987 Phil. Constitution, the test in determining whether a government owned corporation is subject to the Labor Code or the Civil Service law is finding out what created it – if it is created by a special charter, then, Civil Service Law applies, if it is created by the General Corporation Law, then the Labor Code applies.” [PNOC Energy Development Corp. v. NLRC, G.R. No. 79182 (1991)] (2) Managerial Employees Two definitions of “managerial employee” in the Labor Code: 1. One whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof and to other officers or members of the managerial staff. [Art. 82] 2. One who is vested with the powers or prerogatives to lay down and execute management policies and/or to hire,

transfer, suspend, lay off, recall, discharge, assign or discipline employees. [Art. 219(m)] Characteristics of managerial employees [Sec. 2(b), Rule I, Book III, IRR] Managerial employees are exempted from the coverage of Book III Articles 83 through 96 if they meet all of the following conditions: 1. Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof. 2. They customarily and regularly direct the work of two or more employees therein. 3. They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight. Managerial employees and managerial staff are determined by their job description and not their job title. [Peñarada v. Baganga Plywood Corp., G.R. No. 159577 (2006)] (3) Members of the managerial (supervisory employees)

staff

Definition Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. [Art. 219(m)] Art. 82 also includes managerial staff (supervisory employees) in the definition of managerial employees. The definition in Art. 82 covers more people than that in Art. 219(m). In effect, managerial employees in Art. 82 includes supervisors, but Art. 219(m) does not, for purposes of the right to self-organization.

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Managerial Staff is included as they are considered managerial employees as well [Sec. 2(c), Rule I, Book III, IRR] Officers or members of a managerial staff are also exempted if they perform the following duties and responsibilities: 1. Their primary duty consists of the performance of work directly related to management policies of their employer; 2. Customarily and regularly exercise discretion and independent judgment; 3. (a) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; OR (b) Execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; OR (c) Execute, under general supervision, special assignments and tasks; 4. Do not devote more than 20% of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above.

ascertain if actual hours of work in the field can be determined with reasonable certainty by the employer. In so doing, an inquiry must be made as to whether or not the employee’s time and performance are constantly supervised by the employer. [Far East Agricultural Supply v. Lebatique, G.R. No. 162813 (2007)] Although the fishermen perform nonagricultural work away from petitioner’s business offices, the fact remains that throughout the duration of their work they are under the effective control and supervision of petitioner through the vessel’s patron or master. Hence, the fishermen are not “field personnel”. [Mercidar Fishing Corporation v. NLRC, G.R. No. 112574 (1998)] (5) Dependent Family Members Workers who are family members of the employer, and who are dependent on him for their support, are outside the coverage of this Title on working conditions and rest periods [Art. 82]. (6) Domestic Helpers (Workers)

Effective recommendatory power Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions and the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment [Art. 219(m)]. (4) Field Personnel Field personnel are non-agricultural employees: 1. Who regularly perform their duties away from the principal or place of business or branch office of the employer; and 2. Whose actual hours of work in the field cannot be determined with reasonable certainty. [Art. 82] Legal Test: Control & Supervision of employer In order to determine whether an employee is a field employee, it is also necessary to

Definition Domestic worker or “Kasambahay” refers to any person engaged in domestic work within an employment relationship such as but not limited to the following: 1. general househelp, 2. nursemaid or “yaya”, 3. cook, 4. gardener or 5. laundry person "Domestic work" refers to work performed in or for a household. [Sec. 3(d), IRR of RA10361] "Household" refers to the immediate members of the family or the occupants of the house who are directly and regularly provided services by the kasambahay. [Sec. 3(g), IRR of RA 10361]

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The definition of “Kasambahay” excludes: 1. Any person who performs domestic work only occasionally or sporadically and not on an occupational basis. 2. Children who are under foster family arrangement, and are provided access to education and given an allowance incidental to education [Sec. 4(d), Art. 1, RA 10361] 3. Service providers, 4. Family drivers. [Sec. 2 of the IRR, RA10361] Exclusivity of function required Note that the definition contemplates a domestic helper who is employed in the employer’s home to minister exclusively to the personal comfort and enjoyment of the employer’s family. [Azucena] Thus, it has been held that the following personnel are NOT domestic employees: 1. House-help or laundry-women working in staffhouses of a company, as well as drivers, houseboys, or gardeners exclusively working in the company, the staffhouses and its premises [Apex Mining Company v. NLRC, G.R. No. 94951 (1991)] 2. House-help doing chores for the employer's family, while also fulfilling tasks connected with the employer's business (bakery) such as cooking, filling orders, baking orders, and other clerical work [Fernando Co v. Vargas, G.R. No. 195167 (2011)] (7) Persons in Personal Service of Another Persons in the personal service of another are not covered by Title I: Working Conditions and Rest Periods if they: a. Perform such services in the employer’s home which are usually necessary or desirable for the maintenance and enjoyment thereof; or b. Minister to the personal comfort convenience or safety of the employer as well as the members of his employer’s household. [Sec. 2 (d), Rule I, Book III, IRR]

(8) Workers Paid by Result (piece-workers) Definition Workers who are paid by results are those whose output rates are in accordance with the standards prescribed under Sec. 8, Rule VII, Book Three of these regulations, or where such rates have been fixed by the Secretary of Labor and Employment in accordance with the aforesaid Section. These include those who are paid on piece work, “takay,” “pakiao” or task basis, and other nontime work. [Sec. 2(e), Rule I, Book III, IRR] Workers under piece-rate employment have no fixed salaries and their compensation is computed on the basis of accomplished tasks. That their work output might have been affected by the change in their specific work assignments does not necessarily imply that any resulting reduction in pay is tantamount to constructive dismissal. It is the prerogative of the management to change their assignments or to transfer them. [Best Wear Garments v. De Lemos and Ocubillo, G.R. No. 191281 (2012)] Workers paid by results may be grouped into two: 1) those whose time and performance is supervised by the employer and 2) those whose time and performance is unsupervised by the employer [Azucena, p. 289]. Must be unsupervised to be excluded Those who are engaged on task basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof are excluded from receiving benefits such as nightime pay, holiday pay, service incentive leave, inter alia, provided their time and performance is unsupervised by the employer. [Labor Congress of the Philippines v. NLRC, G.R. No. 123938 (1998)] Rule on overtime pay Workers who are paid by results, if their output rates are in accordance with the standards prescribed under Sec. 8, Rule VII, Book III, of those regulations, or where such

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rates have been fixed by the Secretary of Labor in accordance with the aforesaid section, are not entitled to receive overtime pay. [Sec. 2(e), Rule I; Labor Congress of the Philippines v. NLRC, G.R. No. 123938 (1998)]

determining the existence or absence of employer-employee relationship. [Tan v. Lagrama, G.R. No. 111042 (1999)] b. Compensable Time

Summary of benefits payable Benefit

Unsupervised

i. Normal hours of work Supervised

Applicable Yes statutory minimum wage [Art. 101] Night differential [Sec. 1(e), Rule II]

No

Service No incentive leave [Sec. 1(d), Rule V]

Note: Art. 83 of the Labor Code only sets a maximum of number of hours as "normal hours of work" but did not prohibit work of less than eight hours. [Legend Hotel v. Realuyo, G.R. 153511 (2012)]

Yes

Yes

Holiday pay [Sec. 8(b), Rule IV]

Yes

13th month pay [Revised Guidelines on the Implementation of the 13th Month Pay Law (1987)]

Yes, provided the worker has rendered at least 1 month of service during the calendar year

Other statutory No benefits [Labor Congress of the Philippines v. NLRC, G.R. No. 123938 (1998)]

General Rule: 8-Hour Labor Law The normal hours of work of any employee shall not exceed eight (8) hours a day. [Art. 83]

Exception to 8-Hour Law: Work Hours of Health Personnel Health personnel in: a. Cities and municipalities with a population of at least one million (1,000,000) OR b. Hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals. HOWEVER, where the exigencies of the service require that they work for six (6) days or forty-eight (48) hours, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. “Health personnel" shall include: 1. Resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. [Art. 83] 2. Medical secretaries [Azucena]

Yes

Not determinative of EER Payment by result is not determinative of employer-employee relationship. It is a method of compensation and does not define the essence of the relation. It is a method of computing compensation, not a basis for

ii. Night shift differential Definition Night Shift Differential is the additional compensation of 10% of an employee’s

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regular wage for each hour of work performed between 10pm and 6am. [Art. 86] Illustration: If an employee has a regular wage of P100 for each hour of work performed between 10PM and 6AM, he/she shall be paid P110 per hour worked during such time interval. Coverage Aside from those enumerated under Art. 82 as excluded from Title I: Working Conditions and Rest Periods, those employed in retail and service establishments regularly employing not more than five (5) workers are also NOT entitled to Night Shift differential [Sec. 1, Rule II, Book III, IRR] Rest days (night-off) Night shift employees are entitled to a weekly night-off (usually Saturday evening) or a weekly rest period of 24 hours beginning at the start of the night shift [See also Art. 91]. Work on special days Night shift employees are also entitled to the premium pay on special days and holidays. These days are reckoned as calendar days which start at midnight and end at the following midnight. The premium pay for the night shift also starts or ends at midnight. However, the employment contract, company policy or CBA may provide that in the case of night shift workers, days—including special days and regular holidays—shall begin on the night before a calendar day. [Chan, Pre-Week Guidelines]

for the statutorily fixed or voluntary agreed hours of labor he is supposed to do. [PNB v. PEMA, G.R. No. L-30279 (1982)] Overtime on ordinary working day Work may be performed beyond eight hours a day, provided that the employee is paid an additional compensation equivalent to his regular wage plus at least 25% thereof. [Art. 87] Overtime work on holiday or rest day Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least 30% thereof. [Art. 87] Computation of additional compensation Base of Computation: Regular wage – means regular base pay. It includes the cash wage only without deduction on account of facilities provided by the employer. [Art. 90] It excludes money received in different concepts, such as Christmas bonus and other fringe benefits. [Bisig ng Manggagawa ng Philippine Refining Co. v. Philippine Refining Co., G.R. L-27761 (1981)] BUT when the overtime work was performed on the employee’s rest day or on special days or regular holidays (Art. 93 and 94), the premium pay, must be included in the computation of the overtime pay. [See: p. 19 of Handbook on Workers’ Statutory Monetary Benefits, issued by the Bureau of Working Conditions, 2006]

iii. Overtime work Overtime compensation is additional pay for service or work rendered or performed in excess of eight hours a day by employees or laborers covered by the Eight-hour Labor Law. [National Shipyard and Steel Corp. v. CIR, G.R. No. L-17068 (1961)] Rationale There can be no other reason than that he is made to work longer than what is commensurate with his agreed compensation

ILLUSTRATIONS Overtime on a Regular Day (OTRD) Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof [Art. 87] OTRD = Hourly wage x 125% x number of hours of OT work

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Work on Scheduled Rest Day (WRD) Work performed on a rest day shall be paid an additional compensation equivalent to 30% of the regular wage. [Art. 93]

6. Where overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon. [added by Rule 1, Sec. 10]

WRD = Regular Wage x 130% Overtime on Scheduled Rest Day (OTSRD) Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day. [Art. 93(a)] OTSRD = Hourly Wage x 169% x number of hours of OT work Note: 169% was derived by adding 39% (which is 30% of 130 or 1.3x.3 to 130% Emergency overtime Any employee may be required by the employer to perform overtime work in any of the following cases: 1. When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; 2. When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; 3. When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; 4. When the work is necessary to prevent loss or damage to perishable goods; and 5. Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. [Art. 89]

Overtime pay does not preclude night differential pay When the tour of duty of a laborer falls at nighttime [between 10:00pm and 6:00am], the receipt of overtime pay will not preclude the right to night differential pay. The latter is payment for work done during the night, while the other is payment for the excess of the regular eight-hour work. [Naric v. Naric Workers Union, G.R. No. L-12075 (1959)] SYNTHESIS OF RULES 1. An employer cannot compel an employee to work overtime Exception: Emergency overtime work as provided for in Art. 89 2. Additional compensation is demandable only if the employer had knowledge and consented to the overtime work rendered by the employee. Exception: Express approval by a superior NOT a requisite to make overtime compensable: a. If the work performed is necessary, or that it benefited the company; or b. That the employee could not abandon his work at the end of his eight-hour work because there was no substitute ready to take his place. [Sec. 4(c), Rule I; Manila Railroad Co. v. CIR, G.R. L4614 (1952)]

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Note: However, the Court has also ruled that a claim for overtime pay is NOT justified in the absence of a written authority to render overtime after office hours during Sundays and holidays. [Global Incorporated v. Atienza, G.R. L51612-13 (1986)] Daily time records cannot prove the performance of overtime work if the same had no prior authorization by the management. [Robina Farms Cebu/

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Universal Robina Corp. v. Villa, G.R. No. 175869 (2016)] 3. Compensation for work rendered in excess of the 8 normal working hours in a day: a. For ordinary days, additional 25% of the basic hourly rate. b. For rest day/special day/holiday, additional 30% of the basic hourly rate. 4. A given day is considered an ordinary day, unless it is a rest day. 5. Undertime does NOT offset overtime. Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall NOT exempt the employer from paying the additional compensation required in this Chapter. [Art. 88] Offsetting work on a regular day with work rendered on a holiday or rest day is prohibited because such deprives the employee of additional pay or premium. [Lagatic v. NLRC, G.R. No. 121004 (1998)] (a) Compressed work week (CWW) [DOLE Advisory No. 02, Series of 2004] A CWW refers to one where the normal workweek is reduced to less than 6 days but the total number of work hours of 48 hours per week shall remain. Under the CWW scheme, the normal workday goes beyond eight hours but not exceed 12 hours, without the corresponding overtime premium. [DOLE Advisory No. 04, Series of 2010]. In excess of such, the employer is obliged to pay the worker the overtime premium. Conditions for CWW 1. The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the covered employees or their duly authorized representatives. This agreement may be

expressed through collective bargaining or other legitimate workplace mechanisms of participation such as labor management councils, employee assemblies or referenda. 2. In firms using substances, chemicals and processes or operating under conditions where there are airborne contaminants, human carcinogens or noise prolonged exposure to which may pose hazards to employees’ health and safety, there must be a certification from an accredited health and safety organization or practitioner from the firm’s safety committee that work beyond eight hours is within threshold limits or tolerable levels of exposure, as set in the OSHS. 3. The employer shall notify DOLE, through the Regional Office having jurisdiction over the workplace, of the adoption of the CWW scheme. The notice shall be in DOLE CWW Report Form attached to this Advisory. [DOLE Advisory No. 02-04] Effects of CWW 1. Unless there is a more favorable practice existing in the firm, work beyond eight hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed twelve (12) hours. In any case, any work performed beyond 12 hours a day or 48 hours a week shall be subject to overtime premium. 2. Consistent with Art. 85, employees under a CWW scheme are entitled to meal periods of not less than 60 minutes. There shall be no impairment of the right of the employees to rest days as well as to holiday pay, rest day pay or leaves in accordance with law or applicable collective bargaining agreement or company practice. 3. Adoption of the CWW scheme shall in no case result in diminution of existing benefits. Reversion to the normal eighthour workday shall not constitute a diminution of benefits. Rationale: Although the right to overtime pay cannot be waived as per Cruz v. Yee Sing [G.R. No. L-12046 (1959)], D.O. No. 21

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sanctions the waiver of overtime pay in consideration of the benefits that the employees will derive from the adoption of a compressed workweek scheme, thus: The compressed workweek scheme was originally conceived for establishments wishing to save on energy costs, promote greater work efficiency and lower the rate of employee absenteeism, among others. Thus, under this scheme, the generally observed workweek of six (6) days is shortened to five (5) days, but prolonging the working hours from Monday to Friday without the employer being obliged for pay overtime premium compensation for work performed in excess of eight (8) hours on weekdays, in exchange for the benefits that will accrue to the employees (e.g. savings on meal and snack expenses; longer weekends etc). [Bisig Manggagawa sa Tryco v. NLRC, et al., G.R. No. 151309 (2008)] (b) Built-in overtime Composite or Package Pay NOT per se illegal; Conditions for Validity Composite or “package pay” or “all-inclusive salary” is an arrangement where the employee’s salary includes the overtime pay. In other words, the overtime pay is “built-in”. Such arrangement is valid provided that: 1. There is a clear written agreement knowingly and freely entered by the employee; and 2. The mathematical result shows that the agreed legal wage rate and the overtime pay, computed separately, are equal to or higher than the separate amounts legally due. [Damasco v. NLRC, G.R. 115755 (2000)] c. Non-compensable hours; When compensable i. Meal break General Rule: Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals. [Art. 85]

Exceptions: Employees may be given a meal period of not less than twenty (20) minutes provided that such shorter meal period is credited as compensable hours worked of the employee: 1. Where the work is non-manual work in nature or does not involve strenuous physical exertion; 2. Where the establishment regularly operates not less than sixteen (16) hours a day; 3. In case of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer; OR 4. Where the work is necessary to prevent serious loss of perishable goods [par. 1, Sec. 1, Rule I, Book III, IRR] The eight-hour work period does not include the meal break. Employees are not prohibited from going out of the premises as long as they return to their posts on time. Nowhere in the law may it be inferred that employees must take their meals within the company premises. [Philippine Airlines v. NLRC, G.R. No. 132805 (1999)] SYNTHESIS OF THE RULES General Rule: Meal periods compensable.

are

NOT

Exception: It becomes compensable: 1. Where the lunch period or meal time is predominantly spent for the employer’s benefit. [Azucena citing 31 Am. Jur. 881; Duka, Labor Laws and Social Legislation] 2. Meal periods of 1 hour are deemed compensable when the employee is on continuous shift. [National Development Co. v. CIR, G.R. No. L-15422, (1962)] 3. Shortened meal period of less than 1 hour (say, 30 minutes) must be compensable. [Sec. 7, Rule I, Book III, IRR] Note: To shorten meal time to less than 20 minutes is not allowed. If the so-called meal time is less than 20 minutes, it becomes only a

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REST PERIOD and is considered working time.

hours worked, whether used productively by the employees or not.

Exception to the Exception: Shortened meal breaks upon the employees’ request – NOT compensable.

If they last more than 20 minutes, the time may not be treated as hours worked if: 1. the employees can leave their workplace or go elsewhere whether within or without the work premises; OR 2. the employees can use the time effectively for their own interest.

The employees themselves may request that the meal period be shortened so that they can leave work earlier than the previously established schedule. [Drilon: Letter to Kodak Philippines, Nov. 27, 1989; Cilindro: BWCWHSD, Opinion No. 197, s. 1998] Conditions for shortened meal breaks upon employee’s request 1. The employees voluntarily agree in writing to a shortened meal period of 30 minutes and are willing to waive the overtime pay for such shortened meal period; 2. There will be no diminution whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period; 3. The work of the employees does not involve strenuous physical exertion and they are provided with adequate “coffee breaks” in the morning and afternoon; 4. The value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them for the shortened meal period as well as the overtime pay for 30 minutes as determined by the employees concerned; 5. The overtime pay of the employees will become due and demandable if ever they are permitted or made beyond 4:30pm; and 6. The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Secretary of Labor. [BWC-WHSD Opinion No. 197, s. 1998] ii. Power interruptions or brownouts Brownouts of short duration, but not exceeding 20 minutes, shall be treated as

In this case, the employer may extend the working hours beyond the regular schedule on that day to compensate for the loss of productive man-hours without being liable for overtime pay. [Policy Instruction No. 36, May 22, 1978] Note: The time during which an employee is inactive by reason of work interruptions beyond his control is considered working time, either if the imminence of the resumption of work requires the employee’s presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employee’s own interest. [Sec. 4(d), Rule I, Book III, IRR] iii. Idle time The idle time that an employee may spend for resting and dining which he may leave the spot or place of work though not the premises of his employer, is not counted as working time only where the work is broken or is not continuous. [National Development Co. v. CIR, G.R. No. L-15422 (1962)] A laborer need not leave the premises of the factory, shop or boat in order that his period of rest shall not be counted, it being enough that he "cease to work", may rest completely and leave or may leave at his will the spot where he actually stays while working, to go somewhere else, whether within or outside the premises of said factory, shop or boat. If these requisites are complied with, the period of such rest shall not be counted. [Luzon Stevedoring Co. v. Luzon Marine Department Union, G.R. No. L-9265 (1957)]

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iv. Travel time Travel time [Department of Labor Manual] Travel from home to work – An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home-towork travel which is NOT considered hours worked, EXCEPT: a. When called to travel during emergency; b. When travel is done through a conveyance furnished by the employer; c. Travel is done under vexing and dangerous circumstances; d. Travel is done under the supervision and control of the employer. Travel that is all in the. day’s work – Time spent by an employee in travel from jobsite to jobsite during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, the travel from the designated place to the workplace is part of the day’s work. Travel away from home – Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is worktime when it cuts across the employee’s workday. The time is hours worked not only on regular working hours but also during the corresponding hours on nonworking days. Lectures, meetings, trainings Attendance at lectures, meetings, training programs, and other similar activities shall NOT be counted as working time if ALL of the following conditions are met: 1. Attendance is outside of the employee’s regular working hours; 2. Attendance is in fact voluntary; and 3. The employee does not perform any productive work during such attendance. [Sec. 6, Rule I, Book III, IRR] Notes: 1. Attendance in lectures, meetings, and training periods sanctioned or required by

the employer are considered hours worked. 2. Attendance in CBA negotiations or grievance meeting is compensable hours worked provided that such is stipulated in the CBA. [Department of Labor Manual, Sec. 4323.03] 3. Attendance in hearings in cases filed by the employee is NOT compensable hours worked. 4. Participation in strikes is NOT compensable working time. Attendance in lectures, meetings, and training periods must necessarily beneficial to the employer. [Sec. 6(c), Rule I, IRR] v. Commuting time Employees performing tasks during their commute which are not merely incidental to the employee’s job, and are primarily for the benefit of the employer (such as a company driver performing a carpool service for coworkers according to an agreement with the company), are entitled to overtime pay. [Hilario Rada v. NLRC, G.R. No. 96078 (1992)] vi. Waiting time Rest period – short duration or “coffee break” 1. Rest periods of short duration during working hours shall be counted as hours worked. [par. 2, Art. 84, par. 2] 2. Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered as compensable working time. [par. 2, Sec. 7, Rule I, Book III, IRR] On call Compensable work time, if employee is: 1. Required to remain on call in the employer’s premises or so close thereto 2. That he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. Note: An employee who is not required to leave word at his home or with company officials

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where he may be reached is NOT working while on call. [Sec. 5 (b), Rule I, Book III, IRR] Inactive due to work interruptions The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered working time either: 1. If the imminence of the resumption of work requires the employee's presence at the place of work OR 2. If the interval is too brief to be utilized effectively and gainfully in the employee's own interest. [Sec. 4 (d), Rule I, Book III, IRR]

2. Rest Periods . It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days. [Art. 91 (a)] Preference of the employee The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. [Art. 94 (b)] The employee shall make known his preference to the employer in writing at least seven days before the desired effectivity of the initial rest day so preferred. When the choice of the employee as to his rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operations and the employer cannot normally be expected to resort to other measures, the employer may so schedule the weekly rest day of his choice for at least two days in a month. [Rule III, Sec. 4]

COMPULSORY WORK ON REST DAY The employer may require his employees to work on any day: 1. In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety; 2. In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer; 3. In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures; 4. To prevent loss or damage to perishable goods; 5. Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer; and 6. Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment. [Art. 92] Synthesis of the Rules 1. Rest day of not less than 24 consecutive hours after 6 consecutive days of work. 2. No work, no pay principle applies. 3. If an employee works on his designated rest day, he is entitled to a premium pay. 4. Premium pay is additional 30% of the basic pay. 5. Employer selects the rest day of his employees 6. However, employer must consider the religious reasons for the choice of a rest day. PREMIUM PAY Premium pay refers to the additional compensation for work performed within 8 hours on non-work days, such as rest days and special days. Coverage [Sec. 7, Rule III, Book III, IRR] General Rule: All employees

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Exceptions: 1. Those of the government and any of the political subdivision, including governmentowned and controlled corporations; 2. Managerial employees as defined in Book III; 3. Househelpers and persons in the personal service of another; 4. Workers who are paid by results, including those who are paid on piece rate, takay, pakyaw, or task basis, and other noontime work, if their output rates are in accordance with the standards prescribed in the regulations, or where such rates have been fixed by the Secretary of Labor and Employment; 5. Field personnel, if they regularly perform their duties away from the principal or branch office or place of business of the ER and whose actual hours of work in the field cannot be determined with reasonable certainty. Premium pay rates [Handbook on Workers Statutory Monetary Benefits, 2018] When Work Performed

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Premium Pay

On scheduled rest day

130% of regular wage

On Sunday ONLY IF this is the ESTABLISHED rest day

130% of regular wage

On Sunday and holidays, 130% of regular when no regular work wage and rest days On any special holiday/special day

130% of regular wage

On any special holiday/ special day falling on scheduled rest day

150% of regular wage

On a regular holiday falling on a rest day

260% of regular wage

Work on a Sunday or holiday which is also a scheduled rest day All establishments and enterprises may operate or open for business on Sundays and holidays provided that the employees are given the weekly rest day and the benefits as provided in this Rule. [Sec. 2, Rule III, Book III, IRR] Compensation on rest day/Sunday/holiday Except those employees referred to under Sec. 2, Rule I, Book III: 1. An employee who is made or permitted to work on his scheduled rest day shall be paid with an additional compensation of at least 30% of his regular wage. 2. An employee shall be entitled to such additional compensation for work performed on a Sunday only when it is his established rest day. 3. An employee shall be paid an additional compensation of at least 30% of his regular wage for work performed on Sundays and holidays, where the nature of the work of the employee is such that he has no regular work days and no regular rest days can be scheduled. [Sec. 7, Rule III, Book III, IRR] CBA on higher premium pay/Rate Adjustments Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate. [Art. 93 (d)] The employer and his employees or their representatives are not prevented from entering into any agreement with terms more favorable to the employees. [Sec. 9, Rule II, Book III, IRR] Nothing in this rule shall justify an employer in reducing the compensation of his employees for the unworked Sundays, holidays, or other rest days, which are considered paid off days or holidays by agreement or practice subsisting upon the effectivity of the Code. [Sec. 8, Rule III, Book III, IRR]

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other. [Philippine Hoteliers, Inc., Dusit Hotel-Nikko v. NUWHRAIN-APL-IUF-Dusit Hotel Nikko Chapter, G.R. No. 181972 (2009)]

3. Service Charge Coverage Employers This rule shall apply only to establishments which collect service charges such as: a. Hotels, restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses; b. Similar enterprises including those entities operating primarily as private subsidiaries of the Government [Sec. 1, DO 206-19, IRR of RA11360] Employees Shall apply to ALL employees of covered employers: 1. Regardless of their positions, designations, or employment status, and 2. Irrespective of the method by which their wages are paid. [Sec. 2 (a), DO 206-19, IRR of RA11360] Exceptions Managerial employees [Sec. 2 (c), DO 201619, IRR of RA11360] Distribution, amended by RA11360 Pursuant to the 2019 amendments to Art. 96, all service charges collected by hotels, shall be distributed completely and equally among the covered workers except managerial employees, based on actual hours or days of work or service rendered, among the covered employees, including those already receiving the benefit of sharing in the service charges. [Sec. 3, DO 206-19, IRR of RA11360] The shares shall be distributed to employees not less than once every 2 weeks or twice a month at intervals not exceeding 16 days. [Sec. 4, DO 206-19, IRR of RA11360] Notes: 1. The P2,000.00 salary ceiling for entitlement thereto is no longer applicable. 2. [The employees’] right to their shares in the service charges collected by [the employer] is distinct and separate from their right to ECOLA; gratification by the [employer] of one does not result in the satisfaction of the

Service charge not included in determining compliance with minimum wage In the event that the minimum wage is increased by law or wage order, service charges paid to the covered employees shall not be considered in determining the covered establishment’s compliance with the increased minimum wage. [Sec. 5, DO 206-19, IRR of RA11360] In Relation to Collective Bargaining Agreements and Employer-Employee Agreements Nothing in the Rules shall prevent the employer and employee from entering into any agreement with terms more favorable to the employees than those granted therein, or be used to diminish any benefit granted to the employees under existing laws, agreement AND voluntary employer practice. [Sec. 6, Rule VI, Book III, IRR] The rule is without prejudice to existing, future collective bargaining agreements. [Sec. 7, Rule VI, Book III, IRR] Synthesis of the Rules 1. Service charges must be pooled; 2. Where a restaurant or similar establishment does not collect service charges but has a practice or policy of monitoring and pooling tips given voluntarily by its customers to its employees, the pooled tips should be monitored, accounted for and distributed in the same manner as the services charges [Handbook on Workers’ Statutory Monetary Benefits, 2018]; 3. The amount collected shall be distributed completely and equally among the covered workers; 4. It shall be given twice a month with intervals of not more than 16 days; 5. Payment of service charges will not be considered in compliance with any

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increase in the minimum wage by law or wage order.

Cooperative Development upon approval of the Secretary of Labor. Note: Workers in registered barangay micro business enterprise are only exempted from the Minimum Wage Law, not from the Title on Wages [RA 9178].

B. WAGES 1. Definition, Components, and Exclusions

a. Wage vs. Salary

Definition It is the remuneration or earnings, however designated: 1. Capable of being expressed in terms of money; 2. Whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same; 3. Payable by an employer to an employee under a written or unwritten contract of employment – a. for work done or to be done; or b. for services rendered or to be rendered [Art. 97(f)] Coverage/Exclusions Wage includes the fair and reasonable value of facilities furnished by the employer to the employee. [Art. 97(f)] while allowances are excluded from the basic salary or wage computation. [Cebu Institute of Technology v. Ople, G.R. No. L-58870 (1987)] Note: Fair and reasonable value shall not include any profit to the employer, or to any person affiliated with the employer. [Art. 97(f)] Applicability The Labor Code Title on wages shall not apply to the following [Art. 98 and Sec. 3, Rule VII, Book III, IRR]: a. Farm tenancy or leasehold; b. Household or domestic helpers, including family drivers and other persons in the personal service of another; c. Homeworkers engaged in needlework; d. Workers in registered cottage industries who actually work at home; e. Workers in registered cooperatives when so recommended by the Bureau of

Wages and salary are in essence synonymous. [Songco v. NLRC, G.R. No. L-50999 (1990)] There are slight differences: Wage

Salary

Paid for skilled or unskilled manual labor

Paid to white collar workers and denote a higher grade of employment

Not subject to execution, garnishment or attachment except for debts related to necessities [Art. 1708]

Subject to execution, garnishment or attachment [Gaa v. CA, G.R. No. L44169 (1985)]

b. Distinguish: Facilities and Supplements Criterion: In determining whether a privilege is a facility, the criterion is not so much its kind but the PURPOSE for which it is given. [Millares v. NLRC & PICOP, G.R. No. 122827 (1999)] Comparison Supplements

between

Facilities

Facilities

and

Supplements What it is

Articles or services/items of expense; EXCLUDES tools of the trade or articles or service primarily

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Extra remuneration or special benefits/ articles or services/ tools of the trade given to or received by laborers over and

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for the benefit of the above their ordinary ER [Sec. 5, Rule 7- earning or wages A, Book III, IRR] [Sec. 5, Rule 7-A, Book III, IRR;] Who benefits For the benefit of the employee and his family; for their existence and subsistence

For the benefit or convenience of the employer

No [Art. 97]

Deductible from wage? Yes – part of the wage so it is deductible [Art. 97]

c. Bonus, 13th Month Pay BONUS General Rule: A bonus is an act of gratuity on the part of the employer, and is a management prerogative which cannot be forced upon the employer. [Kamaya Point Hotel v. NLRC, G.R. No. 75289, August 31, 1989]

Part of the wage? Yes [Art. 97]

If the fair rental value is lower than the computed value, fair rental value will be used. [Rule VII-A, Sec. 6]

No – independent of the wage so not deductible [Art. 97]

Requirements for deducting value of facilities Mere availment is not sufficient to allow deductions from employees’ wages. Before the value of facilities can be deducted from the employees’ wages, the following requisites must all be attendant: a. Proof must be shown that such facilities are customarily furnished by the trade; b. The provision of deductible facilities must be voluntarily accepted in writing by the employee; and c. Facilities must be charged at reasonable value. [SLL International Cable Specialists v. NLRC, G.R. No. 172161 (2011)] “Customary” means long-established and constant practice connoting regularity. [Millares v. NLRC & PICOP, G.R. No. 122827 (1999)] Computation Value of Facilities = Cost of Operation and maintenance + Adequate depreciation + reasonable allowance (not more than 5.5% interest on the depreciated amount of capital invested by the employer)

Exception: For a bonus to be enforceable: 1. It must have been promised by the employer and expressly agreed upon by the parties; or 2. It must have had a fixed amount and had been a long and regular practice on the part of the employer. [American Wire and Cable Union v. American Wire, G.R. No. 155059, April 29, 2005] See also VI. D. Bonus for comprehensive discussion on practices*

a more company

13th MONTH PAY [PD 851 (The 13th-Month Pay Law) and the Revised Guidelines on the Implementation of the 13th Month Pay Law] Coverage General Rule: ALL EMPLOYERS are hereby required to pay all their rank and file employees a 13th month pay not later than Dec 24 of every year, Provided that they have worked for at least one (1) month during a calendar year. [Memorandum Order No. 28] N.B.: The law distinguishes managerial employees from rank-and-file employees; hence, managerial employees are not legally entitled to 13th month pay. Exempted Employers: a. Government, its political subdivisions, including GOCCs except those operating essentially as private subsidiaries of the Government;

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b. Employers already paying their employees a 13th month pay or more in a calendar year or its equivalent at the time of this issuance; and c. Employers of those who are paid on purely commission, boundary or task basis and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance thereof (except those workers who are paid on piece-rate basis, in which case their employer shall grant them 13th month pay). Notes: “Equivalent” of a 13th month pay includes: a. Christmas bonus, mid-year bonus, cash bonuses; and b. Other payments amounting to not less than 1/12 of the basic salary But shall NOT INCLUDE cash and stock dividends, cost of living allowances and all other allowances regularly enjoyed by the employee, as well a non-monetary benefits. Workers paid on a piece-rate basis – paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same. Their employer shall grant them 13th month pay. Minimum Amount 1/12 of the total basic salary earned by an employee within a calendar year. Base Amount General Rule: basic salary shall include: a. Cost of living allowances (COLA) integrated into the basic salary of a covered employee pursuant to EO 178. b. All remunerations or earnings paid by this employer for services rendered. Excluding the allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as the cash equivalent of: 1. Unused vacation and sick leave credits, 2. Overtime, 3. Premium, 4. Night differential,

5. Holiday pay and, and 6. Cost-of-living allowances. Exception: A company practice favorable to the employees had indeed been established if for a considerable length of time, the employer had freely, voluntarily and continuously included in the computation of its employees' thirteenth month pay, the payments for sick, vacation and maternity leaves, premiums for work done on rest days and special holidays, and pay for regular holidays. Thus, the payments made pursuant thereto, ripened into benefits enjoyed by the employees, and any benefit and supplement being enjoyed by them cannot be reduced, diminished, discontinued or eliminated by the employer. [Davao Fruits Corp. v. ALU, G.R. No. 85073 (1993)] Time of payment General Rule: paid not later than Dec 24 of each year. Exception: ER may give to his employees half (½) of the required 13th Month Pay before the opening of the regular school year and the other half on or before the 24th of December every year. The frequency of payment of this monetary benefit may be the subject of agreement between the employer and the recognized CBA of the employees. Rationale behind 13th Month Pay a. To further protect the level of real wages from the ravage of world-wide inflation; b. There had been no increase in the legal minimum wage rates since 1970; c. The Christmas season is an opportune time for society to show its concern for the plight of the working masses so they may properly celebrate Christmas and New Year. [Whereas clauses of PD 851] 13th Month Pay in Special Cases a. Paid by Results: Employees who are paid on piece work basis are, by law, entitled to the 13th Month Pay. [Revised Guidelines on the Implementation of the 13th Month Pay Law]

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b. Fixed or Guaranteed Wage: Employees who are paid a fixed or guaranteed wage plus commission are entitled to 13th month pay (not purely commission); the basis for computation shall be both their fixed or guaranteed wage and commission. [Revised Guidelines] c. Those with Multiple Employers: Government Employees working part time in a private enterprise, including private educational institutions, as well as Employees working in two or more private firms, whether on full or part time bases, are entitled to the required 13th Month Pay from all their private Employers regardless of their total earnings from each or all their employers. [Revised Guidelines] d. Private School Teachers: Private school teachers, including faculty members of universities and colleges, are entitled to the required 13th month pay, regardless of the number of months they teach or are paid within a year, if they have rendered service for at least one (1) month within a year. [Revised Guidelines] Overload pay is NOT included in the computation for 13th month pay; overload is not overtime as it is additional work done within the normal shift. [Letran Calamba Faculty v. NLRC, G.R. No. 156225 (2008)] e. Resigned or Separated Employee: An Employee who has resigned or whose services were terminated at any time before the time for payment of the 13th month pay is entitled to this monetary benefit in proportion to the length of time he worked during the year, reckoned from the time he started working during the calendar year up to the time of his resignation or termination from service. [Revised Guidelines] f.

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Terminated Employees: The payment of the 13th month pay may be demanded by the employee upon the cessation of employer-employee relationship. [Archilles

Manufacturing Corp. v. NLRC, G.R. No. 107225 (1995)] Additional Rules a. Commissions: If the commissions may be properly considered part of the basic salary, then they should be INCLUDED. If they are not an integral part of the basic salary, then they should be EXCLUDED. [Phil. Duplicators Inc. v. NLRC, G.R. No. 110068 (1995)] b. Substitute Payment not allowed: Benefits in the form of food or free electricity, assuming they were given, were not a proper substitute for the 13th month pay required by law. Neither may year-end rewards for loyalty and service be considered in lieu of 13th month pay. [Framanlis Farms, Inc. v. MOLE, G.R. No. 72616-17 (1989)] c. Wage Difference: The difference between the minimum wage and the actual salary received by the Employee cannot be deemed as his 13th month pay as such difference is not equivalent to or of the same import as the said benefit contemplated by law. [JPL Marketing Promotions v. CA, G.R. No. 151966 (2005)] d. 14th Month Pay is not mandated: Employers already paying their employees a 13th month pay or its equivalent are not covered by this Decree. [Kamaya Point Hotel v. NLRC, G.R. No. 75289 (1989)] e. Non-inclusion in regular wage: The mandated 13th month pay need not be credited as part of regular wage of employees for purposes of determining overtime and premium pays, fringe benefits insurance fund, Social Security, Medicare and private retirement plans. [Revised Rules] Commissions vis-à-vis 13th month pay The Rule on Productivity Bonuses. “Productivity bonuses” have no clear direct or necessary relation to the amount of work actually done by each individual employee. If an employer cannot be compelled to pay a productivity bonus to its employees, it should follow that such productivity bonus, when

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given, should not be deemed to fall within the “basic salary” of employees when the time comes to compute their 13th month pay. [BoieTakeda v. de la Serna, G.R. No. 92174 and G.R. No. L-102552 (1993)] The sales commission earned by the salesmen who make or close a sale constitute part of the compensation or remuneration paid to salesmen for serving as salesmen, and hence as part of the “wage” or salary of petitioner’s salesmen. The sale commissions were an integral part of the basic salary structure used as the base amount for the computation of 13th month pay. [Phil. Duplicators v. NLRC, G.R. No. 110068 (1995)] CBA vis-à-vis 13th month pay P.D. No. 851 is specific and mandatory. However, if the employers actually grant such 13th month pay in the monetary benefits provided for in the CBA, they could be exempted from the operation of the decree. To be exempted, there must be actual payment. [Marcopper Mining Corp. v. Ople, G.R. No. L51254 (1981)] Effect of Deficiency in 13th month pay An employer who pays less than 1/12th of the employees’ basic salary as their 13th month pay is only required to pay the difference. [Revised Rules] d. Holiday Pay Holiday pay is a one-day pay given by law to an employee, even if he does not work on a regular holiday. This gift of a day’s pay is limited to each of the 12 regular holidays. Note: Art. 94 (c), was superseded by E.O. 203, which was subsequently amended by RA 9177, 9256, 9492, and 9849. The current state of the law is discussed below. Coverage General Rule: All employees [Art. 94(a); Rule IV, Sec. 1]

Exceptions: a. Those of the government and any of the political subdivision, including governmentowned and controlled corporation; b. Those of retail and service establishments regularly employing less than 10 workers; c. Domestic helpers and persons in the personal service of another; d. Managerial employees and officers or members of the managerial staff as defined in Book III; e. Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof. [Sec. 1, Rule IV] Retail Establishment is one principally engaged in the sale of goods to end-users for personal or household use. Service Establishment is one principally engaged in the sale of service to individuals for their own or household use and is generally recognized as such. [RA 6727 (The Wage Rationalization Act) IRR] Regular holidays RA 9492 and 9849 (which added the two Muslim holidays) provide for the observance of the following regular holidays: 1. New Year’s Day – Jan. 1 2. Maundy Thursday – Movable date 3. Good Friday – Movable date 4. Araw ng Kagitingan – Monday nearest Apr. 9 5. Labor Day – Monday nearest May 1 6. Independence Day – Monday nearest June 12 7. Eid’l Fitr – Movable date 8. Eid’l Adha – Movable date 9. National Heroes Day – Last Monday of August 10. Bonifacio Day – Monday nearest Nov. 30 11. Christmas Day – Dec. 25 12. Rizal Day – Monday nearest Dec. 30

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Special (Non-Working Days) RA 9492 and RA 10966 provide for the observance of the following special holidays: 1. Ninoy Aquino Day – Monday nearest Aug. 21 2. All Saints Day – Nov. 1 3. Immaculate Conception of Mary [RA 10966] – Dec. 8 4. Last day of the year – Dec. 31 Note: Proclamation 269 fixed the data for the observance of the regular and special holidays including additional special holidays for 2018 and 2019 The dates for Eid’l Fitr and Eid’l Adha (special holidays) shall follow after approximate dates of the Islamic holidays have been determined. Arts. 169-173, P.D. 1083 (Code of Muslim Personal Laws) Specifically for the Muslim Areas, P.D. 1083, in its Book V, IRR Title, recognizes five (5) Muslim Holidays, namely: 1. Amun Jadid (New Year) which falls on the first (1st) day of the lunar month of Muharram; 2. Mauli-un-Nabi (Birthday of the Prophet Muhammad) which falls on the twelfth (12th) day of the third (3rd) lunar month of Rabi-ul-Awwal; 3. Lailatul Isra Wal Mi Rai (Nocturnal Journey and Ascencion of the Prophet Muhammand) which falls on the twentyseventh (27th) day of the seventh (7th) lunar month of Rajab; 4. Id-ul-Fitr (Hari Raja Pausa) which falls on the first (1st) day of the tenth (10th) lunar month of Shawwal commemorating the end of the fasting season; and 5. Id-ul-Adha (Hari Raha Haji) which falls on the tenth (10th) day of the twelfth (12th) lunar month of Dhu’l-Hijja. Notes: 1. Id-ul-Fitr (Eid’l Fitr) and Id-ul-Adha (Eid’l Adha) have been added to the list of national legal holidays [RA 9849]. 2. There should be no distinction between Muslims & non-Muslims as regards to the payment of benefits for Muslim

holidays. Wages & other emoluments granted by law to the workingman are determined on the basis of the criteria laid down by laws, and not on worker’s faith. Art. 3(3), PD 1083 states that nothing herein shall be construed to operate to the prejudice of a non-Muslim. [San Miguel Corp v. CA, G.R. No. 146775 (2002)] Holiday pay computation [Art. 94; Rule IV, Book III, IRR; RA 9424; DOLE Memorandum Circular 1 Series of 2004] General Rule: An employer may require an employee to work on a regular holiday but such employee shall be paid a compensation equivalent to twice his regular rate. If an employee is required to work on a special holiday, the additional compensation should be 30% of his regular rate. Work on holiday Work on a Regular Holiday (WRH)

Computation WRH = Regular wage x 200% Note: The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate [Art. 94(b)]

Overtime on OTRH = Hourly wage x a Regular 260% x number of hours Holiday of OT work (OTRH) Note: Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof. [Art. 87]

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200% of regular daily wage (for the 1st 8 hours)+ 60% of hourly rate on said day [260%] Work on Regular Holiday which falls on a Rest Day (WRHRD)


WRHRD = Regular wage x 260%
 Note: Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least 30% of his regular wage. [Art. 93(a)] 200% of regular daily wage + 60% (which is 30% of 200%) [260%]

Overtime on Regular Holiday which falls on a Rest Day (OTWRHRD)


OTWRHRD = Hourly Rate x 338% x number of hours of OT

Work on Special Holiday (WSH)

WSH = Regular wage x 130%

Note: Regular holiday-onrest day rate (200% of regular daily wage plus 30% of such amount) + 30% of hourly rate on said day. [338%]

Note: Work performed on any special holiday shall be paid an additional compensation of at least 30% of the regular wage of the employee. [Art. 93(c)] Regular daily wage + 30% thereof [130%]

Overtime during Work on Special Holiday (OTWSH)

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OTWSH = Hourly wage x 169% x number of hours of OT work Note: 130% of regular daily wage + 39 (which is 30% of 130%) [169%]

Work on Special Holiday which falls on a Rest Day (WSHRD)


WSHRD = Regular wage x 150%

Overtime during Work on Special Holiday which falls on a Rest Day (OTWSHRD)

OTWSHRD = Hourly wage x 195% x number of hours of OT work

Note: Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to an additional compensation of at least 50% of his regular wage. Regular daily wage + 50% thereof [150%]

Note: 45% (which is 30% of 150%) + 150% [195%]

According to DOLE Memo Circular 1-04, a “special holiday”/”special day” includes the National Special Days, and declared special days such as Special Non-working Holiday, Special Public Holiday and Special National Holiday. Such days are entitled to the rates prescribed above. These days are not the same as a special working holiday. A special working holiday is considered an ordinary working day, so there is no premium pay. Double holiday pay According to “DOLE Explanatory Bulletin on Worker’s Entitlement to Holiday Pay on 9 April 1993,” if two holidays fall on the same day: a. If unworked, 200% of basic wage. b. If worked, 300% of basic wage. [Azucena] Double Holiday Rule for Monthly-paid employees For covered employees whose monthly salaries are computed based on 365 days and for those other employees who are paid using factor 314, or 262, or any other factor which already considers the payment for the 11 [now 12] regular holidays, NO additional payment is

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due them. [BWC-WHSD Opinion No. 053, s. 1998] Successive holiday pay According to IRR, Rule IV, Sec. 10, an employee is entitled to holiday pay for both days, IF: a. He is present on day immediately preceding first holiday; or b. He works on first holiday, which entitles him to pay on second holiday. Where the day immediately preceding the holiday is a non-working day in the establishment or the scheduled rest day of the employee, he shall not be deemed to be on leave of absence on that day, in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the nonworking day or rest day. [Sec. 6, Rule IV, Book III, IRR] Divisors The divisor assumes an important role in determining whether or not holiday pay is already computed. a. Monthly paid employees are not entitled to the holiday pay if their total annual income is divided by 365 days resulting in a wage which is beyond the minimum wage per day because they are considered paid everyday of the year including holidays, rest days, and other non-working days. b. As a general rule, for a company with a 6day working schedule, the divisor 313 already means that the legal holidays are included in the monthly pay of the employee. The divisor is arrived at by subtracting all Sundays from the total number of calendar days in a year. c. As a general rule for a company with a 5day working schedule, the divisor 277 means that the holiday pay is already included in the monthly salary of the employee. [Trans Asia Phils. v. NLRC, G.R. No. 118289 (1999)] An increase in the divisor that results in the prejudice of the employees is a violation of the proscription against non-diminution of benefits under Sec. 100 of the Labor Code. Such

increases should only be used for computations which would be advantageous to the employer (i.e. deduction for absences) and not for computations which would diminish the existing benefits of the employees (i.e., overtime pay, holiday pay and leave conversions). [Trans Asia Phils. v. NLRC, supra] Sundays (See “Work on a Sunday or holiday which is also a scheduled rest day”) a. When a holiday falls on a Sunday, the following Monday will not be considered a holiday unless a proclamation says so. b. A legal holiday falling on a Sunday does not create a legal obligation to pay extra, aside from the usual holiday pay, to monthly-paid employees. [Azucena, citing Letter of Instruction No. 1087] No provision of law requires any employer to make adjustments in the monthly salary rate set by him to take account of legal holidays falling on Sundays in a given year, otherwise to reckon a year at more than 365 days. [Wellington Investment and Manufacturing Corporation v. Trajano, G.R. No. 114698 (1995)] Non-working/scheduled rest day Where the day immediately preceding the holiday is a non-working day in the establishment or the scheduled rest day of the employee, he shall not be deemed to be on leave of absence on that day, in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the non-working day or rest day. [Sec. 6(c), Rule IV, Book III, IRR] Example: If a holiday falls on Monday, and Sunday is a non-working day in the establishment or is the scheduled rest day of the employee, the employee shall be entitled to holiday pay if he worked on Saturday (which is the day immediately preceding Sunday, the nonworking day or rest day).

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Right to holiday pay in case of absences If an employee is on leave of absence with pay on the day immediately preceding a regular holiday, he is entitled to holiday pay. [Sec. 6(a), Rule IV, Book III, IRR] If an employee is on leave of absence without pay on the day immediately preceding a regular holiday, he is not entitled to holiday pay unless he works on such regular holiday. [Sec. 6(a), Rule IV, Book III, IRR] In case of temporary cessation of work a. In cases of temporary or periodic shutdown and temporary cessation of work of an establishment, as when a yearly inventory or when the repair or cleaning of machineries and equipment is undertaken, the regular holidays falling within the periods shall be compensated in accordance with this Rule. b. The regular holiday during the cessation of operation of an enterprise due to business reverses as authorized by the Secretary of Labor may not be paid by the employer. [Sec. 7, Rule IV, Book III, IRR] An employee is entitled to holiday pay for the regular holidays falling within the period in cases of temporary shutdowns or cessation of work, when: a. An annual inventory; or b. Repair or cleaning of machineries and equipment is undertaken. The employer may not pay his employees for the regular holidays during the suspension of work if: the cessation of operation is due to business reverses, and is authorized by the Secretary of Labor. Teachers, Piece Workers, Seafarers, Seasonal Workers, Etc. a. Private school teachers, including faculty members of colleges and universities, may not be paid for the regular holidays during semestral vacations. They shall, however, be paid for the regular holidays during Christmas vacation;

b. Where a covered employee, is paid by results or output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working days preceding the regular holiday; Provided, However, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate. c. Seasonal workers may not be paid the required holiday pay during off-season when they are not at work d. Workers who have no regular working days shall be entitled to the benefits provided in this Rule. [Sec. 8, Rule IV, Book III, IRR] Holiday Pay of Hourly-Paid Faculty Members Not Entitled: Regular Holiday Pay Entitled: Regular hourly rate on days declared as special holidays or for some reason classes are called off or shortened for the hours they are supposed to have taught, whether extensions of class days be ordered or not; in case of extensions said faculty members shall likewise be paid their hourly rates should they teach during said extensions. a. They are not entitled to payment of holiday pay because they are paid only for work actually done. Since regular holidays are known to both the school and faculty members as “no class day”; certainly the latter do not expect payment for said unworked holidays. b. They are entitled to their hourly rate on days declared as special holidays. When a special public holiday is declared, the faculty member paid by the hour is deprived of expected income, and it does not matter that the school calendar is extended in view of the days or hours lost, for their income that could be earned from other sources is lost during the extended days. c. Similarly, when classes are called off or shortened on account of typhoons, floods, rallies, and the like, these faculty members must likewise be paid, whether or not extensions are ordered. [Jose Rizal College v. NLRC, G.R. No. L-65482 (1987)]

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Piece workers The philosophy underlying the exclusion of piece workers from the 8-hour law is that said workers are paid depending upon the work they do irrespective of the amount of time employed in doing said work. [Red V Coconut Products Ltd. v. CIR, G.R. No. L-21348 (1966)] Seafarers Any hours of work or duty including hours of watch-keeping performed by the seafarer on designated rest days and holidays shall be paid rest day or holiday pay. [Sec. 11.C, Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels] Seasonal workers Seasonal workers who do not work during offseason are not entitled to pay for the regular holidays occurring during their off-season. Workers assigned to “skeleton crews” that work during the off-season have the right to be paid on regular holidays falling in that duration.

2. Principles a. No work, no pay General Rule: If there is no work performed by the employee, there can be no wage or pay. Exception: Unless the laborer was able, willing and ready to work but was prevented by management or was illegally locked out, suspended or dismissed. [Azucena, citing Philippine Airlines v. NLRC, G.R. No. 55159, June 22, 1989] b. Equal pay for equal work Employees working in the Philippines, if they are performing similar functions and responsibilities under similar working conditions, should be paid equally. If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. [International School Alliance of Educators v. Hon. Quisumbing, G.R. No. 128845 (2000)]

c. Fair wage for fair work General Rule: The age-old rule governing the relation between labor and capital or management and employee is that a "fair day's wage for a fair day's labor." It is hardly fair or just for an employee or laborer to fight or litigate against his employer on the employer's time. [Sugue v. Triumph International, G.R. No. 164804 (2009)] Exception: When the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed, or otherwise illegally prevented from working. [Sugue v Triumph International, supra] d. Non-diminution of benefits General Rule: There is a prohibition against elimination or diminution of benefits. [Art. 100] No wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. [Art. 127, as amended by RA 6727] Requisites If the following are met, then the employer cannot remove or reduce benefits [Vergara Jr. v. Coca-Cola Bottlers Phils, G.R. No. 176985 (2013)]: 1. Ripened company policy – Benefit is founded on a policy which has ripened into a practice over a long period; 2. Practice is consistent and deliberate; and 3. Not due to error in the construction or application of a doubtful or difficult question of law. [Globe Mackay Cable v. NLRC, G.R. No. L-74156 (1988)] 4. The diminution or discontinuance is done unilaterally by the employer. See also VI. D. Bonus. When not applicable: At least one of the requisites is absent. a. Mistake in the application of the law [Globe Mackay Cable v. NLRC, supra.] b. Negotiated benefits [Azucena]

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c. Reclassification of Positions – e.g. loss of some benefits by promotion. d. Contingent or Conditional Benefits – the rule does not apply to a benefit whose grant depends on the existence of certain conditions, so that the benefit is not demandable if those preconditions are absent. Benefits initiated through negotiation between Employee and Employer, e.g. CBA, can only be eliminated or diminished bilaterally.

3. Minimum Wage Definition - “Statutory minimum wage” is the lowest wage fixed by law that an employer can pay his workers. [Rules Implementing RA 6727] Payment of statutory minimum wage is mandatory Lack of funds is not a valid defense from paying the statutory minimum wage, which is a mandatory statutory obligation. To uphold such defense of lack of available funds would render the Minimum Wage Law futile and defeat its purpose. [De Racho v. Municipality of Ilagan, G.R. No. L-23542, January 2, 1968] a. Payment by hours worked The minimum wage rates for agricultural and non-agricultural employees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Boards. [Art. 99] See III. A. 1. Hours of work.

Basis of output pay rate a. On petition of any interested party, or upon its initiative, the Department of Labor shall use all available devices, including the use of time and motion studies and consultation with representatives of employers’ and workers’ organizations, to determine whether the employees in any industry or enterprise are being compensated in accordance with the minimum wage requirements of this Rule. b. The basis for the establishment of rates for piece, output, or contract work shall be the performance of an ordinary worker of minimum skill or ability. c. An ordinary worker of minimum skill or ability is the average worker of the lowest producing group representing 50% of the total number of employees engaged in similar employment in a particular establishment, excluding learners, apprentices and handicapped workers employed therein. d. Where the output rates established by the employer do not conform with the standards prescribed herein, or with the rates prescribed by the DOLE in an appropriate order, the employees shall be entitled to the difference between the amount to which they are entitled to receive under such prescribed standards or rates and that actually paid them by the employer. [Sec. 8, Rule VII-A, Book III, IRR] From the above rules, piece rate workers may be categorized into two: 1. Those who are paid piece rates which are prescribed in Piece Rate Orders issued by DOLE.

b. Payment by results The Secretary of Labor and Employment shall regulate the payment of wages by results, including pakyao, piecework, and other nontime work, in order to ensure the payment of fair and reasonable wage rates, preferably through time and motion studies or in consultation with representatives of worker’s and employer’s organizations. [Art. 101]

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Wages or earnings in this category are determined by simply multiplying the number of pieces produced by the rate per piece. [Azucena] These workers are not covered by the Rule on Hours of Work which provides for premium and overtime payments.

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See III. A. 1. a. Principles in determining hours worked and employees exempted or not covered for more details. 2. Those who are paid output rates which are prescribed by the employer and are not yet approved by the DOLE. The number of pieces produced is multiplied by the rate per piece as determined by the employer. 1. If the resulting amount is equivalent to or more than the applicable statutory minimum daily rate in relation to the number of hours worked, the worker will receive that amount. 2. If the amount is less than the applicable legal rate, it is possible that the rates per piece are not in accordance with the standards prescribed by the rules implementing the Labor Code. The employer is thus required by law to pay the difference between the resulting amount and the applicable legal minimum wage rate. [Azucena]

4. Payment of wages a. Form of Payment [Art. 102; Secs. 1-2, Rule VIII, Book III, IRR] General Rule: Legal Tender Only Exception: Check/Money Order if customary OR necessary because of special circumstances, as specified by the Secretary of Labor or the CBA. Not allowed: 1. Promissory Notes 2. Vouchers 3. Tokens 4. Tickets 5. Chits; or 6. Any other form alleged to represent a legal tender, even when expressly requested by the employee. [Art. 102]

When payment through check, postal orders or money orders is allowed: a. When payment is customary (on the date of Code effectivity); b. Where it is so stipulated in a collective agreement; c. Where all of the following conditions are met: 1. Bank/Facility for encashment is within 1-km radius from the workplace 2. ER did not receive any pecuniary benefit because of said arrangement 3. EEs are given reasonable time during banking hours to withdraw their wages (compensable hours, if during working hours) 4. The payment by check is with the written consent of the EEs concerned, in the absence of a CBA. [Sec. 2, Rule VIII] b. Time of Payment [Art. 103; Sec. 3, Rule VIII, Book III, IRR] Time of Payment Frequency

At least once every 2 weeks or 2x per month

Intervals

Must not be more than 16 days

Force Majeure or circumstances beyond ER’s control

Valid excuse for delayed payment

Tasks which cannot be completed in 2 weeks

Payments should be made with intervals not more than 16 days, in proportion to work completed

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BUT ER must pay immediately after cessation and not less than once a month

Final settlement is made upon completion of the work.

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c. Place of Payment [Art. 104; Sec. 4, Rule VIII, Book III, IRR] General Rule: Shall be made at or near the place of undertaking (workplace). Exceptions: 1. Deterioration of peace and order conditions, or by reason of actual or impending emergencies (fire, flood, epidemic); 2. Free transportation to the employees back and forth; 3. Under any other analogous circumstances provided, that the time spent by the employees in collecting their wages shall be considered as compensable hours worked. NO PAYMENT in any bar, night or day club, drinking establishment, massage clinic, dance hall, or other similar places or in places where games are played with stakes of money or things representing money, except in the case of persons employees in such places Condition for ATM payment [Labor Advisory on Payment of Salaries thru ATM (1996)] 1. ATM system of payment is with the written consent of the EEs. 2. EEs are given reasonable time to withdraw their wages from the banking facility (compensable hours, if during work hours). 3. System shall allow workers to receive their wages within the period/frequency provided by law. 4. There is a bank/ATM facility within 1km radius from the place of work. 5. Upon request of the concerned EEs, the ER shall issue a record of payment of wages, benefits and deductions for a particular period. 6. There shall be no additional expenses and no diminution of benefits and privileges. 7. The ER shall assume responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement.

d. Person to Pay [Sec. 5, Rule VIII, Book III, IRR] General Rule: Directly to EE Exceptions: 1. Member of EE’s family → if ER is authorized in writing by the EE. 2. A 3rd person → if authorized by law (e.g. insurance companies for premiums, union dues where the right to check-off has been recognized by ER in accordance with a CBA or authorized in writing by EE concerned). 3. Heirs → in case of death of EE, without necessity of intestate proceedings. a. If heirs are of age → they shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs to the exclusion of others b. If any of the heirs is a minor → such affidavit shall be executed in his behalf by his natural guardian or next of kin. When the employer engages the services of an organized group of workers, payment to their leader cannot be considered a violation of the rule on direct payment. [Bermiso v. Escano, G.R. No. L-11606 (1959)]

5. Prohibitions regarding wages a. Interference in disposal of wages [Art. 112] b. Wage deduction [Art. 113] c. Requirement to make deposits for loss or damage [Arts. 114-115] d. Withholding of wages [Art. 116] e. Deduction to ensure employment [Art. 117] f. Retaliatory measures [Art. 118] g. False reporting [Art. 119] a. Prohibition against Interference in Disposal of Wages No employer shall: 1. Limit or otherwise interfere with the freedom of any employee to dispose of his wages 2. Force, compel, or oblige his employees to:

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a. Purchase merchandise, commodities or other property from any other person; or b. Make use of any store or services of such employer or any other person. [Art. 112]

established I by Article 2244. [Republic v. Peralta, G.R. 150537 (1987)] Note: RA 10142 (FRIA) subsequently amended Art. 2244, CC and Art. 110 by elevating trade-related claims to 1st priority.

b. Prohibition against Wage Deduction [Art. 113]

c. Prohibition Against Requirement to Make Deposits for Loss or Damage [Art. 114, 115]

General Rule: ER cannot make any deduction from the wages of his EE. Exceptions: 1. Insurance premiums 2. Union dues 3. Other deductions authorized by law/Secretary of Labor [e.g. SSS, withholding tax] 4. When the deductions are with written authorization of the employees for payment to a third person and the employer agrees to do so, provided that the latter does not receive any pecuniary benefit, directly or indirectly, from the transaction. [Labor Advisory No. 11 (2014)] If the law prohibits a deduction, the authorization given by the employee does not validate the deduction. In case of Bankruptcy or Liquidation of an ER’s business Workers shall enjoy first preference as regards their wages and other monetary claims, any provision of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before the claims of the Government and other creditors may be paid. [Art. 110] Article 110 of the Labor Code has modified Article 2244 of the Civil Code in two respects: 1. Firstly, by removing the one year limitation found in Article 2244, number 2; and 2. Secondly, by moving up claims for unpaid wages of laborers or workers of the Insolvent from second priority to first priority in the order of preference

General Rule: No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer Exception: It is allowed when the employer is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is: 1. A recognized one, or is necessary; or 2. Desirable as determined by the Secretary of Labor and Employment in appropriate rules and regulations. [Art. 114] No deduction from the deposits of an EE for the actual amount of the loss/damage shall be made unless: 1. There is reasonable opportunity for EE to show cause why deduction should not be made; 2. EE’s responsibility has been clearly shown 3. Amount is fair and reasonable and shall not exceed the actual loss of damage; and 4. Must not exceed 20% of weekly pay. [Art. 115; Rule VIII, Sec. 11] Attorney’s fees in any judicial or administrative proceedings for the recovery of wages shall not exceed 10% of the amount awarded. d. Prohibition Against Withholding of Wage General Rule: It shall be unlawful for any person, directly or indirectly, to: 1. Withhold any amount from the wages of a worker or;

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2. Induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent. [Art. 116] Exceptions: 1. Deduction is for insurance premium 2. For union dues 3. Authorized by law/ DOLE Sec 4. Due & demandable debt to ER e. Prohibition Against Deduction to Ensure Employment It shall be unlawful to make any deduction from the wages of any employee for the benefit of the employer or his representative or intermediary as consideration of a promise of employment or retention in employment. [Art. 117] f.

Prohibition Against Retaliatory Measures

It shall be unlawful for an employer to: a. Refuse to pay or reduce the wages and benefits b. Discharge, or c. Discriminate in any manner against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to testify in such proceedings. [Art. 118] This covers offenses only under the title of Wages in the Labor Code. g. Prohibition Against False Reporting It shall be unlawful for any person to make any statement, report, or record filed or kept pursuant to the provisions of this Code knowing such statement, report or record to be false in any material respect. [Art. 119] Covers all offenses under the Labor Code.

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6. Wage determination a. Wage order Wage Order (WO) – an order issued by the Regional Tripartite Wages and Productivity Boards (“Regional Boards”) that establishes the minimum wage rates to be paid by ERs in the region, which shall in no case be lower than the applicable statutory minimum wage rates. [NWPC Rules of Procedure on Minimum Wage Fixing]. State Policy It is hereby declared the policy of the State to: 1. Rationalize the fixing of minimum wages 2. Promote productivity-improvement and gain-sharing measures to ensure a decent standard of living for the workers and their families; 3. To guarantee the rights of labor to its just share in the fruits of production; 4. To enhance employment generation in the countryside through industry dispersal; 5. To allow business and industry reasonable returns on investment, expansion and growth. [Sec. 2, Wage Rationalization Act (RA 6727)] Powers & Functions of the Regional Board 1. To determine and fix minimum wage rates applicable in their region, provinces or industries therein 2. To issue the corresponding wage orders, subject to guidelines issued by the Commission [Art. 122] Wage fixing takes place whenever the conditions in the region so warrant, after investigating and studying all pertinent facts and based on the standards and criteria prescribed by the Labor Code. [Art. 123, as amended by RA 6727] Standards/Criteria in Wage Fixing a. The demand for living wages; 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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e. The need to induce industries to invest in the countryside; f. Improvements in standards of living; g. The prevailing wage levels; h. Fair return of the capital invested and capacity to pay of employers; i. Effects on employment generation and family income; and j. The equitable distribution of income and wealth along the imperatives of economic and social development. [Art. 124, as amended by RA 6727]

Commission for payment to employees affected by the order of the corresponding increase in the event such order is affirmed [Art. 123].

WO Effectivity: After 15 days from its complete publication in at least one newspaper of general circulation. [Art. 123]

Double Indemnity Doctrine Double Indemnity is the payment to a concerned EE of the prescribed increase or adjustments in the wage rate which was not paid by an ER in an amount equivalent to 2x the benefits owing to such employee. [Philippine Hoteliers, Inc. v. National Union of Workers, GR No. 181972 (2009); RA 6727, as amended]

Note: Public hearing and publication are mandatory [Cagayan Sugar Milling Co. v. Sec. of Labor, G.R. No. 128399 (1998)]. Frequency: A WO issued by the Board may not be disturbed for a period of 12 months from its effectivity and no petition for wage increase shall be entertained during said period. [Rule IV, Sec. 4, Revised rules of Procedure on Minimum Wage Fixing] Exceptions: a. When Congress itself issues a law increasing wages. b. Supervening conditions (i.e. extraordinary increases in prices of petroleum products and basic goods/services. Appeal: Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the Commission within ten (10) calendar days from the publication of such order. It shall be mandatory for the Commission to decide such appeal within sixty (60) calendar days from the filing thereof [Art. 123]. Effect of Appeal General Rule: Does not operate to stay the order.

Grounds for Appeals for Review of WO a. Non-conformity with prescribed guidelines and/or procedure b. Questions of law c. Grave abuse of discretion [Sec. 2, Rule V, Revised Rules of Procedure on Minimum Wage Fixing]

Unpaid Benefits The prescribed wage rates which the ER failed to pay upon the effectivity of a WO, exclusive of other wage-related benefits. Unpaid benefits serve as the principal basis for computing the double indemnity. [Sec. 2, D.O. No. 10-98] Wages of apprentices, learners and handicapped workers shall in no case be less than 75% of the statutory minimum wage rates. [Sec. 10, IRR of RA 6727] METHODS OF FIXING a. Floor Wage Method- fixing a determinate amount to be added to the prevailing statutory minimum wage rates (e.g. setting P25 increase for min. wage rates). b. Salary-Ceiling Method- Wage adjustment to be applied to EEs receiving a certain denominated salary or workers being paid more than existing min. wage (e.g. WO granting P25 increase to those earning up to P250).

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Floor Wage

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Wage distortion can only exist where the wage adjustment is brought about by a wage order, not by management prerogative. [Bankards Employees’ Union v. NLRC, G.R. No. 140689 (2004)]

Salary Ceiling What it does

Adds to previous All wages under a certain minimum wage wage increases to that wage Example P456 + P100 = All wages under P456 P556 must be increased to P556

HOW TO RESOLVE WAGE DISTORTION [Art. 124] Organized Establishment a. Employer and the union shall negotiate to correct the distortions. b. Disputes shall be resolved through the grievance procedure. c. If still unresolved, voluntary arbitration. Grievance Procedure (under the CBA) → if unresolved, VOLUNTARY arbitration

b. Wage distortion Wage Distortion/Rectification A situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation. [Art. 124] Elements of wage distortion 1. Existing hierarchy of positions with corresponding salary rates; 2. A significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one (must be caused by a wage order) [Philippine Geothermal Inc. v. Chevron, G.R. No. 190187 (2018)]; 3. The elimination of the distinction between the two levels; and 4. The existence of the distortion in the same region of the country. [Prubankers Assn. v. Prudential Bank and Co., G.R. No. 131247 (1999)] The implementation of wage orders in one region but not in others does not in itself necessarily result in wage distortion. [Prubankers Assn. v. Prudential Bank and Co., G.R. No. 131247 (1999)]

Unorganized Establishment a. ERs and Ees shall endeavor to correct such distortions. b. Disputes shall be settled through the National Conciliation and Mediation Board. c. If still unresolved after 10 calendar days of conciliation, it shall be referred to the appropriate branch of the NLRC – compulsory arbitration Both the employer and employee cannot use economic weapons. d. Employer cannot declare a lock-out; Employee cannot declare a strike because the law has provided for a procedure for settling e. The salary or wage differential does not need to be maintained. [National Federation of Labor v. NLRC, G.R. No. 103586 (1994)] National Conciliation and Mediation Board → if unresolved, COMPULSORY arbitration by the NLRC CBA vis-à-vis Wage Orders – CBA creditability In determining an employee’s regular wage, the pertinent stipulations in the CBA are controlling, provided the result is not less than the statutory requirement [Philippine National Bank v. PEMA, G.R. No. L-30279 (1982)]

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Note: The manner of resolving wage distortion is largely based on the applicable wage order. The current one for NCR, WO 20, refers to the procedure in Art. 124 of the Labor Code

Teachers of private school on contract basis are entitled to service incentive leave. [Cebu Institute of Technology v. Ople, G.R. No. L58870 (1987)]

C. LEAVES

The law grants annual SIL of five days to domestic workers, but their SIL shall not be converted to cash or carried over to succeeding years. [Sec. 5, RA 10361]

1. Labor Code a. Service Incentive Leave (SIL) Coverage Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. [Art. 95(a)] Service Incentive Leave DOES NOT apply to the following employees: a. Those of the government and any of its political subdivisions, including GOCCs; b. Domestic helpers and persons in the personal service of another; c. Managerial employees as defined in Book III of this Code; d. Field personnel and other employees whose performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof; e. Those who are already enjoying the benefit herein provided; f. Those enjoying vacation leave with pay of at least 5 days; g. Those employed in establishments regularly employing less than 10 employees. [Sec. 1, Rule V, Book III, IRR] Piece-rate employees are entitled to service incentive leave pay provided that they are supervised. If they are unsupervised, they are not entitled to SIL. [Labor Congress of the Phils. v. NLRC, G.R. No. 123938 (1998)]

Meaning of “1 year of service” General Rule: "At least one year service" shall mean service for NOT LESS than 12 months, whether continuous or broken, reckoned from the date the employee started working, including authorized absences and paid regular holidays. Exception: Service for LESS than 12 months is counted as “at least one year service” when: 1. The working days of the establishment, as a matter of practice or policy, is less than 12 months; or 2. The employment contract provides working days that is less than 12 months. [Sec. 3, Rule V, Book III, IRR] Arbitration or Administrative Action The grant of benefit IN EXCESS of that provided herein shall not be made a subject of arbitration or any court or administrative action. [Art. 95 (c)] Commutable nature of benefit The service incentive leave shall be commutable to its money equivalent if not used or exhausted at the end of the year. [Sec. 5, Rule V, Book III, IRR] When Entitled EE’s Cause of Action Accrues 1. If the employee did not make use of said leave credits but instead chose to avail of its commutation into money: The cause of action to claim his SIL pay accrues from the moment the employer refuses to remunerate its monetary equivalent. 2. If the employee wishes to accumulate his leave credits and opts for its

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commutation upon his resignation or separation from employment: The cause of action to claim the whole amount of his accumulated SIL shall arise when the employer fails to pay such amount at the time of his resignation or separation from employment. [Auto Bus Transport v. NLRC, G.R. No. 156367 (2005)]

i.

j.

2. Special laws a. Parental leave for solo parents [RA 8972 (Solo Parents’ Welfare Act of 2000)] Parental leave for solo parents – Leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required. [Sec. 3 (d), RA 8972] Coverage Any solo parent or individual who is left alone with the responsibility of parenthood due to: a. Giving birth as a result of rape or and other crimes against chastity even without a final conviction of the offender: Provided, That the mother keeps and raises the child; b. Death of spouse; c. Spouse is detained or is serving sentence for a criminal conviction for at least one (1) year; d. Physical and/or mental incapacity of spouse as certified by a public medical practitioner; e. Legal separation or de facto separation from spouse for at least one (1) year: Provided, that he/she is entrusted with the custody of the children; f. Declaration of nullity or annulment of marriage as decreed by a court or by a church: Provided, that he/she is entrusted with the custody of the children; g. Abandonment of spouse for at least one (1) year; h. Unmarried father/mother who has preferred to keep and rear his/her child/children, instead of having others care for them or give them up to a welfare institution;

Any other person who solely provides parental care and support to a child or children: Provided, that he/she is duly licensed as a foster parent by the Department of Social Welfare and Development (DSWD) or duly appointed legal guardian by the court; and Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance, or prolonged absence of the parents or solo parent for at least one (1) year. [Sec. 3 (a), RA 8972]

Conditions for Entitlement A solo parent employee shall be entitled to the parental leave under the following conditions: a. He/she has rendered at least one (1) year of service, whether continuous or broken; b. He/she has notified his/her employer that he/she will avail himself/herself of it, within a reasonable period of time; and c. He/she has presented to his/her employer a Solo Parent Identification Card, which may be obtained from the DSWD office of the city or municipality where he/she resides. [Sec. 19, Art. V, IRR, RA 8972] Availment The parental leave is in addition to leave privileges under existing laws with full pay, consisting of basic salary and mandatory allowances. It shall not be more than seven (7) working days every year. [Sec. 8, RA 8972] Grant of Flexible Work Schedule The employer shall provide for a flexible working schedule for solo parents: Provided, That the same shall not affect individual and company productivity: Provided, further, That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds. [Sec. 6, RA 8972] Protection against Work Discrimination No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status. [Sec. 7, RA 8972]

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Termination of the Benefit A change in the status or circumstance of the parent claiming the benefit under the law, such that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for these benefits. [Sec. 3 (a), RA 8972]

b. Notice: The female worker shall have notified her employer of her pregnancy and the probable date of her childbirth, which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide. [Sec. 1, Rule VI, IRR of RA11210]

See III. E. 7. for discussion on other working conditions for solo parents*

Maternity leave benefit after termination of employment possible General Rule: Maternity leave with full pay shall be granted even if the childbirth, miscarriage, or emergency termination of pregnancy occurs not more than 15 calendar days after the termination of an employee’s service.

See also VII. E. for discussion on support for solo parents* b. Expanded maternity leave [RA 11210 (105-Day Expanded Maternity Leave Law)] Expanded Maternity Leave -- Maternity leave of 105 days with full pay, with an option to extend for an additional 30 days without pay. [Sec. 3, RA 11210] Coverage Every female worker in government and the private sector, including those in the informal economy, regardless of civil status or the legitimacy of her child, is entitled to the maternity leave benefits. This is applicable to pregnancy and miscarriage, or emergency termination of pregnancy, regardless of frequency. [Sec. 3, RA 11210] Maternity leave for female workers in private sector, requisites a. Contribution: The female worker must have paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth, miscarriage, or emergency termination of pregnancy. In determining the female member’s entitlement to the benefit, the SSS shall consider only those contributions paid prior to the semester of contingency; and

Exception: When the employment of the pregnant woman worker has been terminated without just cause, the employer must pay her the full amount equivalent to her salary for 105 days for childbirth and 60 days for miscarriage and emergency termination of pregnancy based on her full pay, in addition to the other applicable daily cash maternity benefits that she should have received had her employment not been illegally terminated. [Sec. 5, Rule IV, IRR of RA 11210] Benefit received A daily maternity benefit equivalent to 100% of her average daily salary credit for: a. 105 days in cases of live childbirth b. 60 days in cases of miscarriage or emergency termination of pregnancy. The maternity leave can be credited as combinations of prenatal and postnatal leave as long as it does not exceed 105 days or 60 days as the case may be. In no case shall postnatal care be less than 60 days. [Sec. 2, Rule IV, IRR of RA 11210] In case the employee qualifies as a solo parent (see III. C. 2. a., above), the employee shall be paid an additional maternity benefit of 15 days. [Sec. 5 (a), RA 11210]

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Extended maternity leave option, requisite notice In cases of live childbirth, an additional maternity leave of 30 days, without pay, can be availed of, at the option of the female worker, provided that the employer shall be given notice. Due notice must be in writing must be given at least 45 days before the end of the female worker’s maternity leave. Exception: No prior notice shall be necessary in the event of a medical emergency, but subsequent notice shall be given to the employer. The period of extended maternity leave without pay shall not be considered a gap in the service. [Sec. 3, Rule IV, IRR of RA 11210] Allocation of maternity leave credits A female worker entitled to maternity leave benefits may, at her option, allocate up to 7 days of said benefits to the child’s father, whether or not the father is married to the mother. The allocated benefit granted to the child’s father is over and above the paternity benefits provided under RA 8187 (Paternity Leave Act). In case of death, absence, or incapacity of the child’s father, the female worker may allocate to an alternate caregiver who may be: a. A relative within the 4th degree of consanguinity; or b. The current partner, regardless of sexual orientation or gender identity, of the female worker sharing the same household. The option to allocate maternity leave credits shall not be applicable in cases of miscarriage or emergency termination of pregnancy. [Sec. 1, Rule VIII, IRR of RA 11210] Death or permanent incapacity If the female worker dies or becomes permanently incapacitated, the balance of her maternity leave benefits shall accrue to the child’s father or to a qualified alternate caregiver subject to the following conditions:

a. That the maternity leave benefits have not yet been commuted to cash, if applicable; and b. That a certified true copy of the death certificate or medical certificate or abstract is provided to the employers of both the female worker and the child’s father or alternate caregiver. In case the maternity leave benefits have already been paid to the female worker in full, the child’s father or alternate caregiver shall be entitled to enjoy the remaining unexpired leave credits of the female worker, if any. Provided, That such leave without pay shall not be considered a gap in the service of the child’s father or alternate caregiver. [Sec. 4, Rule VIII, IRR of RA 11210] Other conditions a. Employer shall advance the full payment subject to reimbursement by the SSS within 30 days from filing of leave application. [Sec. 3, Rule VI, IRR of RA 11210] b. SSS shall immediately reimburse the employer the maternity benefits advanced to the employed female member, only to the extent of 100% of her average daily salary credit for 105 days, 120 days or 60 days, as the case may be, upon receipt of satisfactory and legal proof of such payment. [Sec. 4, Rule VI, IRR of RA 11210] c. Availment shall be a bar to the recovery of sickness benefits provided under RA 1161 (Social Security Law) for the same period for which daily maternity benefits have been received. [Sec. 6, Rule VI, RA 11210] d. Sanction: That if an employee should give birth or suffer miscarriage or emergency termination of pregnancy: 1. Without the required contributions having been remitted for her by her employer to the SSS, or 2. Without the latter having been previously notified by the ER of time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which

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said employee would otherwise have been entitled to. [Sec. 5, RA 11210] c. Paternity leave [RA 8187 (Paternity Leave Act of 1996)] Paternity Leave – leave of 7 calendar days with full pay for every married male employee in the private and public sectors Coverage and Purpose Paternity leave is granted to all married male employees in the private and public sectors, regardless of their employment status (e.g. probationary, regular, contractual, project basis). The purpose of this benefit is to allow the husband to lend support to his wife during her period of recovery and/or in nursing her newborn child. [Sec. 3, RA 8187] Benefit It shall be for 7 calendar days, with full pay, consisting of basic salary and mandatory allowances fixed by the Regional Wage Board, if any, provided that his pay shall not be less than the mandated minimum wage. [Sec. 2, RA 8187] It shall apply to the first 4 deliveries of the employee’s lawful wife with whom he is cohabiting. Cohabiting means the obligation of the husband and wife to live together. [Sec. 1, IRR, RA 8187] If the spouses are not physically living together because of the workstation or occupation, the male employee is still entitled to the paternity leave benefit. Usage of the benefit Usage of the leave shall be after the delivery, without prejudice to an employer’s policy of allowing the employee to avail of the benefit 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]

Conditions for entitlement [Sec. 3, IRR, RA 8187] a. He is married; b. He is an employee at the time of the delivery of his child c. He is cohabiting with his spouse at the time that she gives birth or suffers a miscarriage d. He has applied for paternity leave with his ER within a reasonable period of time from the expected date of delivery by his pregnant spouse, or within such period as may be provided by company rules and regulations, or by CBA; and, e. His wife has given birth or suffered a miscarriage. Application for paternity leave See d. under conditions for entitlement. In case of miscarriage, prior application for paternity leave shall not be required. [Sec. 4, IRR, RA 8187] Non-conversion to cash In the event that the paternity leave is not availed of, it shall not be convertible to cash and shall not be cumulative. [Sec. 7, IRR, RA 8187] Crediting of existing benefits a. If the existing paternity leave benefit under the CBA, contract, or company policy is greater than 7 calendar days as provided for in RA 8187, the greater benefit shall prevail. b. If the existing paternity leave benefit is less than that provided in RA 8187, the ER shall adjust the existing benefit to cover the difference. [Sec. 9, IRR, RA 8187] Where a company policy, contract, or CBA provides for an emergency or contingency leave without specific provisions on paternity leave, the ER shall grant to the employee 7 calendar days of paternity leave. [Sec. 9, IRR, RA 8187]

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d. Gynecological leave [RA 9710 (Magna Carta for Women)] Gynecological Leave - A female employee’s leave entitlement of two (2) months with full pay from her employer based on her gross monthly compensation following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at least six (6) months for the last 12 months. Gynecological Disorders Disorders that would require surgical procedures such as, but not limited to: 1. Dilatation and curettage; 2. Those involving female reproductive organs such as the vagina, cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor, as certified by a competent physician; 3. Hysterectomy, ovariectomy, and mastectomy. Gross Monthly Compensation The monthly basic pay plus mandatory allowances fixed by the regional wage boards. [Sec. 7, Rule II, IRR, RA 9710] Basic Requirement The woman employee should have been with the company for 12 months prior to surgery. An aggregate service of at least six (6) months within the said 12-month period is sufficient to entitle her to avail of the special leave benefit. Employment service includes absences with pay such as use of other mandated leaves, company-granted leaves and maternity leaves. Competent Physician A medical doctor preferably specializing in gynecological disorders or is in the position to determine the period of recuperation of the woman employee. [Sec. 1, D.O. No. 112, as amended (Guidelines Governing the Implementation of the Special Leave Benefits for Women Employees in the Private Sector)]

Conditions for Entitlement Any female employee, regardless of age and civil status, shall be entitled to a special leave benefit, provided she has complied with the following conditions: a. She has rendered at least 6 months continuous aggregate employment service for the last 12 months prior to surgery; b. She has filed an application for special leave c. She has undergone surgery due to gynecological disorders as certified by a competent physician. [Sec. 2, D.O. No. 112] Application for Special Leave Before Surgery The employee shall file her application for leave with her employer within a reasonable period of time from the expected date of surgery, or within such period as may be provided by company rules and regulations or by CBA. Application for Special Leave After Surgery Prior application for leave shall not be necessary in cases requiring emergency surgical procedure, provided that the employer shall be notified verbally or in written form within a reasonable period of time and provided further that after the surgery or appropriate recuperating period, the female employee shall immediately file her application using the prescribed form. [Sec. 3, D.O. No. 112] Period of Entitlement The 2 months special leave is the maximum period of leave with pay that a woman employee may avail of under RA 9710. For purposes of determining the period of leave with pay that will be allowed to a female employee, the certification of a competent physician as to the required period of recuperation shall be controlling. [Sec. 4, D.O. No. 112, as amended] Availment 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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Frequency of Availment A woman employee can avail of the SLB for every instance of surgery due to gynecological disorder for a maximum total period of 2 months per year. [Sec. 6, D.O. No. 112, as amended] Special Leave Benefit vis-à-vis SSS Sickness Benefit The SLB is different from the SSS sickness benefit. The former is granted by the employer in accordance with RA 9710. It is granted to a woman employee who has undergone surgery due to gynecological disorder. The SSS sickness benefit, on the other hand, is administered and given by the SSS in accordance with RA 1161 as amended by RA 8282. [Sec. 7, D.O. No. 112, as amended]

When availed of A victim leave may be availed of at any time during the application of any protection order, investigation, prosecution and/or trial of the criminal case [Sec. 42, Rule VI, IRR] Requirement In order to be entitled to the leave benefit, the only requirement is for the victim-employee to present to her employer a certification from the barangay chairman (Punong Barangay) or barangay councilor (barangay kagawad) or prosecutor or the Clerk of Court, as the case may be, that an action relative to the matter is pending [Sec. 42, Rule VI, IRR]. The usage of the ten-day leave shall be at the option of the woman employee. In the event that the leave benefit is not availed of, it shall not be convertible into cash and shall not be cumulative [Sec. 42, Rule VI, IRR].

e. Battered woman leave [RA 9262 (Anti-Violence Against Women and Their Children Act of 2004 or VAWC)] Victims of any of the acts covered by VAWC shall be entitled to take a paid leave of absence up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order [Sec. 43, RA 9262] Acts covered by VAWC 1. “Physical violence” - refers to acts that include bodily or physical harm 2. “Sexual violence” - refers to an act which is sexual in nature, committed against a woman or her child. 3. “Psychological violence” - acts or omissions causing or likely to cause mental or emotional suffering of the victim. 4. “Economic abuse” - acts that make or attempt to make a woman financially dependent. Note: To fall under VAWC, the offender must have had a sexual or dating relationship with the offended woman.

When denied; employer’s liability The employer/agency head who denies the application for leave, and who shall prejudice the victim-survivor or any person for assisting a co-employee who is a victim-survivor under the Act shall be held liable for discrimination and violation of R.A 9262. [Sec. 42, Rule VI, IRR].

D. SEXUAL HARASSMENT IN THE WORK ENVIRONMENT 1. Definition [RA 7877 - Anti-Sexual Harassment Act of 1995; RA 11313 - Safe Spaces Act] ANTI-SEXUAL HARASSMENT ACT Work, education or training-related sexual harassment is defined in Sec. 3, RA 7877. Acts Demanding, requesting or covered otherwise requiring any sexual favor from the other, regardless of whether these are accepted by the object of said Act

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Committed by

Where

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An employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another In a work or training or education environment

Employment or Work-Related Sexual Harassment 1. The sexual favor is made as a condition: a. in the hiring or in the employment, reemployment or continued employment of said individual; or b. in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or c. in the refusal to grant the sexual favor results in limiting, segregating or classifying the EE which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; 2. The above acts would either: a. impair the employee’s rights or privileges under existing labor laws; or b. result in an intimidating, hostile, or offensive environment for the employee. [Sec. 3, RA 7877] SAFE SPACES ACT Gender-based Sexual Harassment (GBSH) in the Workplace The crime of GSBH in the workplace includes the following: 1. An act or series of acts: a. involving any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature; b. whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems; c. that has or could have a detrimental effect on the conditions of an

individual's employment or education, job performance or opportunities. 2. A conduct of sexual nature and other conduct based on sex: a. affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to the recipient; b. whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems. 3. A conduct that is unwelcome and pervasive and creates an intimidating, hostile or humiliating environment for the recipient. Workplaces include all sites, locations, spaces, where work is being undertaken by an employee within or outside the premises of the usual place of business of the employer. [Sec. 18, Rule VI, IRR of RA11313]

2. Duties and Liabilities of Employers ANTI-SEXUAL HARASSMENT ACT Persons who may be liable 1. Any employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainer or any other person, regardless of whether the demand, request for requirement for submission is accepted by the object of said act having authority, influence or moral ascendancy over another in a work or training or education environment, who demands, requests or otherwise requires any sexual favor from another; 2. Any person who directs or induces another to commit any act of sexual harassment as herein defined; OR 3. Any person who cooperates in the commission by another without which it would NOT have been committed, shall also be held liable under this Act. [Sec. 3, RA 7877] It is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the

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acts of the offender. [Domingo v. Rayala, G.R. No. 155831 (2008)] Role of the employer or Head of Office The Employer or Head of Office shall have the duty: 1. to prevent the commission of such acts and 2. to lay down the procedure for the resolution, settlement or prosecution of committed acts. [Sec. 4, RA 7877] He shall be solidarily liable for damages: 1. if he is informed of such acts by the offended party, and 2. no immediate action is taken thereon. [Sec. 5, RA 7877] Independent action for damages The victim of work, education or trainingrelated sexual harassment can institute a separate and independent action for damages and other affirmative relief. [Sec. 6, RA 7877] Sanctions Criminal: imprisonment of 1 month to mos. or fine of P10k to P20k or both Prescription of such action is in 3 years. Termination As a managerial employee, petitioner is bound by more exacting work ethics. When such moral perversity is perpetuated against his subordinate, he provides a justifiable ground for his dismissal for lack of trust and confidence. [Sec. 7, RA 7877; Libres v. NLRC, G.R. No. 123737 (1999)] The gravamen of the offense in sexual harassment is not the violation of the employee's sexuality but the abuse of power by the employer. Any employee, male or female, may rightfully cry "foul" provided the claim is well substantiated. Strictly speaking, there is no time period within which he or she is expected to complain through the proper channels. [Phil. Aelous Automotive United Corp. v. NLRC, G.R. No. 124617 (2000)]

Anyone who commits any of the acts of GBSH may be held liable. GBSH may even be committed between peers, and by a subordinate to a superior officer. [Sec. 18, IRR of RA 11313] Duties of employers Employers, or other persons of authority, influence or moral ascendancy have the following duties: a. Disseminate or post a copy of the Safe Spaces Act to all persons in the workplace; b. Provide measures to prevent GBSH in the workplace; c. Create an independent internal mechanism or a committee on decorum and investigation to investigate and address complaints of GBSH; d. Provide and disseminate, in consultation with all persons in the workplace, a code of conduct or workplace policy. [Sec. 17, RA 11313] In addition to liabilities for committing acts of GSBH, employers may also be held responsible for: a. Non-implementation of their duties under Sec. 17 of this Act (see above), as provided in the penal provisions; or b. Not taking action on reported acts of GBSH committed in the workplace. Any person who violates (a) shall, upon conviction, be penalized with a fine of not less than P5,000, nor more than P10,000. Any person who violates (b) shall, upon conviction, be penalized with a fine of not less than P10,000 nor more than P15,000. [Sec. 19, RA 11310] Independent action for damages Nothing shall preclude the victim of workrelated GBSH from instituting a separate and independent action for damages and other affirmative relief.

3. Applicable Laws a. Sexual Harassment Act b. Safe Spaces Act

SAFE SPACES ACT

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See also D. 1 & 2 above

E. WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES

1. Apprentices and Learners [RA 7796 (Technical Education and Skills Development Act of 1994 or TESDA Act of 1994)] a. Apprentices Definitions a. Apprenticeship training within employment with compulsory related theoretical instruction involving a contract between an apprentice and an employer on an approved apprenticeable occupation. [Sec 4(j), RA 7796] b. Apprentice is a person undergoing training for an approved apprenticeable occupation during an apprenticeship agreement. [Sec 4(k), RA 7796] c. Apprenticeship Agreement is a contract wherein a prospective employer binds himself to train the apprentice, who in turn accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party. [Sec 4(l), RA 7796] d. Apprenticeable Occupation is an occupation officially endorsed by a tripartite body and approved for apprenticeship by the Authority. [Sec 4(m), RA 7796] Who may employ apprentices Only employers in highly technical industries may employ apprentices and only in apprenticeable occupations approved by the SOLE. [Art. 60, LC]. The act of filing the proposed apprenticeship program with the DOLE is a preliminary step towards its final approval, and does not instantaneously give rise to an employerapprentice relationship. It must be duly approved by the Minister of Labor and

Employment. [Nitto Enterprises v. NLRC, G.R. No. 114337 (1995)] Qualifications of apprentice An apprentice must: 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 apprenticeship only in nonhazardous occupations; 2. Be physically fit for the occupation in which he desires to be trained; 3. Possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and 4. Possess the ability to comprehend and follow oral and written instructions. Trade and industry associations may recommend to the SOLE appropriate educational qualifications for apprentices in certain occupations. General Rule: Such qualifications, if approved, shall be the educational requirements for apprenticeship in such occupations. Exception: The educational qualifications may be waived by an employer in favor of an applicant who has demonstrated exceptional ability. A certification explaining briefly the ground for such waiver, and signed by the person in charge of the program, shall be attached to the apprenticeship agreement of the applicant concerned. [Sec. 11, Rule VI, Book II, IRR] Period of Apprenticeship The period of apprenticeship shall not exceed six months. Terms and conditions Apprenticeship agreements, including the wage rates of apprentices, shall conform to the rules issued by the Secretary of Labor and Employment. Wage rate Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75 percent of the applicable minimum wage, may be entered into only in accordance with apprenticeship

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programs duly approved by the Secretary of Labor and Employment. [Art. 61, as amended by E.O. 111-1986] Apprenticeship without compensation The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination. [Art. 72] The wages of apprentices and learners shall in no case be less than seventy-five percent (75%) of the applicable minimum wage rates. [Sec. 7, Wage Order No. NCR-19] Enforcement Investigation of violation of apprenticeship agreement Upon complaint of any interested person or upon its own initiative, the appropriate agency of the DOLE or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment. [Art. 65] Appeal to the Secretary of Labor and Employment The decision of the authorized agency of the DOLE may be appealed by any aggrieved person to the SOLE within five (5) days from receipt of the decision. The decision of the Secretary of Labor and Employment shall be final and executory. [Art. 66] Exhaustion of administrative remedies No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies. [Art. 67] Incentives for employers An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall

be granted to the person or enterprise organizing an apprenticeship program. [Art. 71] Requisites of the deduction: 1. Apprenticeship program must be duly approved by the DOLE; 2. Deduction shall NOT exceed 10% of direct labor wage; 3. Employer must pay his apprentices the minimum wage. [Art. 71] Summary of Rules: 1. The apprentice must be paid not less than 75% of the prescribed minimum salary [Art. 61]; HOWEVER, the employer MAY NOT pay any wage if the apprenticeship training is: a. part of the school curriculum, b. a requirement for graduation, or c. a requirement for board examination [Art. 72] 2. The apprenticeship agreement must be approved by the DOLE Secretary (without such one shall be deemed a regular employee) [Nitto Enterprises v. NLRC, G.R. No. 114337 (1995)]; 3. The employer is not compelled to continue one’s employment upon termination of apprenticeship; 4. One-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices of the training cost is deducted from the employer’s income tax, but it shall not exceed 10% of direct labor wage. [Art. 71] Working scholars There is no employer-employee relationship between students on one hand, and schools, colleges or universities on the other, where there is written agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge, provided, the students are given real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement. [Sec. 14, Rule X, Book III, IRR]

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b. Learners Definition Learners are persons hired as trainees in semiskilled and other industrial occupations: 1. Which are non-apprenticeable; 2. Which may be learned through practical training on the job in a relatively short period of time, which shall not exceed three (3) months. [Art. 73; Sec 4(n), RA 7796] When may learners be hired 1. No experienced workers are available; 2. The employment of learners being necessary to prevent the curtailment of employment opportunities; and 3. The employment will neither create unfair competition in terms of labor costs nor impair working standards. [Art. 74] Terms and conditions of employment Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include: 1. The duration of the learnership period, which shall not exceed three (3) months; 2. The wages or salary rates of the learners which shall begin at not less than seventyfive percent (75%) of the applicable minimum wage; and 3. A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. [Art. 75] Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. [Art. 76]

Summary of Rules 1. The duration of learnership shall not exceed 3 months [Art. 73]; 2. If the learnership of 3 months is completed, the employer may be compelled to continue with the services of the learner as a regular employee; There is a commitment from the employer to employ the learners if they so desire, as regular employees upon completion of the learnership; 3. If the learner is dismissed from service without just and valid cause and without due process after 2 months of service, he will be deemed as regular employee; [Art. 75(d)] and 4. The wages or salary rates of the learners which shall begin at not less than 75% of the applicable minimum wage. [Art. 75(c)] Distinctions between Apprenticeship Apprenticeship

Learnership

and

Learnership

Highly technical industries

Semi-skilled industrial occupations

Practical training supplemented by related theoretical instruction

Practical training whether or not such practical training is supplemented by theoretical instructions

Apprenticeable occupations approved by the SOLE

Non-apprenticeable occupations

Written apprentice agreement ratified by the appropriate committees

Learnership agreement

More than 3 months, shall not exceed 6 months

Shall not exceed 3 months

When apprentice may be hired:

When learner may be hired:

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1. The person is at 1. When no least 15 years of experienced age, provided workers are those who are at available; least 15 years of 2. The employment age but less of learners is than 18 may be necessary to eligible for prevent apprenticeship curtailment of only in nonemployment hazardous opportunities; occupation; and 2. The person is 3. The employment physically fit for does not create the occupation in unfair which he desires competition in to be trained; terms of labor 3. The person costs or impair possesses or lower working vocational standards. aptitude and capacity for the particular occupation as established through appropriate tests; and 4. The person is able to comprehend and follow oral and written instructions. Wage rate shall begin at not less than 75% of the minimum wage

Wage rate shall begin at not less than 75% of the minimum wage

No compensation if SOLE authorizes, as OJT is required by the school [Art. 72].

Learners in piecework shall be paid in full for the work done

The employer is not compelled to continue one’s employment upon

Learnership agreement must contain a commitment to employ the learners

termination of apprenticeship

if they so desire, as regular employees upon completion of the learnership

Deductibility of ½ of training costs incurred, provided: • Program is duly recognized by DOLE • Deduction shall not exceed 10% of direct labor wage • Payment of minimum wage to apprentice

No additional deduction from taxable income for undertaking a learnership agreement

2. Disabled Workers [RA 7277 - Magna Carta for Disabled Persons, as amended by RA 9442] Definitions a. Disabled persons are those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being. [Sec. 4(a), RA 7277] b. Impairment is any loss, diminution or aberration of psychological, physiological, or anatomical structure or function. [Sec. 4(b), RA 7277] c. Disability shall mean (1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; (2) a record of such an impairment; (3) being regarded as having such an impairment. [Sec. 4(c), RA 7277] d. Handicap refers to a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the function or activity, that is considered normal given the age and sex of the individual. [Sec. 4(d), RA 7277]

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Coverage RA 7277 covers all disabled persons and, to the extent herein provided, departments, offices and agencies of the National Government or nongovernment organizations involved in the attainment of the objectives of this Act. [Sec. 3, RA 7227] a. Equal opportunity Rights of disabled workers 1. Equal opportunity for employment

If suitable employment for disabled persons cannot be found through open employment, the State shall endeavor to provide it by means of sheltered employment. In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production. [Sec 6, RA 7277] 4. Full minimum wage

No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled EE shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. [Sec. 5 (par. 1), RA 7277] Once they are regular employees, they are entitled to the benefits granted by law which the parties cannot stipulate away. [Bernardo v. NLRC, 310 SCRA 186 (1999)] 2. Reserved contractual positions 5% of all casual, emergency and contractual positions in the DSWD; DOH, DepEd; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons. [par. 2, Sec. 5, RA 7277]

All qualified handicapped workers shall receive the full amount of the minimum wage rate prescribed herein. [Sec 7, Wage Order No. NCR-19] A Qualified Individual with a Disability shall mean an individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires. However, consideration shall be given to: 1. The employer’s judgement as to what functions of a job are essential 2. The written description prepared by the employer before advertising or interviewing applicants for the job, which shall be considered evidence of the essential functions of the job. [Sec. 2(l), RA 7277 (Magna Cart for Persons with Disability, as amended by RA 9442)]

3. Sheltered employment Definition The provision of productive work for disabled persons through workshop providing special facilities, income producing projects or homework schemes. [Sec 4(i), RA 7277] Purpose To give them the opportunity to earn a living thus enabling them to acquire a working capacity required in open industry. [Sec 4(i), RA 7277]

A qualified disabled EE should be given the same terms and conditions of employment as a qualified able-bodied person. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Art. 280 of the Labor Code. In the present case, the handicap of petitioners (deafmutes) is NOT a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their employment contracts. [Bernardo v. NLRC, G.R. No. 122917 (1999)]

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Apprenticeship Opportunities Disabled persons shall be eligible as apprentices or learners: Provided, that: 1. Their handicap is NOT as much as to effectively impede the performance of job operations in the particular occupation for which they are hired; 2. After the lapse of the period of apprenticeship, if found satisfactory in the job performance, they shall be eligible for employment. [Art. 81; Sec. 7, RA 7277; Bernardo v. NLRC, supra.]

5.

6.

7.

b. Discrimination on employment No entity, whether public or private, shall discriminate against a qualified disabled person by reason of disability in regard to: 1. Job application procedures 2. The hiring, promotion, or discharge of employees 3. Employee compensation 4. Job training 5. Other terms, conditions, and privileges of employment. Acts of Discrimination: 1. Limiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities; 2. Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards, tests or other selection criteria are shown to be jobrelated for the position in question and are consistent with business necessity; 3. Utilizing standards, criteria, or methods of administration that: a. have the effect of discrimination on the basis of disability; or b. perpetuate the discrimination of others who are subject to common administrative control. 4. Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified disabled employee, by reason of his disability, than the amount to which a

8.

9.

non-disabled person performing the same work is entitled; Favoring a non-disabled employee over a qualified disabled employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter's disability; Re-assigning or transferring a disabled employee to a job or position he cannot perform by reason of his disability; Dismissing or terminating the services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entity: Provided, however, That the employer first sought to provide reasonable accommodations for disabled persons; Failing to select or administer in the most effective manner employment tests which accurately reflect the skills, aptitude or other factor of the disabled applicant or employee that such tests purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and Excluding disabled persons from membership in labor unions or similar organizations. [Sec. 32, RA 7277]

Occasions when a Disabled Applicant may be Subjected to Medical Examination Upon an offer of employment, a disabled applicant may be subjected to medical examinations, on the following occasions: 1. All entering employees are subjected to such an examination regardless of disability; 2. Information obtained during the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record; Provided, however, That: a. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations;

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b. First aid and safety personnel may be informed, when appropriate, if the disability may require emergency treatment; c. Government officials investigating compliance with this Act shall be provided relevant information on request; and d. The results of such examination are used only in accordance with this Act [Sec. 33, RA 7277]. c. Incentives for employers For employment of disabled persons additional deduction, from their gross income, equivalent to 25% of the total amount paid as salaries and wages to disabled persons: a. Private entities that employ disabled persons either as regular EEs, apprentice or learner; b. Provided such entities present proof as certified by the DOLE and the DOH [Sec. 8[b], RA 7277] For construction of disabled-friendly facilities - additional deduction from their net taxable income, equivalent to 50% of the direct costs of the improvements or modifications: a. Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons; b. Does NOT apply to improvements or modifications or facilities required under BP 344. [Sec. 8 (c), RA 7277] For establishments giving discounts – may claim such discounts as tax deductions based on the net cost of the goods sold or services rendered: a. The cost of the discount shall be allowed as deduction from gross income for the same taxable year that the discount is granted b. The total amount of the claimed tax deduction net of VAT if applicable, shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code, as

amended. [Sec. 32, RA 7277, as amended by RA 9442]

3. Gender Constitutional basis The State recognizes the role of women in nation-building, and shall: a. Ensure the fundamental equality before the law of women and men; b. Protect working women by providing: 1. Safe and healthful working conditions, taking into account their maternal functions, and 2. Such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. [Sec. 14, Art. II & Sec. 14, Art. XIII, 1987 Constitution] a. Discrimination It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. The following are acts of discrimination: a. Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value; and b. Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. [Art. 133] The Magna Carta of Women provides that the State: 1. Condemns discrimination against women in all its forms 2. Pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law.

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Committed by

Where

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An employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another In a work or training or education environment

Employment or Work-Related Sexual Harassment 1. The sexual favor is made as a condition: a. in the hiring or in the employment, reemployment or continued employment of said individual; or b. in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or c. in the refusal to grant the sexual favor results in limiting, segregating or classifying the EE which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; 2. The above acts would either: a. impair the employee’s rights or privileges under existing labor laws; or b. result in an intimidating, hostile, or offensive environment for the employee. [Sec. 3, RA 7877] SAFE SPACES ACT Gender-based Sexual Harassment (GBSH) in the Workplace The crime of GSBH in the workplace includes the following: 1. An act or series of acts: a. involving any unwelcome sexual advances, requests or demand for sexual favors or any act of sexual nature; b. whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems; c. that has or could have a detrimental effect on the conditions of an

individual's employment or education, job performance or opportunities. 2. A conduct of sexual nature and other conduct based on sex: a. affecting the dignity of a person, which is unwelcome, unreasonable, and offensive to the recipient; b. whether done verbally, physically or through the use of technology such as text messaging or electronic mail or through any other forms of information and communication systems. 3. A conduct that is unwelcome and pervasive and creates an intimidating, hostile or humiliating environment for the recipient. Workplaces include all sites, locations, spaces, where work is being undertaken by an employee within or outside the premises of the usual place of business of the employer. [Sec. 18, Rule VI, IRR of RA11313]

2. Duties and Liabilities of Employers ANTI-SEXUAL HARASSMENT ACT Persons who may be liable 1. Any employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainer or any other person, regardless of whether the demand, request for requirement for submission is accepted by the object of said act having authority, influence or moral ascendancy over another in a work or training or education environment, who demands, requests or otherwise requires any sexual favor from another; 2. Any person who directs or induces another to commit any act of sexual harassment as herein defined; OR 3. Any person who cooperates in the commission by another without which it would NOT have been committed, shall also be held liable under this Act. [Sec. 3, RA 7877] It is not necessary that the demand, request or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the

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acts of the offender. [Domingo v. Rayala, G.R. No. 155831 (2008)] Role of the employer or Head of Office The Employer or Head of Office shall have the duty: 1. to prevent the commission of such acts and 2. to lay down the procedure for the resolution, settlement or prosecution of committed acts. [Sec. 4, RA 7877] He shall be solidarily liable for damages: 1. if he is informed of such acts by the offended party, and 2. no immediate action is taken thereon. [Sec. 5, RA 7877] Independent action for damages The victim of work, education or trainingrelated sexual harassment can institute a separate and independent action for damages and other affirmative relief. [Sec. 6, RA 7877] Sanctions Criminal: imprisonment of 1 month to mos. or fine of P10k to P20k or both Prescription of such action is in 3 years. Termination As a managerial employee, petitioner is bound by more exacting work ethics. When such moral perversity is perpetuated against his subordinate, he provides a justifiable ground for his dismissal for lack of trust and confidence. [Sec. 7, RA 7877; Libres v. NLRC, G.R. No. 123737 (1999)] The gravamen of the offense in sexual harassment is not the violation of the employee's sexuality but the abuse of power by the employer. Any employee, male or female, may rightfully cry "foul" provided the claim is well substantiated. Strictly speaking, there is no time period within which he or she is expected to complain through the proper channels. [Phil. Aelous Automotive United Corp. v. NLRC, G.R. No. 124617 (2000)]

Anyone who commits any of the acts of GBSH may be held liable. GBSH may even be committed between peers, and by a subordinate to a superior officer. [Sec. 18, IRR of RA 11313] Duties of employers Employers, or other persons of authority, influence or moral ascendancy have the following duties: a. Disseminate or post a copy of the Safe Spaces Act to all persons in the workplace; b. Provide measures to prevent GBSH in the workplace; c. Create an independent internal mechanism or a committee on decorum and investigation to investigate and address complaints of GBSH; d. Provide and disseminate, in consultation with all persons in the workplace, a code of conduct or workplace policy. [Sec. 17, RA 11313] In addition to liabilities for committing acts of GSBH, employers may also be held responsible for: a. Non-implementation of their duties under Sec. 17 of this Act (see above), as provided in the penal provisions; or b. Not taking action on reported acts of GBSH committed in the workplace. Any person who violates (a) shall, upon conviction, be penalized with a fine of not less than P5,000, nor more than P10,000. Any person who violates (b) shall, upon conviction, be penalized with a fine of not less than P10,000 nor more than P15,000. [Sec. 19, RA 11310] Independent action for damages Nothing shall preclude the victim of workrelated GBSH from instituting a separate and independent action for damages and other affirmative relief.

3. Applicable Laws a. Sexual Harassment Act b. Safe Spaces Act

SAFE SPACES ACT

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See also D. 1 & 2 above

E. WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES

1. Apprentices and Learners [RA 7796 (Technical Education and Skills Development Act of 1994 or TESDA Act of 1994)] a. Apprentices Definitions a. Apprenticeship training within employment with compulsory related theoretical instruction involving a contract between an apprentice and an employer on an approved apprenticeable occupation. [Sec 4(j), RA 7796] b. Apprentice is a person undergoing training for an approved apprenticeable occupation during an apprenticeship agreement. [Sec 4(k), RA 7796] c. Apprenticeship Agreement is a contract wherein a prospective employer binds himself to train the apprentice, who in turn accepts the terms of training for a recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of each party. [Sec 4(l), RA 7796] d. Apprenticeable Occupation is an occupation officially endorsed by a tripartite body and approved for apprenticeship by the Authority. [Sec 4(m), RA 7796] Who may employ apprentices Only employers in highly technical industries may employ apprentices and only in apprenticeable occupations approved by the SOLE. [Art. 60, LC]. The act of filing the proposed apprenticeship program with the DOLE is a preliminary step towards its final approval, and does not instantaneously give rise to an employerapprentice relationship. It must be duly approved by the Minister of Labor and

Employment. [Nitto Enterprises v. NLRC, G.R. No. 114337 (1995)] Qualifications of apprentice An apprentice must: 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 apprenticeship only in nonhazardous occupations; 2. Be physically fit for the occupation in which he desires to be trained; 3. Possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and 4. Possess the ability to comprehend and follow oral and written instructions. Trade and industry associations may recommend to the SOLE appropriate educational qualifications for apprentices in certain occupations. General Rule: Such qualifications, if approved, shall be the educational requirements for apprenticeship in such occupations. Exception: The educational qualifications may be waived by an employer in favor of an applicant who has demonstrated exceptional ability. A certification explaining briefly the ground for such waiver, and signed by the person in charge of the program, shall be attached to the apprenticeship agreement of the applicant concerned. [Sec. 11, Rule VI, Book II, IRR] Period of Apprenticeship The period of apprenticeship shall not exceed six months. Terms and conditions Apprenticeship agreements, including the wage rates of apprentices, shall conform to the rules issued by the Secretary of Labor and Employment. Wage rate Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75 percent of the applicable minimum wage, may be entered into only in accordance with apprenticeship

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programs duly approved by the Secretary of Labor and Employment. [Art. 61, as amended by E.O. 111-1986] Apprenticeship without compensation The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination. [Art. 72] The wages of apprentices and learners shall in no case be less than seventy-five percent (75%) of the applicable minimum wage rates. [Sec. 7, Wage Order No. NCR-19] Enforcement Investigation of violation of apprenticeship agreement Upon complaint of any interested person or upon its own initiative, the appropriate agency of the DOLE or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment. [Art. 65] Appeal to the Secretary of Labor and Employment The decision of the authorized agency of the DOLE may be appealed by any aggrieved person to the SOLE within five (5) days from receipt of the decision. The decision of the Secretary of Labor and Employment shall be final and executory. [Art. 66] Exhaustion of administrative remedies No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies. [Art. 67] Incentives for employers An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall

be granted to the person or enterprise organizing an apprenticeship program. [Art. 71] Requisites of the deduction: 1. Apprenticeship program must be duly approved by the DOLE; 2. Deduction shall NOT exceed 10% of direct labor wage; 3. Employer must pay his apprentices the minimum wage. [Art. 71] Summary of Rules: 1. The apprentice must be paid not less than 75% of the prescribed minimum salary [Art. 61]; HOWEVER, the employer MAY NOT pay any wage if the apprenticeship training is: a. part of the school curriculum, b. a requirement for graduation, or c. a requirement for board examination [Art. 72] 2. The apprenticeship agreement must be approved by the DOLE Secretary (without such one shall be deemed a regular employee) [Nitto Enterprises v. NLRC, G.R. No. 114337 (1995)]; 3. The employer is not compelled to continue one’s employment upon termination of apprenticeship; 4. One-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices of the training cost is deducted from the employer’s income tax, but it shall not exceed 10% of direct labor wage. [Art. 71] Working scholars There is no employer-employee relationship between students on one hand, and schools, colleges or universities on the other, where there is written agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge, provided, the students are given real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement. [Sec. 14, Rule X, Book III, IRR]

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b. Learners Definition Learners are persons hired as trainees in semiskilled and other industrial occupations: 1. Which are non-apprenticeable; 2. Which may be learned through practical training on the job in a relatively short period of time, which shall not exceed three (3) months. [Art. 73; Sec 4(n), RA 7796] When may learners be hired 1. No experienced workers are available; 2. The employment of learners being necessary to prevent the curtailment of employment opportunities; and 3. The employment will neither create unfair competition in terms of labor costs nor impair working standards. [Art. 74] Terms and conditions of employment Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include: 1. The duration of the learnership period, which shall not exceed three (3) months; 2. The wages or salary rates of the learners which shall begin at not less than seventyfive percent (75%) of the applicable minimum wage; and 3. A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. [Art. 75] Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. [Art. 76]

Summary of Rules 1. The duration of learnership shall not exceed 3 months [Art. 73]; 2. If the learnership of 3 months is completed, the employer may be compelled to continue with the services of the learner as a regular employee; There is a commitment from the employer to employ the learners if they so desire, as regular employees upon completion of the learnership; 3. If the learner is dismissed from service without just and valid cause and without due process after 2 months of service, he will be deemed as regular employee; [Art. 75(d)] and 4. The wages or salary rates of the learners which shall begin at not less than 75% of the applicable minimum wage. [Art. 75(c)] Distinctions between Apprenticeship Apprenticeship

Learnership

and

Learnership

Highly technical industries

Semi-skilled industrial occupations

Practical training supplemented by related theoretical instruction

Practical training whether or not such practical training is supplemented by theoretical instructions

Apprenticeable occupations approved by the SOLE

Non-apprenticeable occupations

Written apprentice agreement ratified by the appropriate committees

Learnership agreement

More than 3 months, shall not exceed 6 months

Shall not exceed 3 months

When apprentice may be hired:

When learner may be hired:

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1. The person is at 1. When no least 15 years of experienced age, provided workers are those who are at available; least 15 years of 2. The employment age but less of learners is than 18 may be necessary to eligible for prevent apprenticeship curtailment of only in nonemployment hazardous opportunities; occupation; and 2. The person is 3. The employment physically fit for does not create the occupation in unfair which he desires competition in to be trained; terms of labor 3. The person costs or impair possesses or lower working vocational standards. aptitude and capacity for the particular occupation as established through appropriate tests; and 4. The person is able to comprehend and follow oral and written instructions. Wage rate shall begin at not less than 75% of the minimum wage

Wage rate shall begin at not less than 75% of the minimum wage

No compensation if SOLE authorizes, as OJT is required by the school [Art. 72].

Learners in piecework shall be paid in full for the work done

The employer is not compelled to continue one’s employment upon

Learnership agreement must contain a commitment to employ the learners

termination of apprenticeship

if they so desire, as regular employees upon completion of the learnership

Deductibility of ½ of training costs incurred, provided: • Program is duly recognized by DOLE • Deduction shall not exceed 10% of direct labor wage • Payment of minimum wage to apprentice

No additional deduction from taxable income for undertaking a learnership agreement

2. Disabled Workers [RA 7277 - Magna Carta for Disabled Persons, as amended by RA 9442] Definitions a. Disabled persons are those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being. [Sec. 4(a), RA 7277] b. Impairment is any loss, diminution or aberration of psychological, physiological, or anatomical structure or function. [Sec. 4(b), RA 7277] c. Disability shall mean (1) a physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; (2) a record of such an impairment; (3) being regarded as having such an impairment. [Sec. 4(c), RA 7277] d. Handicap refers to a disadvantage for a given individual, resulting from an impairment or a disability, that limits or prevents the function or activity, that is considered normal given the age and sex of the individual. [Sec. 4(d), RA 7277]

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Coverage RA 7277 covers all disabled persons and, to the extent herein provided, departments, offices and agencies of the National Government or nongovernment organizations involved in the attainment of the objectives of this Act. [Sec. 3, RA 7227] a. Equal opportunity Rights of disabled workers 1. Equal opportunity for employment

If suitable employment for disabled persons cannot be found through open employment, the State shall endeavor to provide it by means of sheltered employment. In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production. [Sec 6, RA 7277] 4. Full minimum wage

No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled EE shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able-bodied person. [Sec. 5 (par. 1), RA 7277] Once they are regular employees, they are entitled to the benefits granted by law which the parties cannot stipulate away. [Bernardo v. NLRC, 310 SCRA 186 (1999)] 2. Reserved contractual positions 5% of all casual, emergency and contractual positions in the DSWD; DOH, DepEd; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons. [par. 2, Sec. 5, RA 7277]

All qualified handicapped workers shall receive the full amount of the minimum wage rate prescribed herein. [Sec 7, Wage Order No. NCR-19] A Qualified Individual with a Disability shall mean an individual with a disability who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires. However, consideration shall be given to: 1. The employer’s judgement as to what functions of a job are essential 2. The written description prepared by the employer before advertising or interviewing applicants for the job, which shall be considered evidence of the essential functions of the job. [Sec. 2(l), RA 7277 (Magna Cart for Persons with Disability, as amended by RA 9442)]

3. Sheltered employment Definition The provision of productive work for disabled persons through workshop providing special facilities, income producing projects or homework schemes. [Sec 4(i), RA 7277] Purpose To give them the opportunity to earn a living thus enabling them to acquire a working capacity required in open industry. [Sec 4(i), RA 7277]

A qualified disabled EE should be given the same terms and conditions of employment as a qualified able-bodied person. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Art. 280 of the Labor Code. In the present case, the handicap of petitioners (deafmutes) is NOT a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their employment contracts. [Bernardo v. NLRC, G.R. No. 122917 (1999)]

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Apprenticeship Opportunities Disabled persons shall be eligible as apprentices or learners: Provided, that: 1. Their handicap is NOT as much as to effectively impede the performance of job operations in the particular occupation for which they are hired; 2. After the lapse of the period of apprenticeship, if found satisfactory in the job performance, they shall be eligible for employment. [Art. 81; Sec. 7, RA 7277; Bernardo v. NLRC, supra.]

5.

6.

7.

b. Discrimination on employment No entity, whether public or private, shall discriminate against a qualified disabled person by reason of disability in regard to: 1. Job application procedures 2. The hiring, promotion, or discharge of employees 3. Employee compensation 4. Job training 5. Other terms, conditions, and privileges of employment. Acts of Discrimination: 1. Limiting, segregating or classifying a disabled job applicant in such a manner that adversely affects his work opportunities; 2. Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a disabled person unless such standards, tests or other selection criteria are shown to be jobrelated for the position in question and are consistent with business necessity; 3. Utilizing standards, criteria, or methods of administration that: a. have the effect of discrimination on the basis of disability; or b. perpetuate the discrimination of others who are subject to common administrative control. 4. Providing less compensation, such as salary, wage or other forms of remuneration and fringe benefits, to a qualified disabled employee, by reason of his disability, than the amount to which a

8.

9.

non-disabled person performing the same work is entitled; Favoring a non-disabled employee over a qualified disabled employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter's disability; Re-assigning or transferring a disabled employee to a job or position he cannot perform by reason of his disability; Dismissing or terminating the services of a disabled employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involved to the prejudice of the business entity: Provided, however, That the employer first sought to provide reasonable accommodations for disabled persons; Failing to select or administer in the most effective manner employment tests which accurately reflect the skills, aptitude or other factor of the disabled applicant or employee that such tests purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and Excluding disabled persons from membership in labor unions or similar organizations. [Sec. 32, RA 7277]

Occasions when a Disabled Applicant may be Subjected to Medical Examination Upon an offer of employment, a disabled applicant may be subjected to medical examinations, on the following occasions: 1. All entering employees are subjected to such an examination regardless of disability; 2. Information obtained during the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record; Provided, however, That: a. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations;

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b. First aid and safety personnel may be informed, when appropriate, if the disability may require emergency treatment; c. Government officials investigating compliance with this Act shall be provided relevant information on request; and d. The results of such examination are used only in accordance with this Act [Sec. 33, RA 7277]. c. Incentives for employers For employment of disabled persons additional deduction, from their gross income, equivalent to 25% of the total amount paid as salaries and wages to disabled persons: a. Private entities that employ disabled persons either as regular EEs, apprentice or learner; b. Provided such entities present proof as certified by the DOLE and the DOH [Sec. 8[b], RA 7277] For construction of disabled-friendly facilities - additional deduction from their net taxable income, equivalent to 50% of the direct costs of the improvements or modifications: a. Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons; b. Does NOT apply to improvements or modifications or facilities required under BP 344. [Sec. 8 (c), RA 7277] For establishments giving discounts – may claim such discounts as tax deductions based on the net cost of the goods sold or services rendered: a. The cost of the discount shall be allowed as deduction from gross income for the same taxable year that the discount is granted b. The total amount of the claimed tax deduction net of VAT if applicable, shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code, as

amended. [Sec. 32, RA 7277, as amended by RA 9442]

3. Gender Constitutional basis The State recognizes the role of women in nation-building, and shall: a. Ensure the fundamental equality before the law of women and men; b. Protect working women by providing: 1. Safe and healthful working conditions, taking into account their maternal functions, and 2. Such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation. [Sec. 14, Art. II & Sec. 14, Art. XIII, 1987 Constitution] a. Discrimination It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. The following are acts of discrimination: a. Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value; and b. Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. [Art. 133] The Magna Carta of Women provides that the State: 1. Condemns discrimination against women in all its forms 2. Pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law.

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3. Shall accord women the rights, protection, and opportunities available to every member of society 4. Shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women within three (3) years from the effectivity of this Act. [Sec. 2 & Sec. 12, Magna Carta of Women] b. Stipulation against marriage [Art. 134; Sec. 13(e), Rule XII] It shall be unlawful for an employer to: 1. require as a condition of employment or continuation of employment that a woman employee shall not get married, or 2. stipulate expressly or tacitly that upon getting married a woman employee shall be deemed resigned or separated or 3. actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. [Art. 134; Duncan Assoc of Detailman – PTGWO v. Glaxo Wellcome, G.R. No. 162994 (2004)] The Magna Carta of Women protects women against discrimination in all matters relating to marriage and family relations, including the right to choose freely a spouse and to enter into marriage only with their free and full consent. Bona fide occupational qualification exception While a marriage or no-marriage qualification may be justified as a "bona fide occupational qualification," the employer must prove two factors necessitating its imposition, viz: 1. that the employment qualification is reasonably related to the essential operation of the job involved; and 2. that there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job. [Capin-Cadiz v. Brent Hospital and Colleges, Inc., G.R. No. 187417 (2016)]. When the employer can prove that the reasonable demands of the business require a

distinction based on marital status, and there is no better available or acceptable policy which would better accomplish the business purpose, an ER may discriminate against an EE based on the identity of the EE’s spouse. [Star Paper Corp. v. Simbol, G.R. No. 164774 2006] A personal or marital relationship with an employee of a competitor might compromise the interests of the company. Thus an employer policy prohibiting the same may be held as valid [Duncan Association of Detailmen v. Glaxo Wellcome, supra.] c. Prohibited acts [Art. 135] 1. Discharge to prevent enjoyment of benefits. To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code. [Art. 135 (1), as amended by R.A. 6725] 2. Discharge on account of pregnancy. To discharge such woman on account of her pregnancy, while on leave or in confinement due to her pregnancy. [Art. 135 (2)] 3. Discharge or refusal of the admission to work To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant. [Art. 135 (3)] 4. Discharge on account of testimony To discharge any woman or child or any other employee for having filed a complaint or having testified or being about to testify under the Code [Sec. 13 (d), Rule XII, Book III, IRR] 5. Expulsion of Women faculty/female student due to pregnancy outside of marriage Expulsion and non-readmission of women faculty due to pregnancy outside of

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marriage shall be outlawed. No school shall turn out or refuse admission to a female student solely on the account of her having contracted pregnancy outside of marriage during her term in school. [Sec. 13(c), RA 9710] d. Facilities for women [Art. 130] The Secretary of Labor shall establish standards that will insure the safety and health of women employees. In appropriate cases, he shall by regulations, require employers to: a. Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency; b. To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; c. To establish a nursery in a workplace for the benefit of the woman employees therein; and d. To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like. [Sec. 130] Subject to the approval of the SOLE, the Bureau of Women and Young Workers (The BWYW merged into the Bureau of Workers with Special Concerns in 2010), shall, within 30 days from the effective date of these Rules, determine in an appropriate issuance: 1. The work situations for which the facilities enumerated in Art. 130 of the Code shall be provided; 2. The appropriate minimum age and standards for retirement or termination of employment in special occupation in which women are employed. [Sec. 14, Rule XII, Book III, IRR] e. Women working in night clubs, etc. [Art. 136] Any woman who: 1. Is permitted or suffered to work, with or without compensation;

2. In any night club, cocktail lounge, massage clinic, bar or similar establishments; 3. Under the effective control or supervision of the employer for a substantial period of time as determined by the SOLE; shall be considered as an employee of such establishment for purposes of labor and social legislation. [Art. 136]

4. Minors Relevant Laws: RA 7610 (Special Protection of Children Against Abuse, Exploitation and Discrimination Act), RA 9231 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act), Art. 137(a) Constitutional basis The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. [Sec. 13, Art. II, 1987 Constitution] General Rule: Children below 15 shall NOT be employed. Exception (Employment of Children) Children below fifteen (15) years of age shall not be employed except: a. When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of his/her family are employed: Provided, however, That his/her employment neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development: Provided, further, That the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or a. Where a child's employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential: Provided, That the employment contract is concluded by the child's parents

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or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: Provided, further, That the following requirements in all instances are strictly complied with: 1. The employer shall ensure the protection, health, safety, morals and normal development of the child; 2. The employer shall institute measures to prevent the child'.s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and 3. The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child. In the above-exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the DOLE which shall ensure observance of the above requirements. For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age. [Sec. 2, RA 9231] Children - refers to any person under 18 years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition. [Sec. 2, RA 7610] Child labor - refers to any work or economic activity performed by a child that subjects him/her to any form of exploitation or is harmful to his/her health and safety or physical, mental or psychosocial development. Working child - refers to any child engaged as follows: 1. when the child is below eighteen (18) years of age, in work or economic activity that is not child labor as defined in the immediately preceding subparagraph; and

2. when the child is below fifteen (15) years of age, in work where he/she is directly under the responsibility of his/her parents or legal guardian and where only members of the child‘s family are employed; or in public entertainment or information. [Sec. 3, D.O. No. 65-04] Exceptions a. Child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer’s family are employed, provided: 1. his employment does NOT endanger his life, safety, health and morals, 2. nor impairs his normal development, and 3. the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; [Sec. 12 of RA 7610, as amended by RA 7658] b. Child’s employment or participation in public entertainment or information through cinema, theater, radio or television is essential, provided that [Sec. 12 of RA 7610, as amended by RA 7658]: 1. employment does NOT involve ads or commercials promoting alcohol, tobacco and its by-products or violence [Sec. 14, RA 7610] 2. the employment contract is concluded by the child’s parents or guardian, and approved by DOLE 3. The ER shall ensure the protection, health, safety and morals of the child 4. The ER shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time 5. The ER shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child. [Sec. 12 of RA 7610, as amended by RA 7658]

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Employment of Children from 15 to 18 Employment is allowed even without permit but restricted to non-hazardous work.

3. Is performed underground, underwater or at dangerous heights; or 4. Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive poweractuated tools; or 5. Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or 6. Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or 7. Is performed under particularly difficult conditions; or 8. Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or 9. Involves the manufacture or handling of explosives and other pyrotechnic products [Sec. 12-D, RA 9231 as amended].

Non-hazardous work shall mean any work or activity in which the EE is not exposed to any risk which constitutes an imminent danger to his safety and health. [Sec. 3, Rule XII, Book III, IRR] The Secretary of Labor shall from time to time publish a list of hazardous work and activities in which persons 18 years of age and below cannot be employed [Sec. 3, Rule XII, Book III, IRR] The following are HAZARDOUS workplaces: See DO 149-16 as amended by DO 149-A-17, Sec. 6 Worst Forms of Child Labor a. All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or b. The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or c. The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or d. Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it: 1. Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or 2. Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or

Working Hours of a Child Quantity Age Bracket Below 15 y/o

Daily Max

Weekly Max

4 hrs

20 hrs

15 to below 8hrs. 18

40 hrs

Night work prohibition Age Bracket

Prohibited Hours

Below 15 y/o

8 pm to 6 am (10 hrs.)

15 to below 18

10 pm to 6 am (8 hrs.)

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Discrimination No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age. [Art. 138]

Within one year from the effectivity of RA 10361, and periodically thereafter, the Regional Board shall review, and if proper, determine and adjust the minimum wage rates of domestic workers. [Sec. 24, RA 10361]

5. Kasambahays Relevant Law: RA 10361 (Batas Kasambahay or Domestic Worker’s Act Note: RA 10361 has expressly repealed Chapter III, “Employment of Househelpers”, Title III, Book III of the Labor Code Domestic work - This refers to work performed in or for a household or households. [Sec 4(c)., RA 10361] Household - refers to the immediate members of the family or the occupants of the house that are directly provided services by the domestic worker. [Sec 4(f), RA 10361] Domestic worker or “Kasambahay” - Refers to any person engaged in domestic work within an employment relationship such as, but not limited to, the following: general househelp, nursemaid or “yaya”, cook, gardener, or laundry person. [Sec 4(d), RA 10361] The term domestic worker or “kasambahay” excludes any person who performs domestic work only occasionally or sporadically and not on an occupational basis. [Sec.4(d), RA 10361] Note: IRR, Sec. 2 does not include family drivers. See previous discussion on domestic workers. See also discussion under III. A. 1. A. e. Domestic workers. Minimum wage The minimum wage of domestic not be less than the following: a. P2,500 a month for those NCR b. P2,000 a month for those chartered cities and municipalities c. P1,500 a month for those other municipalities

workers shall employed in employed in first class employed in

Standard of Treatment The employer or any member of the household shall not subject a domestic worker or “kasambahay” to any kind of abuse nor inflict any form of physical violence or harassment or any act tending to degrade the dignity of a domestic worker. [Sec. 5, RA 10361] Board, Lodging and Medical Attendance The employer shall provide for the basic necessities of the domestic worker to include: 1. At least three adequate meals a day 2. Humane sleeping arrangements that ensure safety 3. Appropriate rest and assistance in case of illnesses and injuries sustained during service without loss of benefits. [Sec. 6, RA 10361] Privacy Respect for the privacy of the domestic worker shall be guaranteed at all times and shall extend to all forms of communication and personal effects [Sec. 7, RA 10361] Access to Outside Communication The employer shall grant the domestic worker access to outside communication during free time: Provided, That in case of emergency, access to communication shall be granted even during work time. [Sec. 8, RA 10361] Education and Training The employer shall afford the domestic worker the opportunity to finish basic education and may allow access to alternative learning systems and, as far as practicable, higher education or technical and vocational training. [Sec. 9, RA 10361] Social and Other Benefits A domestic worker who has rendered at least one (1) month of service shall be covered by the Social Security System (SSS), the Philippine Health Insurance Corporation

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(PhilHealth), and the Home Development Mutual Fund or Pag-IBIG, and shall be entitled to all the benefits in accordance with the pertinent provisions provided by law. Leave Benefits A domestic worker who has rendered at least one (1) year of service shall be entitled to an annual service incentive leave of five (5) days with pay. [Sec. 29, RA 10361] Rest Periods Daily Rest Period: 8 hours Weekly Rest Period: at least 24 consecutive hours. The employer and employee may agree to: a. Offsetting a day of absence with a particular rest day; b. Waiving a particular rest day in return for an equivalent daily rate of pay; c. Accumulating rest days not exceeding five (5) days; or d. Other similar arrangements. [Sec. 20, 21, RA 10361] Pre-Employment Requirement Prior to the execution of the employment contract, the employer may require the following from the domestic worker: a. Medical certificate or a health certificate issued by a local government health officer; b. Barangay and police clearance; c. National Bureau of Investigation (NBI) clearance; and d. Duly authenticated birth certificate or if not available, any other document showing the age of the domestic worker such as voter’s identification card, baptismal record or passport. However, Sec. 12(a), (b), (c) and (d) shall be standard requirements when the employment of the domestic worker is facilitated through the PEA. The cost of the foregoing shall be borne by the prospective employer or agency, as the case may be. [Sec. 12, RA 10361]

Pre-Employment Prohibition The ff. shall be unlawful: 1. Charging any share in the recruitment or finder’s fees against the domestic worker by a private employment agency or third party. [Sec. 13, RA 10361] 2. Requiring a domestic worker to make deposits from which deductions shall be made for the reimbursement of loss or damage to tools, materials, furniture and equipment in the household. [Sec. 14, RA 10361] 3. Placing the domestic worker under debt by the employer or any person acting on behalf of the employer to [Sec. 15, RA 10361] Time and Manner of Payment Payment of wages shall be made: 1. Directly to the domestic worker in cash 2. At least once a month 3. With no deductions from the wages other than that which is mandated by law, unless allowed by the domestic worker through a written consent No employer shall pay the wages of a domestic worker by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than the cash wage as provided for under this Act. [Sec. 25, RA 10361] Payslip The employer shall at all times provide the domestic worker with a copy of the pay slip containing the amount paid in cash every pay day, and indicating all deductions made, if any. The copies of the pay slip shall be kept by the employer for a period of three (3) years. [Sec. 26, RA 10361] Wage Prohibitions It shall be unlawful for the original employer to charge any amount from the said household where the service of the domestic worker was temporarily performed. [Sec. 23, RA 10361] Other Prohibited Acts a. Interference in employee’s wage disposal [Sec. 27, RA 10361]

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b. Direct or indirect withholding of wages by the employer [Sec. 28, RA 10361] c. Payment in forms other than cash [Sec. 25, RA 10361] Right against assignment to nonhousehold work at a wage rate lower than that mandated for agricultural or non-agricultural enterprises depending on the case. [Sec. 22, RA 10361] Employment Age of Domestic Workers: Unlawful to employ any person below fifteen (15) years of age as a domestic worker [Sec. 16, RA 10361] Persons between 15-18 years old should only be employed in non-hazardous work. [D.O. No. 4-99 Sec. 4] Daily Rest Period: Aggregate of eight (8) hours per day. [Sec. 20, RA 10361] Employment Certification: ER shall give the househelper a written statement of the nature and duration of the service and his or her work performance as househelper upon severance. [Sec. 35, RA 10361] Termination Initiated by the domestic worker The domestic worker may terminate the employment relationship at any time before the expiration of the employment contract for any of the following causes: 1. Verbal or emotional abuse of the domestic worker by the employer or any member of the household; 2. Inhuman treatment including physical abuse of the domestic worker by the employer or any member of the household; 3. Commission of a crime or offense against the domestic worker by the employer or any member of the household; 4. Violation by the employer of the terms and conditions of the employment contract and other standards set forth under this law; 5. Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and

6. Other causes analogous to the foregoing. [Sec. 33, RA 10361] Initiated by the employer An employer may terminate the services of the domestic worker at any time before the expiration of the contract, for any of the following causes: 1. Misconduct or willful disobedience by the domestic worker of the lawful order of the employer in connection with the former’s work; 2. Gross or habitual neglect or inefficiency by the domestic worker in the performance of duties; 3. Fraud or willful breach of the trust reposed by the employer on the domestic worker; 4. Commission of a crime or offense by the domestic worker against the person of the employer or any immediate member of the employer’s family; 5. Violation by the domestic worker of the terms and conditions of the employment contract and other standards set forth under this law; 6. Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and 7. Other causes analogous to the foregoing. [Sec. 34, RA 10361] Employment Certification Upon the severance of the employment relationship, the employer shall issue the domestic worker within five (5) days from request a certificate of employment indicating the nature, duration of the service and work performance [Sec. 35, RA 10361]. Unjust dismissal Neither the domestic worker nor the employer may terminate the contract before the expiration of the term except for grounds provided in Secs. 33 and 34 of RA 10361. If the domestic worker is unjustly dismissed, the domestic worker shall be paid the compensation already earned plus the equivalent of 15 days work by way of indemnity [Sec. 32, RA 10361].

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Leaving without justifiable reason by the domestic worker a. Any unpaid salary due not exceeding the equivalent 15 days work shall be forfeited AND b. The employer may recover from the domestic worker the costs incurred related to the deployment expenses, if any: Provided, that the service has been terminated within 6 months from the domestic worker’s employment [Sec. 32, RA 10361]. Notice to end the working relationship If the duration of the domestic service is not determined either in stipulation or by the nature of the service, the employer or the domestic worker may give notice to end the working relationship five (5) days before the intended termination of the service. The domestic worker and the employer may mutually agree upon written notice to preterminate the contract of employment to end the employment relationship. [Sec. 32, RA 10361]

processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with employer’s direction; OR b. Sells any goods, articles, or materials to be processed or fabricated in or about a home and then rebuys them after. [Art. 153] Note: Sec. 2(d), Rule XIV, Book III is substantially similar to the above. Rights and benefits accorded homeworkers a. Right to form, join or assist organizations [Sec. 3, Rule XIV, Book III, IRR] b. Right to acquire legal personality and the rights and privileges granted by law to legitimate labor organizations upon issuance of the certification of registration [Sec. 4, Rule XIV, Book III, IRR] c. Immediate payment upon employer’s receipt of finished goods or articles [Sec. 6, Rule XIV, Book III, IRR] d. SSS, MEDICARE and ECC premium contributions shall be deducted from their pay and shall be remitted by ER/contractor/subcontractor to the SSS [Sec. 6, Rule XIV, Book III, IRR]

6. Homeworkers Note: D.O. No. 5, DOLE (February 4, 1992), is now Rule XIV, Book III of the IRR. Industrial homework a. Is a system of production under which work for an employer or contractor is carried out by a homeworker at his/her home. Materials may or may not be furnished by the employer or contractor. b. Decentralized form of production, where there is ordinarily very little supervision or regulation of methods of work. [Sec. 2(a), Rule XIV, Book III, IRR] Industrial Homeworker - a worker who is engaged in industrial homework. Employer means any natural or artificial person who: a. Acts as a contractor or subcontractor – delivers or causes to be delivered any goods, articles, or materials to be

Liability of Employer a. Employer may require homeworker to redo work improperly executed without additional pay [Sec. 9(a), Rule XIV, Book III, IRR] b. Employer need not pay homeworker for any work done on goods or articles not returned due to homeworker’s fault [Sec. 9(b), Rule XIV, Book III, IRR] c. If subcontractor/contractor fails to pay homeworker, employer is jointly and severally liable with the former to the homeworker for his/her wage [Sec. 11, Rule XIV, Book III, IRR] d. Employer shall assist the homeworkers in the maintenance of basic safe and healthful working conditions at the homeworkers’ place of work. [Sec. 11, Rule XIV, Book III, IRR] Regional Office shall provide technical assistance to registered homeworkers’ organizations [Sec. 14, Rule XIV, Book III, IRR]

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Prohibited Homework a. explosives, fireworks and articles of like character; b. drugs and poisons; and c. other articles, the processing of which requires exposure to toxic substances. [Sec. 13, Rule XIV, Book III, IRR] Deductions No deduction from the homeworker’s earnings for the value of materials lost, destroyed or damaged unless: a. Homeworker is clearly shown to be responsible for loss or damage b. Reasonable opportunity to be heard c. Amount of deduction is fair and reasonable, and does not exceed actual loss or damage d. Deduction does not exceed 20% of homeworker’s weekly earnings [Sec. 8, Rule XIV, Book III, IRR]

7. Solo Parents See III. C. 2. A. for discussion on definition of solo parents and solo parent leave* See VII. E. for discussion on non-work related support for solo parents* Flexible work schedule for solo parents “Flexible work schedule” is the right granted to a solo parent to vary his/her arrival and departure time without affecting core work hours as defined by the employer. [Sec. 3(e), RA 8972] The employer shall provide a flexible work schedule for solo parents: Provided, 1. That the same shall not affect individual and company productivity: 2. That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds. [Sec. 6, RA 8972] Work discrimination illegal No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status. [Sec. 7, RA 8972]

8. Night Workers Night worker Any employed person whose work requires performance of a substantial number of hours of night work which exceed a specified limit. This limit shall be fixed by the Sec of Labor after consulting the workers’ representatives/labor organizations and employers. [Art. 154, as amended by RA 10151] Any employed person whose work covers the period from 10:00 pm to 6:00 am the following morning, provided that the worker performs no less than 7 consecutive hours of work. [Sec. 2, Rule XV, Book III, Rule XV, Sec. 2, IRR, through D.O. No. 119-12] Health Assessment At the worker’s request, they shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work: a. Before taking up an assignment as a night worker b. At regular intervals during such an assignment c. If they experience health problems during such an assignment With the exception of a finding of unfitness for night work, the findings of such assessments shall be confidential and shall NOT be used to their detriment, subject, however, to applicable company policies. [Art. 155, as amended by RA 10151; Sec. 3, Rule XV, Book III, IRR, through D.O. No. 119-12] Mandatory Facilities Mandatory facilities shall be made available for workers performing night work, which include the following: a. Suitable first-aid and emergency facilities; b. Lactation station in required companies pursuant to RA 10028; c. Separate toilet facilities for men & women d. Facility for eating w/ potable drinking water; AND

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e. Facilities for transportation and/or properly ventilated temporary sleeping or resting quarters, separate for male and female workers, shall be provided except where any of the ff. circumstances is present: 1. There is an existing company guideline, practice or policy, CBA, or any similar agreement providing for an equivalent or superior benefit; or 2. Start or end of the night work does NOT fall within 12 mn - 5 am; or 3. Workplace is located in an area that is accessible 24 hours to public transportation; or 4. Number of employees does NOT exceed a specified number as may be provided for by the SOLE in subsequent issuances [Art. 156, as amended by RA 10151; Sec. 4, Rule XV, Book III, IRR, through D.O. No. 119-12]

would otherwise be called upon to perform such work. Such measures may include: a. Transfer to day work – As far as practicable, pregnant or nursing employees shall be assigned to day work, before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth;

Transfer If night worker is unfit for night work due to health reasons as certified by competent physician, s/he shall be: a. Transferred in good faith to a job for which they are fit to work whenever practicable, which must be similar and equivalent position; b. If transfer is not practicable, or workers are unable to render night work for a continuous period of not less than 6 months upon certification of a competent public health authority, they shall be granted the same benefits as other workers who are unable to work due to illness. c. If workers are certified as temporarily unfit to render night work for a period of less than 6 months, they shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for health reasons. [Art. 157, as amended by RA 10151; Sec. 5, Rule XV, Book III, IRR, through D.O. No. 119-12]

b. Provision of social security benefits - in accordance with provisions of Act No 8282 (Social Security Act of 1997) and other existing company policy or collective bargaining agreement.

Women Night Workers Employers shall ensure that measures shall be taken to ensure that an alternative to night work for pregnant and nursing employees who

Medical certificate issued by competent physician (OB/Gyne/Pedia) is necessary for the grant of: 1. additional periods of assignment to day work during pregnancy or after childbirth, provided that such shall not be more than 4 weeks or for a longer period as may be agreed upon by employer and worker; 2. extension of maternity leave; and 3. clearance to render night work.

c. Extension of maternity leave – where transfer to day work is not possible, but requires recommendation by competent physician; without pay or using earned leave credits, if any. [Art. 158, , as amended by RA 10151; Sec. 6, Rule XV, Book III, IRR, through D.O. No. 119-12] Protection against dismissal and loss of benefits attached to employment status, seniority, and access to promotion Where no alternative work can be provided to a woman employee who is not in a position to render night work, she shall be allowed to go on leave or on extended maternity leave, using her earned leave credits. A woman employee shall NOT be dismissed for reasons of pregnancy, childbirth and childcare responsibilities as defined under this Rule. She shall NOT lose the benefits regarding her employment status, seniority, and access to promotion which may attach to

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her regular night work position. [Sec. 8, Rule XV, Book III, IRR, through D.O. No. 119-12] See also Night Shift Differential above.

9. Migrant Workers See II. A. Policy of Selective Deployment above. Overseas Filipino Worker/Migrant Worker – A person who is to be engaged, is engaged or has been engaged in a remunerated activity: 1. In a state of which he or she is not a citizen or 2. On board a vessel navigating the foreign seas other than a government ship used for military or non-commercial purposes or 3. On an installation located offshore or on the high seas. [Sec. 2 (a), RA 8042, as amended] Principals and agencies have primary responsibility for repatriation The repatriation of the worker or his/her remains, and the transport of his/her personal effects shall be the primary responsibility of the principal, employer or agency that recruited or deployed him/her abroad. All costs attendant thereto shall be borne by the principal, employer or the agency concerned. [Sec. 1, Rule XIII, IRR of RA 8042, as amended by RA 10022] Principals and agencies to advance repatriation costs Principals and agencies have the obligation to advance the costs of repatriation, and to immediately repatriate the migrant worker without a prior determination of the worker’s employment. However, after the worker has returned to the country, the principal or agency may recover the cost of repatriation from the worker if the termination of employment was solely due to the worker’s fault. [Sec. 2, Rule XIII, IRR of RA 8042, as amended by RA 10022]

Emergency repatriation The OWWA, in coordination with DFA, and in appropriate situations, with international agencies, shall undertake the repatriation of workers in cases of war, epidemic, disasters or calamities, natural or man-made, and other similar events, without prejudice to reimbursement by the responsible principal or agency within sixty (60) days from notice. [Sec. 5, Rule XIII, IRR of RA 8042, as amended by RA 10022]. Underage migrant workers; repatriation is mandatory Upon discovery or upon being informed of the presence of migrant workers whose actual ages fall below the minimum age requirement for overseas deployment, the responsible officers in the Foreign Service shall without delay repatriate said workers and advise the DFA through the fastest means of communication available of such discovery and other relevant information. [Sec. 6, Rule XIII, IRR of RA 8042, as amended by RA 10022] Prohibition on bonds and deposits In no case shall a private recruitment/manning agency require any bond or cash deposit from the worker to guarantee performance under the contract for his/her repatriation [Sec. 9, Rule XIII, IRR of RA 8042, as amended by RA 10022] Compulsory insurance coverage for all migrant workers Each migrant worker shall be covered by a compulsory insurance policy which shall be secured at no cost to said worker. Such insurance policy shall be effective for the duration of the migrant worker’s employment. [Sec. 37-A, RA 8042, as amended by RA 10022] The insurance policy shall cover: a. Accidental death; b. Natural death; c. Permanent total disablement; d. Repatriation cost of the worker when his/her employment is terminated by the employer without any valid cause, or by the

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employee with just cause, including the transport of his/her personal belongings; e. Subsistence allowance benefit for a migrant worker who is involved in a case for litigation for the protection of his/her rights in the receiving country; f. Money claims arising from employer’s liability which may be awarded or given to the worker in a judgment or settlement of his/her case in the NLRC; g. Compassionate visit. When a migrant worker is hospitalized and has been confined for at least seven (7) consecutive days, he shall be entitled to a compassionate visit by one (1) family member or a requested individual; h. Medical evacuation. When an adequate medical facility is not available proximate to the migrant worker, as determined by the insurance company's physician and/or a consulting physician, the insurance provider shall provide for the worker’s evacuation; and i. Medical repatriation. When medically necessary as determined by the attending physician, repatriation under medical supervision to the migrant worker's residence shall be undertaken by the insurance provider at such time that the migrant worker is medically cleared for travel by commercial carrier. [Sec. 2, Rule XVI, IRR of RA 8042, as amended by RA 10022]

10. Security Guards [Relevant issuance: DO 150-16, Revised Guidelines Governing the Employment and Working Conditions of Security Guards and Private Security Personnel in the Private Sector Industry] Rights of security guards and other private security personnel All security guards and other private security personnel, whether deployed or assigned as reliever, seasonal, week-ender, or temporary, shall be entitled to all the rights and privileges as provided for in the Labor Code, which shall include: a. Safe and healthful working conditions;

b. Labor standards as may be provided in the Service Agreement or under the Labor Code; c. Retirement benefits under RA 7641, RA 1161, as amended by RA 8282, and retirement plans of the security service contractor, if any; d. Social security and welfare benefits; e. Right to self-organization and collective bargaining, subject to the provisions of existing laws; and f. Security of tenure. [Sec. 6, DO 150-16] PNP Examination required for employment The security guards and other private security personnel in the employ of any security service contractor (SSC)/private security agency (PSA) should be duly licensed and must have passed the physical and neuro-psychiatric examination and drug test required by the PNP for pre-employment and for continued employment. Expenses for these examinations and test shall be shouldered by the security guards. Any additional test may be required at the expense of the requesting party. [Sec. 7.1, DO 150-16] Minimum wage Unless a higher minimum wage is agreed upon by the parties, the security guards and other private security personnel shall be entitled to receive a salary of not less than the minimum wage rate prescribed for non-agricultural sector or industry in the region where he/she is assigned, regardless of the nature of business of the principal. [Sec. 7.3, DO 150-16] In case of transfer, the wage rate most favorable to the security guards and other private security personnel shall apply. [Sec. 7.4, DO 150-16] Deductions from salary No deduction shall be made from the salary of the security guards and other private security personnel, except for: 1. SSS contribution; 2. Pag-IBIG contribution; 3. PhilHealth contribution;

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4. Withholding tax from income, provided a proper withholding tax receipt is issued to the employee before the filing of income tax return every year; 5. Union dues, if authorized in writing; 6. Agency fees which may be collected from employees who are not members of the bargaining agent but accept benefits under the collective bargaining agreement (CBA); and 7. Other deduction as may be authorized in writing by the security guard and other private security personnel for payment to a third person and the employer agrees to do so, provided that the latter does not receive any pecuniary benefit, directly or indirectly, from the transaction. In case an SSC/PSA requires its security guard and other private security personnel to post a bond for use of firearms and other paraphernalia, such may only be imposed once. The amount of the bond should not be more than 5% of the amount of the firearm issued to the security guard and other private security personnel. The said cash bond, less the cost of damage or loss of firearms or paraphernalia due to the fault of the security guard, shall be refunded to the security guards and other private security personnel within 15 calendar days from severance of employment. See III. B. 4. b. Prohibition against wage deductions for deduction from deposits. In the event that a SSC/PSA requires a cash deposit from its employees, the maximum amount shall not exceed the employee’s 1 month basic salary. The said cash deposit may be deducted from the employee’s wages in an amount which shall not exceed 20% of the employee’s wages in a week. The full amount of cash deposit deducted shall be returned to the employee within 10 days from his/her separation from the service. [Sec. 8, DO 15016]

IV. POST-EMPLOYMENT A. EMPLOYER-EMPLOYEE RELATIONSHIP Definitions 1. Employer • Any person acting directly or indirectly in the interest of an employer in relation to an employee. [Art. 97(b); Art. 219(f)] • Any person, natural or juridical, employing the services of the employee. [Art. 173(f)] • Includes: o The government o All its branches, subdivisions and instrumentalities o All government-owned or controlled corporations and institutions o All nonprofit private institutions, or organizations. [Art. 97(b)] • Does not include any labor organization or any of its officers or agents except when acting as employer. [Art. 219(f)] 2. Employee • Any individual employed by an employer. [Art. 97(c); Art. 219(g)] • Any person compulsorily covered by the GSIS under C.A. No. 168, as amended. [Art. 173(g)] • Includes: o The members of the AFP, o Any person employed as casual, emergency, temporary, substitute or contractual, o Any person compulsorily covered by the SSS under R.A. No. 1161, as amended. [Art. 173(g)] o Any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment. [Art. 219(g)] • The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. [Art. 219(g)]

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3. Person • An individual, partnership, association, corporation, business trust, legal representatives, or any organized group of persons. [Art. 97(a); Art. 173(h)] Both a question of law and of fact The existence or absence of EER is a question of law and of fact, each in its defined sense. Ultimately, it is a question of fact because whether one exists or not is dependent upon the facts of each case. [SSS v. CA and Ayalde, G.R. No. 100388, (2000)]. However, it is a question of law because it cannot be made the subject of agreement [Tabas et.al. v. California Manufacturing Co., et. al., G.R. No. 80680, (1989)]. Hence, the characterization of the law prevails over that in the contract.

1. Tests to Determine Existence a. Four-Fold Test Elements of an EER 1. Selection and engagement of the employee; 2. Payment of wages; 3. Power of dismissal; and 4. Employer’s power to control the employee’s conduct with respect to the means and methods by which the work is to be accomplished [Brotherhood Labor Unity Movement of the PH v. Zamora, G.R. No. 48645, (1987)] Payment of wages The following are not conclusive of the absence of an EER: • That a worker was not reported as an employee to SSS; • That a worker’s name does not appear in the payrolls and pay envelope records submitted by the employer.

Power to control This is the most important element when determining the existence of an EER. It pertains not only to results, but also to the means and methods to attain those results. [Lirio v. Genovia, G.R. No. 169757 (2011)]. The “existence” of the right to control is sufficient for the element to be present. There need not be “actual exercise” of the right. [Zanotte Shoes v. NLRC, G.R. No. 100665, (1995)] Not every form of control will create an EER. No EER exists when control is in the form of rules that merely serve as guidelines towards the achievement of results without dictating the means or methods to attain them. EER exists when control is in the form of rules that fix the methodology to attain a specified result and bind the worker to use such. [Insular Life Assurance Co, LTD v. NLRC, G.R. No. 84484 (1989)]. b. Economic Dependence Test Two-tiered approach 1. Control Test (refer to the Four-Fold Test) 2. Underlying economic realities within the activity or relationship [Sevilla v. CA, G.R. Nos. L-41182-3 (1988)] Underlying economic realities In determining the existence of an EER, these realities must be examined, taking into consideration the totality of circumstances surrounding the true nature of the parties’ relationship. The benchmark “reality” for the existence of an EER is economic dependence of the worker on his employer. “Economic dependence” is whether the worker is dependent on the employer for his continued employment. [Orozco v. CA, G.R. No. 155207 (2008)]

Note: For a payroll to be utilized 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)]

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Competent and relevant evidence needed to prove EER No particular form of evidence is required to prove the EER. Any competent and relevant evidence to prove the relationship may be admitted. For, if only documentary evidence would be required to show that relationship, no scheming employer would ever be brought before the bar of justice, as no employer would wish to come out with any trace of the illegality he has authored considering that it should take much weightier proof to invalidate a written instrument. [Tenazas, et al., v. R. Villegas Taxi Transport, G.R. No. 192998 (2014)] Burden of proof on alleged employee The onus probandi rests on the employer to prove that its dismissal was for a valid cause. However, before a case for illegal dismissal can prosper, an EER must first be established. It is incumbent upon the employee to prove the EER by substantial evidence. [Javier v. Fly Ace Corporation, G.R. No. 192558 (2012)] Doctrine of piercing the corporate veil When this doctrine is applied, an employee can be said to have an EER with the corporation that another corporation (who the employee “works” for) is merely an alter ego of. It applies in these 3 basic scenarios: 1. Defeat of public convenience as when corporate fiction is used as a vehicle to evade existing obligations; 2. Fraud cases as when the corporate entity is used to justify a wrong, protect fraud, or defend a crime; 3. Alter ego cases, where a corporation is a farce, as it is a mere alter ego or business conduit of a person, or where the corporation is so organized and controlled and its affairs are so conducted as to make it merely an instrumentality, agency, conduit or adjunct of another corporation. [Maricalum Mining Corp. v. Florentino, G.R. No. 221813 (2018)] Note: The corporate character is not fully abrogated. It continues for other legitimate objectives. However, in certain circumstances, it may be pierced in order to promote substantial justice. Such fiction of law cannot

be invoked to further ends subversive of justice. [Pamplona Plantation Co v Tinghil [G.R. No. 159121 (2005)] Doctrine illustrated in jurisprudence In Sarona v. NLRC [G.R. No. 185280 (2012)], the doctrine was applied. It involved the illegal dismissal of Sarona, a security guard who first worked at Sceptre but was subsequently assigned to Royale, where he was illegally dismissed. In the computation of his separation pay, Sarona prayed that the corporate veil of Royale be pierced as it was a mere continuation of Sceptre; hence, his separation pay should be computed from the time he was hired by Sceptre. This was granted. Circumstances indicated that Spectre and Royale were one and the same (same office, same officers, same person exercising control and supervision over employees of both companies), and that Sarona’s transfer to Royale was done in bad faith. As such, Sarona could be said to have an EER with Sceptre. Thus, his separation pay was to be computed from the time he was hired by Sceptre.

2. Legitimate Subcontracting as distinguished from Labor-Only Contracting Contracting or Subcontracting Definition of Contracting/Subcontracting Contracting or subcontracting refers to an arrangement whereby a principal agrees to farm out to a contractor the performance or completion of a specific job or work – a. Within a definite or predetermined period, b. Regardless of whether such job or work is to be performed or completed within or outside the premises of the principal. [Sec. 3(c), D.O. No. 174-17] Contracting/Subcontracting as distinguished from Labor-Only Contracting There is "labor-only" contracting where: 1. The person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and

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2. The workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. [Art. 106, par. 4] Rules for Contracting/Subcontracting 1. Whenever an employer enters into a contract with another person for the performance of the former’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this Code. [Art. 106, par. 1] 2. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees: a. To the extent of the work performed under the contract b. In the same manner and extent that he is liable to employees directly employed by him. [Art. 106, par. 2] 3. The SOLE may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers established under this Code. [Art. 106, par. 3] a. He may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting. b. He may determine who among the parties involved shall be considered the employer for purposes of this Code. 4. An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same. [Art. 108]

5. Contractors and subcontractors referred to in these rules are prohibited from engaging in recruitment and placement activities as defined in Art. 13(b), whether for local or overseas employment. [Sec. 2. D.O. No. 174-17: Rules Implementing Articles 106 to 109 of the Labor Code, as amended] Applicability of Rules to Indirect Employers The provisions of Art. 106 shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. [Art. 107] Service Agreement Service agreement refers to the contract between the principal and contractor containing the terms and conditions governing the performance or completion of a specific job or work being farmed out for a definite or predetermined period. [Sec. 3(j), D.O. No. 17417] a. Elements To be considered legitimate contracting or subcontracting, the following elements must concur: 1. Distinct and independent business: Contractor or subcontractor is engaged in a distinct and independent business and undertakes to perform the job on its own responsibility, according to its own manner and method; 2. Substantial capital or investment: Contractor or subcontractor has substantial capital to carry out the job farmed out by the principal on his account, manner and method, investment in the form of tools, equipment, machinery and supervision; 3. Free from control/direction of the principal: In performing the work, contractor or subcontractor is free from the control/direction of the principal in all matters regarding performance of the work except the result; 4. Compliance with labor laws: Service Agreement ensures that employees of the contractor/subcontractor are given all the

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benefits and rights they are entitled to under labor laws. [Sec. 8, D.O. No. 174-17] Substantial capital (#2) Refers to paid-up capital stocks/shares of at least P5,000,000 in the case of corporations, partnerships and cooperatives; in case of single proprietorship, a net worth of at least P5,000,000. [Sec. 3(l), D.O. No. 174-17] b. Trilateral relationship When the above-elements are present, a trilateral relationship arises. It consists of the following parties: 1. Principal - Any natural or juridical entity, whether an employer or not, who puts out or farms out a job or work to a contractor. 2. Contractor - Any person or entity engaged in a legitimate contracting or subcontracting arrangement providing services for a specific job or undertaking farmed out by a principal under a Service Agreement. 3. Contractor’s employee - Employee of the contractor hired to perform or complete a job or work farmed out by the principal. [Sec. 3, D.O. No. 174-17] Note: Contractor may also be a subcontractor. Relationships within the trilateral relationship 1. EER between the contractor and the employees it engaged to perform the specific job, work or service being contracted; and 2. Contractual relationship between the principal and the contractor as governed by the provisions of the NCC. [Sec. 5, par. 1, D.O. No. 18-A-11] Required contracts 1. Employment contract between the contractor and its employees Notwithstanding any oral or written stipulations to the contrary, such contract shall be governed by LC 294 and 295, and provisions on general labor standards. It shall include the following:

a. Specific description of the job or work to be performed by the employee; and b. Place of work and terms and conditions of employment, including a statement of the wage rate applicable to the individual employee. 2. Service Agreement between the principal and the contractor - It shall include the following: a. Specific description of the job or work being subcontracted, including its term or duration; b. Place of work and terms and conditions governing the contracting arrangement, including the agreed amount of the contracted job or work, the standard administrative fee of not less than 10% of the total contract cost; c. Provision on the issuance of the bond/s renewable every year. [Sec. 11, D.O. No. 174-17] Rights of contractor’s employees 1. Security of tenure 2. Safe and healthful working conditions; 3. Labor standards such as but not limited to service incentive leave, rest days, overtime pay, holiday pay, 13th month pay, and separation pay 4. Retirement benefits under the SSS or retirement plans of the contractor/subcontractor; 5. Social security and welfare benefits; and 6. Self-organization, collective bargaining and peaceful concerted activities including the right to strike. [Sec. 10, D.O. No. 17417] Termination of employment [Sec. 13, D.O. No. 174-17] Cause

Effect

Prior to expiration of Service Agreement

Governed by Art. 297 – 299

Pretermination of Service

The right of the contractor’s employee to unpaid wages and other

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Agreement. and not due to authorized causes

unpaid benefits including unremitted legal mandatory contributions, (e.g., SSS, PhilHealth, Pag-ibig, ECC), shall be borne by the party at fault, without prejudice to the solidary liability of the parties to the Service Agreement.

Due to expiration of Service Agreement, or from completion of the phase of the job, work or service for which employee is engaged

Employee may opt to wait for re-employment within 3 months to resign and transfer to another contractor-employer. Failure of the contractor to provide new employment shall entitle the employee to payment of separation benefits as may be provided by law or the Service Agreement, whichever is higher, without prejudice to his/her entitlement to completion bonuses or other emoluments, including retirement benefits whenever applicable. The mere expiration of the Service Agreement shall not be deemed as a termination of employment of the contractor’s employees who are deemed regular employees of the contractor.

c. Liabilities Solidary liability of principal and contractor Every employer or indirect employer shall be held responsible with his contractor for any violations of labor laws. For purposes of determining the extent of their civil liability, they shall be considered as direct employers. [Art. 109]

Labor-only contracting This is one of the violations that may be committed by the principal and contractor, which may make them solidarily liable. There are two kinds: 1. Provided for by Article 206, Labor Code: a. (i) The contractor does not have substantial capital; or (ii) the contractor does not have investments in the form of tools, equipment, machineries, supervision, work premises, among others; b. The contractor’s employees are performing activities that are directly related to the main business operation of the principal. 2. The contractor does not exercise the right to control the performance of the work of the employee. [Sec. 5., D.O. No. 174-17] Substantial capital under 1st kind Having substantial capitalization is not enough to declare one a legitimate contractor. If any of the other elements of labor-only contracting is present, they are labor-only contractors. [Quintanar v. Coca-Cola Bottlers, 794 SCRA 654 (2016)] Presumption of labor-only contracting A contractor is presumed to be a labor-only contractor and has the burden of proving the contrary. [Polyfoam-RGC Int’l Corp. v. Concepcion, 672 SCRA 148 (2012)] Effect of labor-only contracting: employees become regular employees Where an entity is declared to be a labor-only contractor, the employees supplied by said contractor to the principal become regular employees of the latter. Having gained regular status, the employees are entitled to security of tenure and can only be dismissed for just or authorized causes and after they had been afforded due process. [Norkis Trading v. Buenavista, G.R. No. 182018 (2012)] Other prohibitions 1. When the principal farms out work to a “Cabo” [See definition under Sec. 3(a)., D.O. No. 174-17];

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2. Contracting out of job or work through an in-house agency; 3. Contracting out of job or work through an in-house cooperative which merely supplies workers to the principal; 4. Contracting out of a job or work by reason of a strike or lockout whether actual or imminent; 5. Contracting out of a job or work being performed by union members and such will interfere with, restrain or coerce employees in the exercise of their rights to selforganization as provided in Art. 259; 6. Requiring the contractor’s employees to perform functions which are currently being performed by the regular employees of the principal; 7. Requiring the contractor’s employees to sign, as a precondition to employment or continued employment, an antedated resignation letter; a blank payroll; a waiver of labor standards including minimum wages and social or welfare benefits; or a quitclaim releasing the principal or contractor from liability as to payment of future claims; or require the employee to become member of a cooperative; 8. Repeated hiring by the contractor of employees under an employment contract of short duration; 9. Requiring employees under a contracting arrangement to sign a contract fixing the period of employment to a term shorter than the term of the Service Agreement, unless the contract is divisible into phases for which substantially different skills are required and this is made known to the employee at the time of engagement; 10. Such other practices, schemes or employment arrangements designed to circumvent the right of workers to security of tenure. [Sec. 6, D.O. No. 174-17] Mandatory registration It shall be mandatory for all persons or entities, including cooperative, acting as contractors, to register with the Regional Office of the DOLE where it principally operates. Failure to register shall give rise to the presumption that the contractor is engaged in labor-only contracting. [Sec. 14, D.O. No. 174-17]

Applicability D.O. No. 174-17 applies only to trilateral relationships that can be characterized as contracting or subcontracting arrangements. It does not apply to: 1. Information technology-enabled services, such as: a. Business process outsourcing b. Knowledge process outsourcing c. Legal process outsourcing d. IT infrastructure outsourcing e. Application development f. Hardware and/or software support g. Medical transcription h. Animation services i. Back office operations/support 2. Construction industry under the licensing coverage of the Philippine Contractors Accreditation Board, which shall be governed by D.O. No. 19-93; D.O. No. 1398; and DOLEDPWH-DILG-DTI and PCAB Memo of Agreement-Joint Admin Order 12011. 3. Contracting or subcontracting arrangements in the private security industry, which are governed by D.O. No. 150-16. 4. Contracts of sale, purchase, lease, carriage, growing agreement, toll manufacturing, contract of management, operation and maintenance and other such contracts governed by the NCC and other special laws. [DOLE Dept. Circular No. 0117]

3. Kinds of Employment a. Regular An employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where: a. The employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee; or

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b. The work or service to be performed is seasonal in nature and the employment is for the duration of the season. [Art. 295] An employee who is allowed to work after a probationary period shall be considered a regular employee. [Art. 296] Regular employee defined One who is engaged to perform activities that are necessary and desirable in the usual business or trade of the employer as against those which are undertaken for a specific project or are seasonal. It is not synonymous with permanent employee, because there is no such thing as a permanent employment. Any employee may be terminated for just cause. Two kinds of regular employee 1. Those engaged to perform activities which are necessary or desirable in the usual business or trade of the employer; and 2. Casual employees who have rendered at least 1 year of service, whether continuous or broken, with respect to the activity in which they are employed. [Romares v. NLRC, G.R. No. 122327 (1998)] Reasonable connection rule The primary standard to determine regular employment is the reasonable connection between the activity performed by the employee to the business or trade of the employer. Test: W/N the employee is usually necessary or desirable in the usual business or trade of the employer. If the employee has been performing the job for at least one year, even if not continuous or merely intermittent, the repeated and continuing need for performance is sufficient evidence of necessity, if not indispensability of that activity to the business of the employer. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists. [Forever Richons

Trading Corp. v. Molina, G.R. No. 206061 (2013)] When Art. 295 not applicable It does not apply where the existence of an EER is in dispute. It is not the yardstick for determining the existence of an EER, as it merely distinguishes between two kinds of employees, i.e., regular and casual, for purposes of determining the right of an employee to certain benefits, to join or form a union, or to security of tenure. [Atok Big Wedge Co., Inc. v. Gison, G.R. No. 169510 (2011)] Hiring for an extended period Where the employment of project employees is extended long after the supposed project has been finished, the employees are removed from the scope of project employees and considered regular employees. [Audion Electric Co., Inc. v. NLRC, G.R. No. 106648 (1999)] While length of time is not a controlling test for project employment, it can be a strong factor in determining whether the employee was hired for a specific undertaking or in fact tasked to perform functions which are vital, necessary and indispensable to the usual business or trade of the employer. [Tomas Lao Const. v. NLRC, G.R. No. 116781 (1997)] Repeated renewal of contract While contractual stipulations as to the duration of employment are valid, they cannot apply where the contract-to-contract arrangement was but an artifice to prevent the acquisition of security of tenure and to frustrate constitutional decrees. [Beta Electric Corp. v. NLRC, G.R. No. 86408 (1990)] Length of time not controlling Length of time is merely a badge of regular employment. [Maraguinot v. NLRC, G.R. No. 120969 (1998)]

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b. Casual An employment shall be deemed to be casual where: a. An employee is engaged to perform a job, work or service which is merely incidental to the business of the employer, and such job, work or service is for a definite period made known to the employee at the time of engagement. [Sec. 5(b), Rule I, Book VI, IRR] b. The employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee; or c. The work or service to be performed is seasonal in nature and the employment is for the duration of the season. [Art. 295] Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. [Art. 295] Casual employee defined One engaged to perform a job, work or service that is merely incidental to the business of the employer, and such job, work or service is for a definite period made known to the employee at the time of engagement. It is also someone who is not a regular, project or seasonal employee. Requirements to become regular employee 1. One (1) year service, continuous or broken with respect to activity employed, unless he has been contracted for a specific project. [Tabas v. California Marketing Co., Inc., G.R. No. L-80680 (1989)] 2. Employment shall continue while such activity exists. Nature of work determines kind of employment What determines regularity or casualness is not the employment contract but the nature of

the job. If the job is usually necessary or desirable to the main business of the employer, then employment is regular. [A. M. Oreta and Co., Inc. v. NLRC, G.R. No. 74004 (1989)] c. Contractual See Discussion on Fixed-Term Employees Contractual employees defined Those who employment is governed by the contracts they sign every time they are hired. Their employment is terminated when the contract expires, which is usually fixed for a certain period of time (e.g., seafarers). [Unica v. Anscor Swire Ship Management Corp., G.R. No. 184318 (2014)] No implied renewal upon expiration Absent a mutually-agreed upon agreement, there is no renewal or extension of an expired contract. Termination of contract The existence of a contract does not mean there can be no illegal dismissal. Due process (substantial and procedural) must still be observed in termination and pre-termination of the contract. [Fuji Television Network Inc v. Espiritu, G.R. No. 204944-45 (2014)] d. Project Employment is not deemed regular where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee. [Art. 295] Project employee defined One who is hired for carrying out a separate job, distinct from the other undertakings of the company, the scope and duration of which has been determined and made known to the employees at the time of employment. [Hanjin Heavy Industries & Const. Co. v. Ibañez, G.R. No. 170181 (2008)]

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Rationale for project employment If a project has already been completed, it would be unjust to require the employer to maintain them in the payroll while they are doing absolutely nothing except waiting until another project is begun. In effect, these standby workers would be enjoying the status of privileged retainers, collecting payment for work not done, to be disbursed by the employer from profits not earned. [De Ocampo, Jr. v. NLRC, G.R. No. 81077 (1990)] Two kinds of project employee 1. For a particular job or undertaking that is WITHIN the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company (e.g., construction) 2. For a particular job or undertaking that is NOT within the regular business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer. [Villa v. NLRC, G.R. No. 117043 (1988)] Test of project employment W/N employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee. [D.M. Consunji v. NLRC, G.R. No. 116572 (2000)] Note: When the employment contract does not state a particular date, but it does specify that termination of employment is to be on a “day certain” -- the day when the specified phase of work would be completed --, the employee cannot be considered regular. He is a project employee. [Filipinas Pre-Fabricated Building Systems, Inc. v. Puente, G.R. No. 153832 (2005)] Indicators of project employment 1. The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable;

2. Such duration, as well as the specific work/service to be performed, is defined in an employment contract; 3. Agreement and is made clear to the employee at the time of the hiring; 4. The work/service to be performed by the employee is in connection with the particular project/undertaking for which he is engaged; 5. The employee, while not employed and awaiting engagement, is free to offer his services to any other employer; 6. The termination of his employment in the particular project/undertaking is reported to the DOLE Regional Office having jurisdiction over the workplace following the date of his separation from work, using the prescribed form on employees’ terminations /dismissals/suspensions; 7. An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies. [D.O. No. 19, Sec. 2.2; Samson v. NLRC, G.R. No. 11366 (1996)]. Repeated hiring, length of service not determinative The repeated and successive rehiring of project employees do not qualify them as regular employees. What is determinative is whether the employment has been fixed for a specific project or undertaking, its completion has been determined at the time of the engagement of the employee. [Leyte Geothermal Power Progressive Employees Union v. Philippine National Oil Company, G.R. No. 170351 (2011)] The fact that employment as project employees has gone beyond 1 year does not legally dissolve their status as project employees. LC 280(2) providing that an employee who has served at least 1 year shall be considered a regular employee, relates to casual employees, not to project employees. [Raycor Aircontrol Systems v. NLRC, G.R. No. 114290 (1996)] Generally, length of service provides a fair yardstick for determining when an employee

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initially hired on a temporary basis becomes a permanent one, entitled to the security and benefits of regularization. But this standard will not be fair, if applied to the construction industry, simply because construction firms cannot guarantee work and funding for its payrolls beyond the life of each project. [William Uy Construction Corp. v. Trinidad, G.R. No. 183250 (2010)] Work pool employee Project employees may or may not be members of a work pool. Those who are members of a work pool may either be project or regular employees. [Raycor Aircontrol Systems, Inc. vs. NLRC, G.R. 114290, (1996)] A work pool may exist although the workers in the pool do not receive salaries and are free to seek other employment during temporary breaks in the business, provided, that the worker shall be available when called to report for a project. Although primarily applicable to regular seasonal workers, this set-up can likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned. [Maraguinot v. NLRC, G.R. No. 120969. (1998)] Work pools in construction companies Members of a work pool from which a construction company draws its project employees, if considered employees of the construction company while in the work pool, are non-project employees or employees for an indefinite period. If they are employed in a particular project, the completion of the project or any phase thereof will not mean severance of the EER. [Policy Instruction No. 20; J. & DO Aguilar Corp. v. NLRC, G.R. No. 116352 (1997)] When a project employee or a member of a work pool acquires the status of regular employment 1. Continuous rehiring of project employees even after cessation of a project; 2. Task performed by the alleged “project employees” are vital, necessary and indispensable to the usual business or

trade of the employer. [Maraguinot v. NLRC, G.R. No. 120969. (1998)] Termination requirements A report of termination to the nearest public employment office every time their employment was terminated due to completion of each construction project. Failure of the employer to file termination reports after every project completion proves that the employees are not project employees. [Pasos v. Philippine National Construction Corp., G.R. No. 192394 (2013)] e. Seasonal Employment is not deemed regular where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. [Art. 295] Seasonal employees defined Those whose work or services to be performed are seasonal in nature, as there is no continuing need for the worker. Their employment is for the duration of the season. “Regular seasonal” employees after one season Seasonal workers who are constantly rehired and are only temporarily laid off during offseason are not separated from service in said period, but are merely considered on leave until work resumes. They are considered regular and permanent employees. The nature of their relationship is such that during offseason they are temporarily laid off but during summer season they are re-employed, or when their services may be needed. They are not strictly speaking separated from the service but are merely considered as on leave of absence without pay until they are re-employed. [Philippine Tobacco Flue-Curing & Redrying Corp. v. NLRC, G.R. No. 127395, (1998)] Must only be hired for the duration of one season To be considered seasonal employees, it is not enough that work or services performed are seasonal in nature. The employees must have been employed only for the duration of one

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season. [Hacienda Fatima v. National Federatiom of Sugarcane Workers, G.R. No. 149440 (2003)] Exception to one season rule (illustrative case) Although respondent constantly availed herself of the petitioners’ services from year to year, it was clear from the facts therein that they were not in her regular employ. Petitioners therein performed different phases of agricultural work in a given year. However, during that period, they were free to work for other farm owners, and in fact they did. In other words, they worked for respondent, but were nevertheless free to contract their services with other farm owners. The Court was thus emphatic when it ruled that petitioners were mere project employees, who could be hired by other farm owners. [Mercado, Sr. v. NLRC, G.R. No. 79869 (1991)] f.

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Fixed-term

Brent doctrine When the following indicators are present, fixed-term employment is valid: 1. Fixed period of employment was knowingly and voluntarily agreed upon by the parties absent any circumstance vitiating consent 2. It satisfactorily appears that the employer and employee dealt each other on more or less equal footing with no moral dominance exercised by one over the other. Reason for equal footing indicator When a prospective employee, on account of special skills or market forces, is in a position to make demands upon the prospective employer, such prospective employee needs less protection than the ordinary worker. The level of protection to labor must be determined on the basis of the nature of the work, qualifications of the employee, and other relevant circumstances. [Fuji Television Network Inc v. Espiritu, G.R. No. 204944-45 (2014)]. Distinguished from project employees Fixed-term employees are different from project employees, as the former negotiates

their employment contract on more equal footing with the employer than the latter. Furthermore, both kinds of employment happen within a period. For project employees, the determining factor is the activity (w/n project) to be performed. For fixed-term employees, the determining factor is the day certain agreed upon (i.e., the commencement and termination of the EER). [GMA Network v. Pabriga, G.R. No. 176419 (2013)] Distinguished from independent contractors No EER exists between independent contractors and their principals; their contracts are governed by the law on contracts and other applicable law. Employees under fixed-term contracts cannot be independent contractors because in fixed-term contracts, an EER exists. [Fuji Television Network, Inc. v. Espiritu, G.R. No. 204944-45 (2014)] Regular fixed-term employee Where an employee’s contract had been continuously extended or renewed to the same position, with the same duties and remained in the employ without any interruption, then such employee is a regular employee. The employee’s contract indicating a fixed-term did not automatically mean that he/she could never be a regular employee. An employee can be a regular employee with a fixed-term contract. The law does not preclude the possibility that a regular employee may opt to have a fixed-term contract for valid reasons. For as long as it was the employee who requested, or bargained, that the contract have a “definite date of termination,” or that the fixedterm contract be freely entered into by the employer and the employee, then the validity of the fixed-term contract will be upheld. [Fuji Television Network Inc v. Espiritu, G.R. No. 204944-45 (2014)]. No implied renewal upon termination When the day certain for the termination of employment comes, there is no implied renewal or extension of employment This must be expressly and mutually-agreed upon. [Unica

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v. Anscor Swire Ship Management Corp., G.R. No. 184318 (2014)] In case of pre-termination Due process must be observed in the pretermination of fixed-term contracts in order for the employer to not be liable for illegal dismissal. [Fuji Television Network Inc v. Espiritu, G.R. No. 204944-45 (2014)] g. Probationary; Private School Teachers Probationary employee defined One who is made to go on a trial period by an employer during which the employer determines whether he is qualified for permanent employment, based on reasonable standards made known to him at the time of engagement. [Robinson’s Galleria et al. v. Ranchez, G.R. No. 177937 (2011)] Rules for probationary employment 1. Shall not exceed 6 months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. [Art. 296] 2. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. [Art. 296] a. The employer shall make known to the employee the standards under which he will qualify as regular employee at the time of his engagement. b. Where no standards are made known to the employee at the time of engagement, he shall be deemed a regular employee. [Sec. 6(d), Rule I, Book VI, IRR] 3. An employee who is allowed to work after a probationary period shall be considered a regular employee. [Art. 296] Duration General Rule: Shall not exceed 6 months from the date of the commencement of employment

Exceptions: 1. When it is covered by an apprenticeship agreement stipulating a longer period. [Art. 296] 2. When the parties to the employment contract agree otherwise, such as when established by company policy or required by the nature of the work performed by the employee. [Buiser v. Leogardo, G.R. No. L63316, (1984)] 3. When it involves the 3-year probationary period of teachers. [Mercado v. AMA Computer College, G.R. No. 183572, (2010)] 4. When it involves an act of liberality on the part of his employer affording him a second chance to make good after having initially failed to prove his worth as an employee. [Mariwasa v. Leogardo, G.R. No. 74246 (1989)] Purpose of probationary employment 1. Observation Period – for the employee to demonstrate his skills to the employer who determines whether the former is qualified. 2. Restrictive - As long as termination was made before the expiration of the 6-month probationary period, the employer has a right to sever the EER. The employer has the right to choose who will be hired. It is within the exercise of this right that the employer may fix a probationary period within which he may test and observe the conduct of the employee before permanent hiring. [Grand Motor Parts Corp. v. MOLE, G.R. No. L-58958 (1984)] Requirements for validity of qualification standards In order for the standards set by the employer to be validly used in determining whether the employee qualifies for permanent employee: 1. The employer must communicate such standards to the probationary employee; and 2. Such communication must be made at the time of the probationary employee’s engagement.

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An employer is deemed to have made known the standards when it has exerted reasonable efforts to apprise the employee of what he is expected to do or accomplish during the trial period of probation. This employee must be sufficiently made aware of his probationary status as well as the length of time of the probation. The exception to the foregoing is when the job is self-descriptive in nature. [Abbott Laboratories Phil. et al. v. Alcaraz, G.R. No. 192571 (2013)] Effect of failure to comply If the employer fails to comply with the aboverequirements, the employee is deemed as a regular and not probationary employee. [Alcira v. NLRC, G.R. No. 149859, (2004)] Burden of proof of compliance with employer The employer has the burden of proving that they have informed the probationary employee of the standards, that those standards have been applied to the employee, and that the employee fell short of such standards. Prohibition on extended/double probation When the employer renews the employment contract after the lapse of the 6-month probationary period, the employees thereby became regular employees. No employer is allowed to indefinitely determine the fitness of its employees. [Bernardo v. NLRC, supra.] Furthermore, an employee who is merely transferred to his employer’s sister company cannot be subjected to new probationary employment when he had already attained regular employment under his original employer. [A Prime Security Services, Inc. v. NLRC, G.R. No. 107023, (2000)] Termination of probationary employee A probationary employee enjoys only a temporary employment status. He is terminable at any time, permanent employment not having been attained in the meantime. The employer could decide he no longer needed the probationary employee’s services or his performance fell short of expectations. As long as termination was made before the

termination of the 6-month probationary period, the employer was within his rights to sever the EER. A contrary interpretation would defect the clear meaning of the term “probationary.” [De la Cruz, Jr. v. NLRC, G.R. No. 145417 (2003)] Termination can only be for: 1. Just causes; 2. Authorized causes; or 3. Failure to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of engagement. [Robinson’s Galleria et al. v Ranchez, G.R. No. 177937, Jan. 19, (2011)] Nonetheless, procedural and substantial due process must be observed during termination of the probationary employee. Note: In order to invoke “failure to meet the probationary standards” as a justification for dismissal, the employer must show how these standards have been applied to the subject employee. [Univac Development, Inc. v. Soriano, G.R. No. 182072 (2013)] Limits to termination 1. It must be exercised in accordance with the specific requirements of the contract 2. If a particular time is prescribed, the termination must be within such time and if formal notice is required, then that form must be used 3. Employer’s dissatisfaction must be real and in good faith, not feigned so as to circumvent the contract or the law 4. There must be no unlawful discrimination in the dismissal [Manila Hotel Corporation v. NLRC, G.R. No. 53453 (1986)] Private school teachers A private school teacher’s entitlement to security of tenure is governed by the Manual of Regulations for Private Schools and not the Labor Code. Thus, for a private school teacher to acquire permanent employment (security of tenure), these must be present: 1. Must be a full-time teacher 2. Must have rendered 3 consecutive years of service

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3. Service must have been satisfactory. [La Salette of Santiago v. NLRC, G.R. No. 82918 (1991)] Mere completion of the 3-year probation, even with an above-average performance, does not guarantee that the employee will automatically acquire a permanent employment status. The probationer can only qualify upon fulfillment of the reasonable standards set for permanent employment as a member of the teaching personnel. [Herrera-Manaois v. St. Scholastica’s College, G.R. No. 18891 (2013)] These standards should be made known to the teachers on probationary status at the start of their probationary period, or at the very least under the circumstances of the present case, at the start of the semester or the trimester during which the probationary standards are to be applied. Of critical importance in invoking a failure to meet the probationary standards, is that the school should show – as a matter of due process – how these standards have been applied. [Colegio del Santisimo Rosario v. Rojo, G.R. No. 170388 (2013)]

B. TERMINATION BY EMPLOYER Coverage All establishments or undertakings, whether for profit or not. [Art. 293] Exception Government and its political subdivisions including GOCCs without original charter. [Sec. 1, Rule 1, Book VI, IRR] Security of Tenure [Art. 294] In case of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to: 1. Reinstatement without loss of seniority rights, and other privileges, 2. Full backwages inclusive of allowance, and

3. Other benefits or their monetary equivalent Reckoning period of computation: from the time his compensation was withheld up to his actual reinstatement. Rationale It is a constitutionally protected right under Sec. 3, Art. XIII, 1987 Constitution. Termination of employment is not anymore a mere cessation or severance of a contractual relationship, but an economic phenomenon affecting members of the family. Under the principle of social justice, dismissal of employees is adequately protected by the laws. [Albambra Industries v. NLRC, GR No. 106771 (1994)] Management Prerogative An employer cannot be compelled to continue in its employ a person whose continuance in the service would patently be inimical to its interests. [Baguio Central University v. Gallente, GR No, 188267 (2013)] Requisites for the valid invocation of management prerogative affecting security of tenure: 1. Exercised in good faith for the advancement of employer’s interest, and 2. Not for the purpose of defeating or circumventing the rights of the employees under special laws or valid agreements. [San Miguel Brewery Sales Force Union v. Ople, GR No. 52515 (1989)] Disposition of labor disputes Bare and vague allegations as to the manner of service and the circumstances surrounding the same would not suffice. Example: a mere copy of the notice of termination allegedly sent by the employer to the employee, without proof of receipt or at the very least, actual service is not substantial evidence. [Mansion Printing Center v. Bitara Jr., GR No. 168120 (2012)] Substantive issues must be addressed more than anything else, and so, the Court may

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forego the matter of procedural infirmities in labor cases. [Ang v. San Joaquin, Jr., GR No. 182249 (2013)] Burden of Proof In order: 1. Existence of ER-EE Relationship - borne by employee 2. Fact of dismissal - borne by employee 3. Legality of dismissal - borne by employer

While an employer enjoys a wild latitude of discretion in the promulgation of policies, rules and regulations on work-related activities, such must be fair and reasonable, and the corresponding penalties, when prescribed must be commensurate to the offense involved and to the degree of infraction. [Moreno v. San Sebastian College-Recoletos, GR No. 175283 (2008)]

1. Requisites for Validity Employee must first establish fact of dismissal Before the employer must bear the burden of proving that the dismissal was legal, the employee must prove by substantial evidence the fact of his dismissal from service for the question of the legality or illegality of the dismissal to arise. [MZR Industries v. Colambot, GR No. 179001 (2013)] Employer’s burden of proving legality of dismissal The burden of proving the termination was for a valid or authorized cause shall rest on the employer. (Art. 292 (b)) Unsubstantiated accusations or baseless conclusions of the employer are insufficient legal justifications to dismiss and employee. [Garza v. Coca-Cola Bottlers Inc, GR No. 180972 (2014)] The employer’s case succeeds or fails on the strength of its evidence, and not the weakness of that adduced by the employee in keeping with the principle that the scales of justice should be titled in favor of the latter in case of doubt in the evidence presented. [Functional Inc. v Garafil, GR No, 176377 (2011)] Measure of Penalty Not every case of insubordination or willful disobedience by an employee reasonably deserves the penalty of dismissal. The penalty must be commensurate with the gravity of the offense. [Joel Montallana v. La Consolacion College Manila, GR No. 208890 (2014)]

a. Substantive due process Substantive Due Process - whether the termination was based on the provisions of the Labor Code or in accordance with jurisprudence. The dismissal must be for any of the causes provided for in Art. 297-299. i. Just causes a. Serious Misconduct or Willful Disobedience (Insubordination) b. Gross & Habitual Neglect of Duties c. Fraud/Willful Breach of Trust d. Commission of A Crime e. Analogous cases An employer may terminate an employment for any of the following causes: a. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representatives in connection with his work; b. Gross and habitual neglect by the employee of his duties; c. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; d. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and e. Other causes analogous to the foregoing. [Art. 297]

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Basis As a measure of self-protection against acts inimical to the employer’s interest. An employer cannot be compelled to continue employing an employee guilty of acts inimical to the employer’s interest, justifying loss of confidence in him. [Yabut v. Meralco, GR No. 190436 (2012)]

disrespect and defiance, was for honest and well-intentioned reasons to protect the company from liability under the Bouncing Checks Law. It was not wrongful nor willful. Neither can it be considered an obstinate defiance of company authority. [Lores Realty Enterprises v. Paria, GR No. 171189 (2011)] (b) Gross and Habitual Neglect of Duties

(a) Serious Misconduct Disobedience

or

Willful

Requisites of Serious Misconduct 1. There must be misconduct 2. The misconduct is of such grave and aggravated character 3. It must relate to the performance of the employee’s duties 4. A showing that the employee becomes unfit to continue working for the employer. [Sec. 5.2(a), D.O. No. 147-15] Misconduct refers to the improper or wrong conduct that transgresses some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. [Northwest Airlines Inc v. Del Rosario, GR No. 157633 (2014)] Example: Accusatory and inflammatory language used by an employee to the employer or superior. [Nissan Motors Phils v. Angelo, GR No. 164181 (2011)] Requisites of Willful Disobedience 1. There must be disobedience or insubordination; 2. The disobedience or insubordination must be willful or intentional characterized by a wrongful and perverse attitude; 3. The order violated must be reasonable, lawful and made known to the employee [Mirant Philippines Corp v. Sario, GR No. 197598 (2012)]; and 4. The order must pertain to the duties which he has been engaged to discharge. [Sec. 5.2(b), D.O. No. 147-15]

Requisites 1. There must be a neglect of duty 2. The neglect must be both gross and habitual in character. Gross negligence has been defined as the want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. In order to constitute just cause for an employee’s dismissal due to negligence, it must be both gross and habitual. A single or an isolated act cannot be categorized as habitual. [National Bookstore v. CA, GR No. 146741 (2002)] Gross negligence - want of care in the performance of one’s duties Habitual neglect - repeated failure to perform one’s duties for a period of time. Estoppel by toleration of management Breach of rules and regulations which are tolerated by management cannot serve as a basis for termination. The rule only applies when the violation is not tantamount to fraud or commission of illegal activities. One cannot evade liability based on obedience to the corporate chain of command. [PNB V. Padao, GR No. 180849, 187143 (2011)] Gross negligence includes gross inefficiency Gross and habitual neglect of duty includes gross inefficiency, negligence and carelessness. [Century Iron Works, Inv. c. Banas, GR No. 184116 (2013)]

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(c) Fraud/Willful Breach of Trust Requisites of fraud or willful breach of trust: 1. There must be an act, omission or concealment; 2. The act, omission or concealment involves a breach of legal duty, trust, or confidence justly reposed; 3. It must be committed against the employer or his/her representative; and 4. It must be in connection with employee’s work. [Sec. 5.2 (d), DO No. 147-15] When dismissal is proper for fraud/willful breach of trust Such breach is willful if it is done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The act complained of must be work-related and shows that the employee is unfit to continue working. In addition, it must be premised on the fact that the employee concerned holds a position of responsibility, trust and confidence or is entrusted with confidence with respect to delicate matters such as handling or case and protection of the property and assets of the employer. [Villanueva, Jr. v. NLRC, GR No. 176893 (2012)] Requisites of loss of confidence 1. There must be an act, omission or concealment; 2. The act, omission or concealment justifies the loss of trust and confidence of the employer to the employee; 3. The employee concerned must be holding a position of trust and confidence; 4. The loss of trust and confidence should not be simulated; 5. It should not be used as a subterfuge for causes which are improper, illegal or unqualified; and 6. It must be genuine and not a mere afterthought to justify an earlier action taken in bad faith. [Sec. 5.2(e), DO No. 147-15] When dismissal is proper for loss of trust/confidence

The employee is one holding a position of trust and confidence (e.g. managerial or fiduciary employees). There must be an act that justifies the loss of trust and confidence based on a willful breach of trust and founded on clearly established facts. [Wesleyan University Philippines v. Reyes, GR No. 208321 (2014)] Moreover, the act complained must be related to the performance of the duties of the employee such as would show him to be thereby unfit to continue working for the employer. [Equitable Banking Corp. v. NLRC, GR No. 102467 (1997)] Note: DO 174-15 distinguishes fraud or willful breach of trust from loss of confidence, but, as seen in cases, jurisprudence seems to make no such distinction. Positions of trust and confidence 1. Managerial employees - vested with powers or prerogatives to lay down management policies and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions. 2. Fiduciary Rank and File - those who in the normal and routine exercise of their functions, regularly handle significant amounts of money or property. Ex. cashiers, auditors, property custodians. [Prudential Guarantee and Assurance Employee Labor Union v. NLRC, GR No. 185335 (2012)]. Managerial

Fiduciary Rankand-File

Mere existence of a basis for the belief of employee’s guilt. [Grand Asian Shipping Lines Inc.v. Galvez, GR No. 178184 (2014)

Proof of involvement in the alleged events in question required; mere uncorroborated assertions and accusations are not enough. [Etcuban, Jr. v. Sulpico Lines Inc, GR No. 148410 (2005)]

Employment for a long time is counted AGAINST the

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employer, his immediate family member, or his duly authorized representative. [Sec. 5.2(f), D.O. No. 14715]

employee. [Salvador v. Philippine Mining Service, GR No. 148766] Reason for Rule on Managerial Employees While plain accusations are not sufficient to justify the dismissal of rank and file employees, the mere existence of a basis for believing that managerial employees have breached the trust reposed on them by their employer would suffice to justify their dismissal. [Grand Asian Shipping Lines Inc.v. Galvez, GR No. 178184 (2014)]

The employer may validly dismiss for loss of trust and confidence an employee who commits an act of fraud prejudicial to the interest of the employer. Neither a criminal prosecution nor a conviction beyond reasonable doubt for the crime is a requisite for the validity of the dismissal. [Concepcion v. Mimex Import Corporation, GR No. 153569 (2012)] (e) Analogous causes

Acquittal in Criminal Case arising from Misconduct Notwithstanding acquittal in the criminal case for qualified theft, the company had adequately established the basis for the company’s loss of confidence as a just cause to terminate. As opposed to the “proof beyond reasonable doubt” standard of evidence in criminal cases, labor suits require only substantial evidence to prove the validity of the dismissal. [Paulino v. NLRC, GR No. 176184 (2012)] Betrayal by a long-time employee Length of service is not a bargaining chip that can simply be stacked against the employer. After all, an employer-employee relationship is symbiotic where both parties benefit from mutual loyalty and dedicated service, If an employer had treated his employees well, has accorded him fairness and adequate compensation as determined by law, it is only fair to expect a long-time employee to return such fairness with at least some respect and honesty. Thus, it may be said that betrayal by a long-time employee is more insulting and odious for a fair employer. [Moya v. First Solid Rubber Industries, GR No. 184011 (2013)]. (d) Commission of a Crime Requisites: 1. There must be an act or omission punishable or prohibited by law; and 2. The act or omission was committed by the employee against the person of the

Requisites 1. There must be an act or omission similar to those specified just causes; and 2. The act or omission must be voluntary and/or willful on the part of the employees. No act or omission shall be considered as analogous cause unless expressly specified in the company rules and regulations or policies. [Sec 5.2. (g), D.O. No. 147-15] Analogous means susceptible of comparison with another either in general or in some specific detail; or has a close relationship with the latter. Other causes 1. Abandonment 2. Courtesy resignation 3. Change of ownership 4. Habitual absenteeism/tardiness 5. Poor performance 6. Past offenses 7. Habitual infractions 8. Immorality 9. Totality of infractions 10. Pregnancy out of wedlock 11. Conviction/commission of a crime 12. Temporary “off-detail” or “floating status”

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Abandonment It is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty. Requisites 1. Failure to report for work or absence without valid or justifiable reason, and 2. Clear intention to sever the employeremployee relationship (more determinative factor and manifested in overt acts). The burden to prove whether the employee abandoned his work rests on the employer. [Protective Maximum Security Inc. v. Celso E. Fuentes, GR No. 169303 (2015)] Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. The employer has the burden of proof to show a deliberate and unjustified refusal of the employee to resume employment without any intention of returning. [Tan Brothers Corp v. Escudero, GR No. 188711 (2013)] Courtesy resignation Resignation per se means voluntary relinquishment of a position or office. Adding the word ‘courtesy’ did not change the essence of the resignation. [Batongbacal v. Associated Bank, GR No. 184517 (2013)] Change of ownership A mere change in the equity composition of a corporation is neither just nor an authorized cause that would legally permit the dismissal of the corporation’s employees en masse. [SME Bank Inc. v. De Guzman, GR No. 184517, 186641 (2013)] Habitual absenteeism/tardiness It is a form of neglect of duty. Lack of initiative, diligence and discipline to come to work on time everyday exhibit the employee’s deportment towards work. It is inimical to the general productivity and business of the employer. This is especially true when the tardiness and/or absenteeism occur frequently and repeatedly within an extensive period of

time. [RB Michael Press v. Galit, GR NO. 153510 (2008)] However, there are instances when absenteeism is not sufficient to justify termination. In the case of Cavite Apparel v. Michelle Marquez, GR No. 172044 (2013), the SC ruled that though Michelle was guilty of violating company rules on leaves of absences and discipline, the dismissal imposed on her was unjustified under the circumstances. Michelle had been employed with the employer for 6 years, with no derogatory record other than the four absences without official leave, not to mention she had already been penalized for the first three absences, the most serious being a six-day suspension. Poor performance It is tantamount to inefficiency and incompetence in the performance of official duties. An unsatisfactory rating can be a just cause for dismissal only if it amounts to gross and habitual neglect of duties. Poor or unsatisfactory performance of an employee does not necessarily mean he is guilty of gross and habitual neglect of duty. [Shipmanagement Inc. v. Campo-Redondo, GR No. 199931 (2015)] Past offenses Previous offenses may be used as a valid justification for dismissal only if the infractions are related to the subsequent offense upon which the basis of termination is decreed. [Century Canning Corporation v. Ramil, GR No. 171630 (2010) Habitual infractions A series of irregularities when put together may constitute serious misconduct, under which Art. 297 of the Labor Code is a just cause for dismissal. [Gustilo v. Wyeth Phil Inc., GR No. 149629 (2004)] Immorality DECS Order No. 92 provides that disgraceful or immoral conduct can be used as a basis for termination of employment. [Santos, Jr. v. NLRC, GR No. 116795 (1998)]

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The act of engaging in extramarital affairs was specifically provided for by the cooperative’s Personnel Policy as one of the grounds for termination of employment. The Board received complaints and petitions from the cooperative members for the removal of Bandiola because of his immoral conduct, hence immorality (extramarital affair) justified the termination of his employment. [Alilem Credit Cooperative v. Bandila, Jr. GR No. 173489 (2013) Standard of morality It is public and secular, not religious. Whether a conduct is considered disgraceful or immoral should be made in accordance with the prevailing norms of conduct, which as stated in Leus, refer to those conducts which are proscribed because they are detrimental to conditions upon which depend the existence of and progress of human society. The fact that a particular act does not conform to the traditional moral views of a certain sectarian institution is insufficient to qualify the act as immoral unless it likewise does not conform to the public and secular standards. More importantly, there must be substantial evidence to establish premarital sexual relations and pregnancy out of wedlock is considered disgraceful or immoral. [CapinCadiz v. Brent Hospital, GR No. 187417 (2016)]

misconduct and present behavior must be taken together in determining the proper imposable penalty. [Merin v. NLRC, GR No. 171790 (2008)] Pregnancy out of wedlock When the law speaks of immoral or necessarily, disgraceful conduct, it pertains to public and secular morality. Pre-marital sexual relations between two consenting adults, who have no impediment to marry each other, and consequently, conceiving a child out of wedlock, gauged from a purely public and secular view of morality does NOT amount to an immoral conduct. [Cheryl Leus v. St. Scholastica College Westgrove, GR No. 187226 (2015)] Conviction/commission of a crime The charge of drug abuse within the company’s premises and during work hours constitutes serious misconduct which is a just cause for termination. [Bughaw Jr. v. Treasure Island Industrial, GR No. 173151 (2008)] Temporary “off-detail” or “floating status” This is the period of time when security guards are in between assignments or when they are made to wait after being relieved from a previous post until they are transferred to a new one.

Totality of infractions The totality of infractions or the number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct and ability separate and independent of each other.

When this occurs 1. Security agency’s clients decide not to renew their contracts with the agency, resulting in a situation where the available posts under its existing contracts are less than the number of guards in its roster, 2. Contracts stipulate that the client may request the agency for replacement of guards assigned to it even for want of cause.

While it may be true that the petitioner was penalized for his previous infractions, this does not and should not mean that his employment record would be wiped clean. After all, the record of an employee is a relevant consideration in determining the penalty that should be meted out since an employee’s past

During such time, the security guard does not receive any salary or financial assistance provided by law. It does not constitute a dismissal, as the assignments primarily depend on contracts entered into between security agencies and third parties, so as long as such status does not continue beyond a

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reasonable time. When such status lasts for more than 6 months, the employee may be considered constructively dismissed. [Salvaloza v. NLRC, GR No. 182086 (2010)] Transfer/Reassignment of work Jurisprudential guidelines 1. A transfer is a movement from one position to another of equivalent rank, level or salary without break in the service or a lateral movement from one position to another of equivalent rank or salary; 2. The employer has the inherent right to transfer or reassign an employee for legitimate business purposes; 3. A transfer becomes unlawful where it is motivated by discrimination or bad faith or is effected as a form of punishment or is a demotion without sufficient cause; 4. The employer must be able to show that the transfer is not unreasonable, inconvenient or prejudicial to the employee. [Rural Bank of Cantilan Inc v. Julve, GR No. 169750 (2007)] ii. Authorized causes Also known as “Business-related Causes” The employer may also terminate the employment of any employee due to: a. The installation of labor-saving devices, b. Redundancy, c. Retrenchment to prevent losses or d. The closing or cessation of operation of the establishment or undertaking not due to serious loss [Art. 298] Other causes a. Disease incurable in 6 months [Art. 299] b. Enforcement of union security clause in the CBA c. Dismissal of union officers for the conduct of an illegal strike; Dismissal of union members for participating in the commission of illegal acts in a strike [Art. 279 (a)] d. Termination in conformity with existing statute/qualification requirements.

Payment of Separation Pay Authorized Cause Labor-saving devices Redundancy Retrenchment, closure, or suspension of operations

Separation Pay 1 month pay or at least 1 month pay for every year of service, whichever is higher [Art. 298] 1 month pay or at least ½ month pay for every year of service, whichever is higher. [Art. 298]

Note: A fraction of at least 6 months shall be considered 1 whole year. [Art. 298] Basis Employment is the lifeblood upon which the worker and his family owe their survival. [Flight Attendants and Stewards Ass’n of the Philippines v. PAL, GR. No. 178083 (2009)] Written notice For all authorized causes, a written notice served on both the employees and the DOLE at least one month prior to the intended date of termination is required. (a) Installation of labor-saving devices This refers to the installation of machinery to effect efficiency and economy in the employer’s method of production. [Edge Apparel Inc v. NLRC, GR No. 121314 (1998)] Requisites 1. There must be introduction of machinery, equipment, or other devices; 2. The introduction must be done in good faith; 3. The purpose for such introduction must be valid such as to save on cost, enhance efficiency and other justifiable economic reasons; 4. There is no other option available to employer than the introduction of machinery, equipment or device and the

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consequent termination of employment of those affected thereby; and 5. There must be fair and reasonable criteria in selecting employees to be terminated. General Rule: In cases of installation of laborsaving devices, redundancy and retrenchment, the Last-In, First-Out Rule shall apply. Exception: Employee volunteers to be separated from employment. [Sec. 5.2(a), D.O. No. 147-15] (b) Redundancy Redundancy exists when the service capability of the workforce is in excess of what is reasonably needed to meet the demands of the business enterprise. A position is redundant when it is superfluous and superfluity of a position or positions could be the result of a number of factors such the overhiring of workers, a decrease in the volume of business or dropping of a particular line or service previously manufactured or undertaken by the enterprise. [Morales v. Metrobank, GR No. 182475 (2012)] Requisites 1. There must be superfluous positions or services of employees; 2. The positions or services are in excess of what is reasonably demanded by the actual requirements of the enterprise to operate in an efficient and economical manner; 3. There must be good faith in abolishing redundant positions; 4. There must be fair and reasonable criteria in selecting the employees to be terminated; and 5. There must be adequate proof of redundancy such as but not limited to the new staffing pattern, feasibility studies/proposal, on the viability of newly created positions, job description and the approval by the management of the restructuring. [Sec. 5.4(b), D.O. No. 14715]

In implementing a redundancy program, the employer is required to adopt fair and reasonable criteria taking into consideration factors such as (a) preferred status, (b) efficiency, and (c) seniority among others. [Morales v. Metrobank, GR No. 182475 (2012)] (c) Retrenchment to prevent serious loss Requisites 1. The retrenchment is reasonably necessary and likely to prevent business losses; 2. The losses, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected are reasonably imminent as perceived objectively and in good faith by the employer; 3. The expected or actual losses must be proved by sufficient and convincing evidence; 4. The retrenchment must be in good faith for the advancement of its interest and not to defeat or circumvent the employees’ right to security of tenure; and 5. There must be fair and reasonable criteria in ascertaining who would be dismissed and would be retained among the employees such as status, efficiency, seniority, physical fitness, age and financial hardship for certain workers. [Sec. 5.4(c), D.O. No. 147-15] The employer bears the burden of proving the existence of the imminence of substantial losses with clear and satisfactory evidence that there are legitimate business reasons justifying a retrenchment. [Mount Carmel College Employees Union v. Mount Carmel College, GR No. 187621 (2014)] Two kinds of losses justifying retrenchment 1. Incurred losses - substantial, serious actual and real 2. Expected losses - reasonably imminent [Sanoh Fulton Phils v. Bernardo Tagohoy, GR No. 187214 (2013)]

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(d) Closing or cessation of business not due to serious loss Requisites 1. There must be a decision to close or cease operation of the enterprise by the management; 2. The decision was made in good faith; and 3. There is no other option available to the employer except to close or cease operations. [Sec 5.4(d), DO No. 147-15] Unless the closing is for the purpose of circumventing the provisions of this Title [Art. 298] By serving a written notice on the workers and the Ministry of Labor and Employment at least 1 month before the intended date thereof. [Art. 298] Guidelines 1. Closure or cessation of operations of establishment or undertaking may either be partial or total. 2. Closure or cessation of operations of establishment or undertaking may or may not be due to serious business losses or financial reverses. In both instances, proof must be shown that: a. It was done in good faith to advance the employer's interest and not for the purpose of defeating or circumventing the rights of employees under the law or a valid agreement; and b. A written notice on the affected employees and the DOLE is served at least 1 month before the intended date of termination of employment. 3. The employer can lawfully close shop even if not due to serious business losses or financial reverses but separation pay, which is equivalent to at least one month pay as provided for by Article 283 of the Labor Code, as amended, must be given to all the affected employees. 4. If the closure or cessation of operations of establishment or undertaking is due to serious business losses or financial reverses, the employer must prove such allegation in order to avoid the payment of

separation pay. Otherwise, the affected employees are entitled to separation pay. 5. The burden of proving compliance with all the above-stated falls upon the employer. [Manila Polo Club Employees’ Union v. Manila Polo Club, GR No. 172846 (2013)] Closure of Department The closure of a department or division of a company constitutes retrenchment by, and not closure of, the company itself. [Waterfront Cebu City Hotel v. Jimenez, GR No. 174214 (2012)] Corporate Acquisitions Asset Sales

Stock Sales Sale

Corporate entity sells all or substantially all of its assets to another entity.

The individual or corporate shareholders sell a controlling lock of stock to new or existing shareholders.

Obligations of Seller Seller in good faith is authorized to dismiss the affected employees, but is liable for the payment of separation pay.

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A shift in the composition of its shareholders will not affect its existence and continuity. Notwithstanding the stock sale, the corporation continues to be the employer of its people and continues to be liable for the payment of their wages.

Obligation of Buyer

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Asset Sales

Stock Sales

The buyer in good faith is not obliged to absorb the employees affected by the sale, nor is it liable for the payment of their claims. The most that it may do, for reasons of public policy and social justice, is to give preference to the qualified separated personnel of the selling firm.

The corporation or its new majority shareholders are not entitled to lawfully dismiss corporate employees absent a just or authorized cause. [SME Bank v. De Guzman, GR No.184517 (2013)]

LABOR LAW

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 of personnel usually due to poor financial returns so as to cut down on costs of operations in terms of wages and salaries

Service of employee is in excess of what is required by an enterprise

The reversal of the fortune of the employer whereby there is a complete cessation of business operations and/or actual locking-up of the doors of the establishment, usually due to financial losses.

To avoid or minimize business losses.

To save production costs.

To prevent further financial drain upon the employer.

1 month or ½ month pay per year of service separation pay (whichever is higher)

1 month or 1 month pay per year of service separation pay (whichever is higher)

Closure not due to serious business losses, 1 month or ½ month pay per year of service separation pay (whichever is higher).

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Retrenchment

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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 An employer may terminate the services of an employee: 1. Who has been found to be suffering from any disease; and 2. Whose continued employment is prohibited by law or is prejudicial to his health as well as the health of his co-employees. [Art. 299] Separation Pay An employee terminated on the ground of disease shall be paid separation pay equivalent to at least 1 month salary or to ½ month salary for every year of service, whichever is greater. [Art. 299] Note: A fraction of at least six (6) months being considered as one (1) whole year. Requisites 1. The employee must be suffering from a disease which cannot be cured within 6 month, even with proper medical treatment; 2. Continued employment is either: a. Prohibited by law or b. Prejudicial to his health or c. Prejudicial to the health of his coemployees; and 3. A certification to that effect issued by a competent public health authority, which must state that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months even with proper medical treatment [Sec. 8, Rule I, Book VI; Crayons Processing v. Pula, GR No. 167727 (2007), Sec. 5.2(f), D.O. 14715]

Burden of proof with employer The burden of proof falls upon the employer to establish the requisites. In the absence of such certification, the dismissal must be necessarily declared illegal. Prior certification required It is only where there is a prior certification from a competent public authority that the disease afflicting the employee sought to be dismissed is of such nature or at such stage that it cannot be cured within 6 months even with proper medical treatment that the latter could be validly terminated from his job. [Crayons Processing v. Pula, GR No. 167727 (2007)] Note: If the disease or ailment can be cured within the period of 6 months, the employer shall not terminate the employee but shall ask the employee to take a leave of absence. The employer shall reinstate such employee to his former position immediately upon the restoration of his health. [Sec. 8, Rule I, Book VI] (f) Enforcement of Union Security Clause in CBA The law authorizes the enforcement of union security clauses, provided it is not characterized by arbitrariness and always with due process. In terminating the employment of an employee by enforcing the Union Security Clause, the employer needs only to determine and prove that: 1. The union security clause is applicable 2. The union is requesting for the enforcement of the union security provision in the CBA

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3. There is sufficient evidence to support the union’s decision to expel the employee from the union or company. (g) Dismissal of Union Officers for the conduct of an illegal strike; Dismissal of union members for participating in the commission of illegal acts in a strike Any union officer who knowingly participates in an illegal strike, and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost employment status. [Art. 279 (a)] (h) Termination in Conformity with Existing Statute/ Qualification Requirements While the right of workers to security of tenure is guaranteed by the Constitution, its exercise may be reasonably regulated pursuant to the police powers of the State to safeguard health, morals, peace, education, order, safety, and the general welfare of the people. Consequently, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. [St. Luke's Medical Center Employees Assn v. NLRC, GR No. 162053 (2007)] b. Procedural due process The employer shall: 1. Furnish the worker, whose employment is sought to be terminated, a written notice containing a statement of the causes for termination; and 2. Afford the latter ample opportunity to be heard and to defend himself, with the assistance of his representative if he so desires, in accordance with company rules and regulations promulgated pursuant to guidelines set by the DOLE. [Art. 292 (b)] Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of

the National Labor Relations Commission. [Art. 292 (b)] Procedural Due Process - manner in which the dismissal was effected. 1. The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. 2. The requirement of a hearing is complied with as long as there was an opportunity to be heard, and not necessarily an actual hearing was conducted. 3. After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: a. All circumstances involving the charge against the employee have been considered, and b. The grounds have been established to justify the severance of the employment. [Inguillo v. First Phil Scales, GR No. 165407 (2019)] The employee must be afforded an opportunity to be heard and defend himself. [Fujitsu Computer Products Corporation of the Phil v. CA, GR No. 158232 (2005)] The employer may not substitute the required prior notice and opportunity to be heard with the mere payment of 30 day’s salary. [PNB V. Cabansag, GR No. 157010 (2005)] Right to Counsel The right to counsel, a very basic requirement of substantive due process, has to be observed. Indeed the rights to counsel and to due process of law are two of the fundamental rights guaranteed by the 1987 Constitution to any person under investigation, be the proceeding administrative, civil or criminal. [Salaw v. NLRC, GR No. 90786 (1991)] The procedure can be summarized as follows:

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1. Employer must furnish the employee with a written notice containing the cause for termination. 2. The employer must give the employee an opportunity to be heard. This can be done either through: a. Position paper or b. Clarificatory hearing. 3. The employee MAY also be assisted by a representative or counsel. 4. The employer must give another written notice apprising the employee of its findings and the penalty to be imposed against the employee, if any. In labor cases, these requisites meet the constitutional requirement of procedural due process, which contemplates, “notice and opportunity to be heard before judgment is rendered affecting one’s person or property”. [Montinola v. PAL, GR No. 198656 (2014)] i.

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Twin Notice Requirement

The employer has the burden of proving that a dismissed worker has been served two notices: 1. First written notice: specifying the ground(s) for termination and giving the employee the reasonable opportunity within which to explain his side. 2. Second written notice: indicating that upon due consideration of all circumstances, grounds have been established to justify his termination Reasonable opportunity for the first written notice should be construed at least 5 calendar days from receipt of the notice. Ratio: to give the employee an opportunity to study the accusation against him, consult a union official or lawyer, gather data and evidence, and decide on his defenses. [King of Kings Transport v. Mamac, GR No. 166208 (2007); Puncia v. Toyota Shaw/Pasig, GR No. 214399 (2016)] CONTENTS OF FIRST NOTICE 1. Specific causes or grounds for termination against the employee

2. Directive that the employee is given the opportunity to submit his written explanation within a “reasonable period” or every kind of assistance that management must accord to enable him to prepare adequately for his defense. This should be construed as a period of at least 5 calendar days from receipt of notice. 3. Detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. [Unilever v. Rivera, GR No. 201701 (2013)] 4. The company rules, if any, violated and/or the grounds under Art. 288 being charged against the employee. [United Tourist Promotions v. Kemplin, GR No. 205453 (2014)] CONTENTS OF SECOND NOTICE 1. All circumstances involving the charge against the employee considered 2. Grounds established to justify the severance of employment. [United Tourist Promotions v. Kemplin, GR No. 205453 (2014)] PRE-DISMISSAL NOTICE GROUNDS An employee may be dismissed only if the grounds mentioned in the pre-dismissal notice were the ones cited for termination of employment. [Erector Advertising Sign Groups v. Cloma, GR No. 167218 (2010)] ii. Hearing In employee dismissal cases, the essence of due process is simply the opportunity to be heard, it is the denial of this that constitutes a violation of due process of law. [Technol Eight Philippines Corporation v. NLRC, GR No. 187605 (2010)] While a formal hearing or conference is ideal, it is not an absolute, mandatory or exclusive avenue of due process. [Perez v. PT&T, GR No. 152048 (2009)]

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Guidelines in hearing requirements 1. “Ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the employee to: a. Answer the charges against him and b. Submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way. 2. A formal hearing or conference becomes mandatory when: a. Requested by the employee in writing, b. Substantial evidentiary disputes exist c. A company rule or practice requires it, or d. When similar circumstances warrant. 3. The “ample opportunity to be heard” standard in the Labor Code prevails over the “hearing or conference” requirement in the implementing rules and regulations. [Perez v. PT&T, supra]

Consequences for non-compliance Procedural Due Process (PDP) Just/ Authorized cause

PDP Dismissal

YES

YES

VALID

No liability. Separation pay only in authorized causes.

NO

YES

INVALID

Reinstatement or separation pay (if reinstatement is not possible) + full backwages

NO

NO

INVALID

Reinstatement or separation pay (if reinstatement is not possible) + full backwages

YES

NO

VALID

Liable for damages due to procedural infirmity (nominal damages). Separation pay if for authorized cause.

PROCEDURE FOR TERMINATION CASES Just Cause 1. First notice specifying grounds of dismissal 2. Hearing or opportunity to be heard 3. Second notice of decision to dismiss

Authorized Cause Notice to: 1. Employee and 2. DOLE At least 1 month prior to the date of termination of employment.

Guidelines 1. Notice is NOT NEEDED when employee consented to the retrenchment or voluntarily applied for one. [International Hardware Inc v. NLRC, GR No. 80770 (1989)] 2. Notice must be individual, not collective. [Shoppers Gain Supermart v. NLRC, GR No. 110731 (1996)] 3. Voluntary arbitration satisfies notice requirement for authorized causes. [Revidad v. NLRC, GR No. 11105 (1995)]

of

Employer’s liability

2. Preventive Suspension Definition Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee. [Gatbonton v. NLRC, G.R. No. 146779 (2006)]

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It is important to note that preventive suspension is not a penalty, but a part of a process to investigate a questioned action of an employee. Preventive suspension does not in itself prove that the employer already finds the employee guilty of the charges he is asked to answer and explain [Soriano v. NLRC et. al., G.R. No. 75510, (1987)]. When imposed Preventive suspension may be legally imposed on employee whose alleged violation is the subject of an investigation. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. When, however, it is determined that there is no sufficient basis to justify an employee’s preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension.” [Gatbonton v. NLRC, G.R. No. 146779 (2006)] Purpose The purpose of his suspension is to prevent him from causing harm or injury to the company as well as to his fellow employees. [Sec. 8, Rule XXIII, IRR]. Period of suspension No preventive suspension shall last longer than thirty (30) days. Upon the expiry of such period, the employer shall thereafter: 1. Reinstate the worker in his former or in a substantially equivalent position; or 2. The employer may extend the period of suspension provided that: a. During the period of extension, he pays the wages and other benefits due to the worker b. The worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker. [Sec. 9, Rule XXIII, Book V, IRR]

Note: The portion on preventive suspension under the cited Book V, Rule XXIII, Secs. 8-9 are no longer in existence. The current IRR of the Labor Code (as of 2020) has replaced Rule XXIII with “Rule XXIII Contempt” and does not contain provisions on preventive suspension. It is curious to note, however, that in a 2018 case [Consolidated Building Maintenance, Inc. v. Asprec, Jr., G.R. No. 217301, (June 6, 2018)], the Court stated that “preventive suspension shall not last for more than 30 days” HOWEVER, in stating so, the Court cited an OLD provision of the IRR of the Labor Code. In fact, it is a recurring theme in a number of more recent cases that the Court would cite old provisions of the IRR of the labor code which have long been amended or repealed. When preventive suspension is deemed dismissal When preventive suspension exceeds the maximum period allowed without reinstating the employee either by actual or payroll reinstatement or when preventive suspension is for an indefinite period, only then will constructive dismissal set in. Not entitled to pay Employee placed under preventive suspension is not entitled to the payment of wages. However, if the basis for suspension is later proven to be unfounded or invalid, the said employee is entitled to his salary during the whole period of his suspension. [Gatbonton v. NLRC, G.R. No. 146779 (2006)]

3. Illegal Dismissal a. Kinds i. No just or authorized cause For the dismissal of an employee to be valid, the dismissal must be for any of the causes provided for in Art. 297-299. An employer who dismisses an employee without just or authorized cause is liable for: 1. Reinstatement or separation pay if reinstatement is not possible; and

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2. Full backwages.

(3) The action is not motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause.

ii. Constructive dismissal Constructive dismissal is cessation of work because continued employment is either: 1. rendered impossible, unreasonable or unlikely; 2. when there is a demotion in rank or diminution in pay or both; or 3. when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee. [Dusit Hotel Nikko v. NUHWRAIN-Dusit Hotel Chapter, G.R. No. 160391 (2005)] The Test of Constructive Dismissal Whether a reasonable person in the employee’s position would have felt compelled to give up his position under the circumstances. [Tuazon v. Bank of Commerce, G.R. No. 192076 (2012)] It is an act amounting to dismissal but made to appear as if it were not. Constructive dismissal is, therefore, a dismissal in disguise. As such, the law recognizes and resolves this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer. In fact, the employee who is constructively dismissed may be allowed to keep on coming to work. [McMer Corp., Inc. v. NLRC, G.R. No. 193421 (2014)] Unlawful withholding of wages for a long time could be tantamount to an illegal constructive dismissal. [Gilles v. CA, G.R. No. 149273 (2009)] A bona fide suspension of work is allowed for as long as it does not exceed 6 months. Failure of the employer to recall the suspended employees in the 6-month period amounts to constructive dismissal. [SKM Art. Craft Corp. v. Bauca, G.R. No. 171282 (2013)] For a transfer to be a valid exercise of management prerogative: (1) There is no demotion in rank; (2) There is no diminution of salary, benefits, and other privileges;

Otherwise, the transfer could be considered as constructive dismissal. [The Philippine American Life and General Insurance Co. v. Angelita S. Gramaje, G.R. No. 156963 (2004)] Forced resignation is constructive dismissal Mere allegations of threat or force do not constitute evidence to support a finding of forced resignation. In order for intimidation to vitiate consent, the following requisites must concur: 1. that the intimidation caused the consent to be given; 2. that the threatened act be unjust or unlawful; 3. that the threat be real or serious, there being evident disproportion between the evil and the resistance which all men can offer, leading to the choice of doing the act which is forced on the person to do as the lesser evil; AND 4. that it produces a well-grounded fear from the fact that the person from whom it comes has the necessary means or ability to inflict the threatened injury to his person or property. [Mandapat v. Add Force Personnel, G.R. No. 180285 (2010)] (a) Burden of proof The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. [Art. 292 (b)] In illegal dismissal cases, the onus of proving that the employee was not dismissed or, if dismissed, that the dismissal was not illegal, rests on the employer, failure to discharge which would mean that the dismissal is not justified and, therefore, illegal. [Macasero v. Southern Industrial Gases Philippines, GR No. 198656 (2014)]

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Degree of Proof In labor cases, as in other administrative proceedings, substantial evidence is required and it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [Andrada v. Agemar Manning Agency, GR No. 194758 (2012)]

b. Constructively reinstate them in the payroll. 3. Backwages 4. Damages and Attorney’s Fees 5. Separation Pay

Substantial evidence is necessary for an employer to effectuate any dismissal. Uncorroborated assertions and accusations by the employer do not suffice; otherwise the constitutional guarantee of security of tenure of the employee would be jeopardized. [Kulas Ideas & Creations et. al. v. Alcoseba & Arao Arao, GR No. 180123 (2010)]

Reinstatement means restoration to a state or condition from which one had been removed or separated. The person reinstated assumes the position he had occupied prior to his dismissal. [Asian Terminals, Inc. v. Villanueva, G.R. No. 143219 (2006)]

(b) Liability of officers Art. 219(e) defines “employer” as including any person acting in the interest of an employer, directly or indirectly. Note that the provision does not expressly make a corporate officer personally liable for the liabilities of a corporation. However, in Lozada vs Mendoza [GR No. 196134, 12 October 2016], the Court ruled that, as a general rule, officers are not personally liable for corporate obligation, with the exception that in order to hold a director or officer personally liable occurs when the following requisites are present: 1. the complaint must allege that the director or officer assented to the patently unlawful acts of the corporation, or that the director or officer was guilty of gross negligence or bad faith; and 2. there must be proof that the director or officer acted in bad faith. (c) Reliefs from illegal dismissal The following reliefs are cumulative and not alternative: 1. Reinstatement 2. Options Given to Employers a. Actually reinstate the dismissed employees or,

(1) Reinstatement

General Rule: Reinstatement and backwages Exceptions: a. Separation pay b. Closure of business [Retuya v. Hon. Dumarpa, G.R. No. 148848 (2003)] c. Economic business conditions [Union of Supervisors v. Secretary of Labor, G.R. No. L-39889 (1981)] d. Employee’s unsuitability [Divine Word High School v. NLRC, G.R. No. 72207 (1986)] e. Employee’s retirement/ overage [New Philippine Skylanders, Inc. v. Dakila, G.R. No. 199547 (2012)] f. Antipathy and antagonism [Wensha Spa Center v. Yung, G.R. No. 185122 (2010)] g. Job with a totally different nature [DUP Sound Phils. v. CA, G.R. No. 168317 (2011)] h. Long passage of time i. Inimical to the employer's interest j. When supervening facts have transpired which make execution on that score unjust or inequitable or, to an increasing extent [Emeritus Security & Maintenance Systems, Inc. v. Dailig, G.R. No. 204761 (2014)] Prescription Period An action for reinstatement by reason of illegal dismissal is one based on an injury, which may be brought within 4 years from the time of dismissal. [Art. 1146, CC] In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect

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is concerned, shall immediately be executory, pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein. [Art. 229] (2) Options Given to Employers a. Actually reinstate the dismissed employees or, b. Constructively reinstate them in the payroll. Either way, this must be done immediately upon the filing of their appeal, without need of any executory writ. If the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of the dismissed employee during the period of appeal until reversal by the higher court. The Labor Arbiter's order of reinstatement is immediately executory and the employer has to either re-admit them to work under the same terms and conditions prevailing prior to their dismissal, or to reinstate them in the payroll, and that failing to exercise the options in the alternative, employer must pay the employee's salaries [Magana v. Medicard Philippines, Inc., G.R. No. 174833 (2010)] No refund doctrine An employee cannot be compelled to reimburse the salaries and wages he received during the pendency of his appeal, notwithstanding the reversal by the NLRC of the LA's order of reinstatement. [College of the Immaculate Conception v. NLRC, G.R. No. 167563 (2010)] Note: However, Rule XI, Sec. 14 of the 2011 NLRC Rules of Procedure provide for restitution of amounts paid pursuant to execution of awards during pendency of the appeal. However, it expressly disallows

restitution of wages paid due to reinstatement pending appeal. SEPARATION PAY REINSTATEMENT

IN

LIEU

OF

Kinds of separation pay (SP) 1. SP as a statutory requirement for authorized causes 2. SP as financial assistance found in the next section 3. SP in lieu of reinstatement where reinstatement is not feasible; and 4. SP as a benefit in the CBA or company policy Instances when the award of separation pay, in lieu of reinstatement to an illegally dismissed employee, is proper: a. When reinstatement is no longer possible, in cases where the dismissed employee's position is no longer available; b. The continued relationship between the employer and the employee is no longer viable due to the strained relations between them; and c. When the dismissed employee opted not to be reinstated, or the payment of separation benefits would be for the best interest of the parties involved. [Sec. 4(b), Rule I, Book VI, IRR] Separation Pay and Reinstatement, Exclusive Remedies The payment of separation pay and reinstatement are exclusive remedies. The payment of separation pay replaces the legal consequences of reinstatement to an employee who was illegally dismissed. [Bani Rural Bank, Inc. v. De Guzman, G.R. No. 170904 (2013)] Doctrine of Strained Relations Where reinstatement is not feasible, expedient or practical, as where reinstatement would only exacerbate the tension and strained relations between the parties or where the relationship between the employer and employee has been unduly strained by reason of their irreconcilable differences, particularly where the illegally dismissed employee held a managerial or key

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position in the company, it would be more prudent to order payment of separation pay instead of reinstatement. [Quijano v. Mercury Drug Corp., G.R. No. 126561 (1998)] Computation SP as a statutory requirement is computed by integrating the basic salary with regular allowances employee has been receiving [Planters Products, Inc. v. NLRC, G.R. No. 78524, 78739 (1989)]; allowances include transportation and emergency living allowances [Santos v. NLRC, G.R. No. 76721 (1987)] In an illegal dismissal case involving salespersons, the Court took judicial notice of the fact that the nature of the work of a salesperson and the reason for such type of remuneration for services rendered, demonstrate clearly that commissions are part of salespersons' wage or salary. If the Court adopted the opposite view that commissions do not form part of wage or salary, then, in effect, the Court will be saying that salespersons do not receive any salary and therefore, not entitled to separation pay in the event of discharge from employment. This narrow interpretation is not in accord with the liberal spirit of our labor laws and considering the purpose of separation pay which is, to alleviate the difficulties which confront a dismissed employee thrown to the streets to face the harsh necessities of life. [Songco v. NLRC, G.R. Nos. 50999-51000 (1990)] A dismissed employee who has accepted separation pay is not necessarily estopped from challenging the validity of his or her dismissal. Neither does it relieve the employer of legal obligations. [Anino v. NLRC, G.R. No. 123226 (1998)] (3) Backwages Definition Backwages are: 1. Earnings lost by a worker due to his illegal dismissal; 2. A form of relief that restores the income lost by reason of such unlawful dismissal;

3. In the nature of a command to the employer to make a public reparation for illegally dismissing an employee. a. It is not private compensation or damages; b. Nor is it a redress of a private right. [St. Theresa's School of Novaliches Foundation v. NLRC, G.R. No. 122955 (1998)] Backwages and reinstatement are two reliefs that should be given to an illegally dismissed employee. They are separate and distinct from each other. An illegally dismissed employee is entitled to (1) either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and (2) backwages. [Aurora Land Projects Corp. v. NLRC, G.R. No. 114733 (1997)] Effect of failure to order backwages A “plain error” which may be rectified, even if employee did not bring an appeal regarding the matter. [Aurora Land Projects Corp. v. NLRC, supra.] Extent of Entitlement General rule: An illegally dismissed employee is entitled to full backwages. Exceptions a. The Court awarded limited backwages where the employee was illegally dismissed but the employer was found to be in good faith. [San Miguel Corporation v. Javate, Jr., G.R. No. L-54244 (1992)] b. Delay of the EE in filing the case for illegal dismissal [Mercury Drug Co., Inc. v. CIR, supra] COMPUTATION OF BACKWAGES Full backwages means exactly that, i.e., without deducting from backwages the earnings derived elsewhere by the concerned employee during the period of his illegal dismissal. [Bustamante v. NLRC, G.R. No. 111651 (1996)] The formula of awarding reasonable net backwages without deduction or

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qualification relieves the employees from proving or disproving their earnings during their lay-off and the employers from submitting counterproofs, and obviates the twin evils of: 1. Idleness on the part of the employee who would "with folded arms, remain inactive in the expectation that a windfall would come to him" [Itogon Suyoc Mines, Inc. v. Sangilo-Itogon Workers Union, G.R. No. L24189 (1968), as cited in Diwa ng Pagkakaisa v. Filtex International Corp., G.R. No. 23960-61 (1972)]; and 2. Attrition and protracted delay in satisfying such award on the part of unscrupulous employers who have seized upon the further proceedings to determine the actual earnings of the wrongfully dismissed or laid-off employees [See La Campana Food Products, Inc. v. CIR, G.R. No. L-27907 (1969); and Kaisahan ng Mga Manggagawa v. La Campana Food Products, Inc., G.R. No. L-30798 (1970)]. The salary base properly used should be the basic salary rate at the time of dismissal plus the regular allowances; allowances include: a. Emergency cost of living allowances (ECOLA), transportation allowances, 13th month pay. [Paramount Vinyl Product Corp. v. NLRC, G.R. No. 81200 (1990)] b. Also included are vacation leaves, service incentive leaves, and sick leaves. The effects of extraordinary inflation are not to be applied without an official declaration thereof by competent authorities. [Lantion v. NLRC, G.R. No. 82028 (1990)] Note that according to Nacar v. Gallery Frames, when the judgment of the court awarding a sum of money becomes final and executory, the rate of legal interest …. shall be 6% per annum from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a forbearance of credit. [Nacar v. Gallery Frames, G.R. No. 189871, (2013)]

Indemnity of Employer Validity Docof Period trine in dismiseffect sal Prior 1989

PreWenphil

Illegal

Feb. 19891999

Wenphil

Valid

Jan. 2000 – Oct. 2004

Serrano

Ineffectual

Nov. 2004 – present

Agabon

Valid

Liability of ER Reinstatement + Backwages Dismiss now, indemnity pay later Full backwages up to reinstatement finality of decision Nominal damages

(4) Damages and Attorney’s Fees In cases of unlawful withholding of wages: the culpable party may be assessed attorney’s fees Amount: equivalent to 10% of the amount of wages recovered. It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed 10% percent of the amount of wages recovered. [Art. 111, CC] General Rule: attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered Exception: stipulation to the contrary xxx in actions for the recovery of wages of household helpers, laborers and skilled workers [Art. 2208(7), CC] The employee is entitled to moral damages when the employer acted a. in bad faith or fraud;

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b. in a manner oppressive to labor; or in a manner contrary to morals, good customs, or public policy [Montinola v. PAL, G.R. No. 198656 (2014). In labor cases, the court may award exemplary damages "if the dismissal was effected in a wanton, oppressive or malevolent manner." [Garcia v. NLRC, GR. No. 110518 (1994)] (5) Separation Pay [Arts. 289 & 290; DOLE Handbook on Worker’s Statutory Monetary Benefits (2018)] Separation pay is defined as the amount that an employee receives at the time of his severance from the service and is designed to provide the employee with the wherewithal during the period that he is looking for another employment. [A’ Prime Security Services v. NLRC, G.R. No. 107320 (1993)] COVERAGE General Rule: Cause for Termination Art. 288: Termination by Employer a. Serious misconduct or willful disobedience of lawful orders b. Gross and habitual neglect of duties c. Fraud or willful breach of trust d. Commission of a crime against employer or immediate member of his family or representative e. Analogous causes Art. 289: Installation of labor-saving

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Entitlement

devices or year of service, redundancy whichever is higher Art. 289: Retrenchment to prevent losses or Equivalent to at least closure or cessations 1 month pay or ½ of operations of month pay for every establishments or year of service*, undertaking not due whichever is higher to serious business losses or financial reverses Art. 290: Disease when continued Equivalent to at least employment is 1 month pay or ½ prohibited by law or month pay for every is prejudicial to his year of service*, health or health of whichever is higher co-employees Art. 291: Termination by employee whether None with or without just cause *A fraction of at least 6 months shall be considered 1 whole year Exceptions: Considerations of equity as in the cases of Filipro, Inc. v. NLRC [G.R. No. 70546 (1986)]; Metro Drug Corp. v. NLRC [G.R. No. 72248 (1986)]; Engineering Equipment, Inc. v. NLRC [G.R. No. L-59221 (1984)]; and San Miguel Corp v. NLRC [G.R. No. 80774 (1988)] [PLDT v. NLRC, G.R. No. 80609 (1988)]. An employee who voluntarily resigns is not entitled to separation pay unless stipulated in the employment contract, or the collective bargaining agreement, or is sanctioned by established practice or policy of the employer. [Phimco Industries v. NLRC, G.R. No. 118041 (1997); Hinatuan Mining Corp v. NLRC, G.R. No. 117394 (1997) cited in JPL Marketing Promotions v. CA, G.R. No. 151966 (2005)]

None

Equivalent to at least 1 month pay or 1 month pay for every

AMOUNT One-Half (½) Month Pay per Year of Service An employee is entitled to receive separation pay equivalent to ½ month pay for every year of service, a fraction of at least six (6) months being considered as one whole year, if his/her

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Illustrative cases In Pepsi-Cola Bottling Co. v. Martinez [G.R. No. L-5887 (1982)], where an employee won an award for his performance as top salesman of the year, the Court held that the claim for said prize unquestionably arose from an employer-employee relationship and, therefore, falls within the coverage of Art. 217 (now 224), which speaks of "all claims arising from employer-employee relations." Indeed, the employee would not have qualified for the contest, much less won the prize, if he was not an employee of the company at the time of the holding of the contest. But, in San Miguel Corp. vs. NLRC [G.R. No. 80774 (1988)], where SMC sponsored an innovation program granting cash awards to employees who would submit ideas and suggestions beneficial to the corporation, the Court ruled that such undertaking, though unilateral in origin, could nonetheless ripen into an enforceable contractual obligation on the part of SMC under certain circumstances. Thus, whether or not an enforceable contract had arisen, and if so, whether or not it had been reached, are preeminently legal questions on contracts, questions not to be resolved by referring to labor legislation. Money claims cognizable by the Labor Arbiter The Labor Arbiter shall have original and exclusive jurisdiction to hear and decide, the following cases involving all workers: 1. Those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment, if accompanied with a claim for reinstatement 2. All other claims arising from employeremployee relations, including those of persons in domestic or household service, involving an amount exceeding P5,000.00 regardless of whether accompanied with a claim for reinstatement. a. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits [Art. 224(a)(3)(6)]

A money claim arising from employeremployee relations, excepting SSS/ ECC/Medicare claims, is within the jurisdiction of a Labor Arbiter — a. if the claim, regardless of amount, is accompanied with a claim for reinstatement; or b. if the claim, whether or not accompanied with a claim for reinstatement, exceeds five thousand pesos (P5,000) per claimant. Money claims cognizable by the Secretary of Labor or its duly authorized representative The Secretary of Labor and Employment or his duly authorized representatives shall have the power to: 1. issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation 2. Issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. [Art. 128] The visitorial and enforcement powers of the DOLE Regional Director to order and enforce compliance with labor standard laws can be exercised even where the individual claim exceeds P5,000.00. [Cireneo Bowling Plaza Inc. v. Sensing, G.R. 146572 (2005)] See discussion on Part VIII. G. 1. Visitorial powers of the SOLE. Money claims cognizable by the Regional Director The Regional Director or any of the duly authorized hearing officers is empowered to hear and decide any matter involving the recovery of: 1. Wages and other monetary claims and benefits arising from employer-employee relations 2. Including legal interest Owing to an employee or person employed in domestic or household service or househelper under this Code

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Provided, That: 1. Such complaint does not include a claim for reinstatement; 2. The aggregate money claims of each employee or househelper does not exceed [Art. 129] SUMMARY OF RULES ON MONEY CLAIMS Art. 224 Art. 128 Art. 129 - RD LA SOLE Past or Past or Existing ERpresent ERpresent EREE relationEE relationEE relationship ship ship Monetary The power Monetary claims of the SOLE claims below below 5k to order and 5k without a arising from enforce claim for terms and compliance reinstateconditions of with labor ment employment, standard if it is with a laws can be claim for exercised reinstateeven where ment the individual Monetary claim claims exceeds exceeding P5,000.00 5k, whether [Cireneo or not it is Bowling with a claim Plaza, Inc. for reinstate- v. Sensing] ment, except those involving SSS, Medicare and maternity benefits

5. When Not Deemed Dismissed; Employee on Floating Status The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by

the employee of a military or civic duty shall not terminate employment. [Art. 301] During this time, employees are considered on "floating status". [Art. 301; International Hardware, Inc. vs. NLRC, G.R. No. 80770 (1989)] Floating Status in Security Agencies Temporary “off-detail” or “floating status” is the period of time when security guards are in between assignments or when they are made to wait after being relieved from a previous post until they are transferred to a new one. Dire exigency of the employer’s bona fide suspension of operation, business or undertaking takes place when: a. The security agency’s clients decide not to renew their contracts with the agency; and b. Contracts for security services stipulate that the client may request the agency for the replacement of the guards assigned to it The employer should prove that there are no posts available to which the employee temporarily out of work can be assigned. [Peak Ventures Corp v. Nestor Villareal, G.R. No. 184618 (2014)] Requirement to be Reinstated The employee on floating status must indicate his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. Thereafter, the employer shall reinstate the employee to his former position without loss of seniority rights. [Art. 301] When deemed constructive dismissal When that "floating status" of an employee lasts for more than six months, he may be considered to have been illegally dismissed from the service. Thus, he is entitled to the corresponding benefits for his separation, and this will apply to the two types of work suspension, that is, either of the entire

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business or of a specific component thereof. [Valdez v. NLRC, G.R. No. 125028 (1998)]

C. TERMINATION BY EMPLOYEE 1. With notice to the employer An employee may terminate without just cause the employer-employee relationship a. By serving a written notice on the employer at least one (1) month in advance b. The employer upon whom no such notice was served may hold the employee liable for damages [Art. 300] Notice is required when termination is without just cause. Written notice to resign must be submitted one (1) month in advance. [Art. 300]

2. Without notice to the employer An employee may put an end to the relationship without serving any notice on the employer for any of the following requirements: 1. Serious insult by the employer or his representative on the honor and person of the employee; 2. Inhuman and unbearable treatment accorded the employee by the employer or his representative; 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and 4. Other causes analogous to any of the foregoing. [Art. 300] Notice is NOT required when termination is with just cause. [Art. 300]

3. Distinguish voluntary resignation and constructive dismissal Definition of Resignation Resignation is the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the

service, such that he has no other choice but to disassociate himself from his employment. [Cervantes v. PAL Maritime Corp., G.R. No. 175209 (2013)] To constitute a resignation: 1. It must be unconditional and with the intent to operate as such; 2. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. The fact that the employee signified his desire to resume his work when he went back to AZCOR after recuperating from his illness, and actively pursued his case for illegal dismissal before the labor courts when he was refused admission by his employer, negated any intention on his part to relinquish his job at AZCOR. [Azcor Manufacturing Inc. v. NLRC, G.R. No. 117963 (1999)] Well-entrenched is the rule that resignation is inconsistent with the filing of a complaint for illegal dismissal. [Blue Angel Manpower and Security Services Inc. v Court of Appeals, G.R. No. 161196 (2008)] The rule requiring an employee to stay or complete the 30-day period prior to the effectivity of his resignation becomes discretionary on the part of management, as an employee who intends to resign may be allowed a shorter period before his resignation becomes effective. [Hechanova Bugay Vilchez Lawyers v. Matorre, G.R. No. 198261 (2013)] Requisites of a valid resignation 1. Voluntary, unconditional, and intentionally to relinquish a portion of a term of employment; 2. Accompanied by an act of relinquishment. Intent to Relinquish As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether he or she, in fact, intended to sever his or her employment. [Saudi Arabian Airlines v. Rebesencio, G.R. No. 198587 (2015)]

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Resignation is voluntary when the act of resignation and the intention to resign concur. If the resignation was done because of oppressive conditions set by the employer, such is tantamount to constructive dismissal. [Saudi Arabian Airlines v. Rebesencio, G.R. No. 198587 (2015)]

Resignation Voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service. It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. [Gan v. Galderma Philippines, Inc.]

Valid termination of employment by the employee.

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Constructive Dismissal Involuntary or forced resignation due to the harsh, hostile, and unfavorable conditions set by the employer. It is essentially quitting or cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of pay and other benefits. It exists if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. [Gan v. Galderma Philippines, Inc.] Illegal dismissal

D. RETIREMENT [Art 302, LC; RA 7641 (The Retirement Pay Law)] What is Retirement It is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter, after reaching a certain age agrees to sever his or her employment with the former. Three kinds of retirement schemes 1. Mandated by law: Compulsory and contributory in character 2. CBA and other agreements: Agreement between the employer and the employees 3. Voluntarily given by the employer: expressly as in an announced company policy or impliedly as in a failure to contest the employee's claim for retirement benefits. [Gerlach v. Reuters Limited, PH, G.R. No. 148542 (2005)] Requisites for Retroactive Application 1. The claimant for retirement benefits was still in the employ of the employer at the time the statute took effect; and 2. The claimant had complied with the requirements for eligibility for such retirement benefits under the statute. [Universal Robina Sugar Milling Corp. v. Caballeda, G.R. No. 156644 (2008)]

1. Eligibility and Coverage Who are covered All employees in the private sector, regardless of their position, designation, or status, and irrespective of the method by which their wages are paid [Sec. 1, IRR, RA 7641] Exceptions: 1. Employees covered by the Civil Service Law; 2. Employees in retail, service and agricultural establishments or operations

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regularly employing not more than ten employees [Sec. 2, IRR, RA 7641] Note: Domestic helpers and those in the personal service of others used to be exempted but such was deleted by D.O. 20 (1994).

Employee may still work after retirement Upon retirement of an employee, whether optional or compulsory, his services may be continued or extended on a case to case basis upon the agreement of the employer and employee. [Sec. 4, IRR, RA 7641]

2. Amount of Retirement Pay When the provisions of RA 7641 apply RA 7641 only applies in a situation where there is: a. No CBA or other applicable employment contract providing for retirement benefits; OR b. Retirement benefits provided by CBA or other employment contract fall below the requirements set by law. [Oxales v. Unilab, G.R. No. 152991 (2008)] Age of retirement In the absence of a retirement plan or agreement: a. Compulsory retirement: 65 years old [Sec. 4, IRR, RA 7641] b. Optional retirement: 60 years or more (but below 65) and having served the establishment for at least 5 years. [Sec. 1, IRR, RA 7641] An employer is free to impose a retirement age less than 65 for as long as it has the employees’ consent. [Jaculbe v. Silliman University, G.R. No. 156934 (2007)] For surface mine workers: a. Compulsory retirement age: 60 years old b. Optional retirement age is 50 and having served the establishment for at least 5 years. [Sec. 2, RA 10757] Forfeiture of Benefits Employees dismissed for just cause are not entitled to retirement benefits and other privileges including reinstatement and backwages. To rule otherwise would be to reward acts of willful bread of trust by employees. [Sy v. Metropolitan Bank, G.R. No 160618 (2006)]

Minimum Retirement Pay [Sec. 5, IRR, RA 7641] Minimum

Components

½ month salary for every year of service

“One-half month salary” shall include all of the following: Fifteen (15) days salary based on the latest salary rate;

NOTE: a fraction of at least 6 months shall be considered a year “one-half month salary” is equivalent to 22.5 days. [Capitol Wireless, Inc. v. Sec. Confessor, G.R. No. 117174 (1996); Reyes v. NLRC, G.R. No. 160233 (2007)]

Cash equivalent of five (5) days of service incentive leave; One-twelfth (1/12) of the 13th month pay. (1/12 x 365/12 = .083 x 30.41 = 2.52) All other benefits that the employer and employee may agree upon

Retirement pay under RA 7641 vis-à-vis retirement benefits under SSS and GSIS laws The benefits under RA 7641 are other than those granted by the SSS or the GSIS. [Secs. 1 & 2, RA 7641] Retirement Benefits under a CBA or Applicable Contract Any EE may retire or be retired by his/her ER upon reaching the age established in the CBA 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 provided further that if such retirement benefits under the agreement are less, the ER shall pay the difference. [Art. 302; Sec. 3.2, IRR]

5. Non-Taxable

Where both the ER and the EE contribute to a retirement fund pursuant to the applicable agreement, the ER’s total contributions and the accrued interest thereof should not be less than the total retirement benefits to which the EE would have been entitled had there been no such retirement benefits’ fund. If such total portion from the ER is less, the ER shall pay the deficiency. [Sec. 3.3, IRR, RA 7641]

The retirement benefits received by officials and employees of private firms in accordance with a reasonable private benefit plan maintained by the employer: a. shall be exempt from all taxes and b. shall not be liable to attachment, garnishment, levy or seizure by or under any legal or equitable process whatsoever. [Sec. 1, RA 4917]

3. Retirement Benefits for Workers Paid by Results

Exception: payment of debts The benefits may be subject of attachment, garnishment, levy or seizure to cover a debt of the official or employee concerned to the private benefit plan or that arising from liability imposed in a criminal action. [Sec. 1, RA 4917]

Basis for computation of salary for 15 days Average Daily Salary (ADS): The ADS is derived by dividing the total salary for the last 12 months reckoned from the date of retirement by the number of actual working days in that particular period, provided that the determination of rates of payment by results are in accordance with established regulations. [Sec. 5.3, IRR, RA 7641]

4. Retirement Benefit of Part-Time Workers Requisites Part-time workers are also entitled to retirement pay of “one-half month salary” for every year of service under RA 7641 after satisfying the following conditions precedent for optional retirement: a. There’s no retirement plan between the ER and the EE; and, b. The EE should have reached the age of 60 years, and should have rendered at least 5 years of service with the ER. Applying the foregoing principle, the components of retirement benefit of part-time workers may likewise be computed at least in proportion to the salary and related benefits due them. [DOLE Handbook on Workers’ Statutory Monetary Benefits, 2018 ed.]

General Rule: Exempt from all taxes, not liable to attachment

Requirements to Avail of Exemption 1. That the retiring official or employee has been in the service of the same employer for at least 10 years 2. He is not less than fifty years of age at the time of his retirement; 3. That the retirement benefits shall be availed of by an official or employee only once [Sec. 1, RA 4917] 4. The benefit plan must be approved by the BIR [Sec. 6, IRR, RA 7641] Coverage of Exemption from Income Tax Exempted from taxation are: a. The retirement benefits received under RA 7641; b. Those received by officials and employees of private firms, whether individual or corporate, in accordance with a reasonable private benefit plan maintained by the employer [Handbook on Workers’ Statutory Monetary Benefits, 2018 ed.]; c. Amount received by the official/employee or his heirs as a consequence of separation due to death, sickness, or other physical disability or for any cause beyond 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 employer for the benefit of some or all of his officials and employees, b. Wherein contributions are made by 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 diverted to, 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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employer. [Belyca Corp. v. Calleja, G.R. No. 77395 (1988) citing Rothenberg]

University v. DLSU Employees Association EA, G.R. No. 109002, (2000)]

Functions of an Appropriate Bargaining Unit 1. An ELECTORAL DISTRICT. – It marks the boundaries of those who may participate in a certification election. 2. An ECONOMIC UNIT. – They are a group of employees with community of interests. 3. A SOVEREIGN BODY. – It selects the sole and exclusive bargaining agent.

Rationale A prior agreement as to the exclusion of monthly-paid rank-and-file employees from the bargaining union of the daily-paid rank-and-file can never bind subsequent federations and unions. as employees were not privy to that agreement. And even if [they were privy, it can never bind subsequent federations and unions because it is a curtailment of the right to self­organization guaranteed by the labor laws [General Rubber & Footwear Corp. v. BLR, G.R. No. 74262 (1987)]

Role of a bargaining unit The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. [Art. 267] Right of individual or group of employees to present grievances An individual employee or group of employees shall have the right at any time to present grievances to their employer. [Art. 267] CBA Coverage It is a well-settled doctrine that the benefits of a collective bargaining agreement extend to the laborers and employees in the collective bargaining unit, including those who do not belong to the chosen bargaining labor organization. [Mactan Workers Union v. Aboitiz, G.R. No. L-30241 (1972)] Note: An employee employed, whether for a definite period is not, is an EE for purposes of joining a union [Art. 292(c)]. But, whether or not a union member, an EE part of the CBU is entitled to CBA benefits unless excluded under the CBA. Effect of Prior Agreement A prior CBA excluding a group of employees from the bargaining unit of rank-and-file employees does not bar the parties from renewing the existing CBA and proposing and discussing modifications or amendments thereto during the freedom period. [De La Salle

Corporate Entities General Rule: Two companies having separate juridical personalities shall NOT be treated as a single bargaining unit. [Diatagon Labor Federation Local v. Ople, G.R. No. L44493-94 (1980)] Exception: Pervasive Unitary Aspect of Management Doctrine The cross-linking of the agencies’ command, control, and communication systems indicate their unitary corporate personality. Accordingly, the veil of corporate fiction [...] should be lifted for the purpose of allowing the employees of the three agencies to form a single labor union. A settled formulation of the doctrine of piercing the corporate veil is that when two business enterprises are owned, conducted, and controlled by the same parties, both law and equity will, when necessary to protect the rights of third parties, disregard the legal fiction that these two entities are distinct and treat them as identical or as one and the same. [Ang Lee v. Samahang Manggagawa ng Super Lamination, G.R. No. 193816 (2016)] Determining whether or not to establish separate bargaining units The fact that the businesses are related, that some of the employees are the same persons working in the other company and the physical plants, offices and facilities are in the same compound are NOT sufficient to justify piercing the corporate veil. [Indophil Textile Mills

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Workers Union v. Calica, G.R. No. 96490 (1992)] Spun-off corporations The transformation of the companies is a management prerogative and business judgment which the courts cannot look into unless it is contrary to law, public policy or morals. [...] Considering the spin-offs, the companies would consequently have their respective and distinctive concerns in terms of the nature of work, wages, hours of work and other conditions of employment. [...] The nature of their products and scales of business may require different skills, volumes of work, and working conditions which must necessarily be commensurate by different compensation packages. [San Miguel Union v. Confesor, G.R. No. 111262 (1996)] TEST TO DETERMINE THE CONSTITUENCY OF AN APPROPRIATE BARGAINING UNIT – 4 Factors: 1. Will of the Employees (Globe Doctrine) 2. Affinity and unity of employees’ interest (Substantial Mutual Interests Rule) 3. Prior collective bargaining history 4. Employment status [Democratic Labor Association v. Cebu Stevedoring Co. Inc, G.R. No. L-10321 (1958); University of the Philippines v. Ferrer-Calleja, G.R. No. 96189 (1992)] Note: Where the employment status was not at issue but the nature of work of the employees concerned; the Court stressed the importance of the 2nd factor. [Belyca Corp. v. Calleja, G.R. No. 77395 (1988)] Other factors: 1. Geography and Location 2. Policy of avoiding fragmentation of the bargaining unit Globe Doctrine A practice designated as the “Globe doctrine,” sanctions the holding of a series of elections, not for the purpose of allowing the group receiving an overall majority of votes to represent all employees, but for the specific purpose of permitting the employees in each of

the several categories to select the group which each chooses as a bargaining unit. [Kapisanan ng mga Manggagawa sa Manila Road Co. v. Yard Crew Union, G.R. Nos. L16292-94 (1960)] Rationale: Highly skilled or specialized technical workers may choose to form their own bargaining unit because they may be in better position to bargain with the employer considering the market value of their skills. Community or Mutuality of Interests The basic test in determining the appropriate bargaining unit is that a unit, to be appropriate, must affect a grouping of employees who have substantial, mutual interests in wages, hours, working conditions, and other subjects of collective bargaining. [UP v. Ferrer-Calleja, G.R. No. 96189, (1992)] Rationale: There are greater chances of success for the collective bargaining process. The bargaining unit is designed to maintain the mutuality of interest among the employees in such unit. When the interest between groups has changed over time, there is reason to dissolve, change or expand a certain bargaining unit. Prior Collective Bargaining History The existence of a prior collective bargaining history is neither decisive nor conclusive in the determination of what constitutes an appropriate bargaining unit. [Sta. Lucia East Commercial Corporation v. SOLE, G.R. No. 162355 (2009)] Employment Status Among the factors to be considered [is the] employment status of the employees to be affected [regular, casual, seasonal, probationary, etc.], that is the positions and categories of work to which they belong [....] [Belyca Corp. v. Calleja, G.R. No. 77395 (1988)] Geography and Location Geography and location only play a significant 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 bargaining units; b. [When] the problems and interests of the workers are peculiar in each camp or department; c. The system of having one collective bargaining unit in each camp [...] [has operated satisfactorily in the past.] [Benguet Consolidated Inc. and Balatok Mining Co. v. Bobok Lumberjack Association, G.R. No. L-11029 (1958)] Policy of Avoiding Fragmentation of the Bargaining Unit It bears noting that the goal of the DOLE is [geared] towards “a single employer wide unit which is more to the broader and greater benefit of the employees working force.” The philosophy is to avoid fragmentation of the bargaining unit so as to strengthen the employees’ bargaining power with the management. To veer away from such goal would be contrary, inimical and repugnant to the objectives of a strong and dynamic unionism. [Phil. Diamond Hotel and Resort Inc v. Manila Diamond Hotel and Employees Union, G.R. No. 158075 (2006)] Confidential employees lumped with management Since the confidential employees are very few in number and are, by practice and tradition, identified with the supervisors in their role as representatives of management, such identity of interest has allowed their inclusion in the bargaining unit of supervisors-managers for purposes of collective bargaining in turn as employees in relation to the company as their employer. [Filoil Refinery Corp. v. Filoil Supervisory and Confidential Employees Union, G.R. No. L-26736 (1972)]

C. BARGAINING REPRESENTATIVE The labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. [Art. 267] Labor Management Council Any provision of law to the contrary notwithstanding, workers shall have the right: a. To participate in policy and decisionmaking processes of the establishment where they are employed insofar as said processes will directly affect their rights, benefits and welfare. b. To form labor-management councils, for this purpose [Art. 267] Selection of Representatives In organized establishments, • the workers’ representatives to the council shall be nominated by the exclusive bargaining representative. In establishments where no legitimate labor organization exists, • the workers representative shall be elected directly by the employees at large. [Sec. 2, Rule XXI, Book V, IRR] Qualification of Voters Eligible Voter Eligible voter refers to a voter belonging to the appropriate bargaining unit that is the subject of the petition for certification election [Sec. 1(q), Rule VIII, Book V, IRR] All employees who are members of the appropriate bargaining unit three (3) months 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 to employees as those employed 3 months prior to the issuance of the order/the filing of the petition for certification election

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while Rule IX, Sec. 2 reckon the period of employment from the “time of filing the petition”. This difference has not been resolved in any case before the Supreme Court. All rank and file employees in the appropriate bargaining unit, whether probationary or permanent are entitled to vote. The Code makes no distinction as to their employment status. [...] All they need to be eligible to support the petition is to belong to a bargaining unit. [Airtime Specialists, Inc. v. Ferrer-Calleja, G.R. No. 80612-16 (1990)] Rationale for Non-Distinction Policy Collective bargaining covers all aspects of the employment relation and the resultant CBA binds all employees in the bargaining unit. All rank and file employees, probationary or permanent, have a substantial interest in the selection of the bargaining representative. [Airtime Specialists, Inc. v Ferrer-Calleja, supra.] Dismissed employees [Sec. 6, Rule IX, Book V, IRR] General Rule: [Dismissed] employees [who] contested legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for conduct of a certification election

Non-participation in previous election has no effect [Failure to take part in previous elections is no bar to the right to participate in future elections.] No law, administrative rule or precedent prescribes forfeiture of the right to vote by reason of neglect to exercise the right in past certification elections. [Reyes v. Trajano, G.R. No. 84433 (1992)]

1. Determination of Representation Status Methods of Establishing Majority Status a. Sole and Exclusive Bargaining Agent (SEBA) Certification b. Consent Election c. Certification Election d. Run-Off Election e. Re-Run election Note: D.O. No. 40-I-15 replaced Voluntary Recognition with SEBA certification, as of September 7, 2015. a. SEBA Certification PROCEDURE [RULE VII, BOOK V, IRR] 1. File Request for SEBA Certification [Sec. 1] Who: Any legitimate labor organization

Exception: Dismissal was declared valid in a final judgment at the time of the conduct of the certification election. Disagreement over voters’ list over eligibility of voters All contested voters shall be allowed to vote [but] their votes shall be segregated and sealed in individual envelopes. [Sec. 6, Rule IX, Book V, IRR] Voting List and Voters The basis of determining voters may be agreed upon by the parties (i.e. the use of payroll). [Acoje Workers Union v. NAMAWU, G.R. No. L-18848 (1963)]

File where: Regional Office which issued its certificate of registration or certificate of creation of chartered local 2. Indicate in the request [Sec. 2]: a. Name and address of the requesting legitimate labor organization; b. Name and address of the company where it operates; c. Bargaining unit sought to be represented; d. Approximate number of employees in the bargaining unit; and e. Statement of the existence/nonexistence of other labor organization/CBA.

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Certificate of

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certification shall be referred to the election officer for the conduct of election pursuant to Rule IX of this rules.

Duly Certified by

Registration

President of requesting union

Creation of chartered local

President of the local federation of the local

Both certificates should be attached to the request 3. Regional Director shall act on the request [Sec. 3] When: Within one (1) day from submission of request Action: a. Determine whether request is compliant with Sec. 2 and whether the bargaining unit sought to be represented is organized or not; and b. Request a copy of the payroll If the Regional Director finds it deficient, he/she shall advise the requesting union or local to comply within ten (10) days from notice. Failure to comply within the prescribed period shall be deemed withdrawal of the request. If Unorganized Establishment [Sec. 4] a. Finding of only 1 legitimate labor organization – Regional Director shall call a conference within five (5) working days for the SUBMISSION of: 1. Names of employees in the covered bargaining unit who signify support for certification; [and these] employees comprise at least majority of the number of employees in the covered bargaining unit; and 2. Certification under oath by the president of the requesting union or local that all documents submitted are true and correct based on personal knowledge b. Failure to Complete Requirements for SEBA Certification - the request for SEBA

Note: If there is more than one Legitimate Labor Organization, Art. 269 applies If Organized Establishment [Sec. 6] If the Regional Director finds the establishment organized he/she shall refer it to the mediatorarbitrator for determination and propriety of conducting a certification election. 4. Regional Director shall submission [Sec. 4.1]

act

on

the

Incomplete The request shall be requirements referred to Election Officer for the conduct of election pursuant to Rule IX. Complete Regional Director shall requirements issue a certification as SEBA 5. Regional Director shall post the SEBA Certification [Sec. 4.1] Period: Fifteen (15) consecutive days Where: At least two (2) conspicuous places in the establishment or covered bargaining unit. EFFECT OF SEBA CERTIFICATION [Sec. 4.2] Upon the issuance of the [SEBA Certification], the certified union or local shall enjoy all the rights and privileges of an exclusive bargaining agent of all the employees in the covered bargaining unit. The certification shall bar the filing of a [PCE] by any labor organization for a period of one (1) year from the date of its issuance. Upon expiration of this one-year period, any legitimate labor organization may file a [PCE] in the same bargaining unit represented by the certified labor organization, unless a [CBA]

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between the employer and the certified labor organization was executed and registered with the Regional Office in accordance with Rule XVII. b. Consent Election Consent Election means the election voluntarily agreed upon by the parties with or without the intervention by DOLE [Sec. 1(i), Rule I, Book V, IRR] Procedure [Sec. 11, Rule VIII, Book V, IRR] 1. The parties may agree to hold a consent election a. Where no petition for certification election was filed; or b. Where a petition for certification election had been filed, and upon the intercession of Med-Arbiter [Sec. 25, Rule VIII, Book V, IRR] 2. Mediator-Arbiter shall call for the consent election, reflecting the parties’ agreement and the call in the minutes of the conference. Regional Director or authorized representative shall determine the Election Officer by raffle in the presence of representatives of the contending unions if they so desire 3. First pre-election conference is scheduled within ten (10) days from the date of the agreement. Subsequent conferences may be called to expedite and facilitate the holding of the consent election.

organization. [Reyes v. Trajano, G.R. No. 84433 (1992)] BARS TO A CERTIFICATE ELECTION Petition for certification may be filed: General Rule: Anytime Exceptions: 1. One-year bar rule 2. Negotiation bar rule 3. Deadlock bar rule 4. Contract bar rule See Grounds for denying a Petition for Certification Election (1) One-Year Bar Rule No certification election may be held within 1 year from the time a valid certification, consent or run-off election has been conducted within the bargaining unit. [If the order of the Med-Arbiter certifying the results of the election has been appealed], the running of the one-year period shall be suspended until the decision on the appeal becomes final and executory. [Sec. 3(a), Rule VIII, Book V] Note: This bar also applies to a SEBA Certification under Rule VII. “The certification shall bar the filing of a petition for certification election by any labor organization for a period 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 exclusive representative of the employees in an appropriate bargaining unit for purposes of collective bargaining or negotiation. [Sec. 1(i), Rule I, Book V, IRR] PURPOSE The purpose of a certification election is 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

No certification of election may be filed when: 1. Within 1 year after the valid certification election 2. The DULY CERTIFIED union has COMMENCED AND SUSTAINED negotiations in good faith with the employer 3. In accordance with Art. 261 of the Labor Code Sec. 3(b), Rule VIII, Book V

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(3) Deadlock Bar Rule No certification of election may be filed when: 1. The incumbent or certified bargaining agent is a party; 2. A bargaining deadlock had been: a. Submitted to conciliation or arbitration or; b. Had become the subject of a valid notice of strike or lockout [Sec. 3(c), Rule VIII, Book V, IRR] A “deadlock” is defined as the “counteraction of things producing entire stoppage; • a state of inaction or of neutralization caused by the opposition of persons or of factions (as in government or voting body): standstill.” [...] • The word is synonymous with the word impasse which [...] “presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties” [Divine World University v. SOLE, G.R. No. 91915 (1992)]

The five-year representation status acquired by an incumbent bargaining agent either through single enterprise collective bargaining or multiemployer bargaining shall not be affected by a subsequent [CBA] executed between the same bargaining agent and the employer during the same five-year period. [Sec. 7, Rule XVII, Book V, IRR] Despite an agreement for a CBA with a life of more than five years, either as an original provision or by amendment, the bargaining union’s exclusive bargaining status is effective only for five years and can be challenged within sixty (60) days prior to the expiration of the CBA’s first five years. [FVC Labor UnionPTGWO v. SANAMA-FVC-SIGLO, G.R. No. 176249 (2009)] The rule is that despite the lapse of the formal effectivity of the CBA the law still considers the same as continuing in force and effect until a new CBA shall have been validly executed. Hence, the contract bar rule still applies. [Colegio de San Juan de Letran v. Association of Employees, G.R. No. 141471 (2000)]

(4) Contract Bar Rule BLR shall not entertain any petition for certification election or any other action which may disturb the administration of DULY REGISTERED existing collective bargaining agreements affecting the parties, except under Arts. 264, 265, and 268 [(60-day freedom period)]. [Art. 238] No petition for certification election may be filed when a [CBA] between the employer and a SEBA has been registered in accordance with Art. 237. Where such [CBA] is registered, the petition may be filed only within sixty (60) days prior to its expiry. [Sec. 3(d), Rule VIII, Book V, IRR]. The Contract-Bar Rule shall apply in any of the following: (1) when there exists an unexpired 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]

Petition for cancellation of union registration DOES NOT suspend or prevent filing of certification election A petition for cancellation of union registration shall not: 1. suspend the proceedings for certification election; nor 2. prevent the filing of a petition for certification election. [Art. 246] A certification election can be conducted despite pendency of a petition to cancel the union registration certificate. For the fact is that at the time the [union], whose registration certificate is sought to be cancelled, filed its petition for certification, it still had the legal personality to perform such act absent an order directing its cancellation. [Association of Court of Appeals Employees v. Calleja, G.R. No. 94716, (1991)]

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Allegation of company union a prejudicial question to a petition for certification election A complaint for unfair labor practice may be considered a prejudicial question in a proceeding for certification election when it is charged therein that one or more labor unions participating in the election are being aided, or are controlled, by the company or employer [company union] [United CMC Textile Worker’s Union v. BLR, G.R. No. 51337(1984)]. Rationale: The certification election may lead to the selection of an employer-dominated or company union as the employees’ bargaining representative, and when the court finds that said union is employer-dominated in the unfair labor practice case, the union selected would be decertified and the whole election proceedings would be rendered useless and nugatory. [B.F. Goodrich Phils. Marikina v. B.F. Goodrich Confidential and Salaried Employees Union, G.R. No. L-34069-70 (1973)] NATURE OF PROCEEDING Certification election is the most effective and the most democratic way of determining which labor organization can truly represent the working force in the appropriate bargaining unit of a company [Samangang Manggagawa sa PERMEX v SOLE, G.R. No. 107792 (1998)]. [It] is not a ‘litigation’ [...] but a mere investigation of a non-adversary, fact-finding character. [...] The determination of the proceeding does not entail the entry of remedial orders or redress of rights, but culminates solely in an official designation of bargaining units and an affirmation of the employees’ expressed choice of bargaining agent. [Angat River Irrigation System v. Angat River Worker’s Union (PLUM), G.R. Nos. L-10943 and L-10944 (1957)] Technical rules and objections should not hamper the correct ascertainment of the labor union that has the support or confidence of the majority of the workers and is thus entitled to represent them in their dealings with

management. [Port Workers Union Laguesma, G.R. Nos. 94929-30, (1992)] Certification Election

v.

Union Election

To determine the To elect union Exclusive Bargaining officers Agent All members of the appropriate bargaining unit

Only union members may vote

WHO MAY VOTE [Sec. 6, Rule IX, Book V, IRR] All employees who are members of the appropriate bargaining unit three (3) months prior to the filing of the petition/request shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election. In case of disagreement over the voters’ list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes. WHO MAY FILE [Sec. 1, Rule VIII, Book V, IRR] 1. Legitimate labor organization [Art. 219 (h)] 2. Local/chapter that has been issued a charter certificate The chapter shall acquire legal personality only for purposes of filing a petition for certification election from the date it was issued a charter certificate. [Art. 241] 3. National union or federation that has issued a charter certificate to its local/chapter [in behalf of the latter]

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4. A group of legitimate labor unions in a private establishment organized for collective bargaining or for dealing with employers concerning terms and conditions of employment for their member unions or for participating in the formulation of social and employment policies, standards and programs, registered with the BLR in accordance with Rule III Sec. 2B. [Sec. 1 (ll), Rule I, Book V, IRR] 5. Employer (when requested to bargain collectively and no existing CBA) Requisites: a. Employer is requested to bargain collectively; AND b. No existing registered CBA in the unit [Art. 270]

The employer is not a party to a certification election, which is the sole or exclusive concern of the workers. [...]

BYSTANDER RULE In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. [Art. 271]

It is well-settled that an employer has no standing to question a certification election since this is the sole concern of the workers. The only exception to this rule is Art. 258 [now Art. 270]. [PT&T v. Laguesma, G.R. No. 101730 (1993)]

The employer’s participation shall be limited to: a. Being notified or informed of petitions of such nature b. Submitting the list of employees during the pre-election conference, should the MedArbiter act favorably on the petition [Art. 271] The principle of the employer as by-stander shall be strictly observed throughout the conduct of certification election. The employer shall not harass, intimidate, threat[en], or coerce employees before, during and after elections. [Sec. 1, Rule IX, Book V, IRR] However, manifestation of facts that would aid the [Med-Arbiter] in expeditiously resolving the petition such as existence of a contract-bar, one year bar or deadlock bar may be considered. [Sec. 1, Rule VIII, Book V, IRR]

The only instance when the employer may be involved in that process is when it is obliged to file a petition for certification election on its workers’ request to bargain collectively pursuant to Art. 258 [now Art. 270]. [Hercules Industries, Inc. v. Sec. of Labor, G.R. No. 96255 (1992)] [The employer] did not possess the legal personality to file a motion to dismiss the petition for certification election even if based on the ground that its supervisory employees are in reality managerial employees.

[A] company’s interference in the certification election below by actively opposing the same [...] unduly creates a suspicion that it intends to establish a company union. [Oriental Tin Can Labor Union v. Secretary of Labor, G.R. No. 116751 (1998)] VENUE FOR FILING PETITION File with the Regional Office which issued the petitioning union’s certificate of registration or certificate of creation of chartered local. At [petitioner’s option], [it may file] the petition and its supporting documents [...] online. [Sec. 2, Rule VIII, Book V, IRR] Where two or more petitions involving the same bargaining unit [Sec. 2, Rule VIII, Book V, IRR]: Filed in one Regional Office

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Automatically consolidated with [Med-Arbiter] who first acquired jurisdiction.

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Filed in different Regional Offices

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The Regional Office in which the petition was first filed shall exclude all others; [...] the latter shall indorse the petition to the former for consolidation.

Procedure: CERTIFICATION ELECTION IN AN UNORGANIZED ESTABLISHMENT Unorganized Establishment [It is an] establishment where there is no certified bargaining agent. [Art. 269] Procedure [Art. 269] 1. File a petition for certification election. 2. Upon filing of the petition, the Med-Arbiter shall automatically conduct a certification election. Filing of petition is by a legitimate labor organization It cannot be filed by an unregistered labor organization. Art. 251 enumerates the rights granted to a legitimate labor organization and one of those rights is the right to be chosen as the exclusive bargaining representative. This is one way the law encourages union registration. Note: Art. 269 should be related to SEBA Certification. If there are multiple LLOs in an unorganized establishment, Art. 269 applies. If there is only one LLO in an unorganized establishment, Rule VII on SEBA Certification applies. Under this rule, when there is failure to complete requirements, the Regional Director will refer it to the Election Officer. Procedure: CERTIFICATION ELECTION IN AN ORGANIZED ESTABLISHMENT Organized Establishment Refers to an enterprise where there exists a recognized or certified sole and exclusive bargaining agent. [Sec. 1(ll), Rule I, Book V, IRR] Procedure [Art. 268] 1. File a verified petition questioning the majority.

2. It must be filed within the 60-day period before expiration of CBA (freedom period). 3. Supported by written consent of at least 25% of ALL employees in the bargaining unit (substantial support). 4. Med-Arbiter shall automatically order an election. WHEN PETITION MUST BE FILED Freedom Period Within the sixty (60)-day period before the expiration of the collective bargaining agreement. [Art. 271] Note: The expiration referred to is the expiration of the 5-year period for the representation aspect. (see Art. 265) [Prof. Battad] Rationale of Prohibition of Filing Outside the Freedom Period To ensure industrial peace between the employer and its employees during the existence of the CBA. [Republic Planters Bank Union v. Laguesma, G.R. No. 119675 (1996)] SIGNING OF AUTHORIZATION IS MERELY PREPARATORY What is prohibited is the filing of the petition for certification election outside the 60-day freedom period. [...] The signing of the authorization to file was merely preparatory to the filing of the Petition for Certification Election, or an exercise of [the] right to selforganization. [PICOP Resources Inc. v. Ricardo Dequita, G.R. No. 172666 (2011)] 25% SUBSTANTIAL SUPPORT RULE In organized establishments, the incumbent sole bargaining agent should not be easily replaced for that would disturb industrial peace. To justify the disturbance, it must appear that at least a substantial number (25% requirement) seeks to have a new exclusive bargaining unit. DISCRETIONARY RULE The [Med-Arbiter], in the exercise of sound discretion, may order a certification election notwithstanding the failure to meet the [25%] requirement [in petitions for certification

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election in an organized establishment]. [Scout Albano Memorial College v. Noriel, G.R. No. L48347 (1978)]

Unorganized establishment: any time prior to the decision of the Med-Arbiter [Sec. 9, Rule VIII, Book V, IRR]

INAPPLICABLE TO MOTIONS FOR INTERVENTION [The] requisite written consent of at least 20% (now 25%) of the workers in the bargaining unit applies to certification election only, and not to motions for intervention. Nowhere in the legal provisions [and in the Omnibus Rules] does it appear that a motion for intervention in a certification election must be accompanied by a similar written consent. [PAFLU v. Calleja, G.R. No. 79347 (1989)]

EFFECT OF WITHDRAWAL OF SIGNATURES The employees’ withdrawal from a labor union made 1. Before the filing of the petition for certification election is presumed voluntary 2. After the filing of such petition is considered to be involuntary and does not affect the [petition]. [S.S. Ventures International v. S.S. Ventures Labor Union, G.R. No. 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 bargaining agent

Existing

None

Petition filed

Must be VERIFIED

No need to be verified

Freedom period

No petition for certification election EXCEPT within 60 days before the expiration of the collective bargaining agreement (See Arts. 264 and 265)

Not applicable (i.e. no freedom period; petition can be filed anytime)

Rationale: To keep industrial peace in organized establishments Substantial support rule

Must be duly supported by 25% of ALL THE MEMBERS OF THE APPROPRIATE BARGAINING UNIT Rationale: Law wants to know the intention of the employees – if they really want a certification election, since they already have a bargaining agent

NO substantial support rule Rationale: Intention of law is to bring in the union, to implement policy behind Art. 218A.

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. — Within twenty-four (24) hours from receipt of the notice of entry of final judgment granting the conduct of a certification election, the Regional Director shall cause the raffle of the case to an Election Officer who

The contending unions may agree to the holding of an election, in which case it shall be called a consent election. The mediatorarbiter shall forthwith call for the consent election, reflecting the parties' agreement and the call in

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shall have control of the preelection conference and election proceedings. (1a)

the minutes of the conference. The mediator-arbiter shall immediately 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

d. Run-Off Election Run-Off Election refers to an election between the labor unions receiving the two (2) highest number of votes in a certification or consent election when the following requisites have been complied with: 1. Valid election; 2. The certification or consent election provides for three (3) or more choices (Note: “No Union” is considered one choice – Prof. Battad); 3. None of the contending UNIONS received a majority of the VALID VOTES cast; 4. No objections or challenges which if sustained, can materially alter the results; and 5. The total number of votes for all contending UNIONS is at least fifty (50%) of the number of VOTES cast [Art. 268; Sec. 1(uu), Rule I, Book V, IRR; Sec. 1, Rule X, Book V, IRR] Illustration The CBU has 100 members and 80 of which voted. Union “A”= 30; Union “B”= 15; Union “C”=15 and No Union= 20. There were no invalid votes. Since none got the majority of the 80 valid votes (40) and the contending unions obtained 60 votes (which is at least 50% of the VOTES cast), a run-off election is proper. The

Voluntarily agreed upon by the parties, with or without the intervention of DOLE run-off will be between the labor unions receiving “the two highest number of votes.” Pursuant to Art. 268, when an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes. Thus, the run-off will be among Union “A”, “B”, and “C.” [Azucena] Procedure for Run-Off Election Election Officer shall motu proprio conduct a run-off election within ten (10) days from the close of the election proceedings between the labor unions receiving the two highest number of votes. “No Union” shall not be a choice in the run-off election [Sec. 1, Rule X, Book V, IRR]. Same voters’ list used in the certification election shall be used in the run-off election. The labor union receiving the GREATER number of VALID VOTES cast shall be certified as the winner [Sec. 2, Rule X, Book V, IRR]. Note: Please note the difference between valid votes cast versus votes cast – valid votes excludes spoiled votes.

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e. Re-Run Election Re-run Election refers to an election conducted to break a tie between contending unions, including between "no union" and one of the unions. It shall likewise refer to an election conducted after a failure of election has been declared by the election officer and/or affirmed by the mediator-arbiter. [Sec. 1(tt), Rule 1, Book V, as amended by DO 40-I15] Situations Contemplated 1. A tie between two (2) choices. 2. Failure of Elections [see Definition] Duty of Election Officer 1. Notify parties of a re-run election 2. Cause posting of notice within five (5) days from said election. When will re-run be conducted Within ten (10) days after the posting of the notice of the union declared as winner and certified choice receiving the HIGHEST VOTES CAST.

The Regional Director or his/her duly authorized representative shall immediately assign it by raffle to a [Med-Arbiter]. The raffle shall be done in the presence of the petitioner if the latter so desires. [Sec. 5, Rule VIII, Book V, IRR] (2) Preliminary Conference Med-Arbiter shall conduct a preliminary conference and hearing within ten (10) days from receipt of the petition to determine the following: 1. The bargaining unit to be represented; 2. Contending labor unions 3. Possibility of a consent election 4. Existence of any of the bars to certification election under Sec. 3[, Rule VIII]; and 5. Such other matters as may be relevant for the final disposition of the case [Sec. 10, Rule VIII, Book V, IRR] Note: If contending unions agree to holding of an election, [...] it shall be called a consent election. [Sec. 11, Rule VIII, Book V, IRR] (3) Med-Arbiter to Conduct Hearings

PROCEDURE AFTER FILING PETITION FOR CERTIFICATION ELECTION 1. Raffling of case to Med-Arbiter 2. Preliminary Conference and hearing 3. Conduct of hearings 4. Determine if petition should be dismissed on grounds stated in Sec. 15 5. Order/Decision on the petition 6. Appealing the order/decision on the petition 7. Raffling of the case to an Election Officer 8. Pre-Election Conference 9. Conduct of election 10. Challenging of votes and on the spot questions 11. Protesting 12. Canvassing of votes 13. Nullification of Election Results 14. Proclamation and Certification of the result of the election 15. Appeal from Certification Election Order

If contending unions fail to agree to a consent election during the preliminary conference • the Med-Arbiter may conduct as many hearings as he/she may deem necessary ○ but in no case shall the conduct thereof exceed fifteen (15) days from date of scheduled preliminary conference/ hearing, after which the petition shall be considered submitted for decision. [...] Within the same 15-day period [...], the contending labor unions may file such pleadings as they may deem necessary for the immediate resolution of the petition. Extensions of time shall not be entertained. [Sec. 12, Rule VIII, Book V, IRR]

(1) Raffling of Case to Med-Arbiter

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(4) Determine if Petition should be dismissed based on Grounds Stated in Sec. 15 The grounds to dismiss the petition are: 1. Petitioning union or national union/ federation is: a. Not listed in DOLE’s registry of legitimate labor unions; or b. Registration certificate has been cancelled with finality 2. Failure of a local/chapter or national union/federation to submit a duly issued charter certificate upon filing of the petition for certification election 3. Contract Bar rule 4. One-Year Bar rule 5. Negotiation and Deadlock Bar Rule 6. In an organized establishment, the failure to submit the 25% signature requirement to support the filing of the petition. 7. Non-appearance of the petitioner for two (2) consecutive scheduled conferences before the [Med-Arbiter] despite due notice; and 8. Absence of employer-employee relationship between all the members of the petitioning unit and the establishment where the proposed bargaining unit is sought to be represented. Note: See Bars to Certification Election under “c. Certification Election” Commingling is not a ground The inclusion as union members of employees outside the bargaining unit [is] not a ground for cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership. [Sec. 16, Rule VIII, Book V, IRR] Posting of notice of Petition for Certificate Election The Regional Director or his/her authorized DOLE personnel, and/or the petitioner shall be responsible for the posting of the notice of petition for certification election. [Sec. 7, Rule VIII, Book V, IRR]

(5) Order or Decision on the Petition [Med-Arbiter] shall issue a ruling granting or denying the petition When: General rule: Within ten (10) days from last hearing Exception: In organized establishments, grant of the petition can only be made after the lapse of the freedom period [Sec. 14, Rule VIII, Book V, IRR] How: 1. Personally to the parties 2. Copy furnished to the employer [Sec. 18, Rule VIII, Book V, IRR] The ruling for the conduct of a certification election shall state the following: 1. Name of the employer or establishment; 2. Description of the bargaining unit; 3. Statement that none of the grounds for dismissal [...] in Sec. 14 exists; 4. Names of the contending labor unions [...] in the following order: a. Petitioner unions in the order of the date of filing of their respective petitions b. The forced intervenor c. “No union” 5. [If] the local/chapter is one the contending unions, a directive to an unregistered local/chapter or a federation/national union representing all unregistered local/chapter to personally submit to the Election Officer its certificate of creation at least five (5) working days before the actual conduct of the certification election. [This is to afford an individual employee-voter an informed choice.] 6. Non-submission of this requirement as certified by Election Officer shall disqualify the local/ chapter from participating in the certification election 7. Directive to the employer and the contending unions to submit within ten (10) 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 bargaining unit for the last three (3) months prior to the issuance of the order

Decision of the Secretary Period to decide: Fifteen (15) days from receipt of entire records of the petition to decide the appeal.

(6) Appealing the Order Granting or Denying the Conduct of Certification Election [Sec. 19-20, RULE VIII, BOOK V, IRR]

Secretary’s decision shall be final and executory within ten (10) days from receipt by parties. [Sec. 23, Rule VIII, Book V, IRR]

Form of appeal 1. Verified under oath 2. Consists of a memorandum of appeal specifically stating the grounds relied upon by appellant with the supporting arguments and evidence

Organized

Dismissed or denied Granted

Unorganized

Dismissed or denied Granted

Note: No motion for reconsideration of decision shall be entertained. [Sec. 23, Rule VIII, Book V, IRR] Implementation of decision General Rule: Shall not be stayed Exception: Restrained by appropriate court [Sec. 24, Rule VIII, Book V, IRR] (7) Raffling of the Case to an Election Officer

Appeal to Office of Secretary

Unappealable

When: Within ten (10) days from receipt of the order [of the Med-Arbiter]. Where: Regional Office where the petition originated Effect of Filing Memorandum of Appeal Stays the holding of any certification election. [Sec. 23, Rule VIII, Book V, IRR] Reply to Appeal Reply by any party to the petition shall be filed within ten (10) days from receipt of the memorandum of appeal […] and filed directly with the office of the Secretary. [Sec. 22, Rule VIII, Book V, IRR] When no appeal is filed The decision shall be final and executory if no appeal is filed within the ten (10) day period. [Sec. 21, Rule VIII, Book V, IRR]

Regional Director shall cause the raffle of the case to an Election Officer who shall have control of: 1. Pre-election conference; and 2. Election proceedings When: Within twenty-four (24) hours from receipt of notice of entry of final judgment granting the conduct of a certification election [Sec. 2, Rule IX, Book V, IRR] (8) Pre-Election Conference Notice of Pre-Election Conference [Sec. 3, Rule IX, Book V, IRR] The Election Officer shall cause the issuance of notice of pre-election conference upon the contending unions When: Within twenty-four (24) hours from the [Election Officer’s] receipt of assignment for the conduct of a certification election Schedule of pre-election conference When: Within ten (10) days from receipt of the assignment 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 V, IRR] 1. Certified list of employees in the bargaining unit; or where necessary, 2. Payrolls covering the members of the bargaining unit at the time of the filing of petition Failure of party to appear during preelection conference despite notice [Sec. 4, Rule IX, Book V, IRR] This shall be considered a waiver of right to: 1. To be present; and 2. To question or object to any of the agreements reached in the pre-election conference Shall NOT deprive the non-appearing party of the right to: 1. Be furnished notices; and 2. To attend subsequent pre-election conferences Minutes of pre-election conference [Sec. 5, Rule IX, Book V, IRR] Election Officer shall keep the minutes of matters raised and agreed upon. Parties shall acknowledge the completeness and correctness of entries in the minutes by affixing their signatures. When parties refuse to sign the minutes, the Election Officer shall note such fact in the minutes, including the reason for refusal to sign the same. In all cases, parties shall be furnished a copy of the minutes.

1. 2. 3. 4.

Date and time of the election; Names of all contending unions; Description of the bargaining unit; List of eligible and challenged voters.

Posting of the list of employees comprising the bargaining unit shall be done by the DOLE personnel. What cannot be waived by contending unions or employer: 1. Posting of the notice of election 2. Information required to be included therein 3. Duration of the posting The parties agreed to conduct the election on [...] a regular business day but a strike was held on that day. The alleged strike and/or picketing of some employees at the company’s premises which coincided with the actual conduct of certification election might, perhaps have affected the actual performance of works by some employees but did not necessarily make said date an irregular business day of the company. [Asian Design and Manufacturing Corp. v. Ferrer-Calleja, G.R. No. L-77415 (1989)] (9) Conduct of Election Inspection to ensure secrecy and sanctity of ballot [Sec. 8, Rule IX, Book V, IRR] By whom: 1. Election Officer, together with 2. Contending unions’ authorized representative; and 3. Employer When: Before start of actual voting

Posting of Notices [Sec. 7, Rule IX, Book V, IRR] Who: Election Officer and/or authorized DOLE personnel shall cause the posting What: Notice of election Where: 2 most conspicuous places in the company premises When: At least ten (10) days before the actual [election date] Contents of Notice [Sec. 7, Rule IX, Book V, IRR]

Shall inspect: 1. Polling place; 2. Ballot boxes; and 3. Polling booths Prohibition on certain devices General Rule: No device that could record or identify the voter or otherwise undermine the secrecy and sanctity of the ballot shall be allowed within the premises

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Exception: Devices brought in by the Election Officer

2. Have custody of all envelopes containing the challenged votes

Consequence: Any other device found within the premises shall be confiscated by the Election Officer and returned to its owner after conduct of the certification election.

Opening of envelopes and question of eligibility Shall be passed upon by the Med-Arbiter only if the number of segregated votes will materially alter the results of the election.

Spoiled Ballots A ballot that is torn, defaced, or contains marking which can lead another to clearly identify the voter who casts such vote [Sec. 1(ww), Rule I, Book V, IRR] If the voter inadvertently spoils a ballot, he shall return it to the Election Officer who shall destroy it and give him/her another ballot. [Sec. 10, Rule IX, Book V, IRR] Member unintentionally omitted in the master list of voters may either be: 1. May be allowed to vote if both parties agree; [OR] 2. Allowed to vote but the ballot is segregated

On-the-spot Questions What the Election Officer shall rule on: Any question relating to and raised during the conduct of election What the Election Officer SHALL NOT rule on: Question of eligibility which shall be decided by the Mediator-Arbiter Failure of representative/s of the contending unions to appear [Sec. 15, Rule IX, Book V, IRR] Considered a waiver of the right to be present and to question the conduct thereof (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, IRR] Ballot of the voter who has been properly challenged during the pre-election conferences shall be: 1. Placed in an envelope sealed by Election Officer in the presence of: a. the voter; and b. representatives of the contending unions. 2. Election Officer shall indicate on the envelope the: a. Voter’s name; b. Union challenging the voter; and c. Ground for the challenge 3. Sealed envelope shall be signed by: a. Election Officer; and b. Representatives of the contending unions Election Officer shall: 1. Note all challenges in the minutes of the election proceedings; and

Who may file: Any party-in-interest Ground: On the conduct or mechanics of the election When Protest is Perfected: 1. [Record the protest] in the minutes of the election proceedings; AND 2. Formalize [the] protest with the MedArbiter, with specific grounds, arguments and evidence within five (5) days after the close of the election proceedings Protests deemed dropped Protests [which are]: 1. Not recorded in the minutes; AND 2. Formalized within the prescribed period General reservation to file protest prohibited Protesting party shall specify the grounds for protest.

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Failure to formalize within 5-days cannot be taken against the union [The petitioner union misrepresented that they were independent which caused the members to disaffiliate and form a new union and their protest was not filed within the 5-day period. The] failure to follow strictly the procedural technicalities regarding the period for filing their protest should not be taken against them. Mere technicalities should not be allowed to prevail over the welfare of the workers. What is essential is that they be accorded an opportunity to determine freely and intelligently which labor organization shall act on their behalf. [DHL-URFA-FFW v. BMP, G.R. No. 152094 (2004)] Note: "Election Proceedings" refer to the period during a certification election, consent or runoff election and election of union officers, starting from the opening to the closing of the polls, including the counting, tabulation and consolidation of votes, but excluding the period for the final determination of the challenged votes and the canvass thereof. [Book V, Rule 1, Sec. 1 (q)] Included: 1. Starting from the opening to the closing of the polls 2. Counting, tabulation and consolidation of votes

Procedure [Sec. 14, Rule IX, Book V, IRR] 1. Election Officer shall count and tabulate the votes in the presence of the representatives of the contending unions. 2. Upon completion of canvass, the Election Officer shall give each representative a copy of the minutes of the election proceedings and results of the election. 3. Ballots and tally sheets shall be sealed in an envelope and signed by the Election Officer and the representatives of the contending unions and transmitted to the Med-Arbiter together with the minutes and results of the election within twenty-four (24) hours from the completion of the canvass. Election conducted in more than one region Consolidation of results shall be made within fifteen (15) days from the conduct thereof. Double Majority Rule It is well-settled that under the so-called "double majority rule,” for there to be a valid certification election, majority of the bargaining unit must have voted AND the winning union must have garnered majority of the valid votes cast. [NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary of Labor and Employment, G.R. No. 181531 (2009)] Requisites: 1. There must be a valid certification or consent election

Excluded: 1. Period for the final determination of the challenged votes 2. Canvass of the challenged votes [Sec. 1(q), Rule I, Book V, IRR] (12) Canvassing of Votes [Sec. 15, Rule IX, Book V, IRR] Election precincts shall open and close on the date and time agreed upon during the preelection conference. The opening and canvass of votes shall proceed immediately after the precincts have closed.

Valid Election: At least majority of the number of eligible voters have cast their votes (VOTES CAST) [Sec. 17, Rule IX, Book V, IRR] 2. The winning union must garner majority of the VALID VOTES CAST [Sec. 16, Rule IX, Book V, IRR] Winning union certified as SEBA if there is no protest [Sec. 16, Rule IX, Book V, IRR] The [winning union] shall be certified as the [SEBA] in the appropriate bargaining unit within five (5) days from date of election, provided no protest is recorded in the minutes of the election.

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When winning choice is local chapter without certificate of creation of chartered local It must submit its DOLE issued certificate of creation within five (5) days from the conclusion of election Note: Please note that valid votes differ from mere votes as the former excludes spoiled ballots. Abstention: refers to a blank or unfilled ballot validly cast by an eligible voter. It is not considered as a negative vote. However, it shall be considered a valid vote for purposes of determining a valid election. [Sec. 1(a), Rule I, Book V, IRR] Spoiled Ballot: Refers to a ballot that is torn, defaced, or contains markings which can lead another to clearly identify the voter who casts such vote. [Sec. 1(ww), Rule I, Book V, IRR] (13) Failure of Election [Sec. 17, Rule IX, Book V, IRR] The Election Officer shall declare a failure of election in the minutes of the election proceedings when: 1. Number of VOTES CAST is less than the majority of the number of eligible voters; AND 2. There are no material challenged votes Effect of Failure of Election [Sec. 19, Rule IX, Book V, IRR] Shall not bar the filing of a motion for the immediate holding of a certification or consent election within six (6) months from date of declaration of failure of election. Note: Under Sec. 1(tt), Rule I, Book V, a RERUN ELECTION “shall likewise refer to an election conducted after a failure of election has been declared by the Election Officer and/or affirmed by the [Med-Arbiter].” Thus, under the Rules, this is the other definition of a Re-Run Election.

Motion for another election after failure of election [Sec. 20, Rule IX, Book V, IRR] Within twenty-four (24) hours from receipt of the motion, the Election Officer shall: 1. Immediately schedule another election within fifteen (15) days from receipt of motion 2. Cause posting of the notice of election a. At least ten (10) days prior to the scheduled date of election b. In two (2) most conspicuous places in the establishment Same guidelines and list of voters shall be used. Nullification of Election Results It is precisely because respect must be accorded to the will of labor thus ascertained that a general allegation of duress is not sufficient to invalidate a certification election; it must be shown by competent and credible proof. [United Employees Union of Gelmart Industries Philippines (UEUGIP) v. Noriel, No. L-40810 (1975)] (14) Proclamation and Certification of the result of the election Certification of the Collective Bargaining Agent [Sec. 21, Rule IX, Book V, IRR] Within 24 hours from final canvass of votes, there being a VALID election, the Election Officer shall transmit the records of the case to the Med-Arbiter. Within the same period from receipt of the minutes and results of election, [the MedArbiter] shall issue an order proclaiming the results of the election and certifying the union as the [SEBA] under any of the following conditions: 1. No protests were filed, or even if one was filed, [it] was not perfected within the fiveday period 2. No challenge or eligibility issue was raised, or even if one was raised, [its] resolution will not materially change the results of the elections.

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Winning union shall have the rights, privileges, and obligations of a duly certified collective bargaining agent from the time the certification is issued. Majority of valid votes cast results in “No Union” obtaining majority Med-Arbiter shall declare such fact in the order (15) Appeal from Certification Orders [Art. 272]

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Election

Who appeals: Any party to an election What is appealed: Order or results of the election Appeal to: Directly to SOLE Ground: Rules and regulations established by the SOLE for the conduct of the election have been violated.

The Bureau of Labor Relations has jurisdiction to hear, decide and to mete out punishment any violation under Art. 250 upon report of at least 30% of the union membership OR members specially concerned to the Bureau. Note: Secretary of Labor or his duly authorized representative may inquire into financial activities of legitimate labor orgs a. UPON filing of complaint under oath and supported by written consent of at least 20% of total membership, b. Provided, such inquiry shall not be conducted during (60)-day freedom period nor within the thirty (30) days immediately preceding the date of election of union officials. [Art. 289]

1. Check off, Assessment, Agency Fees

ASSESSMENT Special assessments are payments for a special purpose, especially if required only for a limited time. [Azucena] No special assessment or other extraordinary fees may be levied upon the members of a labor organization • unless authorized by a written resolution of a majority of all the members at a general membership meeting duly called for the purpose. [Art. 250 (n)]

CHECK-OFF A check-off is a process or device whereby the employer, on agreement with the Union, recognized as the proper bargaining representative, or on prior authorization from the employees, deducts union dues or agency fees from the latter’s wages and remits them directly to the Union. [Marino v. Gamilla, G.R. No. 149763 (2009)]

Other than for mandatory activities under the Code, the following may not be checked off from any amount due to an employee without an individual written authorization duly signed by the employee: a. special assessments b. attorney’s fees c. negotiation fees d. or any other extraordinary fees

The system of check-off is primarily for the benefit of the Union and, only indirectly, for the benefit of the individual employees. [Marino v. v Gamilla, G.R. No. 149763 (2009)]

The authorization should specifically state the amount, purpose and beneficiary of the deduction. [Art. 250 (o)]

Note: For a check-off to be valid, it must comply with the requirements of a valid special assessment.

Requisites for a Valid Special Assessment 1. Authorization by a written resolution of the majority of ALL the members at the general membership meeting called for the purpose;

D. RIGHTS OF LABOR ORGANIZATIONS

Jurisdiction over Check-off Disputes

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2. Secretary’s record of the minutes of the meeting; AND 3. Individual written authorization for check off duly signed by the employees concerned which indicates the: a. Amount b. Purpose c. Beneficiary of deduction [Gabriel v. SOLE, G.R. No. 115949 (2000)]

The legal basis of the union’s right to agency fees is neither contractual nor statutory but quasi-contractual, deriving from the established principle that non-union employees may not unjustly enrich themselves by benefiting from employment conditions negotiated by the bargaining union. [Holy Cross of Davao College, Inc v. Hon. Joaquin, G.R. No. 110007 (1996)]

Strict compliance for special assessment There must be strict and full compliance with the requisites. Substantial compliance is not enough. [Palacol v. Ferrer-Calleja, G.R. No. 85333 (1990)]

When Agency Fee Assessed If such non-union member accepts the benefits under the collective bargaining agreement. [Art. 259(e)]

AGENCY FEES Art. 259 (e) [2nd sentence to last sentence] Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment EXCEPTION: Those employees who are already members of another union at the time of the signing of the collective bargaining agreement Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee • Amount of reasonable fee: equivalent to the dues and other fees paid by members of the recognized collective bargaining agent • Condition for assessment: If such nonunion members accept the benefits under the collective bargaining agreement: o Provided, That the individual authorization required under Article 242, paragraph (o) shall not apply to the non-members of the recognized collective bargaining agent; An amount, equivalent to union dues, which a non-union member pays to the union because he benefits from the CBA negotiated by the union. [Azucena] Rationale for Allowing Agency Fees

Measure of Fee A reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent. [Art. 259(e)] Requirements: 1. Non-member of SEBA 2. Member of Collective Bargaining Unit 3. Reasonable fee equivalent to the dues and other fees paid by members 4. Acceptance of CBA benefits UNION DUES Union dues are payments to meet the union’s general and current obligations. The payment must be regular, periodic, and uniform. [Azucena] Every payment of fees, dues or other contributions by a member shall be evidenced by a receipt: a. signed by the officer or agent making the collection and b. entered into the record of the organization to be kept and maintained for the purpose. [Art. 250 (h)] ATTORNEY’S FEES Payment of Attorney’s fees cannot be imposed in individual member. No attorney’s fees, negotiation fees, or similar charges of any kind arising from any collective bargaining agreement or conclusion of the collective agreement shall be imposed on any individual member. [Art. 228(b)]

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Proper charging of attorney’s fees: a. Charges against union funds; AND b. In an amount agreed upon by the parties Any contract, agreement, or arrangement of any sort to the contrary shall be void. [Art. 228(b)] Different types of Attorney’s Fees Ordinary Extraordinary Indemnity for Reasonable damages ordered by compensation paid the court to be paid to a lawyer for legal by the losing party to services rendered the winning party Agreed upon by the Awarded by the parties NLRC Payable to the Payable to the client lawyer Not limited Limited by Art. 111 (freedom to to 10% contract) [Kaisahan at Kapatiran ng mga Manggagawa at Kawani sa MWC-East Zone Union v. Manila Water, G.R. No. 174179 (2011)] There are two concepts of attorney's fees: In the ordinary sense, attorney's fees represent the reasonable compensation paid to a lawyer by his client for the legal services rendered to the latter. In its extraordinary concept, attorney's fees may be awarded by the court as indemnity for damages to be paid by the losing party to the prevailing party, such that, in any of the cases provided by law where such award can be made, e.g., those authorized in Art. 2208 of the Civil Code, the amount is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof. [Masmud v. NLRC, G.R. No. 183385 (2009)] In Masmud, the contingency agreement between lawyer and client consisting of 39% of the monetary award was deemed not unconscionable by the SC.

MANDATORY ACTIVITIES Definition: A judicial process of settling dispute laid down by the law. [Vengco v. Trajano, G.R. No. 74453 (1989)] Placement of re-negotiations for a CBA under compulsory arbitration does not make it a “mandatory activity”. [Galvadores v. Trajano, G.R. No. 70067 (1986)] It dispenses with the requirement of the individual written authorization duly signed by the employee [Art. 250(o)]

2. Collective Bargaining Definition, Nature, and Purpose Collective bargaining is: • Defined as negotiations towards a collective agreement • One of the democratic frameworks under the [Labor] Code • Designed to stabilize the relations between labor and management and to create a climate of sound and stable industrial peace. • A mutual responsibility of the employer and the Union and is characterized as a legal obligation. [Kiok Loy v. NLRC, G.R. No. L54334 (1986)] a. Duty to Bargain Collectively i.

In General

Definition The duty to bargain collectively Meaning: the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith Purpose: negotiating an agreement with respect to: 1. wages 2. hours of work, 3. and all other terms and conditions of employment including: a. proposals for adjusting any grievances, or b. questions arising under such agreement, and

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c. executing a contract incorporating such agreements, d. if requested by either party, but such duty does not compel any party to agree to a proposal or to make any concession. [Art. 263] Jurisdictional Preconditions on Duty To Bargain 1. Possession of the status of majority representation of the employees’ representative in accordance with any of the means of selection or designation provided for by the Code; 2. Proof of majority representation; AND 3. Demand to bargain under Art. 261(a) [Kiok Loy v. NLRC, G.R. No. L-54334 (1986)] Only the labor organization designated or selected by the majority of the employees in an appropriate collective bargaining unit is the exclusive representative of the employees in such unit for the purpose of collective bargaining. [Phil. Diamond Hotel and Resort Inc v. Manila Diamond Hotel and Employees Union, G.R. No. 158075 (2006); Art. 267] Meaning of Bargaining in Good Faith There is no per se test of good faith in bargaining. Good faith or bad faith is an inference to be drawn from the facts. [Union of Filipino Employees v. Nestle Philippines, Inc., G.R. Nos. 158930-31 (2008)] [T]he failure to reach an agreement after negotiations continued for a reasonable period does not establish a lack of good faith. The laws invite and contemplate a collective bargaining contract, but they do not compel one. [Tabangao Shell Refinery Employees Association v. Pilipinas Shell Petroleum Corporation, G.R. No. 170007 (2014)] Duty to Bargain does NOT include: 1. Any legal duty [on the employer] to initiate contract negotiation [Kiok Loy v. NLRC, G.R. No. L-54334 (1986)]

2. The obligation to reach an agreement: While the law makes it an obligation for the employer and the employees to bargain collectively with each other, such compulsion does not include the commitment to precipitately accept or agree to the proposals of the other. All it contemplates is that both parties should approach the negotiation with an open mind and make reasonable effort to reach a common ground of agreement. [Union of Filipro Employees v. Nestle, G.R. Nos. 158930-31 (2008)] Evading the Mandatory Subjects of Bargaining The refusal to negotiate a mandatory subject of bargaining is an unfair labor practice, although either party has every desire to reach agreement and earnestly and in all good faith bargains to that end. However, the duty to bargain does not obligate the parties to make concessions or yield a position fairly held. [Azucena] The duty to bargain is limited to mandatory bargaining subjects; as to other matters, he is free to bargain or not to bargain. Over mandatory subjects, a party may insist on bargaining, even to the point of deadlock, and his insistence will not be construed as bargaining in bad faith. Over a non-mandatory subject, on the other hand, a party may not insist on bargaining to the point of impasse, otherwise his insistence can be construed as bargaining in bad faith. Blue-Sky Bargaining Blue-Sky Bargaining is defined as "unrealistic and unreasonable demands in negotiations by either or both labor and management, where neither concedes anything and demands the impossible." It actually is not collective bargaining at all. [Roberts Dictionary of Industrial Relations as cited in Standard Bank Chartered Employees Union v. Confesor, G.R. No. 114974 (2004)]

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Surface Bargaining Surface bargaining is defined as "going through the motions of negotiating," without any real intent to reach an agreement. [Roberts Dictionary of Industrial Relations as cited in Standard Bank Chartered Employees Union v. Confesor, supra.] It violates the Act's requirement that parties negotiate in "good faith." It is prohibited because the bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition […] As long as there are unions weak enough to be talked to death, there will be employers who are tempted to engage in the forms of collective bargaining without the substance. [K-MART Corporation v. NLRB, 1980 626 F.2d 704] Individual Bargaining It is an unfair labor practice for an employer operating under a CBA to negotiate with his employees individually. That constitutes interference because the company is still under obligation to bargain with the union as the bargaining representative. Individual bargaining contemplates a situation where the employer bargains with the union through the employees instead of the employees through the union. [The Insular Life Assurance Co. Ltd., Employees Assn. v. Insular Life Assurance Co. Ltd, G.R. No. L25291 (1971)] Boulwarism A take-it-or-leave-it approach in negotiation constitutes bad faith. "Although the law cannot open a man's mind, it can at least compel him to conduct himself as if he were trying to persuade and were willing to be persuaded. To offer the union a contract saying 'Take it or leave it,' is not bargaining collectively within the meaning of the act.” [Herald Delivery Carriers Union v. Herald Publication Inc., G.R. No. L29966 (1974), citing NLRB v. Pilling and Son Co. US, 119 F2D 32 (1941)]

ii. When there is an Absence of CBA Duty to bargain collectively in the absence of collective bargaining agreements Condition: In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining Who has the duty: Employer and the representatives of the employees What is their duty: To bargain collectively in accordance with the provisions of this Code [Art. 262] iii. When there is a CBA General Rule: The duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. [Art. 264] Substitutionary Doctrine Note: See also discussion under V.b.2 General Rule: Even during the effectivity of a collective bargaining agreement executed between employer and employees [through] their agent, the employees can change said agent but the contract continues to bind them up to its expiration date. They may bargain, however, for the shortening of said expiration date. [Elisco-Elirol Labor Union v. Noriel, G.R. No. L-41955 (1977)]. Exception: At least sixty (60) days prior to the expiration of the collective bargaining agreement, either party can serve a written notice to terminate or modify the agreement [Art. 264]. Note: During this 60-day period, a verified petition questioning the majority status of the incumbent bargaining agent may also be filed [Art. 268].

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Effect on existing CBA It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. [Art. 264] iv. Bargaining Procedure [Art. 262] General Rule: Private Procedure - The bargaining procedure shall be governed by [the parties’] agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining [Art. 262] Rationale: It is the policy of the state to promote and emphasize the primacy of free collective bargaining and negotiations [Art. 218-A(a)] Exception Labor Code Procedure – In absence of a private agreement, the collective bargaining procedure under Art. 261 shall be followed. 1. Written notice and statement of proposals. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals. 2. Reply. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice. 3. Conference. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar days from the date of request. 4. Board intervention and conciliation. If the dispute is not settled, the [NCMB] shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings. The [NCMB] shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call.

5. Voluntary arbitration. The [NCMB] shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator. 6. Prohibition against disruptive acts. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes. [Book V, IRR Rule XII, Sec. 1] 7. Deadlock. Any certified or duly recognized bargaining representative may file a notice or declare a strike or request for preventive mediation in cases of bargaining deadlocks and unfair labor practices. The employer may file a notice or declare lockout or request for preventive mediation in the same cases. In the absence of certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may file a notice, request preventive mediation or declare a strike but only on grounds of unfair labor practice [NCMB Manual of Procedure, Rule IV, Sec. 3] Period to Reply; Bad Faith [The period to reply] is merely procedural, and non-compliance cannot be automatically deemed to be an act of unfair labor practice. [National Union of Restaurant Workers v. CIR, G.R. No. L-20044 (1964)] Failure to Reply as Indicia of Bad Faith [The employer’s] refusal to make a counterproposal [...] is an indication of its bad faith. Where the employer did not even bother to submit an answer to the bargaining proposals of the union, there is a clear evasion of the duty to bargain collectively, [...] making it liable for unfair labor practice. [General Milling Corp. v. CA, G.R. No. 146728 (2004)] v. Bargainable Issues Mandatory Bargainable Issues 1. Wages 2. Hours of work 3. All other terms and conditions of employment including proposals for

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adjusting any grievances or questions arising under such agreement [Art. 263]

desired provision as to a matter which is a mandatory subject of collective bargaining.

Examples: 1. Vacations and holidays 2. Bonuses 3. Seniority, Transfer, and Layoffs 4. Employee workloads 5. Work rules and regulations 6. Union security arrangements 7. Pension and insurance benefits for active employees

[But] a refusal to contract is in substance a refusal to bargain about matters which are mandatory subjects of collective bargaining unless the agreement covers a matter which is not a mandatory subject.

Permissive Issues Unilateral benefits extended by the employer [cf. Union of Filipino Employees v. Nestle, G.R. Nos. 158930-31 (2008)] As in all other contracts, the parties in a CBA may establish such stipulations, clauses, terms and conditions as they may deem convenient provided they are not contrary to law, morals, good customs, public order or public policy. [Manila Fashions v. NLRC, G.R. No. 117878 (1996)] Test for Mandatory Bargainable Issues The nexus between the Nature of Employment and the Nature of the Demand: For “other terms and conditions of employment” to become a mandatory bargainable issue, they must have a connection between the proposal and the nature of the work. In order for a matter to be subject to mandatory collective bargaining, it must materially or significantly affect the terms and conditions of employment. Whether the agreement concerns a mandatory subject of bargaining depends not on its form, but on its practical effect. [Azucena] Importance of Determining the Character of the Bargaining Issue The question as to what are mandatory and what are merely permissive subjects of collective bargaining is of significance on the right of a party to insist on his position to the point of stalemate. A party may refuse to enter into a collective bargaining contract unless it includes a

It is no answer to the charge of refusal to bargain in good faith that the insistence on the disputed clause was not the sole cause of the failure to agree or that agreement was not reached with respect to other disputed clauses. Such refusal will not be deemed as an unfair labor practice. However, if a party refuses to contract based on an issue which is not a mandatory bargainable issue, the party will be guilty of ULP. [Samahang Manggagawa sa Top Form v. NLRC, G.R. No. 113856 (1998)] Minutes of Negotiation Where a proposal raised by a contracting party does not find print in the CBA, it is not a part thereof and the proponent has no claim whatsoever to its implementation. [...] The Minutes [only] reflects the proceedings and discussions undertaken in the process of bargaining for worker benefits in the same way that the minutes of court proceedings show what transpired therein. At the negotiations, it is but natural for both management and labor to adopt positions or make demands and offer proposals and counter-proposals. However, nothing is considered final until the parties have reached an agreement. [Samahang Manggagawa sa Top Form v. NLRC, G.R. No. 113856 (1998)] Suspension of Bargaining Negotiations In order to allow the employer to validly suspend the bargaining process there must be a valid petition for certification election raising a legitimate representation issue.

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Hence, the mere filing of a petition for certification election does not ipso facto justify the suspension of negotiation by the employer. [Colegio de San Juan de Letran v. Association of Employees, G.R. No. 141471 (2000)] vi. Bargaining Deadlock Deadlock is defined as the “counteraction of things producing entire stoppage: a state of inaction or of neutralization caused by the opposition of persons or of factions: a standstill. There is a deadlock when there is a “complete blocking or stoppage resulting from the action of equal and opposed forces.” The word is synonymous with the word impasse which, “presupposes reasonable effort at good faith bargaining which, despite noble intentions, does not conclude in agreement between the parties.” [Divine World Tacloban v. Secretary of Labor, G.R. No. 91915 (1992)] Collective Bargaining Deadlock is defined as the situation between the labor and the management of the company where there is failure in the collective bargaining negotiations resulting in a stalemate. [San Miguel Corp. v NLRC, G.R. No. 99266 (1999)]. Privileged Communication in Conciliation Proceedings Information and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them. [Art. 233] Rationale: 1. A person is entitled to ‘buy his or her peace’ without danger of being prejudiced in case his or her efforts fail 2. Offers for compromise are irrelevant because they are not intended as admissions by the parties making them

[Pentagon Steel v. CA, G.R. No. 174141 (2009)] b. Collective Bargaining Agreement Collective Bargaining Agreement or “CBA” refers to the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit. [Sec. 1(k), Rule I, Book V, IRR] Nature of the CBA The CBA is the law between the parties and they are obliged to comply with its provisions. [Zuellig Pharma Corporation v. Alice Sibal, G.R. No. 173587 (2013)] Although it is a rule that a contract freely entered between the parties should be respected, since a contract is the law between the parties, said rule is not absolute. [... Citing Art. 1700,] the relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. [Halagueña v. Philippine Airlines, G.R. No. 172013 (2009)] Beneficiaries of the CBA The labor organization a. Designated, or b. Selected by the majority of the employees in an appropriate collective bargaining unit, shall be the exclusive representative of the employees in such unit for the purpose of collective bargaining. [Art. 267] When a collective bargaining contract is entered into by the union representing the employees and the employer, even the nonmember employees are entitled to the benefits of the contract. To accord its benefits only to members of the union without any valid reason would constitute undue discrimination against non-members. [New Pacific Timber and Supply v. NLRC, G.R. No. 124224 (2000)]

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Contract Interpretation Art. 1702, Civil Code. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. A CBA, as a labor contract within the contemplation of Art. 1700 of the Civil Code of the Philippines which governs the relations between labor and capital, [it] is not merely contractual in nature but impressed with public interest, thus, it must yield to the common good. As such, it must be construed liberally rather than narrowly and technically. The courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated, and purpose which it is intended to serve. [Davao Integrated Port Stevedoring Services v. Abarquez, G.R. No. 102132 (1993)] General Rule: [W]here the CBA is clear and unambiguous, it becomes the law between the parties and compliance therewith is mandated by the express policy of the law. [Zuellig Pharma Corporation v. Alice Sibal, G.R. No.173587 (2013)] Exception: If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. [Kimberly Clark Phils. v. Lorredo, G.R. No. 103090 (1993)] i. Mandatory provisions in a Collective Bargaining Agreement

They shall establish a machinery for the adjustment and resolution of grievances 1. Arising from the interpretation or implementation of their Collective Bargaining Agreement, and 2. Those arising from the interpretation or enforcement of company personnel policies. All grievances submitted to the grievance machinery which are not settled within seven (7) calendar days from the date of its submission shall automatically be referred to voluntary arbitration prescribed in the Collective Bargaining Agreement. For this purpose, parties to a Collective Bargaining Agreement shall: 1. name and designate in advance a Voluntary Arbitrator or panel of Voluntary Arbitrators, or 2. include in the agreement a procedure for the selection of such Voluntary Arbitrator or panel of Voluntary Arbitrators, preferably from the listing of qualified Voluntary Arbitrators duly accredited by the Board. In case the parties fail to select a Voluntary Arbitrator or panel of Voluntary Arbitrators, the Board shall designate the Voluntary Arbitrator or panel of Voluntary Arbitrators • When: as may be necessary • How: pursuant to the selection procedure agreed upon in the Collective Bargaining Agreement • Effect: designated Voluntary Arbitrator or panel of Voluntary Arbitrators shall act with the same force and effect as if the Arbitrator or panel of Arbitrators have been selected by the parties as described above.

Note: See also v. Bargainable Issues under “a. Duty to bargain collectively”

ii. Administration and Enforcement of CBA

Art. 273. Grievance Machinery and Voluntary Arbitration The parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions.

Substandard CBA A CBA that falls below the minimum standards required by law is prohibited. Nonetheless, RA 9481 removed substandard CBAs as a ground for the cancellation of registration of union registration.

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Note: A substandard CBA cannot bar a petition for certification election under the contract-bar rule. [Prof. Battad] Ratification Within thirty (30) days from the execution of a collective bargaining agreement The parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration, accompanied with: 1. Verified proofs of its posting in two conspicuous places in the place of work, and 2. Ratification by the majority of all the workers in the bargaining unit. [Art. 237; Book V, IRR Rule XVII, Sec. 2 (c)]

Labor Relations Commission, G.R. No. 78524 (1989)] Note: Ratification of the CBA by the employees in the bargaining unit is not needed when the CBA is a product of an arbitral award as a result of voluntary arbitration under Art. 275 or from the secretary’s assumption of jurisdiction or certification under Art. 278 (g). Registration Within thirty (30) days from the execution of a Collective Bargaining Agreement, the parties shall submit copies of the same directly to the Bureau or the Regional Offices of the Department of Labor and Employment for registration […]. [Art. 237] iii. Requirements for Registration

[T]he posting of copies of the collective bargaining agreement is the responsibility of the employer. The fact that there were "no impartial members of the unit" is immaterial. The purpose of the requirement is precisely to inform the employees in the bargaining unit of the contents of said agreement so that they could intelligently decide whether to accept the same or not. [Associated Labor Unions v. Ferrer-Calleja, G.R. No. L-77282 (1989)] Effect of Non-ratification General Rule: The collective bargaining agreement should be ratified by the majority of all the members of the bargaining unit. Noncompliance with this requirement renders the CBA ineffective. [Associated Trade Unions v. Trajano, G.R. No. 75321 (1988)] Exception: Even if there was no ratification, the CBA will not be invalid or void considering that the employees have enjoyed benefits from it. [The employees] cannot receive benefits under 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

The application for CBA registration shall be accompanied by the original and two (2) duplicate copies of the following documents which must be certified under oath by the representative(s) of the employer(s) and labor union(s) concerned: 1. The collective bargaining agreement 2. A statement that the collective bargaining agreement was posted in at least two (2) conspicuous places in the establishment or establishments concerned for at least five (5) days before its ratification 3. A statement that the collective bargaining agreement was ratified by the majority of the employees in the bargaining unit of the employer or employees concerned. [Sec. 2, Rule XVII, Book V, IRR] Specific information submitted confidence General rule: Shall not be disclosed

in

Exceptions: 1. authorized by Secretary of Labor 2. when it is at issue in any judicial litigation 3. public interest or national security requires [Art. 237]

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Effect of Unregistered CBA An unregistered CBA is binding upon the parties but cannot serve as a bar to a petition for certification election under the contract-bar rule. Sec. 3, Rule VIII, Book V states: A petition for certification election may be filed anytime, except: [...] (d) when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Art. 231 [now 237] of the Labor Code. iv. CBA Effectivity If it is the first ever CBA, the effectivity date is whatever date the parties agree on. If it is a renegotiated CBA, the retroactivity of the date of effectivity depends upon the duration of conclusion [Art. 265]: 1. If it is concluded within 6 months from the expiry date, the new CBA will retroact to the date following the expiry date [Illustration: expiry date: December 13; renegotiations concluded on November 30; effectivity date: December 14]. 2. If it is concluded beyond 6 months from the expiry date, the matter of retroaction and effectivity is left with the parties. Hold Over Principle It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement: a. during the 60-day period and/or b. until a new agreement is reached by the parties. [Art. 264, last sentence] The last sentence of Art. 264, which provides for automatic renewal [upon expiry], pertains only to the economic provisions of the CBA and does not include representational aspect of the CBA. A [CBA which continues to take effect beyond its expiration date] cannot constitute a bar to a filing of petition for certification election.

When there is a representational issue, the status quo provision insofar as the need to await the creation of a new agreement will not apply. Otherwise, it will create an absurd situation where the union members will be forced to maintain membership by virtue of the union security clause existing under the CBA and, thereafter, support another union when filing a petition for certification election. If we apply it, there will always be an issue of disloyalty whenever the employees exercise their right to self-organization. The holding of a certification election is a statutory policy that should not be circumvented, or compromised. [PICOP Resources, Inc. v. Taneca et al., G.R. No. 160828 (2010)] Arbitrated CBA In the absence of an agreement between the parties, an arbitrated CBA takes on the nature of any judicial or quasi-judicial award. [Manila Electric Company v. Quisumbing, G.R. No. 127598 (1999)] [I]n the absence of the specific provision of law prohibiting retroactivity of the effectivity of the arbitral awards issued by the Secretary of Labor pursuant to Art. 263(g) of the Labor Code, [the Secretary] is deemed vested with plenary powers to determine the effectivity thereof. [LMG Chemicals v. Secretary of Labor, G.R. No. 127422 (2001)] v. CBA Duration Art. 265. Terms of a Collective Bargaining Agreement – Any Collective Bargaining Agreement that the parties may enter into shall, insofar as the representation aspect is concerned, be for a term of five (5) years. [...] All other provisions of the Collective Bargaining Agreement shall be renegotiated not later than three (3) years after its execution. [...] CBA Duration for economic provisions 3 years

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CBA Duration for non-economic provisions 5 years for representational or political issues; cannot be renegotiated to extend beyond 5 years. [FVC Labor Union-PTGWO v. SANAMA-FVC-SIGLO, G.R. No. 176249 (2009)] CBA Duration: Freedom Period No petition questioning the majority status of the incumbent bargaining agent shall be entertained and no certification election shall be conducted by the DOLE outside of the sixty-day period immediately before the date of the expiry of such five-year term of the Collective Bargaining Agreement. [Art. 265] CBA and 3rd Party Applicability Labor contracts such as employment contracts and CBAs are not enforceable against a transferee of an enterprise, labor contracts being in personam, is binding only between the parties. As a general rule, there is no law requiring a bona fide purchaser of the assets of an ongoing concern to absorb in its employ the employees of the latter. However, although the purchaser of the assets or enterprise is not legally bound to absorb in its employ the employees of the seller of such assets or enterprise, the parties are liable to the employees if the transaction between the parties is colored or clothed with bad faith. [Sundowner Development Corporation v. Drilon, G.R. No. 82341 (1989)] Where the change of ownership is in bad faith or is used to defeat the rights of labor, the successor-employer is deemed to have absorbed the employees and is held liable for the transgressions of his or her predecessor [Philippine Airlines, Inc. v. NLRC, G.R. No. 125792 (1998)] General Rule: An innocent transferee of a business establishment has no liability to the employees of the transferor to continue employing them. Nor is the transferee liable for

past unfair labor practices of the previous owner. Exception: When the liability therefore is assumed by the new employer under the contract of sale, or when liability arises because of the new owner's participation in thwarting or defeating the rights of the employees. The most that the transferee may do, for reasons of public policy and social justice, is to give preference to the qualified separated employees in the filling of vacancies in the facilities of the purchaser. [Manlimos v. NLRC, G.R. No. 113337 (1995)] The general rule applies only to the sale and purchase of asset. If the method of acquisition is by way of purchase of controlling shares, the employer remains the same and the new owners must honor the existing contracts.

E. UNFAIR LABOR PRACTICES 1. Nature, Aspects Unfair labor practice refers to acts that violate the workers’ right to organize. The prohibited acts are related to the workers’ right to selforganization and to the observance of a CBA. Without that element, the acts, no matter how unfair, are not unfair labor practices. The only exception is Art. 259(f) [i.e. to dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code]. [Philcom Employees Union v. Phil. Global, G.R. No. 144315 (2006)] Nature of ULP a. inimical to the legitimate interests of both labor and management, including their right to bargain collectively and otherwise deal with each other in an atmosphere of freedom and mutual respect b. disrupt industrial peace

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c. hinder the promotion of healthy and stable labor-management relations d. violations of the civil rights of both labor and management but are also criminal offenses [Art. 258] Four forms of Unfair Labor Practice in Collective Bargaining 1. Failure or refusal to meet and convene 2. Evading the mandatory subjects of bargaining 3. Bargaining in bad faith 4. Gross violation of the CBA Purpose of the Policy Against ULPs Protection of right to self-organization and/or collective bargaining: a. The employee is not only protected from the employer but also from labor organizations. b. The employer is also protected from ULP committed by a labor organization. The public is also protected because it has an interest in continuing industrial peace.

language, in light of infinite combinations of events, which may be charged as constituting an unfair labor practice. [HSBC Employee Union v. NLRC, G.R. No. 125038 (1997)] Note: Bargaining in bad faith constitutes Unfair Labor Practice, which may be committed by either Employer or Labor Organization.

2. By Employers a. Interference/Restraint/Coercion b. Yellow Dog Contracts c. Contracting Out Services which Discourage Unionism d. Company Union e. Discrimination to Encourage/ Discourage Unionism f. Discrimination for having given or about to give testimony g. Violation of Duty to Bargain Collectively h. Payment of Negotiation or Attorney’s Fees i. Violation of a Collective Bargaining Agreement a. Interference/Restraint/Coercion

Employer-Employee Relationship Required General Rule: An unfair labor practice may be committed only within the context of an employer-employee relationship [American President Lines v. Clave, G.R. No. L-51641 (1982)] Exception: “Yellow Dog” condition or contract: to require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs. [Art. 259 (b)] Parties Not Estopped from Raising ULP by Eventual Signing of the CBA The eventual signing of the CBA does not operate to estop the parties from raising unfair labor practice charges against each other. [Standard Chartered Bank Union v. Confesor, G.R. No. 114974 (2004)] Statutory Construction The Labor Code leaves to the court the work of applying the law's general prohibitory

Art. 259(a). Unfair Labor Practices of Employers. – To interfere with, restrain or coerce employees in the exercise of their right to self-organization The fact that the resignations of the union members occurred during the pendency of the case before the labor arbiter shows GMC’s desperate attempts to cast doubt on the legitimate status of the union. The ill-timed letters of resignation from the union members indicate that GMC had interfered with the right of its employees to self-organization. [General Milling Corporation v. Court of Appeals, G.R. 146728 (2004)] Interrogation General rule: employer may interrogate its employees regarding their union affiliation for legitimate purposes and with the assurance that no reprisals would be taken against the unionists.

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Exception: when interrogation interferes with or restrains employees' right to selforganization. [Phil. Steam Navigation Co. v. Phil. Marine Officer’s Guild, G.R. Nos. L-20667 and 20669 (1965)] Note: The interrogation of the ER should not be persistent and/or hostile Speech The acts of a company which subjects a union to vilification and its participation in soliciting membership for a competing union are also acts constituting a ULP. [Phil. Steam Navigation Co. v. Phil. Marine Officer’s Guild, G.R. Nos. L-20667 and 20669 (1965)] An employer may not send letters containing promises or benefits, nor of threats of obtaining replacements to individual workers while the employees are on strike due to a bargaining deadlock. This is tantamount to interference and is not protected by the Constitution as free speech. [Insular Life Assurance Co. Employees Assn. v. Insular Life Assurance Co. Ltd, G.R. No. L-25291 (1971)] Espionage Espionage and/or surveillance by the employer of union activities are instances of interference, restraint or coercion of employees in connection with their right to organize, form and join unions as to constitute unfair labor practice. […] The information obtained by means of espionage is invaluable to the employer and can be used in a variety of cases to break a union. [Insular Life Assurance Co. Employees Assn. v. Insular Life Assurance Co. Ltd, G.R. No. L-25291 (1971)] Concerted Activities The mass demonstration and stoppage of work of the Union is not ULP. They didn’t demonstrate against the employer, but against the Pasig police for alleged human rights abuses. This is merely an exercise of their freedom of expression, assembly, and right to redress of grievances enshrined in the Constitution. [Philippine Blooming Mills Employment Organization v. Philippine

Blooming Mills Co., Inc., G.R. No. L-31195 (1973)] b. Yellow Dog Contracts Art. 259(b). Unfair Labor Practices of Employers. – To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs; Yellow dog contracts require, as a condition of employment, that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs. Requisites of a Yellow Dog Contract: 1. A representation by the employee that he is not a member of a labor organization 2. A promise by the employee that he will not join a union 3. A promise by the employee that upon joining a labor organization, he will quit his employment [Azucena] c. Contracting Out Services which Discourage Unionism Art. 259(c). Unfair Labor Practices of Employers. – To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their right to self-organization; General Rule: contracting out is not a ULP, but is covered by the employer’s management prerogative. Exception [Art. 259 (c)]: 1. contracted-out services or functions are performed by union members AND 2. contracting out will interfere with, restrain, or coerce employees in the exercise of their right to self-organization. d. Company Union Art. 259(d). Unfair Labor Practices of Employers. – To initiate, dominate, assist or otherwise interfere with the formation or

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administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters; Company union means any labor organization whose formation, function or administration has been assisted by any act defined as unfair labor practice by this Code. [Art. 219(i)] The employer commits ULP if it initiates, dominates, or otherwise interferes with the formation or administration of any labor organization. Example: giving out financial aid to any union's supporters or organizers. e. Discrimination to Encourage/ Discourage Unionism [Art. 259 (e)] General Rule: it is ULP to discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Exception: Union security clauses Union security is a generic term which is applied to and comprehends “closed shop,” “union shop,” “maintenance of membership” or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment. [NUWHRAIN v. NLRC, G.R. No. 179402 (2008)] [Union security clause] is an indirect restriction on the right of an employee to selforganization. It is a solemn pronouncement of a policy that while an employee is given the right to join a labor organization, such right should only be asserted in a manner that will not spell the destruction of the same organization. [Tanduay Distillery Labor Union v. NLRC, G.R. No. 75037 (1987)]

their own, must, however, suffer the consequences of their separation from the union under the security clause of the CBA. [Villar v. Inciong, G.R. No. L-50283-84 (1983)]. Statutory Basis and Rationale Art. 259(e). Unfair Labor Practices of Employers. – Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. The law has allowed stipulations for 'union shop' and 'closed shop' as means of encouraging workers to join and support the union of their choice in the protection of their rights and interests vis-a-vis the employer. [Del Monte Philippines v. Salvidar, G.R. No. 158620 (2006)] Purpose To safeguard and ensure the existence of the union and thus, promote unionism in general as a state policy. It is the policy of the State to promote unionism to enable the workers to negotiate with the management on the same level and with more persuasiveness than if they were to individually and independently bargain for the improvement of their respective conditions. […] For this reason, the law has sanctioned stipulations for the union shop and closed shop as a means of encouraging the workers to join and support the labor union of their own choice vis-à-vis the employer. [Liberty Flour Mills Employees v. Liberty Flour Mills, G.R. No. 58768-70 (1989)] Coverage General Rule: All employees in the bargaining unit covered by the union security clause are subject to its terms

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Exception: 1. Employees who are already members of another union at the time of the signing of the collective bargaining agreement may not be compelled by any union security clause to join any union. [Art. 254 (e)] 2. Employees already in service at the time the closed shop union security clause took effect. A closed shop provision in a CBA is not to be given a retroactive effect as to preclude its being applied to employees already in service. [Guijarno v. CIR, G.R. No. L28791-93 (1973)] 3. Any employee who, at the time the union security clause took effect, is a bona fide member of religious organization which prohibits its members from joining labor unions on religious grounds [Reyes v. Trajano, 209 SCRA 484 (1992)]. 4. Confidential employees who are excluded from the rank-and-file bargaining unit. 5. Employees excluded from the union security provisions by express terms of the agreement [BPI v. BPI Employees UnionDavao Chapter, G.R. No. 164301 (2010)].

workers whom the union is supposed to protect in the first place. Hence, any doubt as to the existence of a closed shop provision in the CBA will be resolved in favor of the nonexistence of the closed shop provision. [Azucena] 2. Maintenance of membership shop Condition for continued employment An agreement where present and future employees are not compelled to join the SEBA, but once so joined, they must maintain their membership as a condition for continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated. There is maintenance of membership shop when employees, who are union members as of the effective date of the agreement, or who thereafter become members, must maintain union membership as a condition for [their] continued employment until they are promoted or transferred out of the bargaining unit or the agreement is terminated. [General Milling Corporation (GMC) v. Casio, G.R. No. 149552 (2010)]

TYPES OF UNION SECURITY CLAUSE 3. Union shop 1. Closed shop Condition for employment An agreement where only union members may be employed and, for the duration of the agreement, remains a member in good standing of a union. A closed shop may be defined as an enterprise in which, by agreement between the employer and his employees or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a union entirely comprised of or of which the employees in interest are a part. [General Milling Corporation (GMC) v. Casio, G.R. No. 149552 (2010)] The closed shop provision can also be a potent weapon wielded by the union against the

Condition for continued employment There is union shop when all new regular employees are required to join the union within a certain period as a condition for their continued employment. [General Milling Corporation (GMC) v. Casio, G.R. No. 149552 (2010)] Non-members may be hired, but to retain employment, they must become union members after a certain period. The requirement applies to present and future employees. [Azucena] 4. Modified union shop Condition for continued employment of future employees Employees who are not union members at the time of signing the contract need not join the

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union, but all workers hired thereafter must join. [Azucena] 5. Agency shop Employees belonging to an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective agreement. Provided, That the individual authorization required under Art. [250], paragraph (o) of [the Labor] Code shall not apply to non-members of the recognized collective bargaining agent [Art. 259(e)]. ENFORCEMENT CLAUSE

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SECURITY

Termination due to Union Security Provision Termination of employment by virtue of a union security clause strengthens the union and prevents disunity in the bargaining unit within the duration of the CBA. The authorized bargaining representative gains more numbers and strengthens its position as against other unions which may want to claim majority representation. [Alabang Country Club v. NLRC, G.R. No. 170287 (2008)] Requisites for the enforcement of Union Security Clauses In terminating the employment of an employee by enforcing the union security clause, the employer needs only to determine and prove that: 1. The union security clause is applicable; 2. The union is requesting for the enforcement of the union security provision in the CBA; 3. There is sufficient evidence to support the union’s decision to expel the employee from the union. [Alabang Country Club v. NLRC, G.R. No. 170287 (2008)]

Company must conduct separate investigation or hearing The enforcement of union security clauses is authorized by law provided such enforcement is not characterized by arbitrariness, and always with due process. Even if there are valid grounds to expel the union officers, due process requires that these union officers be accorded a separate hearing by respondent company. [Malayang Samahan ng Manggagawa sa M. Greenfield v. Ramos, G.R. No. 113907 (2000)] Requirement of Due Process The requirements laid down by the law in determining whether or not an employee was validly terminated must still be followed even if it is based on a [union security clause] of a CBA, i.e. the substantive as well as the procedural due process requirements. [Del Monte v. Saldivar, G.R. No. 158620 (2006)] Obligations and Liabilities Where the employer dismissed his employees in the belief in good faith that such dismissal was required by the [union security provision] of the collective bargaining agreement with the union, he may not be ordered to pay back compensations to such employees although their dismissal is found to be illegal. [Confederated Sons of Labor v. Anakan Lumber Co., G.R. No. L-12503 (1960)] As dictated by fairness, […] the union shall be liable to pay their backwages. This is because management would not have taken the action it did, had it not been for the insistence of the labor union seeking to give effect to its interpretation of a closed shop provision. [Guijarno v. CIR, G.R. No. L-28791-93 (1973)] f.

Discrimination for having given or about to give testimony

Art. 259(f). Unfair Labor Practices of Employers. — To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony;

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Note: This is broader than the prohibition under Art. 118 because Art. 259 (f) covers testimony under the whole Code, while Art. 118 only covers testimony under Book I: PreEmployment, Title II: Wages. Note further: Includes not giving testimony [Azucena].

the Union and the school management, […] SJCI in effect admitted that it wanted to end the bargaining deadlock and eliminate the problem dealing with the demands of the union. [St. John Colleges Inc. v. St. John Academy Faculty and Employees Union, G.R. No. 167892 (2006)] 3. Implied refusal

g. Violation of Duty to Bargain Collectively Art. 259(g). Unfair Labor Practices of Employers — To violate the duty to bargain collectively as prescribed by this Code; Collective bargaining does not end with the execution of an agreement. Being a continuous process, the duty to bargain necessarily imposes on the parties the obligation to live up to the terms of such a collective bargaining agreement if entered into, it is undeniable that non-compliance therewith constitutes an unfair labor practice. [Shell Oil Workers Union v. Shell Co., G.R. No. L-28607 (1971)] Note: See ULP in Collective Bargaining above. ACTS DEEMED AS REFUSAL TO BARGAIN 1. Refusal to bargain when there is an unresolved petition for union cancellation “That there is a pending cancellation proceedings against the union is not a bar to set in motion the mechanics of collective bargaining. […] Unless [the union’s] certificate of registration and status as the certified bargaining agent is revoked, [the employer], by express provision of the law, is duty bound to collectively bargain with the Union.” [Capitol Medical Center v. Trajano, G.R. No. 155690 (2005)] 2. Employer’s suspension of operations in order to forestall a demand for collective bargaining

The school is guilty of unfair labor practice when it failed to make a timely reply to the proposals of the union more than one month after the same were submitted by the union. In explaining its failure to reply, the school merely offered a feeble excuse that its Board of Trustees had not yet convened to discuss the matter. Clearly, its actuation showed a lack of sincere desire to negotiate. [Colegio de San Juan de Letran v. Association of Employees and Faculty of Letran, G.R. No. 141471 (2000)] ACTS NOT DEEMED REFUSAL TO BARGAIN 1. Adoption of an adamant bargaining position in good faith, particularly where the company is operating at a loss 2. Refusal to bargain over demands for commission of unfair labor practices 3. Refusal to bargain during period of illegal strike 4. Not initiating the bargaining 5. Refusal to bargain where the union demands for recognition and bargaining within the year following a certification election, and the clear choice is no union and no ad interim significant change has taken place in the unit 6. Refusal to bargain because the other party is making unlawful bargaining demands h. Payment of Negotiation or Attorney’s Fees Art. 259(h). Unfair Labor Practices of Employers — To pay negotiation or attorney's fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute;

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Sweetheart contracts are favorable both to the union and the employer at the expense of the employees. The settlement of bargaining issues must be made by fair bargaining in good faith, and not through the payment of negotiation or attorney's fees which will ultimately lead to sweetheart contracts. i.

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Violation of a Collective Bargaining Agreement [Art. 259 (i)]

Art. 259(i) Unfair Labor Practices of Employers — To violate a collective bargaining agreement. Flagrant and/or Malicious Refusal to Comply with Economic Provisions Required Art. 274. Jurisdiction of Voluntary Arbitrators. – Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this Art., gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair labor practice and shall not be strikeable. [Book V, Rule XXII, Sec. 5] Note: The list in Art. 259 is not exhaustive. Other acts which are analogous to those enumerated can be ULPs. The alleged violation of the CBA, even assuming it was malicious and flagrant, is not a violation of an economic provision, thus not an Unfair Labor Practice. [BPI Employees Union-Davao FUBU v. BPI, G.R. No. 174912 (2013)]

An employer cannot be considered to have committed a gross and economic violation of the CBA when it, in good faith, withheld union dues and death benefits from the union upon written request of the union members in light of the conflict between the members and the union officers and instead deposited such amount to the DOLE. [Arellano University Employees and Workers Union v. Court of Appeals, G.R. 139940 (2006)] Motive, Conduct, Proof To constitute ULP, the dismissals by the ER need not be entirely motivated by union activities or affiliations. It is enough that discrimination was a factor. [Me-Shurn Corp. v. Me-Shurn Workers Union-FSM, G.R. No. 156292 (2005)] Note: The basic inspiration of the dismissals should concern the right to self-organization. Totality of Evidence Where the attendant circumstances, the history of the employer's past conduct and like considerations, coupled with an intimate connection between the employer's action and the union affiliations or activities of the particular employee or employees, taken as a whole, raise a suspicion as to the motivation for the employer's action, the failure of the employer to ascribe a valid reason therefor may justify an inference that his unexplained conduct in respect of the particular employee or employees was inspired by the latter's union membership or activities. [Royal Undergarment Corporation of the Philippines v. CIR, G.R. No. L-39040 (1990)]

3. By Labor Organizations a. Restraint or Coercion b. Discrimination: Encourage/Discourage Unionism c. Violation of Duty, or Refuse to Bargain d. Illegal Exaction (Featherbedding) e. Asking or Accepting Negotiation and other Attorney's Fees f. 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 coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership; “Interfere” is not included in Art. 260 simply because any act of a labor organization amounts to interference to the right of selforganization. b. Discrimination: Encourage/ Discourage Unionism Art. 260(b). Unfair Labor Practices of Labor Organizations — To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied; or terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members; General rule: It is a ULP for a labor organization to cause an employer to discriminate against an employee.

Art. 260(d). Unfair Labor Practices of Labor Organizations — To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations; The practice of the labor organization to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver money or other things of value, in the nature of an exaction, for services which are not performed or are not to be performed, including the demand for a fee for union negotiations. e. Asking or Accepting Negotiation and other Attorney's Fees Art. 260(e). Unfair Labor Practices of Labor Organizations — To ask for or accept negotiation or attorney's fees from employers as part of the settlement of any issue in collective bargaining or any other dispute See counterpart in ULP by Employers (sweetheart contracts).

Exception: Provisions of a valid union security clause and other company policies applicable to all employees. c. Violation of Duty, or Refuse to Bargain Art. 260(c) Unfair Labor Practices of Labor Organizations — To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees; Note: See ULP in Collective Bargaining above. Note further: See discussion under 2(g).

f.

Violation of a Collective Bargaining Agreement

Art. 260(f). Unfair Labor Practices of Labor Organizations — To violate a collective bargaining agreement. Gross Violations of the CBA Art. 274. Jurisdiction of Voluntary Arbitrators. – Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement.

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For purposes of this Art., gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. See counterpart in ULP by Employers.

F. PEACEFUL CONCERTED ACTIVITIES Definition A concerted activity is one undertaken by two or more employees to improve their terms and conditions of work. 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 inherent and statutory right to lockout within the context of labor relations and collective bargaining. It is a means of last resort and presupposes that the duty to bargain in good faith has been fulfilled and other voluntary modes of dispute settlement have been tried and exhausted. [Guidelines Governing Labor Relations (1987)] Non-abridgment of right to selforganization It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with employees and workers in their exercise of the right to self-organization. Such right shall include the right to (…) engage in lawful concerted activities for the same purpose or for their mutual aid and protection, subject to the provisions of Art. [279] of this Code. [Art. 257] Limitation: Concerted activities must be in accordance with law The strike is a powerful weapon of the working class. Thus, it must be declared only after the most thoughtful consultation among them, conducted in the only way allowed; that is, peacefully, and in every case conformably to reasonable regulation. Any violation of the legal requirements and strictures will render the strike illegal, to the detriment of the very

workers it is supposed to protect. [Batangas Laguna Tayabas Bus Co. v. NLRC, G.R. No. 101858 (1992)] FORMS OF CONCERTED ACTIVITIES Concerted Activities by Labor Organization: a. Strike (includes slow downs, mass leaves, sitdowns, attempts to damage destroy or sabotage plant equipment and similar activities) b. Picketing c. Boycott Response to Concerted Activities available to Employers: a. Lockout

1. By Labor Organization a. Strike Definition Any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. [Art. 219(o)] Labor Dispute Includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employers and employees. [Solidbank Corp. v. EU Gamier, G.R. No. 159460 and G.R. No. 159461 (2010)] Strikes not limited to work stoppages The term “strike” shall comprise not only concerted work stoppages, but also slowdowns, mass leaves, sit-downs, attempts to damage, destroy or sabotage plant equipment and facilities, and similar activities. [Samahang Manggagawa v. Sulpicio Lines, G.R. No. 140992 (2004)] As coercive measure by employees 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 profitable business cannot afford to have its production or activities interrupted, much less, paralyzed. [Phil. Can Co. v. CIR, G.R. No. L3021 (1950)] Who may declare a strike 1. The certified or duly recognized bargaining representative 2. Any legitimate labor organization in the absence of a certified or duly recognized bargaining representative, but only on grounds of ULP [Sec. 6, Rule XXII, Book V, IRR] No severance of employer-employee relationship during lawful strike Although during a strike the worker renders no work or service and receives no compensation, yet his relationship as an employee with his employer is not severed or dissolved. [Elizalde Rope Factory, Inc. v. SSS, G.R. No. L-15163 (1962)]

reinstatement are entitled to the losses of pay they may have suffered by reason of the employer’s discriminatory acts from the time they were refused reinstatement. [Philippine Marine Officers’ Guild v. Compania Maritima, G.R. Nos. L-20662 and L-20663 (1968)] No Strike No Lockout Clause A "no strike, no lock-out" provision in the [CBA] is a valid stipulation, although the clause may be invoked by an employer only when the strike is economic in nature or one which is conducted to force wage or other concessions from the employer that are not mandated to be granted by the law itself. It would be inapplicable to prevent a strike which is grounded on unfair labor practice. [Panay Electric Co. v. NLRC, G.R. No. 102672 (1995); Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos, G.R. No. 113907 (2000)] Other Forms of Strike

Payment of wages during lawful strikes General rule: Striking employees are not entitled to the payment of wages for un-worked days during the period of the strike pursuant to the “no work-no pay” principle. Exception: If there is no work performed by the employee there can be no wage or pay unless the laborer was able, willing and ready to work but was illegally locked out, suspended or dismissed or otherwise illegally prevented from working. For this exception to apply, it is required that the strike be legal. [Visayas Community Medical Center v. Yballe, G.R. No. 196156 (2014)] Reinstatement after a lawful strike When strikers abandon the strike and apply for reinstatement despite the existence of valid grounds, but the employer either: a. refuses to reinstate them or b. imposes upon their reinstatement new conditions, then the employer commits an act of ULP.

AS TO GROUNDS 1. Economic strike – one staged by workers to force wage or other economic concessions from the employer which he is not required by law to grant; not a strikeable ground [Consolidated Labor Association of the Phil. v. Marsman and Company, G.R. No. L-17038 (1964)] 2. ULP strike – called against a company's unfair labor practice to force the employer to desist from committing such practices. AS TO HOW COMMITTED 1. Slowdown strike – one by which workers, without a complete stoppage of work, retard production or their performance of duties and functions to compel management to grant their demands.

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A slowdown is inherently illicit and unjustifiable because while the employees continue to work, they, at the same time, select what part of their duties they perform. In essence, they work on their own terms. It is a strike on installment

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basis. [Ilaw at Buklod ng Manggagawa v. NLRC, G.R. No. 91980 (1991)] 2. Wild-cat strike – one declared and staged without filing the required notice of strike and without the majority approval of the recognized bargaining agent [NUWHRAIN – The Peninsula Manila Chapter v. NLRC, G.R. No. 125561 (1998)] 3. Sit-down strike – one wherein workers take over possession of the property of such business to cease production and to refuse access to owners. [Sukhothai Cuisine & Restaurant v. CA, G.R. No. 150437 (2006)] 4. Sympathetic strike – one in which the striking workers have no demands of their own, but strike to make common cause with other strikers in other establishments (ex. Welga ng Bayan). This is illegal because there is no labor dispute between workers who are joining the workers [Biflex Phils. Inc. Labor Union v. Filflex Industrial and Manufacturing Corporation, G.R. No. 155679 (2006)] 5. Mass leave – one in which workers collectively abandon or boycott regular work causing temporary stoppage of work [Solidbank Corp. v. E.U. Gamier, G.R. No. 159460-61 (2010)] Conversion from economic to ULP strike It is possible for a strike to change its character from an economic to a ULP strike. In the instant case, initially, the strike staged by the Union was meant to compel the Company to grant it certain economic benefits set forth in its proposal for collective bargaining. However, the strike changed its character from the time the Company refused to reinstate complainants because of their union activities after it had offered to admit all the strikers and in fact did readmit the others. It was then converted into an unfair labor practice strike. [Consolidated Labor Association of the Phil. v. Marsman and Company, G.R. No. L-17038 (1964)]

Strike cannot be converted to a lockout by a return to work offer A strike cannot be converted into a pure and simple lockout by the mere expedient filing before the trial court a notice of offer to return to work during the pendency of the labor dispute between the union and the employer. [Rizal Cement Workers Union v. CIR, G.R. No. L-18442 (1962)] Requisites for a Valid Strike A valid strike must have a lawful ground and must conform with the procedural requirements set by law. Substantial Requirements/Grounds A strike or lockout may be declared in cases of: 1. Bargaining deadlocks 2. ULP [Art. 278(c)] Note: A strike, justified by the employees’ belief in good faith that ULP was done by the employer at the time the strikers went on strike, is presumed valid even if the fact of ULP was later found to be untrue [Master Iron Labor v. NLRC, 219 SCRA 47 (1993)]. Procedural Requirements for Strike [Art. 278] 1. Effort to bargain (for bargaining deadlock strikes) 2. Filing and service of notice of strike 3. Observance of cooling-off period a. 15 days for ULP No cooling-off period when the ULP can be considered union busting (dismissal of duly elected union officers from employment) b. 30 days for bargaining deadlock 4. Notice of strike vote meeting to NCMB within 24 hours before the strike vote [Sec. 10, Rule XXII, Book V, IRR] 5. Strike vote 6. Strike vote report sent to NCMB 7. Observance of the waiting period (7-day strike ban)

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(1) EFFORT TO BARGAIN No labor organization […] shall declare a strike […] without first having bargained collectively in accordance with Title VII of this Book […] [Art. 279(a)] In case of bargaining deadlocks, the notice shall, as far as practicable: a. Further state the unresolved issues in the bargaining negotiations; and b. Be accompanied by the written proposals of the union, the counter-proposals of the employer and the proof of a request for conference to settle differences.

the union constitution and by-laws, which may constitute union-busting, where the existence of the union is threatened, the 15-day coolingoff period shall not apply and the union may take action immediately. Notice to the Employer In case of unfair labor practice and/or union busting, the notice must be served to the employer. Failure to do so will constitute noncompliance with the procedural requirements and will result to an illegal strike. [Filipino Pipe and Foundry Corp v. NLRC, G.R. No. 115180 (1999)] Rationale: Due process. [IRR]

In cases of unfair labor practices, the notice shall, as far as practicable, state the acts complained of, and efforts taken to resolve the dispute amicably. [Sec. 4, Rule XXII, Book V, IRR] The Implementing Rules use the words as far as practicable. In this case, attaching the counter-proposal of the company to the notice of strike of the union was not practicable. It was absurd to expect the union to produce the company’s counter-proposal which it did not have. [Club Filipino, Inc. v. Bautista, G.R. No. 168406 (2009)] (2) FILING AND SERVICE OF NOTICE OF STRIKE Ground: Bargaining Deadlocks [Art. 278(c)] Filed by: The duly certified or recognized bargaining agent may file a notice of strike Filed with: With the Ministry [now DOLE] When: At least 30 days before the intended date of the strike Ground: Unfair Labor Practice [Art. 278(c)] Filed by: The duly certified or recognized bargaining agent, or in the absence of such agent, any legitimate labor organization in behalf of its members may file a notice of strike Filed with: With the Ministry [now DOLE] When: The period of notice shall be 15 days Note: In case of dismissal from employment of union officers duly elected in accordance with

Contents of Notice of Strike 1. Names and addresses of the employer and the union involved 2. Nature of the industry to which the employer belongs 3. Number of union members and of workers in the bargaining unit 4. Such other relevant data as may facilitate the settlement of the dispute. Additional Requirements In case of Bargaining Deadlocks: 1. Statement of unresolved issues in the bargaining negotiations 2. Written proposals of the union 3. Counter-proposals of the employer 4. Proof of a request for conference to settle the differences. [Sec. 4, Rule XXII, Book V, IRR] In cases of ULP: 1. Statement of acts complained of 2. Efforts taken to resolve the dispute amicably. [Sec. 4, Rule XXII, Book V, IRR] Action on Notice: 1. Upon receipt of a valid notice of strike or lockout, the NCMB, through its ConciliatorMediators, shall call the parties to a conference the soonest possible time in order to actively assist them to explore all possibilities for amicable settlement. 2. The Conciliator-Mediator may suggest/offer proposals as an alternative

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avenue for the resolution of their disagreement/conflict which may not necessarily bind the parties. 3. If conciliation/mediation fails, the parties shall be encouraged to submit their dispute for voluntary arbitration. (3) OBSERVANCE OF COOLING-OFF PERIODS Cooling off periods 1. Bargaining deadlock – 30 days 2. ULP but not union busting – 15 days 3. ULP and union busting – no cooling-off period Purpose of Cooling Off Period During the cooling-off period, it shall be the duty of the Ministry [now DOLE] to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout. [Art. 278 (e)] The purpose of the cooling-off period is to provide an opportunity for mediation and conciliation. [National Federation of Sugar Workers v. Ovejera, G.R. No. L-59743 (1982)] (4) NOTICE OF STRIKE-VOTE MEETING Art. 278 (f). Strikes, Picketing and Lockouts. – [T]he Department may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. […]

(5) STRIKE VOTE Art. 278 (f). Strikes, Picketing and Lockouts. – A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose […] Requirements for a declaration of a strike in a strike vote 1. approval by a majority of the total union membership in the bargaining unit concerned 2. approval is obtained by secret ballot in a meeting/referendum called for the purpose Duration of the Validity of the Strike-Vote Art. 278 (f). Strikes, Picketing and Lockouts. – [T]he decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. […] (6) STRIKE VOTE REPORT Art. 278 (f). Strikes, Picketing and Lockouts. – [I]n every case, the union or the employer shall furnish the Department the results of the voting at least 7 days before the intended strike or lockout, subject to the cooling-off period herein provided. (7) OBSERVANCE OF THE 7-DAY WAITING PERIOD

Sec. 10, Rule XXII, Book V. Strike or Lockout Vote. – In every case, the union or the employer shall furnish the regional branch of the Board the notice of meetings referred to in the preceding paragraph at least twenty-four (24) hours before such meetings […]

7 Day Observance of the Strike Ban The waiting period, on the other hand, is intended to provide opportunity for the members of the union or the management to take the appropriate remedy in case the strike or lockout vote report is false or inaccurate. [National Federation of Sugar Workers v. Ovejera, G.R. No. L-59743 (1982)]

The purpose of the notice is to allow the NCMB to decide whether or not they will send a representative to supervise the strike vote.

The waiting period is intended to give the DOLE an opportunity to verify whether the projected strike really carries the imprimatur of

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the majority of the union members. [Lapanday Workers Union v. NLRC, G.R. Nos. 95494-97 (1995)] Compliance with Both Cooling-off and Waiting Periods The observance of both periods must be complied with, although a labor union may take a strike vote and report the same within the statutory cooling-off period. The cooling-off and 7-day strike ban provisions of law constitute a valid exercise of police power of the State. [National Federation of Sugar Workers v. Ovejera, G.R. No. L-59743 (1982)] Mutually exclusive periods (used in the NCMB Manual) The cooling off period and the 7-day period are mutually exclusive. Thus, in the case of Capitol Medical Center v. NLRC [G.R. No. 147080 (2005)], the Court held that when the strike vote is conducted within the cooling-off period, the 7-day requirement shall be counted from the day following the expiration of the cooling off period. Improved Offer Balloting In case of a strike, the regional branch of the Board shall, at its own initiative or upon the request of any affected party, conduct a referendum by secret balloting on the improved offer of the employer on or before the 30th day of strike. When at least a majority of the union members vote to accept the improved offer: a. The striking workers shall immediately return to work and; b. The employer shall thereupon re-admit them upon the signing of the agreement [Sec. 12, Rule XXII, Book V] i.

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Valid Strikes as distinguished from Illegal Strikes

VALID v. ILLEGAL STRIKE a. Legal strike – one called for a valid purpose and conducted through means allowed by law.

b. Illegal strike – one staged for a purpose not recognized by law, or if for a valid purpose, conducted through means not sanctioned by law. EFFECT OF ILLEGALITY / LIABILITY OF PARTICIPATING MEMBERS/OFFICERS OF THE UNION a. Ordinary Striking Worker – cannot be terminated for mere participation in an illegal strike; proof must be adduced showing that he or she committed illegal acts during the strike. b. Participating Union Officer – may be terminated, not only when he actually commits an illegal act during a strike, but also if he knowingly participates in an illegal strike [Phimco Industries, Inc. v. PILA, G.R. No. 170830 (2010)] Prohibited Grounds for Strike 1. Labor standards cases such as wage orders 2. Issues involving wage distortion caused by legislated wage orders 3. Inter or intra union disputes 4. Execution and enforcement of final orders or awards of cases pending at the DOLE Regional Offices, BLR, NLRC, VA, CA and SC and related offices 5. Violations of the CBA which are not gross in character (not ULP) [BPI Employees Union-Davao FUBU v. BPI, G.R. No. 174912 (2013)] Gross in character shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. [Art. 274] PROHIBITED ACTIVITIES IN STRIKE 1. By anyone. No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats, or intimidation, any peaceful picketing by employees [Art. 279(b)]; a. Blocking the free ingress to/ egress from work premises for lawful purposes b. Obstruction of public thoroughfares c. Threatening, coercing and intimidating non-striking employees, officers, suppliers and customers

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d. Resistance and defiance of assumption of jurisdiction by the Labor Secretary or an injunction e. Acts of violence [Association of Independent Unions in the Philippines (AIUP), et. al. v. NLRC, G.R. No. 120505 (1999)] The violence must be pervasive and widespread, consistently and deliberately resorted to as a matter of policy [Shell Oil Workers v. Shell Company of the Phil., 39 SCRA 276 (1971)] (if violence was resorted to by both sides, such violence cannot be a ground for declaring the strike as illegal) [Malayang Samahan ng Manggagawa sa M. Greenfield v. Ramos, 357 SCRA 77 (2000)] 2. By employer. No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker. [Art. 279(c)] 3. By public official or police force. No public official or employee, including officers and personnel of the New Armed Forces of the Philippines or the Integrated National Police, or armed person, shall bring in, introduce or escort in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. [Art. 279(d)] CATEGORIES OF ILLEGAL STRIKE 1. Prohibited by Law (e.g. Strike By Government Employees)

Intra-union and inter-union disputes are not proper grounds to strike. Note: Good faith strike Good faith may be used as a defense if the strike is held on the basis of an act of ULP by the employer even if it turned out that there was no act of ULP. However, the mandatory procedural requirements cannot be dispensed with (notice of strike, cooling-off period, strike vote, strike vote report). [Grand Boulevard Hotel v. GLOWHRAIN, G.R. No. 153664 (2003)] Good faith strike requires rational basis A mere claim of good faith would not justify the holding of a strike under the aforesaid exception as, in addition thereto, the circumstances must have warranted such belief. It is, therefore, not enough that the union believed that the employer committed acts of ULP when the circumstances clearly negate even a prima facie showing to sustain such belief. [Interwood Employees Assoc. v. Int’l Hardwood, G.R. No. L-7409 (1956)] 3. Noncompliance Requirements

with

Procedural

See: Procedural requirements of a valid strike previously discussed A strike which does not strictly comply with the procedural requirements set by law and the rules is an unlawful/illegal strike. [Sta. Rosa Coca-Cola Plant Employees Union v. CocaCola Bottlers Philippines, Inc., G.R. Nos. 164302-03 (2007)]

2. Improper Grounds (e.g. Intra or Inter Union Dispute, Wage Distortion)

Note: Good faith strike must still comply with procedural requirements. Even if the union acted in good faith in the belief that the company was committing an unfair labor practice, if no notice of strike and a strike vote were conducted, the said strike is illegal. [Grand Boulevard Hotel v. GLOWHRAIN, G.R. No. 153664 (2003)]

A legal strike must be based on a bargaining deadlock and/or a ULP act only.

General Rule: A strike based on a nonstrikeable ground is an illegal strike; a strike

Government employees While the Constitution guarantees the right of government employees to organize, they are not allowed to strike.

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grounded on ULP is illegal if no such acts actually exist. Exception: Even if no ULP acts are committed by the employer, if the employees believe in good faith that ULP acts exist so as to constitute a valid ground to strike, then the strike held pursuant to such belief may be legal. [NUWHRAIN v. NLRC, G.R. No. 125561 (1998)] 4. Unlawful Means and Methods Purpose and means test There must be concurrence between the validity of the purpose of the strike and the means of conducting it. To be valid, a strike must be pursued within legal bounds. The right to strike as a means for the attainment of social justice is never meant to oppress or destroy the employer. The law provides limits for its exercise. Among such limits are the prohibited activities under Art. [279], particularly paragraph (e), which states that no person engaged in picketing shall: 1. commit any act of violence, coercion, or intimidation or 2. obstruct the free ingress to or egress from the employer's premises for lawful purposes or 3. obstruct public thoroughfares. A legal strike may turn into an illegal strike Even if the strike is valid because its objective or purpose is lawful, the strike may still be declared invalid where the means employed are illegal. [Phil. Diamond Hotel and Resort, Inc. v. Manila Diamond Hotel Employees Union, G.R. No. 158075 (2006)] Examples of unlawful means and methods 1. Acts of violence and terrorism 2. Destruction of property

2. Care is to be taken especially where an unfair labor practice is involved, to avoid stamping it with illegality just because it is tainted by such acts. To avoid rendering illusory the recognition of the right to strike, responsibility in such a case should be individual and not collective. 3. A different conclusion would be called for if the existence of force while the strike lasts is pervasive and widespread, consistently and deliberately resorted to as a matter of policy. It could be reasonably concluded then that even if justified as to ends, it becomes illegal because of the means employed. 4. This is not by any means to condone the utilization of force by labor to attain its objectives. It is only to show awareness that in labor conflicts, the tension that fills the air as well as the feeling of frustration and bitterness could break out in sporadic acts of violence. It would be unjustified, considering all the facts disclosed, to stamp the strike with illegality. It is enough that individual liability be incurred by those guilty of such acts of violence that call for loss of employee status. [Shell Oil Workers Union v. Shell Co. of the Phils, G.R. No. L28607 (1971)] It bears stressing that the requirements of strike notice and strike-vote report are mandatory, meaning, non-compliance therewith makes the strike illegal. The evident intention of the law in requiring these is to reasonably regulate the right to strike. [Stamford Mark Corp. v. Julian, G.R. No. 145496 (2004)] 5. Violation of Injunction Order An automatic injunction under Art. 278(g) or a valid injunction order under the exceptions to Art. 279 must be complied with. Otherwise, the strike becomes illegal.

Guidelines and balancing of Interest 1. A strike, otherwise valid, if violent in character, may be placed beyond the pale.

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6. Those Contrary Agreement

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to

an

Existing

(e.g. No strike/lockout provisions in the CBA) [Citing Ludwig Teller in Toyota Motors v. NLRC, G.R. Nos. 158786 & 158787 (2007)] No Strike/Lockout Provisions in the CBA A “no strike, no lock-out” is a valid provision in the CBA. However, it only applies to economic provisions. It cannot prevent a strike which is grounded on unfair labor practice. [Malayang Samahan ng mga Manggagawa sa Greenfield v. Ramos, G.R. No. 113907 (2000)] 7. The Strikers do not belong to a Legitimate Labor Organization [Magdala Multipurpose & Livelihood Coop. v. Kilusang Manggagawa Ng LGS, G.R. Nos. 191138-39 (2011)] Liabilities of Parties Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status. [Art. 279(a)] Note: Mere participation in an illegal strike by a union officer is sufficient ground to terminate his employment. In case of a lawful strike, the union officer must commit illegal acts during a strike for him to be terminated. [Art. 279(a)] Procedural due process is still required for dismissing union officers/ordinary workers. Where an opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of procedural due process. [Equitable PCI Banking Corp. v. RCBC Capital Corp, 574 SCRA 858 (2004)] Liability of Ordinary Workers General rule: Participation by a worker in a lawful strike is not ground for termination of his employment. [Art. 279(a)] Exception: When the worker participated in illegal acts during the strike; needs clear, substantial and convincing proof available

under the circumstances to justify the penalty of dismissal [Toyota Motors Philippines Workers Association v. NLRC, 537 SCRA 171 (2007)]. Note: The mere fact that the criminal complaints against terminated Union members were subsequently dismissed does not extinguish their liability under the Labor Code [C. Alcantara & Sons, Inc. v. CA, G.R. No. 155109 (2011)]. Liability of Employer Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. [Art. 279(a)] WAIVER OF ILLEGALITY OF STRIKE/ CONDONATION DOCTRINE When defense of illegality of strike is deemed waived An employer can be deemed to have waived the defense that a strike is illegal. In one case, the Court held that: “Admitting for the sake of argument that the strike was illegal for being premature, this defense was waived by the [Company], when it voluntarily agreed to reinstate the radio operators.” [Bisaya Land Transportation Co., Inc. v. CIR, G.R. No. L10114 (1957)] When defense of illegality of strike is not deemed waived The ruling cited in the Bisaya case that the employer waives his defense of illegality of the strike upon reinstatement of strikers is applicable only to strikers who signified their intention to return to work and were accepted back. […] Condonation shall apply only to strikers who signified their intention to return, and did return to work, since these strikers took the initiative in normalizing relations with their employer and thus helped promote industrial peace. However, as regards the strikers who decided to pursue with the case, […] the employer could not be deemed to have condoned their strike, because they had not

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shown any willingness to normalize relations with it. [Philippine Inter-Fashion, Inc. v. NLRC, G.R. No. L-59847 (1982)] However, the mere act of entering into a compromise agreement cannot be deemed to be a waiver of the illegality of the strike, unless such a waiver is clearly shown in the agreement. [Filcon Manufacturing Corp v. Lakas Manggagawa sa Filcon – Lakas Manggagawa Labor Center, G.R. No. 150166 (2004)] b. Picket The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. [Art. 278(b)] Picketing involves merely the marching to and fro at the premises of the employer, usually accompanied by the display of placards and other signs making known the facts involved in a labor dispute. As applied to a labor dispute, to picket means the stationing of one or more persons to observe and attempt to observe. The purpose of pickets is said to be a means of peaceable persuasion. [Sta. Rosa Coca-Cola Plant Employees Union v. Coca-Cola Bottlers Philippines, Inc., G.R. Nos. 164302-03 (2007)] Peaceful Picketing is the right of workers during strikes consisting of marching to and fro before an establishment involved in a labor dispute generally accompanied by the carrying and display of signs, placards and banners intended to inform the public about the dispute. [Guidelines Governing Labor Relations, October 19, 1987; NCMB Manual, Sec. 1] Purpose The purpose of the picket line is to persuade employers peacefully by publicizing the labor dispute to inform the public of what is happening and thus cause other workers not to work in the establishment and for customers not to do business there [Phimco Industries,

Inc. v. Phimco Industries Labor Association (PILA), et al., 628 SCRA 119 (2010)]. PROHIBITED ACTIVITIES IN PICKETING 1. By any person. No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference. [Art. 279(b)] 2. By police force. The police force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legal orders. [Art. 279(d)] 3. By person engaged in picketing. No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer’s premises for lawful purposes, or obstruct public thoroughfares. [Art. 279(e)] Picketing as Part of Freedom of Speech/Expression General rule: picketing enjoys constitutional protection as part of freedom of speech and/or expression. Exceptions/limitations: a. When picketing is coercive rather than persuasive [Security Bank Employees Union v. Security Bank, G.R. No. L-28536 (1968)] b. When picketing is achieved through illegal means [Mortera v. CIR, G.R. No. L-1340 (1947)] c. Courts may confine the communication/ demonstration to the parties to the labor dispute [PCIB v. Philnabank Employees Association, G.R. No. L-29630 (1981)] d. Innocent bystander rule. Courts may insulate establishments or persons with no industrial connection or having interest

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totally foreign to the context of the dispute [PCIB v. Philnabank Employees Association, G.R. No. L-29630 (1981)] Picketing and Libel Libel laws are not applied strictly considering that there is emotional tension in the picket lines and expected discourteous and impolite exchanges between the employees and the employer. [PCIB v. Philnabank Employees Association, G.R. No. L-29630 (1981)] Peaceful picketing is legal even in the absence of employer-employee relationship Picketing, peacefully carried out, is not illegal even in the absence of employer-employee relationship, for peaceful picketing is a part of the freedom of speech guaranteed by the Constitution. [De Leon v. National Labor Union, G.R. No. L-7586 (1957)]

Procedural Requirements 1. Effort to bargain (in case of bargaining deadlock) 2. Filing and service of notice of lockout to the NCMB 3. Observance of cooling-off period 4. 15 days for ULP 5. 30 days for bargaining deadlock 6. Notice of lockout vote meeting within 24 hours before the intended vote [Sec. 10, Rule XXII, Book V, IRR] 7. Lockout vote 8. Report of lockout vote 9. Observance of the waiting period (7-day strike ban) (1) Effort to Bargain No employer shall declare a […] lockout without first having bargained collectively in accordance with Title VII of this Book. [Art. 279(a)] (2) Filing and Service of Notice of Lockout Filed by: The duly certified or recognized bargaining agent may file notice of lockout

2. By Employer a. Lockout Lockout is the temporary refusal of an employer to furnish work as a result of an industrial or labor dispute. [Art. 219 (p)] Illegal strike and illegal lockout/In Pari Delicto Doctrine When the employer engaged in illegal lockout and the employee engaged in illegal strike, both parties are in pari delicto, and such situation warrants the restoration of the status quo ante and bringing the parties back to the respective positions before the illegal strike and illegal lockout. [Philippines Inter-Fashion Inc. v. NLRC, G.R. No. L-59847 (1982)] Similar to a strike, the proper grounds for a lockout are 1. Bargaining deadlock 2. ULP by labor organizations Art. 278 (b). Strikes, Picketing and Lockouts. – [N]o employer may declare a lockout on grounds involving inter-union and intra-union disputes.

Filed with: With the Department When: At least 30 days before the intended date of the lockout [Art. 278(c)] Note: The notice must be served to the employees through the SEBA or the legitimate labor organization (if no SEBA). Contents of notice 1. Names and addresses of the employer and the union involved 2. Nature of the industry to which the employer belongs 3. Number of union members and of workers in the bargaining unit 4. Such other relevant data as may facilitate the settlement of the dispute. Additional Requirements [Sec. 8, Rule XXII, Book V, IRR] In cases of bargaining deadlocks 1. Statement of unresolved issues in the bargaining negotiations 2. Written proposals of the union

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3. Counter-proposals of the employer 4. Proof of a request for conference to settle the differences.

substantially the same grounds considered when the strike or lockout vote was taken. (6) Report of Lockout Vote

In cases of ULP 1. Statement of acts complained of 2. Efforts taken to resolve the dispute amicably. Action on notice 1. Upon receipt of a valid notice of strike or lockout, the NCMB, through its ConciliatorMediators, shall call the parties to a conference the soonest possible time in order to actively assist them to explore all possibilities for amicable settlement. 2. The Conciliator-Mediator may suggest/ offer proposals as an alternative avenue for the resolution of their disagreement/conflict which may not necessarily bind the parties. 3. If conciliation/mediation fails, the parties shall be encouraged to submit their dispute for voluntary arbitration. [Sec. 9, Rule XXII, Book V, IRR] (3) Observance of Cooling-off Periods Lockout cooling-off periods: 1. Based on bargaining deadlock – 30 days 2. Based on ULP – 15 days [Art. 278(c)] (4) Notice of Lockout Vote Meeting Sec. 10, Rule XXII, Book V. Strick or Lockout Vote – In every case, the union or the employer shall furnish the regional branch of the Board the notice of meetings referred to in the preceding paragraph at least twenty-four (24) hours before such meetings [...] (5) Lockout Vote Art. 278 (f). Strikes, Picketing and Lockouts. – A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on

Art. 278 (f). Strikes, Picketing and Lockouts. – In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. (7) Observance of Waiting Period (7 Days) See notes under Strike. Effect of Illegal Lockout Par. 3, Art. 279 (a). Prohibited Activities. – Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages.

3. Assumption of Jurisdiction by Secretary of Labor and Employment When May the SOLE Assume Jurisdiction When in his opinion, there exist a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the SOLE may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. [Art. 278(g)] Requisites for Assumption of Jurisdiction 1. Both parties have requested the SOLE to assume 
jurisdiction; or 
 2. After a conference called by the Office of the 
SOLE on the propriety of its issuance, motu proprio or upon a request or petition by either parties to the labor dispute [Book V, IRR Rule XXII, sec. 15, IRR as amended by D.O. No. 40-H-13 s 2013] 
 Immediately Executory The assumption and certification orders are 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)] Effect of defiance of assumption or certification orders No strike or lockout shall be declared after assumption of jurisdiction by the President or the Minister or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout. [Art. 279(a), par. 2] A strike undertaken despite the issuance by the Secretary of Labor of an assumption or certification order becomes a prohibited activity and thus, illegal, pursuant to Art. 279(a) of the Labor Code. [Allied Banking v. NLRC, G.R. No. 116128 (1996)] a. Industry Indispensable to the National Interest 1. Hospital sector
 2. Electric power industry
 3. Water supply service, to exclude small water supply services, such as bottling and refilling stations
 4. Air traffic control
 5. Other industries as may be recommended by the National Tripartite Industrial Peace Council (TIPC) [Sec. 16, Rule XXII, Book V, IRR as amended by D.O. No. 40-H-13] Who determines industries indispensable to the national interest [Art. 278(g)]
 1. Secretary of Labor and Employment
 2. President Strikes and lockouts in hospitals, clinics and similar medical institutions
 It shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout.

In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty-four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. [Art. 278, par. 2] Rationale: The highest respect is accorded to the right of patients to life and health. b. Effects of Assumption of Jurisdiction Automatic Injunction of Intended of Impending Strike or Lockout The assumption of jurisdiction by the SOLE automatically enjoins intended or impending strike or lockout. [Art. 278 (g)] Return-to-work and readmission if strike or lockout has already taken place If strike or lockout has already taken place at the time of assumption or certification, 1. All striking or locked out employees shall immediately return-to-work; and 2. The employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. [Art. 278 (g)] The SOLE may also determine the retroactivity of arbitral awards pursuant to power to assume jurisdiction as part of his/her plenary powers to determine the effectivity thereof in absence of specific provision of law [LMG Chemicals Corp. v. Sec. of Labor and Employment, 356 SCRA 577 (2001)] Nature of return-to-work order The return-to-work order not so much confers a right as it imposes a duty; and while as a right it may be waived, it must be discharged as a duty even against the worker's and/or employers’ will. The worker must return to his job together with his co-workers so the operations of the company can be resumed and it can continue serving the public and promoting its interest.

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That is the real reason such return can be compelled. So imperative is the order in fact that it is not even considered violative of the right against involuntary servitude. [Kaisahan ng Mga Manggagawa sa Kahoy v. Gotamco Sawmills, G.R. No. L-1573 (1948)] Note: It must be strictly complied with even during the pendency of any petition questioning its validity. [Manila Hotel Employees Association and its Members v. Manila Hotel Corp., 517 SCRA 349 (2007)] The purpose of SOLE’s extraordinary power is aimed at arriving at a peaceful and speedy solution to labor disputes without jeopardizing national interest [Union of Filipro EmployeesDrug v. Nestle, 499 SCRA 521 (2006)]

VI.

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MANAGEMENT PREROGATIVE

Basis The State recognizes the indispensable role of the private sector, encourages private enterprise, and provides incentives to needed investments. [Sec. 20, Art. II, 1987 Constitution] The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. [Sec. 3, pars. 4, Art. XIII, 1987 Constitution]

Definition “Management Prerogative” is the right of an employer to regulate all aspects of employment. Courts often decline to interfere in legitimate business decisions of employers. In fact, labor laws discourage interference in employers’ judgment concerning the conduct of their business. Scope Management prerogative gives employers the freedom to regulate, according to their discretion and best judgment, all aspects of employment, including: a. Work assignment b. Working methods, c. Processes to be followed, d. Working regulations, e. Transfer of employees, f. Work supervision, lay-off of workers and the discipline, dismissal and recall of workers. Limits to Management Prerogative 1. Good faith - So long as a company’s management prerogatives are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold them. [Ernesto G. Ymbong v. ABS-CBN Broadcasting Corp.]

The law in protecting the rights of the employees authorizes neither oppression nor self-destruction of the employer. It should be made clear that when the law tilts the scale of justice in favor of labor, it is but a recognition of the inherent economic inequality between labor and management. Never should the scale be so tilted if the result is an injustice to the employer. [Panuncillo v. CAP, G.R. No. 161305 (2007)]

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It is incumbent upon the company to show that decisions made under management prerogative are in good faith and not intended to circumvent employees’ rights. [San Miguel Brewery Sales Force Union (PTGWO) v. Ople, G.R. No. L-53515 (1989)] The exercise of management prerogative is valid, provided it is not performed in a malicious, harsh, oppressive, vindictive or wanton manner or out of malice or spite. [Magdadaro v. PNB, G.R. No. 166198 (2009)]

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2. Without grave abuse of discretion - The managerial prerogative to transfer personnel must be exercised without grave abuse of discretion, bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which the right is exercised. [Tinio v. CA, G.R. No. 171764 (2007)]

5. Equity and/or Substantial Justice – The Court should still ensure that the employer exercises the prerogative to discipline humanely and considerately, and that the sanction imposed is commensurate to the offense involved and to the degree of the infraction. [Dongon v. Rapid Movers and 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. Management prerogative is limited by Sec. 236(g), which gives the Secretary the power to assume jurisdiction and resolve labor disputes involving industries indispensable to national interest. The company’s management prerogatives are not being unjustly curtailed but duly tempered by the limitations set by law, taking into account its special character and the particular circumstances in the case at bench. [Metrolab Industries, Inc. v. Roldan-Confesor, G.R. No. 108855 (2013); University of Immaculate Concepcion Inc. v. Sec. of Labor, G.R. No. 151379 (2005)] Although management prerogative refers to the right to regulate all aspects of employment, it cannot be understood to include the right to temporarily withhold salary/wages without the consent of the employee. To sanction such an interpretation would be contrary to Art. 116 of the Labor Code. [SHS Perforated Materials, Inc. v. Diaz, G.R. No. 185814 (2010)] 4. Collective Bargaining – The CBA provisions agreed upon by the Company and the Union delimit the free exercise of management prerogative. The parties in a CBA may establish such stipulations, clauses, terms and conditions as they may deem convenient provided these are not contrary to law, morals, good customs, public order or public policy. [Goya Inc. v. Goya, Inc., Employees Union-FFW, G.R. No. 170054 (2013)]

A. DISCIPLINE Management has the prerogative to discipline its employees and to impose appropriate penalties on erring workers pursuant to company rules and regulations. [Jose P. Artificio v. NLRC, G.R. No. 172988 (2010)] Among the employer’s management prerogatives is the right to prescribe reasonable rules and regulations necessary or proper for the conduct of its business or concern, to provide certain disciplinary measures to implement said rules and to assure that the same would be complied with. [St. Luke’s Medical Center, Inc. v. Sanchez, G.R. 212054 (2015)] The employer’s right to conduct the affairs of his business, according to its own discretion and judgment, includes the prerogative to instill discipline in its employees and to impose penalties, including dismissal, upon erring employees. [Consolidated Food Corporation v. NRLC, G.R. No. 118647 (1999))] Right to dismiss or otherwise impose disciplinary sanctions upon an employee for just and valid cause, pertains in the first place to the employer, as well as the authority to determine the existence of said cause in accordance with the norms of due process. [Makati Haberdashery, Inc. v. NLRC, G.R. Nos. 83380-81 (1989)]

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Corollary Duty of Employees The employee has the corollary duty to obey all reasonable rules, orders, and instructions of the employer; and willful or intentional disobedience thereto, as a general rule, justifies termination of the contract of service and the dismissal of the employee. [St. Luke’s Medical Center, Inc. v. Sanchez, G.R. 212054 (2015)] Criteria The policies, rules and regulations on workrelated activities of the employees must always be fair and reasonable and the corresponding penalties, when prescribed, commensurate to the offense involved and to the degree of the infraction. [Consolidated Food Corporation v. NRLC, G.R. No. 118647 (1999); St. Michael’s Institute v. Santos, G.R. No. 145280 (2001)] Although the right of employers to shape their own work force is recognized, this management prerogative must not curtail the basic right of employees to security of tenure. [Alert Security & Investigation Agency, Inc. v. Saidali Pasawilan, et. al., G.R. No. 182397 (2011)] Disciplinary action against an erring employee is a management prerogative which, generally, is not subject to judicial interference. However, this policy can be justified only if the disciplinary action is dictated by legitimate business reasons and is not oppressive. [Areno v. Skycable, G.R. No 180302 (2010)]

B. TRANSFER OF EMPLOYEES An employee’s right to security of tenure does not give him such a vested right in his position, as would deprive the company of its prerogative to change his assignment or transfer him where he will be most useful. The employer has the right to transfer or assign employees from one area of operation to

another, or one office to another or in pursuit of its legitimate business interest. Management has the prerogative on whether or not to renew the contract of a fixed-term employee. [Fonterra Brands Phils., Inc. v. Largado, G.R. No. 205300 (2015)] Criteria Provided there is no demotion in rank or diminution of salary, benefits and other privileges and not motivated by discrimination or made in bad faith, or effected as a form of punishment or demotion without sufficient cause. [Westin Phil. Plaza Hotel v. NLRC, G.R. No. 121621 (1999)] When the transfer is not unreasonable, or inconvenient, or prejudicial to the employee, and it does not involve a demotion in rank or diminution of salaries, benefits, and other privileges, the employee may not complain that it amounts to a constructive dismissal. [Bisig ng Manggagawa sa TRYCO v. NLRC, G.R. No. 151309 (2008)] It is management prerogative for employers to transfer employees on just and valid grounds such as genuine business necessity. [William Barroga v. Data Center College of the Philippines, G.R. No. 174158 (2011)] Re-assignments Re-assignments made by management pending investigation of irregularities allegedly committed by an employee fall within the ambit of management prerogative. The purpose of reassignments is no different from that of preventive suspension which management could validly impose as a disciplinary measure for the protection of the company's property, pending investigation of any alleged malfeasance or misfeasance committed by the employee. [Ruiz v. Wendel Osaka Realty Corp., G.R. No. 189082 (2012)] Employer Bears the Burden of Proof In cases of a transfer of an employee, the rule is settled that the employer is charged with the burden of proving that its conduct and action are for valid and legitimate grounds such as

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genuine business necessity and that the transfer is not unreasonable, inconvenient or prejudicial to the employee. If the employer cannot overcome this burden of proof, the employee’s transfer shall be tantamount to unlawful constructive dismissal. [Jonathan Morales v. Harbor Centre Port Terminal Inc., G.R. No. 174208 (2012)]

C. PRODUCTIVITY STANDARDS The employer has the right to demote and transfer an employee who has failed to observe proper diligence in his work and incurred habitual tardiness and absences and indolence in his assigned work. [Petrophil Corporation v. NLRC, G.R. No. L-64048 (1986)] In the consolidated cases of Leonardo v. NLRC [G.R. No. 125303 (2000)] and Fuerte v. Aquino [G.R. No. 126937 (2000)], the employer claimed that the employee was demoted pursuant to a company policy intended to foster competition among its employees. Under this scheme, its employees are required to comply with a monthly sales quota. Should a supervisor such as the employee fail to meet his quota for several consecutive months, he will be demoted, whereupon his supervisor’s allowance will be withdrawn and be given to the individual who takes his place. When the employee concerned succeeds in meeting the quota again, he is re-appointed supervisor and his allowance is restored. The Supreme Court held that this arrangement is an allowable exercise of company rights since an employer is entitled to impose productivity standards for its workers. In fact, non-compliance may be visited with a penalty even more severe than demotion.

D. BONUS A bonus is "a gratuity or act of liberality of the giver which the recipient has no right to demand as a matter of right" [Philippine National Construction Corp. v. National Labor Relations Commission, 345 Phil. 324, 331 (1997)]. It is something given in addition to what is ordinarily received by or strictly due the recipient. The granting of a bonus is basically a management prerogative which cannot be forced upon the employer "who may not be obliged to assume the onerous burden of granting bonuses or other benefits aside from the employee's basic salaries or wages" xxx. [Kamaya Point Hotel v. National Labor Relations Commission, Federation of Free Workers and Nemia Quiambao, G.R. No. 75289, (1989); Traders Royal Bank v. NLRC, G.R. No. 120592 (1990)] The matter of giving a bonus over and above the worker’s lawful salaries and allowances is entirely dependent on the financial capability of the employer to give it. [Kimberly-Clark Philippines, Inc. v. Dimayuga, G.R. No. 177705 (2009)]

E. CHANGE OF WORKING HOURS Management retains the prerogative, whenever exigencies of the service so require, to change the working hours of its employees. So long as such prerogative is exercised in good faith for the advancement of the employer’s interest and not for the purpose of 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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F. BONA FIDE OCCUPATIONAL QUALIFICATIONS General Rule: Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. Exception: The exception is called a bona fide occupational qualification (BFOQ). In the United States, there are a few federal and many state job discrimination laws that contain an exception allowing an employer to engage in an otherwise unlawful form of prohibited discrimination when the action is based on a BFOQ necessary to the normal operation of a business or enterprise. BFOQ is valid "provided it reflects an inherent quality reasonably necessary for satisfactory job performance." [Yrasuegui v. PAL, G.R. No. 168081 (2008)] BFOQ in Philippine Jurisdiction The concept of a bona fide occupational qualification is not foreign in our jurisdiction. We employ the standard of reasonableness of the company policy which is parallel to the bona fide occupational qualification requirement. In Duncan Association of Detailman-PTGWO and Pedro Tecson v. Glaxo Wellcome Philippines, Inc., we passed on the validity of the policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor company. We held that Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential programs and 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

Glaxo only aims to protect its interests against the possibility that a competitor company will gain access to its secrets and procedures. [Star Paper Corp. v. Simbol, G.R. No. 164774 (2006)] A requirement that a woman employee must remain unmarried could be justified as a "bona fide occupational qualification," or BFOQ, where the particular requirements of the job would justify the same, but not on the ground of a general principle, such as the desirability of spreading work in the workplace. A requirement of that nature would be valid provided it reflects an inherent quality reasonably necessary for satisfactory job performance. [Phil. Telegraph and Telephone Company v. NLRC, G.R. No. 118978 (1997)]

G. POST-EMPLOYMENT RESTRICTIONS In cases where an employee assails a contract containing a provision prohibiting him or her from accepting competitive employment as against public policy, the employer has to adduce evidence to prove that the restriction is reasonable and not greater than necessary to protect the employer’s legitimate business interests. The restraint may not be unduly harsh or oppressive in curtailing the employee’s legitimate efforts to earn a livelihood, and must be reasonable in light of sound public policy. [Rivera v. Solidbank, G.R. No. 163269 (2006)] H. MARRIAGE BETWEEN EMPLOYEES OF COMPETITOR-EMPLOYERS See F. Bonafide Occupational Qualifications, above

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VII. SOCIAL LEGISLATION A. SOCIAL SECURITY SYSTEM LAW [Republic Act 8282, as amended by RA 11199]

1. Coverage and Exclusions

(2) Self-employed persons as may be determined by the Commission, including but not limited to: a. All self-employed professionals b. Partners and single proprietors of businesses c. Actors and actresses, directors, scriptwriters and news correspondents who do not fall within the definition of the term “employee” under Sec. 8 (d) of this Act;

a. Compulsory

Employee [Sec 8(d), RA 11199] - Any person who performs services for an employer in which either or both mental or physical efforts are used and who receives compensation for such services, where there is an employeremployee relationship: Provided, That a self-employed person shall be an employer and employee at the same time.

(1) Employees not over 60 years old and their employers, including domestic helpers [Sec. 9(1), RA 11199] Provided, That any benefit already earned by the employees under private benefit plans existing at the time of the approval of this Act shall not be discontinued, reduced or otherwise impaired. Private plans which are existing and in force at the time of compulsory coverage shall be integrated with the plan of the SSS, in such a way where the employer’s contribution to his private plan is more than required of him in this Act: a. He shall pay to the SSS only the contribution required of him; and b. He shall continue his contribution to such private plan less his contribution to the SSS c. So that the employer’s total contribution to his benefit plan and to the SSS shall be the same as his contribution to his private benefit plan before the compulsory coverage. [Sec. 9(1), RA 11199] Domestic workers or “kasambahays” as defined under RA10361 or the Batas Kasambahay, who are receiving a monthly income lower than minimum salary credit prescribed under this Act, shall pay contributions based on their actual monthly salary. [Sec. 4(a)(9), RA 11199]

d. Professional atheism coaches, trainers and jockeys e. Individual farmers and fishermen [Sec. 9-A, RA11199] (3) All sea-based and land-based Overseas Filipino Workers (OFWs) not over 60 years of age [Sec. 9-B, RA 11199] b. Voluntary 1. Spouses who devote full time to managing household and family affairs, unless they are also engaged in another vocation or employment (in which case, coverage will be mandatory). [Sec. 9(b), RA 11199] 2. Employees previously under compulsory coverage) already separated from employment or those self-employed (under compulsory coverage) with no realized income for a given month, who chose to continue with contributions to maintain the right to full benefit. [Sec. 11, 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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separated employee member. [Sec. 11-A, RA 11199] Note: Foreign governments and international organizations or their wholly owned instrumentality employing workers in the Philippines or employing Filipinos outside of the Philippines, may enter into an agreement with the Philippine Government for the inclusion of such employees in the SSS, except those already covered by their civil service retirement system. [Sec. 8(j)(3), RA 11199] c. Exclusions 1. Services where there is no employeremployee relationship in accordance with existing labor laws, rules, regulations and jurisprudence; 2. Service performed in the employ of the Philippine Government or instrumentality or agency thereof; 3. Service performed in the employ of a foreign government or international organization, or their wholly-owned instrumentalities; and Note: Foreign governments and international organizations may enter into an agreement with the PH government to include their employees in the Philippines in the SSS. 4. Services performed by temporary and other employees which may be excluded by regulation of the Social Security Commission. Employees of bona fide independent contractors shall not be deemed employees of the employer engaging the services of said contractors. [Sec. 8(j), RA 11199]

2. Dependents and Beneficiaries Primary 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 beneficiaries are absent 2. Dependent parents

the

primary

Others 1. Receives only when primary and secondary beneficiaries are absent 2. Any other person designated by member as his/her secondary beneficiary. [Sec. 8 (k), RA 11199]

3. Benefits a. Monthly Pension [Sec. 12, RA 11199] The monthly pension shall be the highest of the following amounts: 1. P300 + [20% x (average monthly credit)] + [2% x (average monthly credit) x (# of cash credit years of service in excess of 10 years)] 2. 40% x [average monthly credit] 3. P1000, provided that the monthly pension shall in no case be paid for an aggregate amount of less than 60 months [Sec. 12 (a)] 4. Notwithstanding the above mentioned, minimum pension is: a. P1,200 - members with at least 10 years credit service b. P 2,400 - members with at least 20 years b. Dependents' Pension [Sec. 12A, RA 11199] 1. Paid on account of members’ a. Death b. Permanent total disability, or c. Retirement 2. Paid to each child conceived on or prior to contingency, but not exceeding 5, beginning with the youngest and preferring the legitimate 3. Amount is either P250 or 10% of the monthly pension as computed above, whichever is higher.

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c. Retirement benefits [Sec. 12-B, RA 11199] Requisites for Eligibility 1. 120 monthly contributions 2. Age a. Has reached the age of 60 years and is already separated from employment or has ceased to be self-employed; or b. Has reached the age of 65 years

Monthly pension The monthly pension of a member who retires after reaching age 60 shall be the highest of either: 1. The monthly pension computed at the earliest time he could have retired had he been separated from employment or ceased to be self-employed plus all adjustments thereto; or 2. The monthly pension computed at the time when he actually retires.

Period of entitlement - From retirement until death The monthly pension shall be suspended upon the reemployment or resumption of selfemployment of a retired member who is less than 65 years old. In Case of Death of Member 1. His/her primary beneficiaries as of the date of his/her retirement shall be entitled to receive the monthly pension; 2. If he/she has no primary beneficiaries AND he/she dies within 60 months from the start of his/her monthly pension, his/her secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the balance of the 5 year guaranteed period, excluding the dependents’ pension. Lump Sum Alternative The member may opt to receive the first 8 monthly pensions in lump sum but such is discounted at a preferential rate of interest to be determined by the SSS. Lump Sum Eligibility (Equal to total contributions) A covered member who is 60 years old at retirement and who does not qualify for pension benefits (see requisites for eligibility) shall be entitled to a lump sum benefit equal to the total contributions paid by him and on his behalf: Provided, That he is separated from employment and is not continuing payment of contributions to the SSS on his own.

d. Permanent disability benefits [Sec. 13-A, RA 11199] Eligibility 1. 36 monthly contributions prior to the semester of disability Note: This is the same as death benefit, but permanent disability pension is paid directly to the member. 2. In case the permanently disabled member dies, he/she is given the same treatment as a retiree dying. 3. For permanent partial disability, the pension is not lifetime. It shall be paid in lump sum if the period is less than 12 months. Ex. loss of thumb entitles member to 10 months of pension; loss of arm entitles member to 50 months. 4. For multiple partial disabilities, they shall be additive when related or deteriorating the percentage shall be equal to the number of months the partial disability is entitled to, divided by 75 months.

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Ex. loss of sight in 1 eye - 25/75; loss of arm = 50/75 If both occur due to same cause then 25/75 + 50/75 = 100% (as if it were a permanent total disability)

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Lump Sum Alternative A member is entitled to a lump sum benefit equivalent to the monthly pension x number of monthly contributions paid to the SSS or 12 times the monthly pension, whichever is higher. To be entitled, he must not have paid at least 36 monthly contributions. Subject to compulsory coverage again A member who: 1. Received a lump sum benefit, and 2. Is reemployed or resumed selfemployment not earlier than 1 year from date of disability , shall be subject to compulsory coverage and considered a new member. Death of Member 1. His/her primary beneficiaries as of the date of his/her retirement shall be entitled to receive the monthly pension; 2. If he/she has no primary beneficiaries AND he/she dies within 60 months from the start of his/her monthly pension, his/her secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the total monthly pensions corresponding to the balance of the 6 year guaranteed period, excluding the dependents’ pension. e. Death Benefits [Sec. 13, RA 11199] Eligibility 36 monthly contributions prior to the semester of death Benefit 1. Monthly pension to primary beneficiaries, or 2. If no primary beneficiaries, lump sum equivalent to 36 times the monthly pension to secondary beneficiaries If ineligible/has not paid 36 monthly contributions A lump sum benefit which shall be that which is higher between the ff. will be given to the beneficiaries: a. (monthly pension) x 12, or

b. (monthly pension) contributions) f.

x

(#

of

monthly

Funeral benefits [Sec. 13-B, RA 11199]

P12,000 in cash or in kind, upon the death of member. g. Loan Social Security Commission Reso. No. 669, SSS Circular No. 21-P and 52 pertain to treatment of salary loans, which sometimes provide for more flexible payment terms or condonation for delinquent payers. h. Sickness benefits [Sec. 14, RA 11199] Eligibility 1. Inability to work due to sickness or injury, 2. Confined for more than 3 days either in a hospital or elsewhere with SSS approval 3. At least 3 months of contribution paid in the 12 month period immediately before the semester of sickness or injury 4. All company sick leaves with pay for the current year have been used up; 5. Maximum of 120 days per 1 calendar year (i.e. max permissible for the same sickness and confinement is 240 days for 2 consecutive years) 6. Employer has been notified, or, if a separated, voluntary or self-employed member, the SSS has been directly notified within 5 days from confinement. Notice to employers or SSS is not needed when confinement is in a hospital. Notice to employer is not required when employee became sick or injured while working or within the premises of the employer. Benefit Daily cash allowance paid for the number of days a member is unable to work due to sickness of injury equivalent to 90% x (average daily salary credit)

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Reimbursement of SSS to Employer Upon satisfactory proof of payment and legality of sickness benefits, reimbursement shall be made by the SSS if the following conditions are met: 1. Employer notified SSS of the confinement within 5 calendar days after receipt of the notification from the employee-member 100% reimbursement 2. If the notification to SSS is made beyond 5 calendar days after receipt of notification from the employee-member reimbursement only for each day of confinement starting from the 10th calendar day immediately preceding the date of notification to SSS

Full payment shall be advanced by the employer within 30 days from filing the maternity leave application. SSS shall reimburse the employer of 100% of the amount of maternity benefits advanced upon receipt of satisfactory proof of payment and legality thereof. Note: All benefits herein mentioned are taxexempt. j.

Unemployment Insurance or Involuntary Separation Benefits [Sec. 14-B, RA 11199]

SSS shall reimburse the employer or pay the unemployed member only for confinement within the 1 year period immediately preceding the date the claim for benefit/reimbursement is received by SSS.

Eligibility 1. Not over 60 years of age 2. At least 36 months contributions, 12 months of which should be in the 18th month period immediately preceding the involuntary unemployment or separation

Exception: Confinement in a hospital - the claim for benefit or reimbursement must be filed within 1 year from the last day of confinement

Benefit Monthly cash payments equivalent to 50% of the average monthly salary credit for a maximum of 2 months

i.

Maternity Leave benefits [Sec. 14-A, RA 11199]

Eligibility 1. Female member 2. Paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth or miscarriage 3. Member notified her employer of her pregnancy and probable date of childbirth, which notice shall be transmitted to the SSS Full payment shall be advanced by the employer within 30 days from filing the maternity leave application. Coverage Covers only the first four deliveries or miscarriages. Employer’s reimbursement

Frequency of claiming benefit An employee who is involuntarily unemployed can only claim unemployment benefits once every 3 years. In case of concurrence of 2 or more compensable contingencies, only the highest benefit shall be paid, subject to the rules and regulations that the Commission may prescribe.

B. GOVERNMENT SERVICE INSURANCE SYSTEM LAW [Republic Act 8291]

1. Coverage and Exclusions Coverage All public sector employees below the compulsory retirement age of 65, irrespective of employment status. [Sec. 3]

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Exclusions 1. AFP and PNP 2. Members of the Judiciary and Constitutional Commissions who are covered only by life insurance as they have separate retirement schemes 3. Contractual employees with no employeremployee relationship [Sec. 3]

a. Monthly Pension [Sec. 9] The amount shall be [37.5% x (revalued average monthly compensation)] + [2.5 x (revalued average monthly compensation) x (years in service in excess of 15 years)] Provided, the monthly pension shall not exceed 90% of the average monthly compensation.

2. Dependents and Beneficiaries Primary 1. Dependent spouse - until remarriage 2. Dependent children (legitimate, legitimated, legally adopted and illegitimate) Note: Unlike the SSS law, the GSIS law does not distinguish between the share of legitimate and illegitimate children. Secondary In the absence of primary beneficiaries, 1. Dependent parents 2. Legitimate descendants (excluding dependent children)

3. Benefits Computation of service [Sec. 10] From date of original appointment/election including periods of service at different times under 1 or more employers, those performed overseas under the authority of the Republic of the Philippines, and those that may be prescribed by the GSIS in coordination with the Civil Service Commission. In case of reinstatement in the service of an employer and subsequent retirement or separation which is compensable under this Act, all service credited for retirement, resignation or separation for which corresponding benefits have been awarded under this Act or other laws shall be excluded in the computation.

It shall not be less than P24,000 for those with 20 years of service and not less than P1,300 for everyone else. b. Retirement Benefits [Sec. 13] Eligibility 1. At least 15 years of service 2. At least 60 years of age 3. Not receiving pension benefit permanent total disability

from

Compulsory Retirement [Sec. 13-A] Retirement is compulsory for employees: 1. 60 years of age 2. Who have rendered at least 15 years of service If employee has less than 15 years of service, he may be allowed to continue in accordance with civil service laws. Benefit [Sec. 13] The member may choose between 1. 60 x (basic monthly pension) lump sum payment at the time of retirement + basic monthly pension payable monthly for life after expiry of the 5-year guaranteed period which is already covered by the lump sum, or 2. Cash payment equal to 18 x (basic monthly pension) + monthly pension for life immediately but with no 5-year guarantee

GSIS may prescribe rules for the inclusion of part time and other services with compensation.

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c. Permanent Disability Benefits Total and Permanent [Sec. 16]

Partial and Permanent [Sec. 17]

1. Complete loss of sight of both eyes 2. Loss of 2 limbs at or above the ankle or wrist 3. Permanent complete paralysis of 2 limbs 4. Brain injury resulting in incurable imbecility or insanity 5. Other cases as determined by GSIS

1. Complete and permanent loss of the use of a. Any finger b. Any toe c. One arm d. One hand e. One foot f. One leg g. One/both ears h. Hearing of one/both ears i. Sight of one eye 2. Other cases as determined by GSIS

Eligibility for Permanent Total Disability 1. Disability not due to employee’s own grave misconduct, notorious negligence, habitual intoxication, or willful intention to kill himself for another [Sec. 15] 2. Employee is: a. In service at time of disability b. Even if separated, has paid at least 36 monthly contributions within the 5-year period immediately prior to disability or has paid a total of at least 180 monthly contributions prior to disability c. Not enjoying old-age retirement benefit [Sec. 16]. Benefit for Permanent Total Disability 1. Monthly income benefit for life equal to basic monthly pension, from date of disability 2. If member is in service at time of disability and has paid at least 180 monthly contributions, he receives an additional cash payment of 18 x basic monthly pension

Ineligible members If member has rendered at least 3 years of service, he shall receive cash payment equal to 100% of average monthly compensation for each year of service (essentially total amount of contributions made) or P12,000 whichever is higher [Sec. 16]. Partial Disability Paid according to GSIS prescribed schedule. Member must satisfy conditions regarding the disability not being due to his own fault and regarding employment status and services rendered. d. Death benefits [Sec. 21] When member dies, the primary beneficiaries are entitled to only ONE of the following: 1. Survivorship pension a. He was in service when he died, or b. Even if separated from service, he has at least 3 years of service and has paid 36 monthly contributions within the 5 years preceding death, or c. Even if separated from the service, he has paid 180 monthly contributions prior to death. 2. Survivorship pension + cash payment of 100% of average monthly compensation for every year of service [pension + total contributions made] a. He was in service when he died, and b. With 3 years of service 3. Cash payment equivalent to 100% average monthly compensation for each year of service he paid contributions or P12,000 whichever is higher a. With 3 years of service b. He has failed to qualify in the prior 2 schemes. e. Funeral Benefits [Sec. 23] Eligibility 1. Active member 2. Member separated from service but still entitled to the benefit 3. Pensioner

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4. Retiree who at time of retirement was of pensionable age but opted to retire under RA 1616 f.

i.

Unemployment Benefits [Sec. 12]

Eligibility 1. Employee separated from service due to abolition of his office or position and 2. Employee has been paying integrated contributions for at least 1 year prior to separation

Loan

The following are the loans provided: 1. Consolidated Loan 2. Policy loan 3. Emergency loan 4. Pension loan g. Temporary Disability Benefits [Sec. 18] Eligibility 1. Employee must be: a. In service at time of disability, or b. If separated, he has rendered at least 3 years of service and paid at least 6 monthly contributions in the 12 month period immediately prior to disability 2. All sick leave credits including those in the CBA for the current year have been used 3. Maximum of 120 days per 1 calendar year

Benefit Monthly cash payments of 50% x average monthly compensation for a duration which is proportional to years rendered, ranging from 2 to 6 months. j.

Survivorship Benefits

Benefit 1. Basic survivorship pension - 50% x basic monthly pension (see Death Benefits) and 2. Dependent children’s pension not exceeding 50% of the basic monthly pension k. Life Insurance Benefits

Ex. maximum for the same sickness and confinement is 240 days for 2 consecutive years

Members of the Judiciary and Constitutional Commissions are only entitled to life insurance.

Benefit 75% x current daily compensation for every day or fraction thereof of disability 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 Enabling law

GSIS

RA 1161 as amended by RA 8282 or the PD 1146 as amended by RA 8291 Social Security Act of 1997, and RA11199 or the Social Security Act of 2018 Employer – any person, natural or juridical, domestic or foreign, who carries on in the Philippines any trade business, industry, undertaking, and uses the services of another person who is under his orders as regards the employment, except those considered as employer under the GSIS. A self- employed person shall be both employer and employee at the same time.

Employer – National government, its political subdivisions, branches, agencies or instrumentalities, including government- owned or controlled corporations and financial institutions with original charters [GOCCs]; constitutional commissions; and judiciary

Employee – any person who performs services for an employer in which either or both mental and physical efforts are used and who receives compensation for such services, where there is an employer— employee relationship; also, a selfemployed person who is both employee and employer at the same time.

Employee – any person receiving compensation while in service of an employer whether by election or appointment, irrespective of status of appointment; barangay officials; and sanggunian officials

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, scriptwriters, news correspondents not considered 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, legally adopted or illegitimate 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 for employment, including mandated costof-living allowance, as well as the cash value of any remuneration paid in any medium other than cash except that portion already above the max salary credit as provided in this Act.

Compensation – basic pay received excluding per diems, bonuses, overtime, honoraria, allowances and other emoluments not integrated into the basic pay under existing laws.

Compulsory 1. Employers as defined above 2. Employees not over 60 years including household helpers 3. Self-employed

Public sector employees below the compulsory retirement age of 65.

Exceptions: 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. 2. 3. 4. 5. 6. Summary 7. of 8. Benefits 9. 10.

Monthly pension Dependents’ pension Retirement benefits Permanent disability benefits Death benefits Funeral benefits Loan Sickness benefits Maternity leave benefits Unemployment benefit

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Monthly pension Dependents’ pension Retirement benefits Permanent disability benefits Death benefits Funeral benefits Loan Separation benefits Unemployment benefits Survivorship benefits Life insurance benefits

Note: Members of the Judiciary and Constitutional Commissions are entitled to life insurance only. 1. Employer’s contribution, and Effects of employee’s obligation to pay separacontribution both cease at the end of tion from the month of separation employ2. Employee shall be credited with all ment contributions paid on his behalf and entitled to all benefits set forth by law.

Continued membership for the unemployed member, and entitlement to whatever benefits he has qualified to in the event of any compensable contingency.

Dispute settlement

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

Prescriptive period

20 years

4 years

C. LIMITED PORTABILITY LAW [RA 7699: “An Act Instituting Limited Portability Scheme in the Social Security Insurance Systems by Totalizing the Workersʹ Creditable Services or Contributions in each of the Systems”] Policy declaration To promote the welfare of our workers by recognizing their efforts in productive endeavors and to further improve their

conditions by providing benefits for their long years of contribution to the national economy. Towards this end, the State shall institute a scheme for totalization and portability of social security benefits, with the view of establishing within a reasonable period a unitary social security system [Section 1, RA 7699]. Coverage All worker‐members of the Government Service Insurance System (GSIS) and/or Social Security System (SSS) who transfer from one sector to another, and who wish to retain their membership in both Systems.

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Portability Refers to the transfer of funds for the account and benefit of a worker who transfers from one system to the other [Section 2(b), RA 7699]. Provisions of any general or special law or rules and regulations to the contrary notwithstanding, a covered worker shall have his credible services or contributions in both Systems credited to his service or contribution record in each of the Systems and shall be totalized for purposes of old-age, disability, survivorship and other benefits in case the covered member does not qualify for such benefits in either or both Systems without totalization. Provided: That overlapping periods of membership shall be credited only once for purposes of totalization [Section 4, RA 7699]. Totalization Refers to the process of adding up the period of creditable services or contributions under each of the Systems, for purposes of eligibility and computation of benefits [Section 2(e), RA 7699]. Totalization of service credits is only resorted to when the retiree does not qualify for benefits in either or both of the System. In this case, since the petitioner may be entitled to some benefits from the GSIS, he cannot avail of the benefits under RA 7699 [Gamogamo v. PNOC Shipping and Transport Corp, G.R. No. 141707 (2002)]. All contributions paid by such member personally, and those that were paid by his employers to both Systems shall be considered in the processing of benefits which he can claim from either or both Systems: Provided, however, that the amount of benefits to be paid by one System shall be in proportion to the number of contributions actually remitted to that System. [Section 4, RA 7699].

purposes of eligibility and computation of benefits [Rule V, Sec. 1, RA 7699 Rules and Regulations]. Totalization shall apply in the following instances: a. If a worker is not qualified for any benefits from both Systems; b. If a worker in the public sector is not qualified for any benefits in the GSIS; or c. If a worker in the private sector is not qualified for any benefits from the SSS. For the purpose of computation of benefits, totalization shall apply in all cases so that the contributions made by the worker‐member in both Systems shall provide maximum benefits which otherwise will not be available. In no case shall the contribution be lost or forfeited [Rule V, Sec. 3, RA 7699 Rules and Regulations]. If after totalization the worker‐member still does not qualify for any benefit listed in Rule III, Section 1 (j), the member will then get whatever benefits correspond to his/her contributions in either or both Systems [Rule V, Sec. 4, RA 7699 Rules and Regulations]. If a worker qualifies for benefits in both Systems, totalization shall not apply [Rule V, Sec. 5, RA 7699 Rules and Regulations]. The process of totalization of creditable services or periods of contributions and computation of benefits provided for under the Act shall be the joint responsibility of the GSIS and the SSS [Rule V, Sec. 6, RA 7699 Rules and Regulations]. Overlapping periods of creditable services or contributions in both Systems shall be credited only once for purposes of totalization [Rule V, Sec. 7, RA 7699 Rules and Regulations].

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D. DISABILITY AND DEATH BENEFITS 1. Labor Code Under the Labor Code, employees' compensation (EC) benefits are granted to employees or their dependents for workconnected disability or death, or those resulting from accident arising out of and in the course of employment. [Art. 166, LC in rel. to Sec. 1, Rule III, IRR] Types of disability 1. Temporary Total Disability [Art. 197] 2. Permanent Total Disability [Art. 198] 3. Permanent Partial Disability [Art. 199] a. Disability Benefits Disability does not refer to the injury nor to the pain and suffering it has occasioned, but to the loss and impairment of earning capacity. There is disability when there is a loss or diminution of earning power because of actual absence from work due to injury or illness arising out of and in the course of employment. The basis of compensation is reduction of earning power. [Azucena, p. 525] TEMPORARY TOTAL DISABILITY A total disability is temporary if as a result of the injury or sickness, the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days [Art. 197 in rel. to Sec. 2(a), Rule VII, Amended Rules on Employees’ Compensation]. The object of the law in allowing compensation during temporary disability is to compensate the laborer or employee for what he might have earned during the period of the treatment of his injury. [Cañete v. Insular Lumber Co., 61 Phil. 592 (1935)] Amount of benefit An employee suffering from temporary total disability shall be paid by the System an

equivalent of ninety percent (90%) of the average salary credit, provided: 1. The daily income benefit is not less than Ten (10) pesos nor more than Ninety (90) pesos, nor paid for a continuous period longer than 120 days. [Art. 197] 2. The monthly income benefit shall be suspended if the employee fails to submit a monthly medical report certified by its attending physician [Art.194] Period of Entitlement The employee is entitled to the benefit from the day of the start of the disability. It shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability. When after the period of temporary total disability had ceased, an employee was found to be suffering from a permanent partial disability, he was entitled to an award based upon partial disability permanent in character. [Cañete v. Insular Lumber Co., 61 Phil. 592 (1935)] PERMANENT TOTAL DISABILITY A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days. [Art. 198 in rel. to Sec. 2(b), Rule VII] The test of whether or not an employee suffers from ‘permanent total disability’ is a showing of the capacity of the employee to continue performing his work notwithstanding the disability he incurred. It does not mean an absolute helplessness but rather an incapacity to perform gainful work which is expected to be permanent. [Vicente vs. ECC, G.R. No. 85024, (1991)] The Labor Code enumerates six instances considered to be a permanent total disability: 1. Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided 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 wrist; 4. Permanent complete paralysis of two limbs; 5. Brain injury resulting in incurable imbecility or insanity; and 6. Such cases as determined by the Medical Director of the System and approved by the Commission. [Art. 197(c)] Rules for the determination of disability (120-day or 240-day) Initially, there was confusion as to the application of the 120-day period found in Article 192 (c) (1) of the Labor Code vis-à-vis the application of the 240-day period found in Section 2, Rule X of the Amended Rules on Employees' Compensation Implementing Title II, Book IV of the Labor Code. Permanent disability: Article 192(c)(1): Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules. Section 2, Rule X: …where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability. To reconcile these provisions, the Supreme Court laid down the following rules in the case of Dagasdas v. Grand Placement and General Services Corporation. [G.R. No. 205727, (2017)] 1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him; 2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total; 3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the

period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the companydesignated physician has sufficient justification to extend the period; and 4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification. It must be emphasized that the companydesignated physician must: 1. ISSUE a final medical assessment of the seafarer's medical condition; AND 2. GIVE his assessment to the seafarer concerned. That is to say that the seafarer must be fully and properly informed of his medical condition. The results of his/her medical examinations, the treatments extended to him/her, the diagnosis and prognosis, his/her disability grading must be fully explained to him/her by no less than the company-designated physician. The company-designated physician is mandated to issue a medical certificate, which should be personally received by the seafarer, or, if not practicable, sent to him/her by any other means sanctioned by present rules. To require the seafarer to seek the decision of a neutral third-party physician without primarily being informed of the assessment of the company-designated physician is a clear violation of the tenets of due process. Amount of Benefit The employee suffering from a permanent total disability shall be entitled to an amount equivalent to the monthly income benefit, plus ten percent thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution: Provided, That the monthly income benefit shall be the

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new amount of the monthly benefit for all covered pensioners. [Art. 198] Period of Entitlement An employee with permanent total disability shall be entitled to receive benefits monthly for five (5) years. However, Art. 198(b) provides that the benefits may be suspended if the employee is gainfully employed, or recovers from his permanent total disability, or fails to present himself for examination at least once a year. PERMANENT PARTIAL DISABILITY A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body. [Art. 199 in rel. to Sec. 2(c), Rule VII, Amended Rules on Employees’ Compensation]. The object of the law in granting compensation for a permanent partial disability is to compensate the injured laborer or employee for the actual and permanent loss of a member of the body, or the use thereof. [Cañete v. Insular Lumber Co., 61 Phil. 592 (1935)] Amount of benefits For an employee who has suffered a permanent partial disability, the amount of benefits, as well as the period of entitlement to receive such benefits is based upon the degree of disability, as well as the lost body part. The body parts and the corresponding period of equivalent disability are specified in Art 199. Table of benefits [Art. 199(b)] Body part/s

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Number of months

One thumb

10

One index finger

8

One middle finger

6

One ring finger

5

One little finger

3

One big toe

6

One toe

3

One arm

50

One hand

39

One foot

31

One leg

46

One ear

10

Both ears

20

Hearing of one ear

10

Hearing of both ears

50

Sight of one eye

25

Notes: 1. A loss of a wrist shall be considered as a loss of the hand, and a loss of an elbow shall be considered as a loss of the arm. 2. A loss of an ankle shall be considered as loss of a foot, and a loss of a knee shall be considered as a loss of the leg. 3. A loss of more than one joint shall be considered as a loss of one-half of the whole finger or toe: Provided, That such a loss shall be either the functional loss of the use or physical loss of the member. [Art. 199(c)] In case of permanent partial disability less than the total loss of the member specified in Art. 199(b), the same monthly income benefit shall be paid for a portion of the period established for the total loss of the member, in accordance with the proportion that the partial loss bears to the total loss. If the result is a decimal fraction, the same shall be rounded off to the next higher integer [Art. 199(d)]. In cases of simultaneous loss of more than one member or a part thereof as specified

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in Art. 199(b) the same monthly income benefit shall be paid for a period equivalent to the sum of the periods established for the loss of the member or the part thereof. If the result is a decimal fraction, the same shall be rounded off to the next higher integer [Art. 199(e)]. In cases of injuries or illnesses resulting in a permanent partial disability not listed in the Art. 199(b), the benefit shall be an income benefit equivalent to the percentage of the permanent loss of the capacity to work [Art. 199(f)]. Distinguished from permanent total disability While “permanent total disability” invariably results in an employee’s loss of work or inability to perform his usual work, “permanent partial disability,” on the other hand, occurs when an employee loses the use of any particular anatomical part of his body which disables him to continue with his former work. [Vicente v. ECC, G.R. No. 85024, (1991)] Conversion from permanent partial disability to permanent total disability A person’s disability may not manifest fully at one precise moment in time but rather over a period of time. It is possible that an injury which at first was considered partial disability may become totally and permanently disabled from the same cause. There is nothing in the law that prohibits the conversion of permanent partial disability benefit to permanent total disability benefit, if it is shown that the employee’s ailment qualifies as such. [GSIS v. Court of Appeals and R. Balais, G.R. No. 117572 (1998)]. When salary is higher after the injury In a case where the employee filed a claim for permanent partial disability but the ECC denied the claim because in fact his salary was higher than before, the Court ruled that the fact of higher earning capacity fact would not in itself necessarily affect the laborer’s claim for compensation for a permanent partial disability. The amount of his salary may be affected by various extraneous matters or

factors. [Central Azucarera Don Pedro v. C. de Leon, in his capacity as Workmen’s Compensation Commissioner and L. Alla, G.R. No. L-10036 (1957)]. b. Death Benefits Monthly Income Benefit Under such regulations as the Commission may approve, the System shall pay to the primary beneficiaries: 1. Upon the death of the covered employee under this Title: a. An amount equivalent to his monthly income benefit; b. Plus 10% thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution, except as provided for in par. (j) of Article 167 hereof: Provided, That – i. The monthly income benefit shall be guaranteed for five years; ii. If he has no primary beneficiary, the System shall pay to his secondary beneficiaries the monthly income benefit but not to exceed sixty months; and iii. The minimum death benefit shall not be less than fifteen thousand pesos. (As amended by Section 4, Presidential Decree No. 1921). 2. Upon the death of a covered employee who is under permanent total disability under this Title: 80% of the monthly income benefit and his dependents to the dependents’ pension: Provided, That – a. The marriage must have been validly subsisting at the time of disability; b. If he has no primary beneficiary, the System shall pay to his secondary beneficiaries the monthly pension excluding the dependents’ pension, of the remaining balance of the five-year guaranteed period; and c. The minimum death benefit shall not be less than fifteen thousand pesos. (As amended by Section 4, Presidential Decree No. 1921).

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Note: The monthly income benefit provided herein shall be the new amount of the monthly income benefit for the surviving beneficiaries upon the approval of this decree. [Art. 200 (a)(c)] Condition to entitlement The beneficiaries of a deceased employee shall be entitled to an income benefit if all of the following conditions are satisfied: 1. The employee has been duly reported to the System; 2. He died as a result of an injury or sickness; and 3. The System has been duly notified of his death, as well as the injury or sickness which caused his death. His employer shall be liable for the benefit if such death occurred before the employee is duly reported for coverage to the System. [Sec. 1(a), Rule XIII, IRR] Notes: 1. If the employee has been receiving monthly income benefit for permanent total disability at the time of his death, the surviving spouse must show that the marriage has been validly subsisting at the time of his disability. 2. In addition, the cause of death must be a complication or natural consequence of the compensated Permanent Total Disability. [Sec. 1(b), Rule XIII, IRR] Beneficiaries The beneficiaries are: 1. Primary beneficiaries: a. Dependent spouse until he/she remarries; b. Dependent children (legitimate, legitimated, natural-born, or legally adopted). 2. Secondary beneficiaries: 1. Illegitimate children and legitimate descendants; 2. Parents, grandparents, grandchildren. [Azucena, p. 541]

Dependents "Dependent" means: 1. The legitimate, legitimated or legally adopted or acknowledged natural child who is: a. Unmarried, b. Not gainfully employed, and c. Not over twenty-one (21) years of age or over twenty-one (21) years of age provided he is incapacitated and incapable of self-support due to a physical or mental defect which is congenital or acquired during minority; 2. The legitimate spouse living with the employee and the parents of said employee wholly dependent upon him for regular support. [Art. 173(i)] The test of dependency is not merely whether the contributions were necessary to bare subsistence. Dependency may exist if such contributions were relied on by claimant for his/her means of living as determined by his/her position in life. [Malate Taxicab v. Del Villar, G.R. No. L-7489 (1956)] Period of entitlement For primary beneficiaries The income benefit shall be paid beginning at the month of death and shall continue to be paid for as long as the beneficiaries are entitled thereto. [Sec. 2, Rule XII, IRR] For secondary beneficiaries The income benefit shall be sixty (60) times the monthly income benefit of a primary beneficiary which in no case be less than P 15,000.00, which shall likewise be paid in monthly pension. [Sec. 2(a), Rule XII, IRR] Manner of payment Death benefits are paid in the form of cash monthly pension: 1. For life to the primary beneficiaries, guaranteed for five years; 2. For not more than 60 months to the 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 For primary beneficiaries Monthly income benefit shall be equivalent to the monthly income benefit for permanent total disability, which shall be guaranteed for five years, increased by ten percent for each dependent child but not exceeding 5, beginning with the youngest and without substitution. [Sec. 3, Rule XII, IRR]

receiving permanent total disability benefit, dies.

Notes: 1. The aggregate monthly benefit payable in the case of the GSIS shall in no case exceed the monthly wage or salary actually received by the employee at the time of his death; 2. The minimum income benefit shall not be less than Fifteen Thousand Pesos (P15,000.00). [Sec. 3, Rule XII, IRR]

2. Employees Compensation and State Insurance Fund

For secondary beneficiaries Income benefit is payable in monthly pension which shall not exceed the period of 60 months and the aggregate income benefit shall not be less than P15, 000.00. [Sec. 3, Rule XII, IRR] Death benefits after retirement are allowed Generally, the term “covered employees” refers to an employee who, at the time of his death, is still covered by the GSIS. However, the implementing rules and regulations of the Employees’ Compensation Commission allows death benefits to those retired employees whose retirement was brought about by permanent disability. The Court is aware that death benefits must be granted to the primary beneficiaries of the decedent to help the family of a permanent and totally disabled person who was so disabled because of causes that are work-oriented. The rule applies all the more when the disabled person later dies because of the same cause or related cause. [Manuzon v. ECC, G.R. No. 88573, (1990)] Death of a person receiving permanent total disability benefits Under Art. 200(b), death benefit shall be paid to the beneficiaries if an employee, while

Prescription of claims All money claims arising from employeremployee relations shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall forever be barred. [Art. 306]

Policy To promote and develop a tax-exempt employees’ compensation program whereby employees and their dependents, in the event of work-connected disability or death, may promptly secure adequate income benefit and medical related benefits [Art. 172 [166]] "Dependent" means: 1. The legitimate, legitimated or legally adopted or acknowledged natural child who is: a. Unmarried, b. Not gainfully employed, and c. Not over twenty-one (21) years of age or over twenty-one (21) years of age provided he is incapacitated and incapable of self-support due to a physical or mental defect which is congenital or acquired during minority; 2. The legitimate spouse living with the employee and the parents of said employee wholly dependent upon him for regular support. [Art. 173(i)] The beneficiaries are: 1. Primary beneficiaries: a. Dependent spouse until he/she remarries; b. Dependent children (legitimate, legitimated, natural-born, or legally adopted). 2. Secondary beneficiaries: a. Illegitimate children and legitimate descendants; b. Parents, grandparents, grandchildren. [Art. 173(j)]

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Compulsory coverage Coverage in the State Insurance Fund shall be compulsory upon all employers and their employees not over sixty (60) years of age: Provided, That an employee who is over (60) years of age and paying contributions to qualify for the retirement or life insurance benefit administered by the System shall be subject to compulsory coverage [Art. 174[168]] (“System” - SSS or GSIS, as the case may be). Foreign employment - Filipino employees employed abroad shall be adequately covered, subject to regulations as the Commission may prescribe [Art. 175[169]] (“Commission” Employees Compensation Commission) Limitation of liability The State Insurance fund shall be liable for compensation to the employee or his dependents, except when the disability or death was occasioned by the employees’ intoxication, willful intention to injure or kill himself or another, notorious negligence, or otherwise provided in this title. [Art. 178 [172]] Extent of liability Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered by the System or by other agencies of the government [Art. 179 [173]]. Employer’s contributions a. Under such regulations as the System may prescribe, beginning as of the last day of the month when an employee’s compulsory coverage takes effect and every month thereafter during his employment, his employer shall prepare to

remit to the System a contribution equivalent to one percent of his monthly salary credit. b. The rate of contribution shall be reviewed periodically and subject to the limitations herein provided, may be revised as the experience in risk, cost of administration and actual or anticipated as well as unexpected losses, may require. c. Contributions under this Title shall be paid in their entirety by the employer, and any contract or device for the deductions of any portion thereof from the wages or salaries of the employees shall be null and void. d. When a covered employee dies, becomes disabled or is separated from employment, his employer’s obligation to pay the monthly contribution arising from that employment shall cease at the end of the month of contingency and during such months that he is not receiving wages or salary [Art. 189[183]]. Medical benefits Immediately after an employee contracts sickness or sustains an injury, he shall be provided by the System during the subsequent period of his disability with such medical services and appliances as the nature of his sickness or injury and progress of his recovery may require, subject to the expense limitation prescribed by the Commission [Art. 191[185]] Rehabilitation services The System shall establish: a. A continuing program, for the rehabilitation of injured and handicapped employees who shall be entitled to rehabilitation services, which shall consist of medical, surgical or hospital treatment, including appliances to help them become physically independent. b. Centers equipped and staffed to provide a balanced program of remedial treatment, vocational assessment and preparation designed to meet the individual needs of each handicapped employee to restore him to suitable employment, including assistance to help each rehabilitee to develop his mental, vocational or social potential. [Art. 196 [190]]

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3. Philippine Overseas Employment Administration-Standard Employment Contract As part of a seafarer's deployment for overseas work, he/she and the vessel owner or its representative local manning agency are required to execute the POEA-SEC. Containing the standard terms and conditions of seafarers' employment, the POEA-SEC is deemed included in their contracts of employment in foreign ocean-going vessels. [Sharpe Sea Personnel Inc. v. Mabunay, G.R. No. 206113 (2017)] a. Compensation and benefits for injury or illness There are two requisites for a seafarer’s injury or disability to be considered compensable: (1) “the injury or illness must be work-related;” and (2) “the work-related injury or illness must have existed during the term of the seafarer's employment contract.” [Magsaysay Maritime Services v. Laurel, 707 Phil. 210 (2013)] Work-related injury or illness For an illness to be compensable, "it is not necessary that the nature of the employment be the sole and only reason for the illness suffered by the seafarer." It is enough that there is "a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.” [Madridejos v. NYK-FIL Ship Management, Inc., 810 Phil. 704 (2017)] See Sec. 32 of POEA-SEC for the schedule of disability or impediment for injuries suffered and diseases including occupational diseases of illness contracted in the course of work. Those illnesses not listed in Sec. 32 are disputably presumed as work-related. [Sec. 20, A.4, POEA-SEC]

LIABILITIES OF EMPLOYER IN CASE OF WORK-RELATED INJURY OR ILLNESS 1. Medical expenses If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated. However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he/she shall be so provided at cost to the employer until such time he/she is declared fit or the degree of his/her disability has been established by the companydesignated physician. [Sec. 20, A.2, POEASEC] 2. Sickness allowance The seafarer shall also receive sickness allowance from his/her employer in an amount equivalent to his/her basic wage computed from the time he/she signed off until he is declared fit to work, or the degree of disability has been assessed by the companydesignated physician. The period within the seafarer shall be entitled to sickness allowance shall not exceed 120 days. Payment of the sickness allowance shall be made on a regular basis, but not less than once a month. [Sec. 20. A.3, POEA-SEC] 3. Cost of medicines, mode transportation and accommodation

of

The seafarer shall be entitled to reimbursement of the cost of medicines prescribed by the company-designated physician. In case treatment of the seafarer is on an outpatient basis as determined by the companydesignated physician, the company shall approve the appropriate mode of transportation and accommodation.

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The reasonable cost of actual traveling expenses and/or accommodation shall be paid subject to liquidation and submission of official receipts and/or proof of expenses. [Sec. 20, A.3, POEA-SEC] Mandatory post-employment medical examination; strict compliance General rule: The seafarer shall submit himself/herself to a post-medical examination by a company-designated physician within three working days upon his return. Exceptions: a. When the seafarer is physically incapacitated to do so. In which case, a written notice to the agency within the same period is deemed as compliance. [Sec. 20, A.3, POEA-SEC] b. When the non-compliance with the mandatory post-employment medical examination was “not due to the seafarer’s fault but to the inadvertence or deliberate refusal of the [employer].” [Interorient Maritime Enterprises, Inc. v. Remo, 636 Phil. 240 (2010)] Rationale The rationale for the rule [on the mandatory post-employment medical examination] is that reporting the illness or injury within three days from repatriation fairly makes it easier for a physician to determine the cause of the illness or injury. To ignore the rule might set a precedent with negative repercussions, like opening floodgates to a limitless number of seafarers claiming disability benefits. [Wallem Maritime Services, Inc. v. Tanawan, 693 Phil. 416 (2012)] Third Doctor Opinion Rule If a doctor appointed by the seafarer disagrees with the assessment [of the companydesignated physician], a third doctor may be agreed jointly between the employer and the seafarer. The third doctor’s decision shall be final and binding on both parties. [Sec. 20, A.4, POEASEC]

Rationale: It is understandable that a companydesignated physician is more positive than that of a physician of the seafarer's choice. It is on this account that a seafarer is given the option by the POEA Standard Employment Contract to seek a second opinion from his preferred physician [Abante v. KJGS Fleet Management Manila, G.R. No. 182430 (2009)] Mandatory reporting requirement In the course of the treatment, the seafarer shall also report regularly to the companydesignated physician specifically on the dates as prescribed by the company-designated physician and agreed to by the seafarer. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits. [Sec. 20, A.3, POEA-SEC] GUIDELINES FOR THE CLAIM OF PERMANENT TOTAL DISABILITY BENEFITS The employer must also compensate the seafarer for his/her permanent total disability as finally determined by the companydesignated physician. The following guidelines shall govern seafarers' claims for permanent and total disability benefits: 1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him. 2. If the company-designated physician fails to give his/her assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total; 3. If the company-designated physician fails to give his/her assessment within the period of 120 days with a sufficient justification, then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and

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4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification. [Jebsens Maritime Inc. v. Rapiz, G.R. No. 218871 (2017)] b. Compensation and benefits for death In case of work-related death of the seafarer, during the term of his contract, the employer shall pay his/her beneficiaries the Philippine currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars (US$7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at the exchange rate prevailing during the time of payment. [Sec. 20, B.1, POEASEC] Requisites For death to be compensable, the claimant bears the burden to establish that: 1. The seafarer died during the duration of his/her contract, and 2. His/her illness was work-related. [Sec. 20, B.1, POEA-SEC] Exception: When the seafarer’s death occurred after the termination of his/her contract after medical repatriation repatriation on account of a work-related injury or illness Rationale: The 2000 POEA-SEC must be liberally construed, as impelled by the plight of the bereaved heirs who stand to be deprived of a just and reasonable compensation for the seafarer’s death, notwithstanding its evident work-connection. [Racelis v. United Philippine Lines, 746 Phil. 758 (2014)]

Other liabilities of the employer when the seafarer dies as a result of work-related injury or illness during the term of employment are as follows: a. The employer shall pay the deceased’s beneficiary all outstanding obligations due the seafarer under this Contract. b. The employer shall transport the remains and personal effects of the seafarer to the Philippines at employer’s expense, except if the death occurred in a port where local government laws or regulations do not permit the transport of such remains. In case death occurs at sea, the disposition of the remains shall be handled or dealt with in accordance with the master’s best judgment. In all cases, the employer/master shall communicate with the manning agency to advise for disposition of seafarer’s remains. c. The employer shall pay the beneficiaries of the seafarer the Philippine currency equivalent to the amount of One Thousand US dollars (US$1,000) for burial expenses at the exchange rate prevailing during the time of payment. [Sec. 20, B.4, POEASEC] When compensation is not payable (applies to both disability and death benefits) No compensation and benefits shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or intentional breach of his duties, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer. [Sec. 20, D, POEA-SEC] Prescription of claims All claims arising from this contract shall be made within three (3) years from the date the 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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E. SOLO PARENTS [RA 8972: Solo Parents’ Welfare Act] See also III. C. 2. a. and III. E. 7. for work entitlements of solo parents Non work-related support for solo parents 1. Comprehensive Package of Social Development and Welfare Services [Sec. 5] 2. Educational Benefits [Sec. 9] 3. Housing Benefits [Sec. 10] 4. Medical Assistance [Sec. 11] Criteria for Support 1. Solo parent, 2. Income in the place of domicile falls below the poverty threshold as set by the NEDA, and 3. Assessed by the DSWD. Note: If the solo parent’s income is above the poverty threshold, he shall still enjoy the benefits of Flexible Work Schedule, Protection against Work Discrimination, and Parental Leave [Sec. 4]. Comprehensive Package of Social Development and Welfare Services The package will initially include: a. Livelihood development services, which include training on livelihood skills, basic business management, value orientation and the provision of seed capital or job placement; b. Counseling services, which include individual, peer group or family counseling. These will focus on the resolution of personal relationship and role conflicts; c. Parent effectiveness services which include the provision and expansion of knowledge and skills of the solo parent on early childhood development, behavior management, health care and proper nutrition, rights and duties of parents and children;

d. Critical incidence stress debriefing, which includes preventive stress management strategy designed to assist solo parents in coping with crisis situations and cases of abuse; e. Special projects for individuals in need of protection which include temporary shelter, counseling, legal assistance, medical care, self-concept or ego-building, crisis management and spiritual enrichment. [Sec. 15, IRR] Educational benefits The DepEd, CHED, and TESDA shall provide the following benefits and privileges: 1. Scholarship programs for qualified solo parents and their children in institutions of basic, tertiary, and technical/skills education; 2. Non-formal education programs appropriate for solo parents and their children. [Sec. 22, IRR] Housing benefits Solo parents who meet the eligibility criteria for housing assistance under R.A. No. 7279 (Urban Development and Housing Act of 1992) and other related rules and regulations of participating housing agencies shall be provided with liberal terms of payment on government low-cost housing projects, in accordance with housing law provisions, prioritizing applicants below the poverty line as declared by the NSCB. [Sec. 23, IRR] The National Housing Authority shall make available housing units to solo parents in its housing projects, subject to existing disposition policies, or may refer them to other housing projects, as appropriate, provided: a. The identified solo parent must be eligible for assistance under the provisions of this Act; b. Solo parents applying for housing benefits must meet the qualification criteria for housing assistance under Republic Act 7279, or the Urban Development and Housing Act (UDHA) and other NHA eligibility criteria under existing policies, rules and regulations; and

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c. Eligible solo parents shall file their application for housing unit directly with the concerned NHA Project Offices. [Sec. 24, IRR] Medical Assistance The DOH shall develop a comprehensive health care program for solo parents and their children. [Sec. 25, IRR] Health/medical services shall be made available at all times, in all levels of health care delivery system as mentioned in the previous section. [Sec. 26, IRR]

F. KASAMBAHAY [RA 10361: Batas Kasambahay or Domestic Workers Act] See III. E. 5. Kasambahays

G. AGRARIAN RELATIONS 1. Concept of Agrarian Reform Declaration of Policy The agrarian reform program is founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farm workers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to the payment of just compensation. [Sec. 2, RA 6657, Comprehensive Agrarian Reform Law] Definition Agrarian Reform – The redistribution of lands, regardless of crops or fruits produced to farmers and regular farmworkers who are landless, irrespective of tenurial arrangement, including:

1. The totality of factors and support services designed to lift the economic status of the beneficiaries; and 2. All other arrangements alternative to the physical redistribution of lands, such as: a. Production or profit-sharing, b. Labor administration, and c. The distribution of shares of stocks, which will allow beneficiaries to receive a just share of the fruits of the lands they work. [Sec. 3(a), RA 6657]

2. Existence and Concept of Agricultural Tenancy Agricultural tenancy – The physical possession by a person of land devoted to agriculture belonging to, or legally possessed by another: 1. For the purpose of production through the labor of the former and of the members of his immediate farm household 2. In consideration of which the former agrees to: a. Share the harvest with the latter; OR b. Pay a price certain, either in produce or in money, or both. [Sec. 3, RA 1199, Agricultural Tenancy Act] Tenancy relationship defined [Sec. 6, RA1199] Tenancy relationship is a juridical tie which arises between a landholder and a tenant, wherein: a. They agree, expressly or impliedly, to undertake jointly the cultivation of land belonging to the former, either under the share tenancy or leasehold tenancy system; b. The tenant acquires the right to continue working on and cultivating the land, until and unless he is dispossessed of his holdings for any of the just causes, or the relationship is terminated in accordance with [the Agricultural Tenancy Act]. Requisites for the existence of agricultural tenancy relationship 1. The parties are landowner and the tenant or agricultural lessee;

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2. The subject of the relationship is agricultural land; 3. There is mutual consent to the tenancy between the parties; 4. The purpose of the relationship is agricultural production; 5. There is personal cultivation by the tenant or agricultural lessee; and 6. There is a sharing of harvests between the parties. [Fuentes v. Caguimbal, G.R. No. 150305 (2007)] Establishment of tenancy relationship [Sec. 7, RA 1199] Tenancy relationships may be established either verbally or in writing, expressly or impliedly. Once such relationship is established, the tenant shall be entitled to security of tenure. Types of agricultural tenancy [Sec. 4, RA 1199, as amended by RA 2263] 1. Share tenancy exists when a. Two persons agree on a joint undertaking for agricultural production; b. Wherein one party furnishes land and the other his labor; c. With either or both contributing any one or several of the items of production; d. The tenant cultivating the land personally with the aid of labor available to members of his immediate farm household; e. And the produce thereof to be divided between the landholder and the tenant in proportion to their respective contributions. 2. Leasehold tenancy exists when a. A person, who either personally or with the aid of labor available from the members of his immediate farm household; b. Undertakes to cultivate a piece of agricultural land susceptible of cultivation by a single person, together with members of his immediate farm household; c. Belonging to or legally possessed by, another, in consideration of a fixed amount in money or in produce or in both.

3. Rights of Agricultural Tenants Rights common to both share and leasehold tenants [Sec. 22, RA 1199, as amended by RA 2263] The tenant shall: 1. Be free to work elsewhere whenever the nature of his farm obligation; 2. Have the right to provide any of the contributions for production, aside from his labor, whenever he can do so adequately and on time subject to the provisions of Sec. 14 of this Act Sec. 14, RA 1199, as amended by RA 2263 – The tenant shall have the right to change the tenancy contract from one of share tenancy to leasehold tenancy and vice versa and from one crop sharing arrangement to another of the share tenancy. If the share tenancy contract is in writing and is duly registered, the right to change from one crop sharing arrangement to another or from one tenancy system or another may be exercised at least one month before the beginning of the next agricultural year after the expiration of the period of the contract, the right may be exercised at least one month before the agricultural year when the change shall be effected. 3. Have the right to demand for a home lot suitable for dwelling with an area: a. not more than 3% of the area of his landholding; provided b. it does not exceed 1000 sq. m.; and that c. it shall be located at a convenient and suitable place within the land of the landholder to be designated by the latter where the tenant shall construct his dwelling and may raise vegetables, poultry, pigs and other animals and engage in minor industries, the products of which shall accrue to the tenant exclusively. d. The tenant’s dwelling shall not be removed from the lot already assigned to him by the landholder, except: i. If the landholder designates another site for the tenant’s home

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ii. iii.

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lot and the tenant agrees to the transfer [Sec. 26, RA1199, as amended by RA2263] There is a severance of the tenancy relationship The tenant is ejected for cause

In any case, the tenant shall only be removed after the expiration of 45 days following such severance of relationship or dismissal for cause. Specific rights of rice share tenants [Sec. 36, RA 1199] The rice share tenant shall have the right to: 1. Determine when to scatter the seeds, to transplant the seedlings, and to reap the harvest, provided they shall be in accordance with proven farm practices and after due notice to the landholder. 2. Choose the thresher which shall thresh the harvest whenever it is the best available in the locality and the best suited to the landholder’s and tenant’s needs and provided that the rate charged by the owner of other threshers under similar circumstances. If there are multiple tenants, the choice of the majority of the tenants shall prevail. If the landholder is the owner of a thresher and is ready and willing to grant equal or lower rates under the same conditions, the use of the landholder’s thresher shall be given preference. 3. Apply appropriate pest, insect, disease and rodent control measures whenever in his judgment such action is necessary. 4. Apply fertilizer of the kind or kinds shown by proven farm practices to be adapted to the requirements of the land, provided the landholder has not exercised his right to require the use of such fertilizer. Specific rights of leasehold tenants [Sec. 43, RA 1199] The tenant-lessee shall have the right to: 1. Enter the premises of the land, and to the adequate and peaceful enjoyment thereof;

2. Work the land according to his best judgment, provided this manner and method of cultivation and harvest are in accordance with proven farm practices. Upon termination of the relationship, have ½ of the value of the improvements made by him, provided they are reasonable and adequate to the purposes of the lease.

4. Concept of Farmworkers A farmworker is a natural person who renders services for value as an employee or laborer in an agricultural enterprise or farm regardless of whether his compensation is paid on a daily, weekly, monthly or “pakyaw” basis. The term includes an individual whose work has ceased as a consequence of, or in connection with, a pending agrarian dispute and who has not obtained a substantially equivalent and regular farm employment. [Sec. 3(g), RA 6657, Comprehensive Agrarian Reform Law] Types of farmworkers 1. Regular Farmworker - a natural person who is employed on a permanent basis by an agricultural enterprise or farm. [Sec. 3(h), RA 6657] 2. Seasonal Farmworker - a natural person who is employed on a recurrent, periodic or intermittent basis by an agricultural enterprise or farm, whether as a permanent or a non-permanent laborer, such as “dumaan,” “sacada,” and the like. [Sec. 3(i), RA 6657] 3. Other Farmworker - a farmworker who does not fall under Sec. 3(g) (farmworker), Sec. 3(h) (regular farmworker), and Sec. 3(i) (seasonal farmworker). [Sec. 3(j), RA 6657] Entitlements of different farmworkers under the Constitution Sec. 4, Art. XIII, 1987 Constitution – The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farm workers, who are

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landless, to own directly or collectively the lands they till on, or in the case of other farm workers, to receive a just share of the fruits thereof. The 1987 Constitution distinguishes between regular farmworkers and other farmworkers. 1. Farmers and regular farmworkers have the right to own directly or collectively the lands they till on. 2. Other farmworkers have the right to receive a just share of the fruits thereof. Seasonal farm workers have no constitutional right to own land Seasonal farm workers, not having a constitutional right to own land, do not have a legal or actual and substantial interest in the land subject of agrarian reform. They may not be allowed to intervene in the case concerning the land. [Fortich v. Corona, G.R. No. 131457 (1998)]

H. UNIVERSAL HEALTH CARE [RA 11223]

1. Policy It is the policy of the State to promote and protect the right to health of all Filipinos and instill health consciousness among them. Towards this end, the State shall adopt: a. An integrated and comprehensive approach to ensure that all Filipinos are health literate, provided with healthy living conditions, and protected from hazards and risks that could affect their health; b. A health care model that provides all Filipinos access to a comprehensive set of quality and cost-effective, promotive, preventive, curative, rehabilitative and palliative health services without causing financial hardship, and prioritizes the needs of the population who cannot afford such services; c. A framework that fosters a whole-ofsystem, whole-of-government, and whole-

of-society approach in the development, implementation, monitoring, and evaluation of health policies, programs and plans; and d. A people-oriented approach for the delivery of health services that is centered on people's needs and well-being, and cognizant of the differences in culture, values, and beliefs. [Sec. 2] The Universal Health Care Act seeks to: a. Progressively realize universal health care in the country through a systemic approach and clear delineation of roles of key agencies and stakeholders towards better performance in the health system; and b. Ensure that all Filipinos are guaranteed equitable access to quality and affordable health care goods and services, and protected against financial risk. [Sec. 3]

2. Coverage Population coverage [Sec. 5] Every Filipino citizen shall be automatically included into the National Health Insurance Program. Service coverage [Sec. 6] Every Filipino shall be granted immediate eligibility and access to preventive, promotive, curative, rehabilitative, and palliative care for medical, dental, mental and emergency health services, delivered either as population-based or individual-based health services. Provided, That the goods and services to be included shall be determined through a fair and transparent Health Technology Assessment (HTA) Process. [Sec. 6(a)] HTA - The systematic evaluation of properties, effects, or impact of health-related technologies, devices, medicines, vaccines, procedures and all other health-related systems developed to solve a health problem and improve quality of lives and health outcomes. [Sec. 4(n)] Every Filipino shall register with a public or private primary care provider of choice. The

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Portability Refers to the transfer of funds for the account and benefit of a worker who transfers from one system to the other [Section 2(b), RA 7699]. Provisions of any general or special law or rules and regulations to the contrary notwithstanding, a covered worker shall have his credible services or contributions in both Systems credited to his service or contribution record in each of the Systems and shall be totalized for purposes of old-age, disability, survivorship and other benefits in case the covered member does not qualify for such benefits in either or both Systems without totalization. Provided: That overlapping periods of membership shall be credited only once for purposes of totalization [Section 4, RA 7699]. Totalization Refers to the process of adding up the period of creditable services or contributions under each of the Systems, for purposes of eligibility and computation of benefits [Section 2(e), RA 7699]. Totalization of service credits is only resorted to when the retiree does not qualify for benefits in either or both of the System. In this case, since the petitioner may be entitled to some benefits from the GSIS, he cannot avail of the benefits under RA 7699 [Gamogamo v. PNOC Shipping and Transport Corp, G.R. No. 141707 (2002)]. All contributions paid by such member personally, and those that were paid by his employers to both Systems shall be considered in the processing of benefits which he can claim from either or both Systems: Provided, however, that the amount of benefits to be paid by one System shall be in proportion to the number of contributions actually remitted to that System. [Section 4, RA 7699].

purposes of eligibility and computation of benefits [Rule V, Sec. 1, RA 7699 Rules and Regulations]. Totalization shall apply in the following instances: a. If a worker is not qualified for any benefits from both Systems; b. If a worker in the public sector is not qualified for any benefits in the GSIS; or c. If a worker in the private sector is not qualified for any benefits from the SSS. For the purpose of computation of benefits, totalization shall apply in all cases so that the contributions made by the worker‐member in both Systems shall provide maximum benefits which otherwise will not be available. In no case shall the contribution be lost or forfeited [Rule V, Sec. 3, RA 7699 Rules and Regulations]. If after totalization the worker‐member still does not qualify for any benefit listed in Rule III, Section 1 (j), the member will then get whatever benefits correspond to his/her contributions in either or both Systems [Rule V, Sec. 4, RA 7699 Rules and Regulations]. If a worker qualifies for benefits in both Systems, totalization shall not apply [Rule V, Sec. 5, RA 7699 Rules and Regulations]. The process of totalization of creditable services or periods of contributions and computation of benefits provided for under the Act shall be the joint responsibility of the GSIS and the SSS [Rule V, Sec. 6, RA 7699 Rules and Regulations]. Overlapping periods of creditable services or contributions in both Systems shall be credited only once for purposes of totalization [Rule V, Sec. 7, RA 7699 Rules and Regulations].

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D. DISABILITY AND DEATH BENEFITS 1. Labor Code Under the Labor Code, employees' compensation (EC) benefits are granted to employees or their dependents for workconnected disability or death, or those resulting from accident arising out of and in the course of employment. [Art. 166, LC in rel. to Sec. 1, Rule III, IRR] Types of disability 1. Temporary Total Disability [Art. 197] 2. Permanent Total Disability [Art. 198] 3. Permanent Partial Disability [Art. 199] a. Disability Benefits Disability does not refer to the injury nor to the pain and suffering it has occasioned, but to the loss and impairment of earning capacity. There is disability when there is a loss or diminution of earning power because of actual absence from work due to injury or illness arising out of and in the course of employment. The basis of compensation is reduction of earning power. [Azucena, p. 525] TEMPORARY TOTAL DISABILITY A total disability is temporary if as a result of the injury or sickness, the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days [Art. 197 in rel. to Sec. 2(a), Rule VII, Amended Rules on Employees’ Compensation]. The object of the law in allowing compensation during temporary disability is to compensate the laborer or employee for what he might have earned during the period of the treatment of his injury. [Cañete v. Insular Lumber Co., 61 Phil. 592 (1935)] Amount of benefit An employee suffering from temporary total disability shall be paid by the System an

equivalent of ninety percent (90%) of the average salary credit, provided: 1. The daily income benefit is not less than Ten (10) pesos nor more than Ninety (90) pesos, nor paid for a continuous period longer than 120 days. [Art. 197] 2. The monthly income benefit shall be suspended if the employee fails to submit a monthly medical report certified by its attending physician [Art.194] Period of Entitlement The employee is entitled to the benefit from the day of the start of the disability. It shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability. When after the period of temporary total disability had ceased, an employee was found to be suffering from a permanent partial disability, he was entitled to an award based upon partial disability permanent in character. [Cañete v. Insular Lumber Co., 61 Phil. 592 (1935)] PERMANENT TOTAL DISABILITY A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days. [Art. 198 in rel. to Sec. 2(b), Rule VII] The test of whether or not an employee suffers from ‘permanent total disability’ is a showing of the capacity of the employee to continue performing his work notwithstanding the disability he incurred. It does not mean an absolute helplessness but rather an incapacity to perform gainful work which is expected to be permanent. [Vicente vs. ECC, G.R. No. 85024, (1991)] The Labor Code enumerates six instances considered to be a permanent total disability: 1. Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided 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 wrist; 4. Permanent complete paralysis of two limbs; 5. Brain injury resulting in incurable imbecility or insanity; and 6. Such cases as determined by the Medical Director of the System and approved by the Commission. [Art. 197(c)] Rules for the determination of disability (120-day or 240-day) Initially, there was confusion as to the application of the 120-day period found in Article 192 (c) (1) of the Labor Code vis-à-vis the application of the 240-day period found in Section 2, Rule X of the Amended Rules on Employees' Compensation Implementing Title II, Book IV of the Labor Code. Permanent disability: Article 192(c)(1): Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules. Section 2, Rule X: …where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability. To reconcile these provisions, the Supreme Court laid down the following rules in the case of Dagasdas v. Grand Placement and General Services Corporation. [G.R. No. 205727, (2017)] 1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him; 2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total; 3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the

period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the companydesignated physician has sufficient justification to extend the period; and 4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification. It must be emphasized that the companydesignated physician must: 1. ISSUE a final medical assessment of the seafarer's medical condition; AND 2. GIVE his assessment to the seafarer concerned. That is to say that the seafarer must be fully and properly informed of his medical condition. The results of his/her medical examinations, the treatments extended to him/her, the diagnosis and prognosis, his/her disability grading must be fully explained to him/her by no less than the company-designated physician. The company-designated physician is mandated to issue a medical certificate, which should be personally received by the seafarer, or, if not practicable, sent to him/her by any other means sanctioned by present rules. To require the seafarer to seek the decision of a neutral third-party physician without primarily being informed of the assessment of the company-designated physician is a clear violation of the tenets of due process. Amount of Benefit The employee suffering from a permanent total disability shall be entitled to an amount equivalent to the monthly income benefit, plus ten percent thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution: Provided, That the monthly income benefit shall be the

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new amount of the monthly benefit for all covered pensioners. [Art. 198] Period of Entitlement An employee with permanent total disability shall be entitled to receive benefits monthly for five (5) years. However, Art. 198(b) provides that the benefits may be suspended if the employee is gainfully employed, or recovers from his permanent total disability, or fails to present himself for examination at least once a year. PERMANENT PARTIAL DISABILITY A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body. [Art. 199 in rel. to Sec. 2(c), Rule VII, Amended Rules on Employees’ Compensation]. The object of the law in granting compensation for a permanent partial disability is to compensate the injured laborer or employee for the actual and permanent loss of a member of the body, or the use thereof. [Cañete v. Insular Lumber Co., 61 Phil. 592 (1935)] Amount of benefits For an employee who has suffered a permanent partial disability, the amount of benefits, as well as the period of entitlement to receive such benefits is based upon the degree of disability, as well as the lost body part. The body parts and the corresponding period of equivalent disability are specified in Art 199. Table of benefits [Art. 199(b)] Body part/s

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Number of months

One thumb

10

One index finger

8

One middle finger

6

One ring finger

5

One little finger

3

One big toe

6

One toe

3

One arm

50

One hand

39

One foot

31

One leg

46

One ear

10

Both ears

20

Hearing of one ear

10

Hearing of both ears

50

Sight of one eye

25

Notes: 1. A loss of a wrist shall be considered as a loss of the hand, and a loss of an elbow shall be considered as a loss of the arm. 2. A loss of an ankle shall be considered as loss of a foot, and a loss of a knee shall be considered as a loss of the leg. 3. A loss of more than one joint shall be considered as a loss of one-half of the whole finger or toe: Provided, That such a loss shall be either the functional loss of the use or physical loss of the member. [Art. 199(c)] In case of permanent partial disability less than the total loss of the member specified in Art. 199(b), the same monthly income benefit shall be paid for a portion of the period established for the total loss of the member, in accordance with the proportion that the partial loss bears to the total loss. If the result is a decimal fraction, the same shall be rounded off to the next higher integer [Art. 199(d)]. In cases of simultaneous loss of more than one member or a part thereof as specified

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in Art. 199(b) the same monthly income benefit shall be paid for a period equivalent to the sum of the periods established for the loss of the member or the part thereof. If the result is a decimal fraction, the same shall be rounded off to the next higher integer [Art. 199(e)]. In cases of injuries or illnesses resulting in a permanent partial disability not listed in the Art. 199(b), the benefit shall be an income benefit equivalent to the percentage of the permanent loss of the capacity to work [Art. 199(f)]. Distinguished from permanent total disability While “permanent total disability” invariably results in an employee’s loss of work or inability to perform his usual work, “permanent partial disability,” on the other hand, occurs when an employee loses the use of any particular anatomical part of his body which disables him to continue with his former work. [Vicente v. ECC, G.R. No. 85024, (1991)] Conversion from permanent partial disability to permanent total disability A person’s disability may not manifest fully at one precise moment in time but rather over a period of time. It is possible that an injury which at first was considered partial disability may become totally and permanently disabled from the same cause. There is nothing in the law that prohibits the conversion of permanent partial disability benefit to permanent total disability benefit, if it is shown that the employee’s ailment qualifies as such. [GSIS v. Court of Appeals and R. Balais, G.R. No. 117572 (1998)]. When salary is higher after the injury In a case where the employee filed a claim for permanent partial disability but the ECC denied the claim because in fact his salary was higher than before, the Court ruled that the fact of higher earning capacity fact would not in itself necessarily affect the laborer’s claim for compensation for a permanent partial disability. The amount of his salary may be affected by various extraneous matters or

factors. [Central Azucarera Don Pedro v. C. de Leon, in his capacity as Workmen’s Compensation Commissioner and L. Alla, G.R. No. L-10036 (1957)]. b. Death Benefits Monthly Income Benefit Under such regulations as the Commission may approve, the System shall pay to the primary beneficiaries: 1. Upon the death of the covered employee under this Title: a. An amount equivalent to his monthly income benefit; b. Plus 10% thereof for each dependent child, but not exceeding five, beginning with the youngest and without substitution, except as provided for in par. (j) of Article 167 hereof: Provided, That – i. The monthly income benefit shall be guaranteed for five years; ii. If he has no primary beneficiary, the System shall pay to his secondary beneficiaries the monthly income benefit but not to exceed sixty months; and iii. The minimum death benefit shall not be less than fifteen thousand pesos. (As amended by Section 4, Presidential Decree No. 1921). 2. Upon the death of a covered employee who is under permanent total disability under this Title: 80% of the monthly income benefit and his dependents to the dependents’ pension: Provided, That – a. The marriage must have been validly subsisting at the time of disability; b. If he has no primary beneficiary, the System shall pay to his secondary beneficiaries the monthly pension excluding the dependents’ pension, of the remaining balance of the five-year guaranteed period; and c. The minimum death benefit shall not be less than fifteen thousand pesos. (As amended by Section 4, Presidential Decree No. 1921).

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Note: The monthly income benefit provided herein shall be the new amount of the monthly income benefit for the surviving beneficiaries upon the approval of this decree. [Art. 200 (a)(c)] Condition to entitlement The beneficiaries of a deceased employee shall be entitled to an income benefit if all of the following conditions are satisfied: 1. The employee has been duly reported to the System; 2. He died as a result of an injury or sickness; and 3. The System has been duly notified of his death, as well as the injury or sickness which caused his death. His employer shall be liable for the benefit if such death occurred before the employee is duly reported for coverage to the System. [Sec. 1(a), Rule XIII, IRR] Notes: 1. If the employee has been receiving monthly income benefit for permanent total disability at the time of his death, the surviving spouse must show that the marriage has been validly subsisting at the time of his disability. 2. In addition, the cause of death must be a complication or natural consequence of the compensated Permanent Total Disability. [Sec. 1(b), Rule XIII, IRR] Beneficiaries The beneficiaries are: 1. Primary beneficiaries: a. Dependent spouse until he/she remarries; b. Dependent children (legitimate, legitimated, natural-born, or legally adopted). 2. Secondary beneficiaries: 1. Illegitimate children and legitimate descendants; 2. Parents, grandparents, grandchildren. [Azucena, p. 541]

Dependents "Dependent" means: 1. The legitimate, legitimated or legally adopted or acknowledged natural child who is: a. Unmarried, b. Not gainfully employed, and c. Not over twenty-one (21) years of age or over twenty-one (21) years of age provided he is incapacitated and incapable of self-support due to a physical or mental defect which is congenital or acquired during minority; 2. The legitimate spouse living with the employee and the parents of said employee wholly dependent upon him for regular support. [Art. 173(i)] The test of dependency is not merely whether the contributions were necessary to bare subsistence. Dependency may exist if such contributions were relied on by claimant for his/her means of living as determined by his/her position in life. [Malate Taxicab v. Del Villar, G.R. No. L-7489 (1956)] Period of entitlement For primary beneficiaries The income benefit shall be paid beginning at the month of death and shall continue to be paid for as long as the beneficiaries are entitled thereto. [Sec. 2, Rule XII, IRR] For secondary beneficiaries The income benefit shall be sixty (60) times the monthly income benefit of a primary beneficiary which in no case be less than P 15,000.00, which shall likewise be paid in monthly pension. [Sec. 2(a), Rule XII, IRR] Manner of payment Death benefits are paid in the form of cash monthly pension: 1. For life to the primary beneficiaries, guaranteed for five years; 2. For not more than 60 months to the 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 For primary beneficiaries Monthly income benefit shall be equivalent to the monthly income benefit for permanent total disability, which shall be guaranteed for five years, increased by ten percent for each dependent child but not exceeding 5, beginning with the youngest and without substitution. [Sec. 3, Rule XII, IRR]

receiving permanent total disability benefit, dies.

Notes: 1. The aggregate monthly benefit payable in the case of the GSIS shall in no case exceed the monthly wage or salary actually received by the employee at the time of his death; 2. The minimum income benefit shall not be less than Fifteen Thousand Pesos (P15,000.00). [Sec. 3, Rule XII, IRR]

2. Employees Compensation and State Insurance Fund

For secondary beneficiaries Income benefit is payable in monthly pension which shall not exceed the period of 60 months and the aggregate income benefit shall not be less than P15, 000.00. [Sec. 3, Rule XII, IRR] Death benefits after retirement are allowed Generally, the term “covered employees” refers to an employee who, at the time of his death, is still covered by the GSIS. However, the implementing rules and regulations of the Employees’ Compensation Commission allows death benefits to those retired employees whose retirement was brought about by permanent disability. The Court is aware that death benefits must be granted to the primary beneficiaries of the decedent to help the family of a permanent and totally disabled person who was so disabled because of causes that are work-oriented. The rule applies all the more when the disabled person later dies because of the same cause or related cause. [Manuzon v. ECC, G.R. No. 88573, (1990)] Death of a person receiving permanent total disability benefits Under Art. 200(b), death benefit shall be paid to the beneficiaries if an employee, while

Prescription of claims All money claims arising from employeremployee relations shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall forever be barred. [Art. 306]

Policy To promote and develop a tax-exempt employees’ compensation program whereby employees and their dependents, in the event of work-connected disability or death, may promptly secure adequate income benefit and medical related benefits [Art. 172 [166]] "Dependent" means: 1. The legitimate, legitimated or legally adopted or acknowledged natural child who is: a. Unmarried, b. Not gainfully employed, and c. Not over twenty-one (21) years of age or over twenty-one (21) years of age provided he is incapacitated and incapable of self-support due to a physical or mental defect which is congenital or acquired during minority; 2. The legitimate spouse living with the employee and the parents of said employee wholly dependent upon him for regular support. [Art. 173(i)] The beneficiaries are: 1. Primary beneficiaries: a. Dependent spouse until he/she remarries; b. Dependent children (legitimate, legitimated, natural-born, or legally adopted). 2. Secondary beneficiaries: a. Illegitimate children and legitimate descendants; b. Parents, grandparents, grandchildren. [Art. 173(j)]

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Compulsory coverage Coverage in the State Insurance Fund shall be compulsory upon all employers and their employees not over sixty (60) years of age: Provided, That an employee who is over (60) years of age and paying contributions to qualify for the retirement or life insurance benefit administered by the System shall be subject to compulsory coverage [Art. 174[168]] (“System” - SSS or GSIS, as the case may be). Foreign employment - Filipino employees employed abroad shall be adequately covered, subject to regulations as the Commission may prescribe [Art. 175[169]] (“Commission” Employees Compensation Commission) Limitation of liability The State Insurance fund shall be liable for compensation to the employee or his dependents, except when the disability or death was occasioned by the employees’ intoxication, willful intention to injure or kill himself or another, notorious negligence, or otherwise provided in this title. [Art. 178 [172]] Extent of liability Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits are administered by the System or by other agencies of the government [Art. 179 [173]]. Employer’s contributions a. Under such regulations as the System may prescribe, beginning as of the last day of the month when an employee’s compulsory coverage takes effect and every month thereafter during his employment, his employer shall prepare to

remit to the System a contribution equivalent to one percent of his monthly salary credit. b. The rate of contribution shall be reviewed periodically and subject to the limitations herein provided, may be revised as the experience in risk, cost of administration and actual or anticipated as well as unexpected losses, may require. c. Contributions under this Title shall be paid in their entirety by the employer, and any contract or device for the deductions of any portion thereof from the wages or salaries of the employees shall be null and void. d. When a covered employee dies, becomes disabled or is separated from employment, his employer’s obligation to pay the monthly contribution arising from that employment shall cease at the end of the month of contingency and during such months that he is not receiving wages or salary [Art. 189[183]]. Medical benefits Immediately after an employee contracts sickness or sustains an injury, he shall be provided by the System during the subsequent period of his disability with such medical services and appliances as the nature of his sickness or injury and progress of his recovery may require, subject to the expense limitation prescribed by the Commission [Art. 191[185]] Rehabilitation services The System shall establish: a. A continuing program, for the rehabilitation of injured and handicapped employees who shall be entitled to rehabilitation services, which shall consist of medical, surgical or hospital treatment, including appliances to help them become physically independent. b. Centers equipped and staffed to provide a balanced program of remedial treatment, vocational assessment and preparation designed to meet the individual needs of each handicapped employee to restore him to suitable employment, including assistance to help each rehabilitee to develop his mental, vocational or social potential. [Art. 196 [190]]

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3. Philippine Overseas Employment Administration-Standard Employment Contract As part of a seafarer's deployment for overseas work, he/she and the vessel owner or its representative local manning agency are required to execute the POEA-SEC. Containing the standard terms and conditions of seafarers' employment, the POEA-SEC is deemed included in their contracts of employment in foreign ocean-going vessels. [Sharpe Sea Personnel Inc. v. Mabunay, G.R. No. 206113 (2017)] a. Compensation and benefits for injury or illness There are two requisites for a seafarer’s injury or disability to be considered compensable: (1) “the injury or illness must be work-related;” and (2) “the work-related injury or illness must have existed during the term of the seafarer's employment contract.” [Magsaysay Maritime Services v. Laurel, 707 Phil. 210 (2013)] Work-related injury or illness For an illness to be compensable, "it is not necessary that the nature of the employment be the sole and only reason for the illness suffered by the seafarer." It is enough that there is "a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.” [Madridejos v. NYK-FIL Ship Management, Inc., 810 Phil. 704 (2017)] See Sec. 32 of POEA-SEC for the schedule of disability or impediment for injuries suffered and diseases including occupational diseases of illness contracted in the course of work. Those illnesses not listed in Sec. 32 are disputably presumed as work-related. [Sec. 20, A.4, POEA-SEC]

LIABILITIES OF EMPLOYER IN CASE OF WORK-RELATED INJURY OR ILLNESS 1. Medical expenses If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated. However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he/she shall be so provided at cost to the employer until such time he/she is declared fit or the degree of his/her disability has been established by the companydesignated physician. [Sec. 20, A.2, POEASEC] 2. Sickness allowance The seafarer shall also receive sickness allowance from his/her employer in an amount equivalent to his/her basic wage computed from the time he/she signed off until he is declared fit to work, or the degree of disability has been assessed by the companydesignated physician. The period within the seafarer shall be entitled to sickness allowance shall not exceed 120 days. Payment of the sickness allowance shall be made on a regular basis, but not less than once a month. [Sec. 20. A.3, POEA-SEC] 3. Cost of medicines, mode transportation and accommodation

of

The seafarer shall be entitled to reimbursement of the cost of medicines prescribed by the company-designated physician. In case treatment of the seafarer is on an outpatient basis as determined by the companydesignated physician, the company shall approve the appropriate mode of transportation and accommodation.

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The reasonable cost of actual traveling expenses and/or accommodation shall be paid subject to liquidation and submission of official receipts and/or proof of expenses. [Sec. 20, A.3, POEA-SEC] Mandatory post-employment medical examination; strict compliance General rule: The seafarer shall submit himself/herself to a post-medical examination by a company-designated physician within three working days upon his return. Exceptions: a. When the seafarer is physically incapacitated to do so. In which case, a written notice to the agency within the same period is deemed as compliance. [Sec. 20, A.3, POEA-SEC] b. When the non-compliance with the mandatory post-employment medical examination was “not due to the seafarer’s fault but to the inadvertence or deliberate refusal of the [employer].” [Interorient Maritime Enterprises, Inc. v. Remo, 636 Phil. 240 (2010)] Rationale The rationale for the rule [on the mandatory post-employment medical examination] is that reporting the illness or injury within three days from repatriation fairly makes it easier for a physician to determine the cause of the illness or injury. To ignore the rule might set a precedent with negative repercussions, like opening floodgates to a limitless number of seafarers claiming disability benefits. [Wallem Maritime Services, Inc. v. Tanawan, 693 Phil. 416 (2012)] Third Doctor Opinion Rule If a doctor appointed by the seafarer disagrees with the assessment [of the companydesignated physician], a third doctor may be agreed jointly between the employer and the seafarer. The third doctor’s decision shall be final and binding on both parties. [Sec. 20, A.4, POEASEC]

Rationale: It is understandable that a companydesignated physician is more positive than that of a physician of the seafarer's choice. It is on this account that a seafarer is given the option by the POEA Standard Employment Contract to seek a second opinion from his preferred physician [Abante v. KJGS Fleet Management Manila, G.R. No. 182430 (2009)] Mandatory reporting requirement In the course of the treatment, the seafarer shall also report regularly to the companydesignated physician specifically on the dates as prescribed by the company-designated physician and agreed to by the seafarer. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits. [Sec. 20, A.3, POEA-SEC] GUIDELINES FOR THE CLAIM OF PERMANENT TOTAL DISABILITY BENEFITS The employer must also compensate the seafarer for his/her permanent total disability as finally determined by the companydesignated physician. The following guidelines shall govern seafarers' claims for permanent and total disability benefits: 1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him. 2. If the company-designated physician fails to give his/her assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total; 3. If the company-designated physician fails to give his/her assessment within the period of 120 days with a sufficient justification, then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and

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4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification. [Jebsens Maritime Inc. v. Rapiz, G.R. No. 218871 (2017)] b. Compensation and benefits for death In case of work-related death of the seafarer, during the term of his contract, the employer shall pay his/her beneficiaries the Philippine currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars (US$7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at the exchange rate prevailing during the time of payment. [Sec. 20, B.1, POEASEC] Requisites For death to be compensable, the claimant bears the burden to establish that: 1. The seafarer died during the duration of his/her contract, and 2. His/her illness was work-related. [Sec. 20, B.1, POEA-SEC] Exception: When the seafarer’s death occurred after the termination of his/her contract after medical repatriation repatriation on account of a work-related injury or illness Rationale: The 2000 POEA-SEC must be liberally construed, as impelled by the plight of the bereaved heirs who stand to be deprived of a just and reasonable compensation for the seafarer’s death, notwithstanding its evident work-connection. [Racelis v. United Philippine Lines, 746 Phil. 758 (2014)]

Other liabilities of the employer when the seafarer dies as a result of work-related injury or illness during the term of employment are as follows: a. The employer shall pay the deceased’s beneficiary all outstanding obligations due the seafarer under this Contract. b. The employer shall transport the remains and personal effects of the seafarer to the Philippines at employer’s expense, except if the death occurred in a port where local government laws or regulations do not permit the transport of such remains. In case death occurs at sea, the disposition of the remains shall be handled or dealt with in accordance with the master’s best judgment. In all cases, the employer/master shall communicate with the manning agency to advise for disposition of seafarer’s remains. c. The employer shall pay the beneficiaries of the seafarer the Philippine currency equivalent to the amount of One Thousand US dollars (US$1,000) for burial expenses at the exchange rate prevailing during the time of payment. [Sec. 20, B.4, POEASEC] When compensation is not payable (applies to both disability and death benefits) No compensation and benefits shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or intentional breach of his duties, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer. [Sec. 20, D, POEA-SEC] Prescription of claims All claims arising from this contract shall be made within three (3) years from the date the 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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E. SOLO PARENTS [RA 8972: Solo Parents’ Welfare Act] See also III. C. 2. a. and III. E. 7. for work entitlements of solo parents Non work-related support for solo parents 1. Comprehensive Package of Social Development and Welfare Services [Sec. 5] 2. Educational Benefits [Sec. 9] 3. Housing Benefits [Sec. 10] 4. Medical Assistance [Sec. 11] Criteria for Support 1. Solo parent, 2. Income in the place of domicile falls below the poverty threshold as set by the NEDA, and 3. Assessed by the DSWD. Note: If the solo parent’s income is above the poverty threshold, he shall still enjoy the benefits of Flexible Work Schedule, Protection against Work Discrimination, and Parental Leave [Sec. 4]. Comprehensive Package of Social Development and Welfare Services The package will initially include: a. Livelihood development services, which include training on livelihood skills, basic business management, value orientation and the provision of seed capital or job placement; b. Counseling services, which include individual, peer group or family counseling. These will focus on the resolution of personal relationship and role conflicts; c. Parent effectiveness services which include the provision and expansion of knowledge and skills of the solo parent on early childhood development, behavior management, health care and proper nutrition, rights and duties of parents and children;

d. Critical incidence stress debriefing, which includes preventive stress management strategy designed to assist solo parents in coping with crisis situations and cases of abuse; e. Special projects for individuals in need of protection which include temporary shelter, counseling, legal assistance, medical care, self-concept or ego-building, crisis management and spiritual enrichment. [Sec. 15, IRR] Educational benefits The DepEd, CHED, and TESDA shall provide the following benefits and privileges: 1. Scholarship programs for qualified solo parents and their children in institutions of basic, tertiary, and technical/skills education; 2. Non-formal education programs appropriate for solo parents and their children. [Sec. 22, IRR] Housing benefits Solo parents who meet the eligibility criteria for housing assistance under R.A. No. 7279 (Urban Development and Housing Act of 1992) and other related rules and regulations of participating housing agencies shall be provided with liberal terms of payment on government low-cost housing projects, in accordance with housing law provisions, prioritizing applicants below the poverty line as declared by the NSCB. [Sec. 23, IRR] The National Housing Authority shall make available housing units to solo parents in its housing projects, subject to existing disposition policies, or may refer them to other housing projects, as appropriate, provided: a. The identified solo parent must be eligible for assistance under the provisions of this Act; b. Solo parents applying for housing benefits must meet the qualification criteria for housing assistance under Republic Act 7279, or the Urban Development and Housing Act (UDHA) and other NHA eligibility criteria under existing policies, rules and regulations; and

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lot and the tenant agrees to the transfer [Sec. 26, RA1199, as amended by RA2263] There is a severance of the tenancy relationship The tenant is ejected for cause

In any case, the tenant shall only be removed after the expiration of 45 days following such severance of relationship or dismissal for cause. Specific rights of rice share tenants [Sec. 36, RA 1199] The rice share tenant shall have the right to: 1. Determine when to scatter the seeds, to transplant the seedlings, and to reap the harvest, provided they shall be in accordance with proven farm practices and after due notice to the landholder. 2. Choose the thresher which shall thresh the harvest whenever it is the best available in the locality and the best suited to the landholder’s and tenant’s needs and provided that the rate charged by the owner of other threshers under similar circumstances. If there are multiple tenants, the choice of the majority of the tenants shall prevail. If the landholder is the owner of a thresher and is ready and willing to grant equal or lower rates under the same conditions, the use of the landholder’s thresher shall be given preference. 3. Apply appropriate pest, insect, disease and rodent control measures whenever in his judgment such action is necessary. 4. Apply fertilizer of the kind or kinds shown by proven farm practices to be adapted to the requirements of the land, provided the landholder has not exercised his right to require the use of such fertilizer. Specific rights of leasehold tenants [Sec. 43, RA 1199] The tenant-lessee shall have the right to: 1. Enter the premises of the land, and to the adequate and peaceful enjoyment thereof;

2. Work the land according to his best judgment, provided this manner and method of cultivation and harvest are in accordance with proven farm practices. Upon termination of the relationship, have ½ of the value of the improvements made by him, provided they are reasonable and adequate to the purposes of the lease.

4. Concept of Farmworkers A farmworker is a natural person who renders services for value as an employee or laborer in an agricultural enterprise or farm regardless of whether his compensation is paid on a daily, weekly, monthly or “pakyaw” basis. The term includes an individual whose work has ceased as a consequence of, or in connection with, a pending agrarian dispute and who has not obtained a substantially equivalent and regular farm employment. [Sec. 3(g), RA 6657, Comprehensive Agrarian Reform Law] Types of farmworkers 1. Regular Farmworker - a natural person who is employed on a permanent basis by an agricultural enterprise or farm. [Sec. 3(h), RA 6657] 2. Seasonal Farmworker - a natural person who is employed on a recurrent, periodic or intermittent basis by an agricultural enterprise or farm, whether as a permanent or a non-permanent laborer, such as “dumaan,” “sacada,” and the like. [Sec. 3(i), RA 6657] 3. Other Farmworker - a farmworker who does not fall under Sec. 3(g) (farmworker), Sec. 3(h) (regular farmworker), and Sec. 3(i) (seasonal farmworker). [Sec. 3(j), RA 6657] Entitlements of different farmworkers under the Constitution Sec. 4, Art. XIII, 1987 Constitution – The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farm workers, who are

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landless, to own directly or collectively the lands they till on, or in the case of other farm workers, to receive a just share of the fruits thereof. The 1987 Constitution distinguishes between regular farmworkers and other farmworkers. 1. Farmers and regular farmworkers have the right to own directly or collectively the lands they till on. 2. Other farmworkers have the right to receive a just share of the fruits thereof. Seasonal farm workers have no constitutional right to own land Seasonal farm workers, not having a constitutional right to own land, do not have a legal or actual and substantial interest in the land subject of agrarian reform. They may not be allowed to intervene in the case concerning the land. [Fortich v. Corona, G.R. No. 131457 (1998)]

H. UNIVERSAL HEALTH CARE [RA 11223]

1. Policy It is the policy of the State to promote and protect the right to health of all Filipinos and instill health consciousness among them. Towards this end, the State shall adopt: a. An integrated and comprehensive approach to ensure that all Filipinos are health literate, provided with healthy living conditions, and protected from hazards and risks that could affect their health; b. A health care model that provides all Filipinos access to a comprehensive set of quality and cost-effective, promotive, preventive, curative, rehabilitative and palliative health services without causing financial hardship, and prioritizes the needs of the population who cannot afford such services; c. A framework that fosters a whole-ofsystem, whole-of-government, and whole-

of-society approach in the development, implementation, monitoring, and evaluation of health policies, programs and plans; and d. A people-oriented approach for the delivery of health services that is centered on people's needs and well-being, and cognizant of the differences in culture, values, and beliefs. [Sec. 2] The Universal Health Care Act seeks to: a. Progressively realize universal health care in the country through a systemic approach and clear delineation of roles of key agencies and stakeholders towards better performance in the health system; and b. Ensure that all Filipinos are guaranteed equitable access to quality and affordable health care goods and services, and protected against financial risk. [Sec. 3]

2. Coverage Population coverage [Sec. 5] Every Filipino citizen shall be automatically included into the National Health Insurance Program. Service coverage [Sec. 6] Every Filipino shall be granted immediate eligibility and access to preventive, promotive, curative, rehabilitative, and palliative care for medical, dental, mental and emergency health services, delivered either as population-based or individual-based health services. Provided, That the goods and services to be included shall be determined through a fair and transparent Health Technology Assessment (HTA) Process. [Sec. 6(a)] HTA - The systematic evaluation of properties, effects, or impact of health-related technologies, devices, medicines, vaccines, procedures and all other health-related systems developed to solve a health problem and improve quality of lives and health outcomes. [Sec. 4(n)] Every Filipino shall register with a public or private primary care provider of choice. The

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DOH shall promulgate the guidelines on the licensing of primary care providers and the registration of every Filipino to a primary care provider. [Sec. 6(d)] Financial coverage [Sec. 7] Population-based health services shall be financed by the National Government through the DOH and provided free of charge at point of service for all Filipinos. [Sec. 7(a)] Population-based health service interventions such as health promotion, disease surveillance, and vector control, which have population groups as recipients. [Sec. 4(p)] Individual-based health services shall be financed primarily through prepayment mechanisms such as social health insurance, private health insurance, and HMO plans to ensure predictability of health expenditures. [Sec. 7(b)] Individual-based health services - services which can be accessed within a health facility or remotely that can be definitively traced back to 1 recipient, has limited effect at a population level and does not alter the underlying cause of illness such as ambulatory and inpatient care, medicines, laboratory tests and procedures, among others [Sec. 4(p)]

3. National Health Insurance Program Membership into the NHIP falls under 2 categories [Sec. 8] 1. Direct contributors - Those who have the capacity to pay premiums, are gainfully employed and are bound by an employeremployee relationship, or are self-earning, professional practitioners, migrant workers, including their qualified dependents, and lifetime members [Sec. 4(f)] 2. Indirect contributors - All others not included as direct contributors, as well as their qualified dependents, whose premium shall be subsidized by the national government including those who are

subsidized as a result of special laws [Sec. 4(o)] Direct contributors 1. Employees with formal employment characterized by the existence of an employer-employee relationship, which include workers in the government and private sector, whether regular, casual, or contractual, are occupying either an elective or appointive position, regardless of the status of appointment, whose premium contribution payments are equally shared by the employee and the employer; 2. Kasambahays, as defined in the Kasambahay Law; 3. All other workers who are not covered by formal contracts or agreements or who have no employee-employer relationship and whose premium contributions are selfpaid, and with capacity to pay premiums, such as the following: a. Self-earning individuals; and b. Professional practitioners; 4. Overseas Filipino Workers 5. Filipinos living abroad; 6. Filipinos with dual citizenship; 7. Lifetime members as defined in RA 10606 (National Health Insurance Act); and 8. All Filipinos aged 21 years and above who have the capacity to pay premiums. [Sec. 8, IRR] Indirect contributors 1. Indigents identified by the DSWD; 2. Beneficiaries of Pantawid Pamilyang Pilipino Program/Modified Conditional Cash Transfer (4Ps/MCCT); 3. Senior citizens who are not currently covered by the Program; 4. Persons with disability, as defined in RA 10754 (An Act Expanding the Benefits and Privileges of Persons with Disability); 5. All Filipinos aged 21 years old and above without the capacity to pay premiums; 6. Sangguniang Kabataan officials, as defined in RA 10742 (Sangguniang Kabataan Reform Act); and 7. Those previously identified at point-ofservice (POS) or during registration, members previously sponsored by LGUs

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and those who are not yet in the PhilHealth database and are financially incapable to pay premiums. [Sec. 8, IRR] Dependents 1. Legal spouse/s who is/are not an active member; 2. Unmarried and unemployed legitimate, illegitimate children, and legally adopted or stepchildren below twenty-one (21) years of age; 3. Foster children as defined in RA 10165 (Foster Care Act of 2012); and 4. Parents who are sixty (60) years old and above, not otherwise an enrolled member. [Sec. 8, IRR] Benefits [Sec. 9] Every member shall be granted immediate eligibility for health benefit package under the NHIP under the following rules: 1. The PhilHealth ID Card shall not be required in the availing of any health service. 2. No co-payment shall be charged for services rendered in basic or ward accommodation. 3. Co-payments and co-insurance for amenities in public hospitals shall be regulated by the DOH and PhilHealth Co-payment - a flat fee or predetermined rate paid at point of service [Sec. 4(e)] Co-insurance - a percentage of a medical charge that is paid by the insured, with the rest paid by the health insurance plan [Sec. 4(d)] 4. The current PhilHealth package members shall not be reduced.

for

PhilHealth shall provide additional NHIP benefits for direct contributors, where applicable: Provided, 1. Failure to pay premiums shall not prevent the enjoyment of NHIP benefits. 2. Employers and self-employed direct contributors shall be required to pay all missed contributions with an interest, compounded monthly, of at least 3% for

employers and not exceeding 1.5% for selfearning, professional practitioners, and migrant workers.

VIII. JURISDICTION AND REMEDIES A. LABOR ARBITER 1. Jurisdiction of the Labor Arbiter as distinguished from the Regional Director JURISDICTION OF THE LABOR ARBITER Except as otherwise provided under the Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide: a. Unfair labor practices cases; b. Termination disputes; c. Cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment, if accompanied with a claim for reinstatement; d. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; e. Cases arising from any violation of Art. [279] of this Code, including questions involving the legality of strikes and lockouts; f. Except claims for Employees Compensation, Social Security, Medicare [Philhealth] and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding P5,000 regardless of whether accompanied with a claim for reinstatement. [Art. 224] g. Money claims arising out of employeremployee relationship or by virtue of any law or contract, involving claims for actual, moral, exemplary and other forms of damages, as well as employment termination of OFWs;

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h. Wage distortion disputes in unorganized establishments not voluntarily settled by the parties. [Art. 124] i. Enforcement of compromise agreements when there is non-compliance by any of the parties. [Art. 233] j. Other cases as may be provided by law. Requisites of LA’s jurisdiction over Money Claims 1. Money claims arose from ER-EE relations; Note: If not, regular courts have jurisdiction 2. Money claims arose from law or contracts other than a CBA. Note: If not, Voluntary Arbitrator has jurisdiction LABOR ARBITER v. REGIONAL DIRECTOR [Art. 129] A money claim arising from employeremployee relations, except SSS, ECC/Medicare [Philhealth] claims, is within the jurisdiction of a Labor Arbiter if: a. The claim, regardless of amount, is accompanied with a claim of reinstatement; or b. The claim exceeds P5,000, whether or not there is a claim for reinstatement. The Regional Director has jurisdiction if: a. Money claim arose out of employeremployee relationships; b. Money claim is NOT accompanied by a claim for reinstatement; AND c. Money claim does not exceed P5,000, whether or not claim arose from ER-EE relationships. PROCEDURE BEFORE LABOR ARBITER Where to File [Sec. 1, Rule IV, 2011 NLRC Rules of Procedure] All cases which Labor Arbiters have authority to hear and decide may be filed in the Regional Arbitration Branch (RAB) having jurisdiction over the workplace of the complainant or petitioner. a. Workplace – place or locality where the employee is regularly assigned at the time the cause of action arose. It shall include the place where the employee is supposed

to report back after a temporary detail, assignment, or travel. b. In the case of field employees, ambulant or itinerant workers, their workplace is (a) where they are regularly assigned or (b) where they are supposed to regularly receive their salaries and wages or work instructions from, and report the results of their assignment to their employers. NATURE OF THE PROCEEDING Proceedings before the LA are non-litigious. The Labor Arbiter is not bound by the technical rules of procedure. The Labor Arbiter shall use all reasonable means to ascertain the facts in each speedily and objectively. [Art. 227]

2. Requirements to perfect appeal to National Labor Relations Commission Period of Appeal Labor Arbiter to NLRC: Decisions, awards, or orders of the [LA] shall be final and executory unless appealed to the [NLRC] by any or both parties within 10 calendar days from receipt [thereof]. [Art. 229] Note: If the last day of the reglementary period falls on a Sunday or a holiday, the last day shall be the next working day. Grounds of Appeal [Art. 229] a. If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter or Regional Director; b. If the decision, resolution or order was secured through fraud or coercion, including graft and corruption; c. If made purely on questions of law; and/or d. If serious errors in the findings of fact are raised which, if not corrected, would cause grave or irreparable injury to the appellant. When Appeal is Perfected Judgment involving a monetary award An appeal by the employer may be perfected only upon the posting of a cash or surety bond

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issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from. [Art. 229] It is clear from the NLRC Rules of Procedure that appeals must be verified and certified against forum-shopping by the parties-ininterest themselves. [Antonio B. Salenga, et al. v. CA, G.R. No. 174941 (2012)] Note: Decisions of the Labor Arbiter are appealable to the NLRC. Decisions by the NLRC are appealable to the CA via Rule 65. [St. Martin’s Funeral Homes v. NLRC, 295 SCRA 494 (1998)] Memorandum of Appeal In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later than ten (10) calendar days from receipt thereof. [Art. 229]

3. Reinstatement and/or execution pending appeal Reinstatement Pending Appeal and Effect of NLRC reversal of Labor Arbiter’s order of reinstatement In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be: a. Admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation; or b. Merely reinstated in the payroll, at the option of the employer. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein. [Art. 229] Reversal of the order of reinstatement of the Labor Arbiter

During the period of appeal until reversal by the higher court, it is obligatory on the part of the employer to: 1. Reinstate, and 2. Pay the wages of the dismissed employee. If the employee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the employee is NOT required to reimburse whatever salary he received. He is entitled to such especially if he actually rendered services during the period. [Garcia v. Philippine Airlines, Inc., G.R. No. 164856 (2009)]

B. NATIONAL LABOR RELATIONS COMMISSION 1. Jurisdiction/Powers NLRC en banc a. To promulgate rules and regulations governing the hearing and disposition of cases 
 b. To formulate policies affecting its administration and operations 
 c. To allow cases within the jurisdiction of any division to be heard and decided by another division 
 d. To recommend appointment of a Labor Arbiter 
 NLRC in divisions (8 divisions with 3 commissioners each) a. Exclusive appellate jurisdiction from decisions of LA 
(within respective territorial jurisdiction) 
 b. Jurisdiction over petitions for injunction or temporary restraining order under Art. 225(e) c. Certified cases: “national interest” labor disputes 
certified (or referred) to the Commission by the SOLE 
for compulsory arbitration 
under Art. 278 (g) Exclusive Appellate Jurisdiction: over all cases decided by Labor Arbiters [Art. 224(b)] and the DOLE Regional Directors under Art. 129.

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and deciding only the specific issues that were elevated on appeal.

2. Remedies Appeal: Appeal from decisions of the NLRC after denial of Motion for Reconsideration appealed via Rule 65 to CA then Rule 45 to the SC. [St. Martin’s Funeral Homes v. NLRC, 295 SCRA 494 (1998)] Requisites for Perfection of Appeal to the Court of Appeals [Rule VI, 2011 NLRC Rules of Procedure] 1. The appeal shall be: a. Filed within the reglementary period; b. Verified by the appellant himself in accordance with Sec. 4, Rule 7 of the Rules of Court; c. In the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, and with a statement of the date the appellant received the appealed decision, resolution or order; d. In three (3) legibly typewritten or printed copies; and e. Accompanied by (a) proof of payment of the required appeal fee; (b) posting of a cash or surety bond as provided in Sec. 6 of the NLRC Rules; and (c) proof of service upon the other parties. 2. A mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an appeal. 3. The appellee may file with the Regional Arbitration Branch or Regional Office where the appeal was filed, his answer or reply to appellant’s memorandum of appeal, not later than 10 calendar days from receipt thereof. a. Failure on the part of the appellee who was properly furnished with a copy of the appeal to file his answer or reply within the said period may be construed as a waiver on his part to file the same. 4. Subject to the provisions of Art. [225] of the Labor Code, once the appeal is perfected in accordance with these Rules, the Commission shall limit itself to reviewing

EXTRAORDINARY REMEDY Verified Petition: A party aggrieved by any order or resolution of the Labor Arbiter, including a writ of execution and others issued during execution proceedings, may file a verified petition to annul or modify the same. The petition may be accompanied by an application for the issuance of a temporary restraining order and/or writ of preliminary or permanent injunction: a. To enjoin the Labor Arbiter, or any person acting under his/her authority b. To desist from enforcing said resolution, order or writ. [Rule XII, Sec. 1, 2011 NLRC Rules of Procedure, as amended by En Banc Resolution No. 07-14] CERTIFIED CASES Definition Certified labor disputes are cases certified to the Commission for compulsory arbitration under Art. 278(g) of the Labor Code. [Sec. 2, The 2011 NLRC Rules and Procedures] Power of the Secretary of Labor to Certify Cases When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may: 1. Assume jurisdiction over the dispute; and 2. Decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. [Art. 278(g)] Function of the NLRC When sitting in a compulsory arbitration certified to by the Secretary of Labor, the NLRC is tasked: a. To implement the order of the Secretary as an administrative body, not as a judicial court

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b. To formulate the terms and conditions of the CBA, staying within the scope of the order c. To act within the earliest time possible and with the end in view that its action would not only serve the interests of the parties alone, but would also have favorable implications to the community and to the economy as a whole. [Art. 278(g); Union of Filipino Employees v. NLRC, G.R. No. 91025 (1990)] Effects of Certification 1. Upon certification, the intended or impending strike or lockout is automatically enjoined, notwithstanding: a. The filing of any motion for reconsideration of the certification order; b. The non-resolution of any such motion, which may have been duly submitted to the Office of the Secretary of Labor and Employment. 2. If a work stoppage has already taken place at the time of the certification: a. All striking or locked out employees shall immediately return to work; and b. The employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. 3. All cases between the same parties, shall be considered subsumed or absorbed by the certified case, and shall be decided by the appropriate Division of the Commission, EXCEPT where the certification order specifies otherwise the issues submitted for arbitration which are: a. Already filed or may be filed, and b. Relevant to or are proper incidents of the certified case. 4. The parties to a certified case, under pain of contempt, shall inform their counsels and the Division concerned of all cases pending with the Regional Arbitration Branches and the Voluntary Arbitrators relative or incident to the certified case before it. 5. When a certified labor dispute involves a business entity with several workplaces

located in different regions, the Division having territorial jurisdiction over the principal office of the company shall acquire jurisdiction to decide such labor dispute; unless the certification order provides otherwise. [Sec. 3, Rule VIII, 2011 NLRC Rules and Procedures] Effects of Defiance Non-compliance with the certification order of the SOLE shall: 1. Be considered as an illegal act committed in the course of the strike or lockout; and 2. Authorize the Commission to enforce the same under pain of immediate disciplinary action, including: a. Dismissal or loss of employment status; or b. Payment by the locking-out employer of backwages, damages; and/or c. Other affirmative relief, even criminal prosecution against the liable parties. The Commission may also seek the assistance of law enforcement agencies to ensure compliance and enforcement of its orders and resolutions. [Sec. 4, Rule VIII, 2011 NLRC Rules and Procedures] Strict Compliance of Assumption and Certification Orders The Secretary's assumption and certification orders being executory in character are to be strictly complied with by the parties even during the pendency of a petition questioning their validity. The extraordinary authority given by law to the Secretary of Labor is "aimed at arriving at a peaceful and speedy solution to labor disputes, without jeopardizing national interests." [Union of Filipino Employees v. NLRC, G.R. No. 91025 (1990)] Procedure in certified cases a. When there is no need to conduct a clarificatory hearing, the Commission shall resolve all certified cases within 30 calendar days from receipt by the assigned Commissioner of the complete records, which shall include the position papers of

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the parties and the order of the SOLE denying the motion for reconsideration of the certification order, if any. b. Where a clarificatory hearing is needed, the Commission shall, within 5 calendar days from receipt of the records, issue a notice to be served on the parties through the fastest means available, requiring them to appear and submit additional evidence, if any. All certified cases shall be resolved by the Commission within 60 calendar days from receipt of the complete records by the assigned Commissioner. No motion for extension or postponement shall be entertained. [Sec. 5, Rule VIII, 2011 NLRC Rules and Procedures] Execution of Judgment Upon issuance of the entry of judgment, the Commission motu proprio or upon motion by the proper party, may cause the execution of the judgment in the certified case. [Sec. 6, Rule VIII, 2011 NLRC Rules and Procedures]

C. COURT OF APPEALS Appeal via Rule 65, Rules of Court Petition for certiorari A person may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of any tribunal, board or officer exercising judicial or quasi-judicial functions, and granting such incidental reliefs as law and justice may require: 1. When such tribunal, board or officer has acted: a. Without or in excess its or his jurisdiction, or b. With grave abuse of discretion amounting to lack or excess of jurisdiction; AND 2. When there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.

The petition shall be accompanied by: 1. A certified true copy of the judgment, order or resolution subject thereof; 2. Copies of all pleadings and documents relevant and pertinent thereto; and 3. A sworn certification of non-forum shopping as provided in the third paragraph of Sec. 3, Rule 46. Petition for prohibition A person may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require: 1. When the proceedings of such tribunal, corporation, board, officer or person are: a. Without or in excess of its or his jurisdiction; or b. With grave abuse of discretion amounting to lack or excess of jurisdiction, AND 2. When there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. The petition shall be accompanied by: 1. A certified true copy of the judgment, order or resolution subject thereof; 2. Copies of all pleadings and documents relevant and pertinent thereto; and 3. A sworn certification of non-forum shopping as provided in the third paragraph of Sec. 3, Rule 46. Petition for mandamus A person may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding any tribunal, corporation, board, officer or person, 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:

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1. When any tribunal, corporation, board, officer or person: a. Unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or b. Unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled; AND 2. When there is no other plain, speedy and adequate remedy in the ordinary course of law.

accordingly becomes final and executory, he cannot avail himself of the writ of certiorari, his predicament being the effect of his deliberate inaction. [Tirazona v Phil EDS Techno-Service Inc, G.R. No. 169712 (2009)] Note: Review of decisions of the NLRC shall be done through (in order): 1. Motion for reconsideration 2. Rule 65 to the CA 3. Rule 45 to the SC

E. BUREAU OF LABOR RELATIONS

D. SUPREME COURT

1. Jurisdiction All references in the amended Sec. 9 of B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should hence forth be initially filed in the Court of Appeals, in strict observance of the doctrine on the hierarchy of courts, as the appropriate forum for the relief desired. [St. Martin Funeral Home v. NLRC, G.R. No. 130866 (1998)] Rule 45, Rules of Court Filing of petition with Supreme Court A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. [Sec. 1]

Since the Court of Appeals had jurisdiction over the petition under Rule 65, any alleged errors committed by it in the exercise of its jurisdiction would be errors of judgment which are reviewable by timely appeal, and not by a special civil action of certiorari. If the aggrieved party fails to do so within the reglementary period, and the decision

The Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor and Employment shall have original and exclusive authority: a. To act – 1. At their own initiative, or 2. Upon request of either or both parties, b. On all inter-union and intra-union conflicts, and c. All disputes, grievances or problems arising from or affecting labor-management relations in all workplaces – 1. Whether agricultural or non-agricultural 2. Except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. [Art. 232] The Bureau shall have fifteen (15) calendar days to act on labor cases before it, subject to extension by agreement of the parties. Original Jurisdiction a. Inter-union and intra-union disputes and other related labor relations disputes. b. All disputes, grievances or problems arising from or affecting labor-management relations in all workplaces whether agricultural or non-agricultural, except those arising from the implementation or

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interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. [Art. 232] Note: If the complaint involves an independent union, chartered local or worker’s association, file with the DOLE Regional Office but if the complaint involves a federation or an industry/national union, file with the BLR. Inter-Union Dispute: one which occurred between or among legitimate labor unions involving representation questions for purposes of collective bargaining or to any other conflict or dispute between legitimate labor unions [IRR Book V, IRR Rule 1, Sec. 1 (x)]

6. 7.

8.

9.

Intra-Union Dispute: conflict within and inside a union between and among union members including grievances from any violation of rights and conditions of membership or provisions from the union’s constitution and bylaws and chartering of unions [D.O. No. 40-03, Rule I, Sec. 1 (bb)] Inter/Intra – Union Disputes shall include: [DO No. 040-I-15, Book V, Rule XI] 1. Cancellation of registration of a labor organization filed by its members or by another labor organization [Sec. 1a] 2. Conduct of election of union and workers' association officers/nullification of election of union and workers' association officers [Sec. 1(b)] 3. Audit/accounts examination of union or workers' association funds [Sec. 1(c)] 4. Deregistration of collective bargaining agreements [Sec. 1(d)] 5. Validity/invalidity a. Of union affiliation or disaffiliation [Sec. 1(e)] b. Of acceptance/non-acceptance for union membership [Sec. 1(f)] c. Of impeachment/expulsion of union and workers' association officers and members [Sec. 1(g)] d. Of the SEBA certification [Sec. 1(h)]

e. Or disagreements over any provision in a union or workers' association constitution and by-laws [Sec. 1(j)] Opposition to application for union and CBA registration [Sec. 1(i)] Disagreements over chartering or registration of labor organizations and collective bargaining agreements [Sec. 1(k)] Violations of – a. The rights and conditions of union or workers' association membership [Sec. 1(l)] b. The rights of legitimate labor organizations, except interpretation of collective bargaining agreements [Sec. 1(m)]; and Such other disputes or conflicts involving the rights to self-organization, union membership and collective bargaining a. Between and among legitimate labor organizations; or b. Between and among members of a union or workers' association [Sec. 1(n)]

Appellate Jurisdiction The BLR Director exercises exclusive appellate jurisdiction over: 1. All decisions of the Med-Arbiter in: a. Inter/Intra-union disputes (Note: Complaints involving Federations, National Unions, etc. pursuant to Rule XI Sec. 4, formerly Sec. 5, as amended by D.O. 40-F-03). b. Other related labor relations disputes. 2. All decisions from the DOLE Regional Director in the cases falling under their original jurisdiction as enumerated. [Sec. 14, Rule XI, Book V, IRR] Decisions of the BLR through its appellate jurisdiction are final and executory 10 days after receipts by the parties. [Sec. 20, Rule XI, Book V, IRR].

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or if both parties so agree, refer the unresolved issues to voluntary arbitration. [Art. 228]

2. Appeals Decisions of the BLR through its original jurisdiction are appealable to the Secretary of Labor and Employment. [Sec. 15, Rule XI, Book V, IRR]. Decisions of the BLR in its appellate jurisdiction are final and executory, unless appealed to the CA via Rule 65 and later to the SC via Rule 45. [Abbot Laboratories Philippines, Inc. v. Abbot Laboratories Employees Union, 323 SCRA 392 (2000)]

3. Administrative Functions of the BLR a. Regulation of registration of the labor unions; b. Keeping a registry of legitimate labor unions; c. Maintenance of a file of CBAs; d. Maintenance of a file of all settlements or final decisions in the SC, CA, NLRC and other agencies on labor disputes.

F. NATIONAL CONCILIATION AND MEDIATION BOARD All issues arising from labor and employment shall be subject to mandatory conciliationmediation. Exception: As provided in Title VII-A, Book V of this Code, as amended, or as may be excepted by the Secretary of Labor and Employment. The Labor Arbiter or the appropriate DOLE agency or office that has jurisdiction over the dispute shall entertain only endorsed or referred cases by the duly authorized officer. Any or both parties involved in the dispute may pre-terminate the conciliation-mediation proceedings and request referral or endorsement to the appropriate DOLE agency or office which has jurisdiction over the dispute,

Nature of proceedings Conciliation and mediation is non-litigious/nonadversarial, less expensive, and expeditious. Under this informal set-up, the parties find it more expedient to fully ventilate their respective positions without running around with legal technicalities and, in the course thereof, afford them wider latitude of possible approaches to the problem. SENA The Single-Entry Approach (SENA) is a prescribed 30-day Mandatory ConciliationMediation Services to be made operational through the Single Entry Approach Desk (SEAD) for all labor and employment cases except: 1. cases on notices of strikes or lock-outs, or on preventive mediation cases (NCMB) 2. interpretation and implementation of CBA (Grievance Machinery) [D.O. No. 107-10]

1. Jurisdiction The NCMB is an agency attached to the DOLE principally in charge of the settlement of labor disputes through conciliation, mediation and of the promotion of voluntary approaches to labor dispute prevention and settlement. [NCMB Manual of Procedures for Conciliation and Preventive Mediation Cases, Rule III, sec. 1] The following procedures shall be observed in collective bargaining: 1. When a party desires to negotiate an agreement, it shall serve a written notice upon the other party with a statement of its proposals [Art. 261(a)]. a. The other party shall make a reply thereto not later than ten (10) calendar days from receipt of such notice [Art. 261(a)]; b. Should differences arise on the basis of such notice and reply, either party may request for a conference which shall begin not later than ten (10) calendar

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days from the date of request [Art. 261(b)]. 2. If the dispute is not settled, the Board shall intervene upon request of either or both parties or at its own initiative and immediately call the parties to conciliation meetings [Art. 261(c)]. a. The Board shall have the power to issue subpoenas requiring the attendance of the parties to such meetings. i. It shall be the duty of the parties to participate fully and promptly in the conciliation meetings the Board may call [Art. 261(c)]; b. During the conciliation proceedings in the Board, the parties are prohibited from doing any act which may disrupt or impede the early settlement of the disputes [Art. 261(d)]; and c. The Board shall exert all efforts to settle disputes amicably and encourage the parties to submit their case to a voluntary arbitrator [Art. 261(e)]. In Collective Bargaining: 1. If the dispute is not settled, the NCMB will intervene upon request of either party or at its own initiative to call for conciliation with the power to issue subpoenas requiring attendance: a. During conciliation proceedings, parties are prohibited from doing any act which may disrupt or impede the early settlement of the dispute; b. NCMB will exert all efforts to settle disputes amicable and encourage submission to a voluntary Arbitrator. [Art. 261(c)(d)] 2. Procedure for Correction of Wage Distortion: a. In organized establishments with CBA i. Submit issue to grievance machinery ii. If unresolved, refer to voluntary arbitration who will decide within 10

days unless otherwise agreed upon by parties in writing b. If unorganized establishments without CBA: i. Submit issue before the NCMB for conciliation after endeavors to correct have failed ii. If not fruitful within 10 days, refer to the NLRC for arbitration to be decided within 20 days from submission [Rule VII, Rules of Procedure of Minimum Wage Fixing]

2. Conciliation as distinguished from mediation Conciliation Mediation Both refer to a process where a third person called a Conciliator/Mediator intervenes in a dispute to reconcile differences or persuade them to adjust or settle their dispute C-M facilitates C-M assists parties disputants to keep to voluntarily reach things calm, delivers mutually messages back and acceptable forth between the settlement. parties. [Conciliation-Mediation, DOLE – NCMB Website, available at: http://ncrwp.ncmb.ph/?page_id=99] Conciliator-Mediator [C-M] — Official of the NCMB whose principal function is to settle and dispose potential and actual labor disputes through conciliation and preventive mediation including the promotion and encouragement of voluntary approaches to labor disputes prevention and settlement. [Sec. 1, Rule III, NCMB Manual of Procedure for Conciliation and Preventive Mediation Cases] Pre-Termination of Conciliation-Mediation: Any or both parties in the dispute may preterminate the proceedings and request referral or endorsement to the appropriate DOLE agency or office with jurisdiction or to the voluntary arbiter if both parties agreed.

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Privileged Communication not Available as Evidence: Any statement made in conciliation proceedings shall be treated as privileged communication, and shall not be used as evidence in the NLRC. Conciliators may not testify in any court or body regarding any matter during the conciliation proceedings. [D.O. No. 40-03, Rule XXII, Sec. 2]

3. Preventive mediation Note: Refer also to Sec. 3 (Action on NonStrikeable Issues) & Sec. 4 (Notice Converted to Preventive Mediation) of Rule V of the NCMB Manual of Procedure for Conciliation and Preventive Mediation Cases involving nonstrikeable issues. Definition [Sec. 1(20), Rule III, NCMB Manual of Procedure for Conciliation and Preventive Mediation Cases] Preventive Mediation Cases - refer to the potential labor disputes which are the subject of a formal or informal request for conciliation and mediation assistance – a. Sought by either or both parties, or b. Upon the initiative of the NCMB to avoid the occurrence of actual labor disputes. Purpose of Preventive Mediation — to remedy, contain or prevent potential labor disputes’ degeneration into a full-blown dispute through amicable settlement. It can be initiated by: a. Filing a notice or request of preventive mediation; or b. Conversion of the notice of strike/lockout into at preventive mediation case. Note: If the subject of the strike is nonstrikeable, the NCMB can motu proprio convert the notice into preventive mediation or refer the issues to voluntary arbitration

G. DEPARTMENT OF LABOR AND EMPLOYMENT REGIONAL DIRECTORS

1. Jurisdiction The DOLE Regional Directors shall have original and exclusive jurisdiction over: a. Labor standards enforcement cases under Art. 128; Note: as the duly authorized representative of the SOLE b. Small money claims from labor standards violations not exceeding P5,000 and not accompanied with a claim for reinstatement under Art. 129; c. Operational safety and health conditions (can order stoppage or suspension of operations) [Art. 128; Bk. IV, Rule II, Sec. 8]; d. Registration of unions and cancellations thereof, cases filed against unions and other labor relations related cases [Sec. 4, Rule XI (renumbered, D.O. 40-F-03]; Note: only if against an independent labor union, chartered local or workers’ association; e. Complaints against private recruitment and placement agencies (PRPAs) for local employment [Secs. 45/46, D.O. 141-14]; and f. Cases submitted to voluntary arbitration in their capacity as Ex Officio Voluntary Arbiters under D.O 83-07 (2007). Note: The DOLE Regional Director, as the duly authorized representative of the SOLE, also has visitorial and enforcement power under: 1. Art. 37, Art. 128 (have access to employer’s records and premises with right to copy or investigate to determine violations of law); and 2. Art. 289 (where it can inquire into the 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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a. The final judgment in the administrative proceedings shall not be binding in the criminal case nor be considered as evidence of guilt b. But merely as proof of compliance of the requirements therein set forth.

4. Offenses under the Labor Code Art. 305, LC. – Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years. Art. 305, Civil Code. – Offenses penalized under this Code and the rules and regulations issued pursuant thereto shall prescribe in three (3) years. 3 years, except ULP (see: above)

5. Illegal recruitment Illegal recruitment cases under this Act shall prescribe in five (5) years. Provided, however, that illegal recruitment cases involving economic sabotage as defined herein shall prescribe in twenty (20) years. [Migrant Workers and Overseas Filipinos Act of 1995, Sec. 12]

LAWS AND RULES OF PROCEDURE The Civil Code of the Philippines Article 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.

Article 1701. Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public. Article 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer. Article 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid. Migrant Workers and Overseas Filipinos Act of 1995 See II. Recruitment and Placement, and III. E. 9. Migrant workers Anti-Trafficking in Persons Act of 2003 SECTION 4. Acts of Trafficking in Persons. — It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (a) To recruit, obtain, hire, provide, offer, transport, transfer, maintain, harbor, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, or sexual exploitation; (b) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino women to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage;

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(d) To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; (e) To maintain or hire a person to engage in prostitution or pornography; (f) To adopt persons by any form of consideration for exploitative purposes or to facilitate the same for purposes of prostitution, pornography, sexual exploitation, forced slavery, involuntary servitude or debt bondage; (g) To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (h) To recruit, hire, transport, obtain, transfer, harbor, maintain, provide, offer, receive, or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; (i) To recruit, transport, obtain, transfer, harbor, maintain, offer, hire, provide, receive or adopt a child to engage in armed activities in the Philippines or abroad; (j) To recruit, transport, transfer, harbor, obtain, maintain, offer, hire, provide or receive a person by means defined in Section 3 of this Act for purposes of forced labor, slavery, debt bondage and involuntary servitude, including a scheme, plan, or pattern intended to cause the person either: (1) To believe that if the person did not perform such labor or services, he or she or another person would suffer serious harm or physical restraint; or (2) To abuse or threaten the use of law or the legal processes; and (k) To recruit, transport, harbor, obtain, transfer, maintain, hire, offer, provide, adopt or receive a child for purposes of exploitation or trading them, including but not limited to, the act of buying and/or selling a child for any

consideration or for barter for purposes of exploitation. Trafficking for purposes of exploitation of children shall include: (1) All forms of slavery or practices similar to slavery, involuntary servitude, debt bondage and forced labor, including recruitment of children for use in armed conflict; (2) The use, procuring or offering of a child for prostitution, for the production of pornography, or for pornographic performances; (3) The use, procuring or offering of a child for the production and trafficking of drugs; and (4) The use, procuring or offering of a child for illegal activities or work which, by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals; and (5) To organize or direct other persons to commit the offenses defined as acts of trafficking under this Act. SECTION 4-A. Attempted Trafficking in Persons. — Where there are acts to initiate the commission of a trafficking offense but the offender failed to or did not execute all the elements of the crime, by accident or by reason of some cause other than voluntary desistance, such overt acts shall be deemed as an attempt to commit an act of trafficking in persons. As such, an attempt to commit any of the offenses enumerated in Section 4 of this Act shall constitute attempted trafficking in persons. In cases where the victim is a child, any of the following acts shall also be deemed as attempted trafficking in persons: (a) Facilitating the travel of a child who travels alone to a foreign country or territory without valid reason therefor and without the required clearance or permit from the Department of Social Welfare and Development, or a written permit or justification from the child's parent or legal guardian;

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(b) Executing, for a consideration, an affidavit of consent or a written consent for adoption; (c) Recruiting a woman to bear a child for the purpose of selling the child; (d) Simulating a birth for the purpose of selling the child; and (e) Soliciting a child and acquiring the custody thereof through any means from among hospitals, clinics, nurseries, daycare centers, refugee or evacuation centers, and low-income families, for the purpose of selling the child.

(b)

(c) SECTION 4-B. Accomplice Liability. — Whoever knowingly aids, abets, cooperates in the execution of the offense by previous or simultaneous acts defined in this Act shall be punished in accordance with the provisions of Section 10(c) of this Act. SECTION 4-C. Accessories. — Whoever has the knowledge of the commission of the crime, and without having participated therein, either as principal or as accomplices, take part in its commission in any of the following manners: (a) By profiting themselves or assisting the offender to profit by the effects of the crime; (b) By concealing or destroying the body of the crime or effects or instruments thereof, in order to prevent its discovery; (c) By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his or her public functions or is known to be habitually guilty of some other crime.

(d)

(e)

(f)

Acts defined in this provision shall be punished in accordance with the provision of Section 10(d) as stated thereto. SECTION 5. Acts that Promote Trafficking in Persons. — The following acts which promote or facilitate trafficking in persons shall be unlawful: (a) To knowingly lease or sublease, use or allow to be used any house, building or

(g)

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establishment for the purpose of promoting trafficking in persons; To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers, overseas employment certificates or other certificates of any government agency which issues these certificates, decals and such other markers as proof of compliance with government regulatory and pre-departure requirements for the purpose of promoting trafficking in persons; To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide predeparture registration and services for departing persons for the purpose of promoting trafficking in persons; To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons; To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery.

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(h) To tamper with, destroy, or cause the destruction of evidence, or to influence or attempt to influence witnesses, in an investigation or prosecution of a case under this Act; (i) To destroy, conceal, remove, confiscate or possess, or attempt to destroy, conceal, remove, confiscate or possess, any actual or purported passport or other travel, immigration or working permit or document, or any other actual or purported government identification, of any person in order to prevent or restrict, or attempt to prevent or restrict, without lawful authority, the person's liberty to move or travel in order to maintain the labor or services of that person; or (j) To utilize his or her office to impede the investigation, prosecution or execution of lawful orders in a case under this Act. SECTION 6. Qualified Trafficking in Persons. — The following are considered as qualified trafficking: (a) When the trafficked person is a child; (b) When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group; (d) When the offender is a spouse, an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (e) When the trafficked person is recruited to engage in prostitution with any

(f) (g)

(h)

(i)

member of the military or law enforcement agencies; When the offender is a member of the military or law enforcement agencies; When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS); When the offender commits one or more violations of Section 4 over a period of sixty (60) or more days, whether those days are continuous or not; and When the offender directs or through another manages the trafficking victim in carrying out the exploitative purpose of trafficking.

SECTION 10. Penalties and Sanctions. — The following penalties and sanctions are hereby established for the offenses enumerated in this Act: (a) Any person found guilty of committing any of the acts enumerated in Section 4 shall suffer the penalty of imprisonment of twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) but not more than Two million pesos (P2,000,000.00); (b) Any person found guilty of committing any of the acts enumerated in Section 4A of this Act shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00); (c) Any person found guilty of Section 4-B of this Act shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00); In every case, conviction shall cause and carry the automatic revocation of the license or registration of the recruitment agency involved in trafficking. The license of a recruitment agency which

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(e)

(f)

(g)

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(i)

(j)

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trafficked a child shall be automatically revoked. Any person found guilty of committing any of the acts enumerated in Section 5 shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00); Any person found guilty of qualified trafficking under Section 6 shall suffer the penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) but not more than Five million pesos (P5,000,000.00); Any person who violates Section 7 hereof shall suffer the penalty of imprisonment of six (6) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00); If the offender is a corporation, partnership, association, club, establishment or any juridical person, the penalty shall be imposed upon the owner, president, partner, manager, and/or any responsible officer who participated in the commission of the crime or who shall have knowingly permitted or failed to prevent its commission; The registration with the Securities and Exchange Commission (SEC) and license to operate of the erring agency, corporation, association, religious group, tour or travel agent, club or establishment, or any place of entertainment shall be cancelled and revoked permanently. The owner, president, partner or manager thereof shall not be allowed to operate similar establishments in a different name; If the offender is a foreigner, he or she shall be immediately deported after serving his or her sentence and be barred permanently from entering the country; Any employee or official of government agencies who shall issue or approve the issuance of travel exit clearances, passports, registration certificates,

counseling certificates, marriage license, and other similar documents to persons, whether juridical or natural, recruitment agencies, establishments or other individuals or groups, who fail to observe the prescribed procedures and the requirement as provided for by laws, rules and regulations, shall be held administratively liable, without prejudice to criminal liability under this Act. The concerned government official or employee shall, upon conviction, be dismissed from the service and be barred permanently to hold public office. His or her retirement and other benefits shall likewise be forfeited; and (k) Conviction, by final judgment of the adopter for any offense under this Act shall result in the immediate rescission of the decree of adoption. SECTION 12. Prescriptive Period. — Trafficking cases under this Act shall prescribe in ten (10) years: Provided, however, That trafficking cases committed by a syndicate or in a large scale as defined under Section 6, or against a child, shall prescribe in twenty (20) years. The prescriptive period shall commence to run from the day on which the trafficked person is delivered or released from the conditions of bondage, or in the case of a child victim, from the day the child reaches the age of majority, and shall be interrupted by the filing of the complaint or information and shall commence to run again when the proceedings terminate without the accused being convicted or acquitted or are unjustifiably stopped for any reason not imputable to the accused. Handbook for OFWs Act of 2018 SECTION 2. Creating a Handbook for Overseas Filipino Workers. — The handbook for overseas Filipino workers, known in this Act as "Handbook," shall be created and issued to every land-based and sea-based worker free of charge. It shall 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 key issues that they need to know in order to maintain decent employment conditions overseas. PAR. b.1, SEC. 23 (Migrant Workers and Overseas Filipinos Act of 1995, amended by Handbook for OFWs Act of 2018). The [POEA] is hereby mandated to develop, publish, disseminate and update periodically a Handbook on the rights and responsibilities of migrant workers as provided by Philippine laws and the existing labor and social laws of the countries of destination that will protect and guarantee the rights of migrant workers. The Handbook shall be written in simple words that can be easily understood with translation in local language as may be necessary. It shall also be responsible for the implementation, in partnership with other law enforcement agencies, of an intensified program against illegal recruitment activities. For this purpose, the POEA shall provide comprehensive gender-sensitive Preemployment Orientation Seminars (PEOS) that will discuss topics not only on the prevention of illegal recruitment but also on the content of the Handbook on the rights and responsibilities of migrant workers. Amending Certain Articles of the Labor Code [amendments already incorporated into the aforecited provisions of the Labor Code] 13th Month Pay Law See III. B. 1. c. Bonus, 13th month pay Telecommuting Act SECTION 3. Telecommuting Defined. — As used in this Act, the term "telecommuting" refers to a work arrangement that allows an employee in the private sector to work from an alternative workplace with the use of telecommunication and/or computer technologies.

SECTION 4. Telecommuting Program. — An employer in the private sector may offer a telecommuting program to its employees on a voluntary basis, and upon such terms and conditions as they may mutually agree upon: Provided, That such terms and conditions shall not be less than the minimum labor standards set by law, and shall include compensable work hours, minimum number of work hours, overtime, rest days, and entitlement to leave benefits. The employer shall provide the telecommuting employee with relevant written information in order to adequately apprise the individual of the terms and conditions of the telecommuting program, and the responsibilities of the employee. SECTION 5. Fair Treatment. — The employer shall ensure that the telecommuting employees are given the same treatment as that of comparable employees working at the employer's premises. All telecommuting employees shall: (a) Receive a rate of pay, including overtime and night shift differential, and other similar monetary benefits not lower than those provided in applicable laws, and collective bargaining agreements. (b) Have the right to rest periods, regular holidays, and special nonworking days. (c) Have the same or equivalent workload and performance standards as those of comparable workers at the employer's premises. (d) Have the same access to training and career development opportunities as those of comparable workers at the employer's premises, and be subject to the same appraisal policies covering these workers. (e) Receive appropriate training on the technical equipment at their disposal, and the characteristics and conditions of telecommuting. (f) Have the same collective rights as the workers at the employer's premises, and

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shall not be barred from communicating with workers' representatives. The employers shall also ensure that measures are taken to prevent the telecommuting employee from being isolated from the rest of the working community in the company by giving the telecommuting employee the opportunity to meet with colleagues on a regular basis, and allowing access to company information. SECTION 6. Data Protection. — The employer shall be responsible for taking the appropriate measures to ensure the protection of data used and processed by the telecommuting employee for professional purposes. The employer shall inform the telecommuting employee of all relevant laws, and company rules concerning data protection. The telecommuting employee shall ensure that confidential and proprietary information are protected at all times. For this purpose, the provisions of the Data Privacy Act of 2012 shall have suppletory effect. SECTION 7. Administration. — The parties to a telecommuting work arrangement shall be primarily responsible for its administration. In case of differences in interpretation, the following guideline shall be observed: (a) The differences shall be treated as grievances under the applicable grievance mechanism of the company. (b) If there is no grievance mechanism or if the mechanism is inadequate, the grievance shall be referred to the regional office of the Department of Labor and Employment (DOLE) which has jurisdiction over the workplace for conciliation. (c) To facilitate the resolution of grievances, employers shall keep and maintain, as part of their records, the documents proving that the telecommuting work arrangement was voluntarily adopted.

105 Day Expanded Maternity Leave Law See III. C. 2. b. Expanded Maternity Leave Paternity Leave Act of 1996 See III. C. 2. c. Paternity Leave Solo Parents’ Welfare Act See III. C. 2. a., Parental Leave for Solo Parents, III. E. 7. Solo Parents, and VII. E. Solo Parents Magna Carta of Women See III. E. 3. a. Discrimination Amending Art. 135 of the Labor Code Re: Prohibition on Discrimination Against Women See III. E. 3. c. Prohibited Acts Anti-Violence Against Women and Their Children Act of 2004 See III. C. 2. e. Battered women leave Safe Spaces Act See III. D. Sexual Harassment in the Work Environment Special Protection of Children Against Abuse, Exploitation, and Discrimination Act See III. E. 4. Minors Batas Kasambahay See III. E. 5. Kasambahays Anti-Sexual Harassment Act of 1995 See III. D. Sexual Harassment in the Work Environment Portability Law See VII. C. Limited Portability Law New Labor Relations Law [amended certain Articles in the Labor Code; already incorporated into the provisions previously cited] Wage Rationalization Act See III. B. Wages

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Productivity Incentives Act of 1990 SECTION 5. Labor-Management Committee. — a) A business enterprise or its employees, through their authorized representatives, may initiate the formation of a labor-management committee that shall be composed of an equal number of representatives from the management and from the rank-and-file employees: Provided, That both management and labor shall have equal voting rights: Provided, further, That at the request of any party to the negotiation, the National Wages and Productivity Commission of the Department of Labor and Employment shall provide the necessary studies, technical information and assistance, and expert advice to enable the parties to conclude productivity agreements. (b) In business enterprises with duly recognized or certified labor organizations, the representatives of labor shall be those designated by the collective bargaining agent(s) of the bargaining unit(s). (c) In business enterprises without duly recognized or certified labor organizations, the representatives of labor shall be elected by at least a majority of all rank-and-file employees who have rendered at least six (6) months of continuous service. SECTION 6. Productivity Incentives Program. — a) The productivity incentives program shall contain provisions for the manner of sharing and the factors in determining productivity bonuses: Provided, That the productivity bonuses granted to labor under this program shall not be less than half of the percentage increase in the productivity of the business enterprise. b) Productivity agreements reached by the parties as provided in this Act supplement existing collective bargaining agreements. c) If, during the existence of the productivity incentives program or agreement, the employees will join or form a union, such program or agreement may, in addition to

the terms and conditions agreed upon by labor and management, be integrated in the collective bargaining agreement that may be entered into between them. SECTION 7. Benefits and Tax Incentives. — (a) Subject to the provisions of Section 6 hereof, a business enterprise which adopts a productivity incentives program, duly and mutually agreed upon by parties to the labormanagement committee, shall be granted a special deduction from gross income equivalent to fifty percent (50%) of the total productivity bonuses given to employees under the program over and above the total allowable ordinary and necessary business deductions for said bonuses under the National Internal Revenue Code, as amended. (b) Grants for manpower training and special studies given to rank-and-file employees pursuant to a program prepared by the labormanagement committee for the development of skills identified as necessary by the appropriate government agencies shall also entitle the business enterprise to a special deduction from gross income equivalent to fifty per cent (50%) of the total grants over and above the allowable ordinary and necessary business deductions for said grants under the National Internal Revenue Code, as amended. (c) Any strike or lockout arising from any violation of the productivity incentives program shall suspend the effectivity thereof pending settlement of such strike or lockout: Provided, That the business enterprise shall not be deemed to have forfeited any tax incentives accrued prior to the date of occurrence of such strike or lockout, and the workers shall not be required to reimburse the productivity bonuses already granted to them under the productivity incentives program. Likewise, bonuses which have already accrued before the strike or lockout shall be paid the workers within six (6) months from their accrual.

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(d) Bonuses provided for under the productivity incentives program shall be given to the employees not later than every six (6) months from the start of such program over and above existing bonuses granted by the business enterprise and by law: Provided, That the said bonuses shall not be deemed as salary increases due the employees and workers. (e) The special deductions from gross income provided for herein shall be allowed starting the next taxable year after the effectivity of this Act. SECTION 9. Disputes and Grievances. — Whenever disputes, grievances, or other matters arise from the interpretation or implementation of the productivity incentives program, the labor-management committee shall meet to resolve the dispute, and may seek the assistance of the National Conciliation and Mediation Board of the Department of Labor and Employment for such purpose. Any dispute which remains unresolved within twenty (20) days from the time of its submission to the labormanagement committee shall be submitted for voluntary arbitration in line with the pertinent of the Labor Code, as amended. The productivity incentives program shall include the name(s) of the voluntary arbitrator or panel of voluntary arbitrators previously chosen and agreed upon by the labor-management committee. SSS Law See VII. A. Social Security System Law GSIS Law See VII. B. Government Service Insurance Service Law Social Security Act of 2018 See VII. A. Social Security System Law Overseas Workers Welfare Administration Act SECTION 4. Nature of the OWWA. — The OWWA is a national government agency

vested with the special function of developing and implementing welfare programs and services that respond to the needs of its member-OFWs and their families. It is endowed with powers to administer a trust fund to be called the OWWA Fund. Being a chartered institution, the OWWA shall not fall under any of the following categories: government instrumentalities with corporate powers (GICPs), government corporate entities (GCEs), government financial institutions (GFIs) and/or government- owned or controlled corporations (GOCCs). The OWWA shall be an attached agency of the Department of Labor and Employment (DOLE). Its officials and employees are covered by the Salary Standardization Law. SECTION 6. Functions. — The OWWA shall exercise the following functions: (a) To protect the interest and promote the welfare of member-OFWs in all phases of overseas employment in recognition of their valuable contribution to the overall national development effort; (b) To protect the interest and promote the welfare of member-OFWs in all phases of overseas employment in recognition of their valuable contribution to the overall national development effort; (c) To facilitate the implementation of the provisions of the Labor Code of the Philippines (Presidential Decree No. 442, as amended) and the Migrant Workers and Overseas Filipinos Act of 1995 (Republic Act No. 8042, as amended), concerning the responsibility of the government to promote the wellbeing of OFWs. Pursuant thereto, and in furtherance thereof, it shall provide legal assistance to member-OFWs; (d) To provide social and welfare programs and services to member-OFWs, including social assistance, education and training, cultural services, financial management, reintegration, and entrepreneurial development services; (e) To provide prompt and appropriate response to global emergencies or crisis

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(f)

(g)

(h)

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situations affecting OFWs and their families; To ensure the efficiency of collections and the viability and sustainability of the OWWA Fund through sound, judicious, and transparent investment and management policies; To undertake studies and researches for the enhancement of the social, economic, and cultural well-being of member-OFWs and their families; To develop, support and finance specific projects for the welfare of memberOFWs and their families; and To ensure the implementation of all laws and ratified international conventions within its jurisdiction.

SECTION 8. Registration of Membership. — Membership in the OWWA may be obtained in two (2) ways: (a) By compulsory registration upon processing of employment contracts of OFWs at the POEA; and (b) By voluntary registration of OFWs at job sites, or through electronic registration. SECTION 9. Amount of Contribution and Effectivity of Membership. — Membership in the OWWA, either through the compulsory or voluntary coverage, shall be effective upon payment of membership contribution in the amount of twenty-five US dollars (US$25.00) or its equivalent in the prevailing foreign exchange rates. Such membership shall be considered active until the expiration of the OFWs existing employment contract or after two (2) years from contract effectivity, whichever comes first.

years from the last membership contribution made. SECTION 10. Power of the Board to Adjust the Membership Contribution. — Based on actuarial studies and taking into consideration the welfare and interest of the member-OFWs, the OWWA Board may adjust or modify the amount of membership contribution. SECTION 11. Proof of Membership. — Upon payment of the required contribution, an OWWA member shall be issued an official receipt, an OWWA E-Card, identification card, or other proof of membership. No additional or extra charges shall be levied on the member-OFW. The OWWA shall maintain a comprehensive database of member-OFWs, which shall be updated regularly. SECTION 13. Authorized Collecting Officers. — (a) Membership contributions shall be collected by duly authorized OWWA collecting officers, deputized collecting officers, or accredited collecting agents. The collection of membership contributions shall be made at the POEA contract processing hub, OWWA regional and overseas offices, and other accredited collection centers. (b) In case of voluntary members who register at the job site, membership contributions shall be made directly to the OWWA Overseas Offices located in the respective foreign service posts of the Philippines.

In case of voluntary registration, membership shall be considered active until the expiration of the OFWs existing employment contract or after two (2) years from the date of voluntary registration, whichever comes first.

SECTION 14. Reportorial Requirements. — The collecting officer, deputized collecting officer, or the accredited collecting agent shall prepare and submit the required monthly reports to the OWWA Central Office in the Philippines.

The OWWA shall be allowed to collect a subsequent membership contribution from the member-OFW only after every two (2)

SECTION 17. Prohibition against Discrimination on Membership. — No OFW shall be denied membership to the

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OWWA by reason of age, gender, religious belief, or political affiliation. The OWWA shall take affirmative steps to enhance the access of OFWs to its programs and services. SECTION 18. Payment of Contribution or OWWA Fee by Employer. — Contributions to the OWWA Fund must be paid by the employers or principals, or in their default, by the recruitment/manning agency in the case of new hires. The POEA shall ensure that this stipulation is made an integral part of the overseas employment contract. SECTION 19. Penalty for Violation by Recruitment/Manning Agency. — Violation by a recruitment/manning agency of the preceding section shall constitute an offense punishable by revocation of its license and all its officers and directors shall be perpetually disqualified from engaging in the business of recruitment/placement of overseas workers. Such penalty is without prejudice to any other liability which the officers and directors may have incurred under existing laws, rules and regulations. SECTION 35. Benefits and Services to OFWs. — (a) Reintegration of OFWs. — The reintegration of OFWs, taking into consideration the needs of women migrant workers, shall be one of the core programs of the OWWA. In this regard, and for purposes of policy and program coordination, the National Reintegration Center for OFWs created under Republic Act No. 10022 shall be an attached office of the OWWA. It shall be headed by an Executive Director who shall be under the supervision of the OWWA Administrator. To be able to sustain the viability of this program, not less than ten percent (10%) of OWWA's collection of contribution for the immediately preceding year shall be allocated annually for the reintegration program.

(b) Repatriation Assistance. — Consistent with the provisions of Republic Act No. 8042, as amended, the OWWA shall assist the Department of Foreign Affairs in providing OFWs with services necessary to facilitate repatriation, as may be required. (c) Loan and Other Credit Assistance. — The OWWA shall provide low-interest loans to member-OFWs. It shall have the authority to hire experts in finance or banking to assist in implementing the said loan programs. (d) Workers Assistance and On-site Services. — The OWWA shall sustain and maintain assistance to memberOFWs in all its overseas and regional offices. Services shall be genderresponsive and shall include information regarding the names, occupation/job categories and addresses of the member-OFWs; legal assistance providing guidance and information on protection of migrant rights, including the prevention of gender-based violence; developing materials for the predeparture orientation seminars; conducting psycho-social counseling services; conciliation services; appropriate services and intervention for victims of gender-based violence, and outreach missions, among others. The OWWA shall likewise make competent representations with employers, agents, and host government authorities to assist member-OFWs in obtaining relief from grievances and work-related issues, including claims for unpaid wages, and illegal recruitment cases among others. (e) Social Benefits. — A member-OFW shall be covered with the following social benefits: (1) Death and Disability Benefits: (i) Death Benefits. — A member shall be covered with life insurance 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 death and two hundred thousand pesos (P200,000.00) for accidental death;

(i) Death Benefits. — A member shall be covered with life insurance for the duration of his or her employment contract. The coverage shall include one hundred thousand pesos (P100,000.00) for natural death and two hundred thousand pesos (P200,000.00) for accidental death;

(ii) Disability and Dismemberment Benefits. — Disability and dismemberment benefits shall be included in a member's life insurance policy, as provided for in the impediment schedule contained in the OWWA Manual of Systems and Procedures. The coverage is within the range of two thousand pesos (P2,000.00) to fifty thousand pesos (P50,000.00);

(ii) Skills-for-Employment Scholarship Program. — For technical or vocational training scholarship; (iii) Education for Development Scholarship Program. — For baccalaureate programs; and

(iii) Total Disability Benefit. — In case of total permanent disability, a member shall be entitled to one hundred thousand pesos (P100,000.00); and

(iv) Seafarers' Upgrading Program. — To ensure the competitive advantage of Filipino seafarers in meeting competency standards, as required by the International Maritime Organization (IMO), International Labor Organization (ILO) conventions, treaties and agreements, sea-based members shall be entitled to one upgrading program for every three (3) membership contributions.

(iv) Burial Benefit. — A burial benefit of twenty thousand pesos (P20,000.00) shall be provided in case of the member's death. Based on actuarial studies, the Board may increase the amount of the abovementioned benefits. (2) Health Care Benefits. — Within two (2) years from the effectivity of this Act, the OWWA shall develop and implement health care programs for the bene t of member-OFWs and their families, taking into consideration the health care needs of women as provided for in Republic Act No. 9710, or the Magna Carta of Women, and other relevant laws. (3) Education and Training Benefits. — A member, or the member's designated beneficiary, may avail any of the following scholarship programs, subject to a selection process and accreditation of participating institutions:

The annual scholarship lists of all these programs shall be submitted to the Board. Universal Health Care Act See VII. H. Universal Health Care Rules 45 and 65 RULE 45 Appeal by Certiorari to the Supreme Court Section 1. Filing of petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or 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 shall raise only questions of law which must be distinctly set forth. Section 2. Time for filing; extension. — The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. Section 6. Review discretionary. — A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons thereof. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered: a. When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or b. When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. RULE 65 Certiorari, Prohibition and Mandamus Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a

person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. Section 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a 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 to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. Section 3. Petition for mandamus. — When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and 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.

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