Beruflich Dokumente
Kultur Dokumente
I
LABOR PRINCIPLES
Constitution
1. Sec. 3, Art. XIII
1.1. Sec. 3, XIII is not an actual source of enforceable rights. It requires implementing law/s. (Serrano v.
Galant Maritime Services, 24 March 2009). Note: The Full Protection Clause can be applied even
without an implementing law.
1.2. Portions with implementing laws:
a. Just share/Expansion & Growth (RA 6971, Productivity Incentives Act).
b. Participation (RA 6715, Arts. 211 & 255).
c. Voluntary modes (RA 10396. Pursuant to its Sec. 2, no complaint shall be filed unless the
disputants have undergone mediation or SEnA proceedings).
d. Equality of employment opportunities (Anti-discrimination laws: RA 8972, Solo Parents
Welfare Act; RA 9710, Magna Carta for Women).
e. Just & humane conditions of work (RA 7877, Anti-Sexual Harassment Act).
1.3. The Full Protection Clause (FPC)
a. Bar 1998, Q No. 1 (4 salient features of the protection to labor provision of the Constn: (1)
extent full; (2) coverage local & overseas/organized & unorganized; (3) principles (new
principles); & (4) rights individual & collective rights)
b. Disparate Treatment (direct discrimination) vs. Disparate Impact (indirect discrimination) c/o
Star Paper Case, 2006. Both types of discrimination are proscribed by the FPC.
c. Death of a seaman outside contract. General rule: death arising from disease/injury is
compensable if the disease/injury is (1) work-related; and (2) the death occurs during the
period of the contract. Exception: Death after expiration of contract is compensable if: (1)
disease is work-related (listed under Sec. 32-A); (2) it is the cause of the medical repatriation;
and (3) the disease is the proximate cause of death (Canuel Case 2014); (2) compensable even if
disease is not listed (e.g. brainstem cavernous malformation) if employer does not destroy the
disputable presumption of work-relation; the disease is the cause of repatriation; and it is the
proximate cause of death (Racelis Case 2014)
d. Bar 2003 modified: Can the FPC as a guiding principle in labor law be so applied if it collides
with the Equal Protection Clause (EPC)? No. Full protection to labor cannot result in
reasonless discrimination against employers. Social justice authorizes neither self-destruction
nor oppression of the latter. The State must balance their rights because both have social
utility (Social Utility Theory, Milan Case 2014)
e. Essay:
(i) What is the Principle of co-management? (It is codetermination which is not the same
as participation).
(ii) Cite, if any, the legal basis for its adoption in the Ph. (None)
1.4. Distinctions:
Voluntary CBAs
OE - if concluded w/in 6 months from expiry of old eco provisions, to
retroact to day immediately following date of expiry; if concluded after 6 months, to
take effect on date agreed upon. They can be retroacted or not. If not, the period in
between shall be governed by the old eco provisions pursuant to the Hold Over
Doctrine.
UE - to take effect on date agreed upon (not date of signing)
Involuntary CBAs
OE - SOLE shall give parties opportunity to agree on date of effectivity; if
they cannot agree, SOLE shall fix it.
UE - SOLE to give parties opportunity to agree on date; if they cannot
agree, eco provisions will take effect like judicial decisions. (Meralco Case)
(3) CE Petitions
OE - Med Arbiter shall hear and resolve the the petition.
UE - Med Arbiter shall automatically grant the petition.
(4) CE Appeals
OE - Both parties may appeal
UE - Only the union can appeal
Question: Distinguish constitutional due process (CDP) from statutory due process (SDP).
As to nature, CDP has two aspects, viz., substantive and procedural; whereas, SDP is procedural
only.
As to extent, CDP protects right to life, property and liberty; whereas, SDP protects property
only.
As to coverage, CDP regulates State acts; whereas, SDP regulates private acts.
As to effect of violation, violation of CDP makes the act of the State void; whereas, violation of
SDP justifies the award of nominal damages.
Labor Code
1. Art. 3: Bar 2009
Principles in sec. 3, Art. XIII not found in Art. 3, LC: Participation, etc.
2. Art. 12
Free Choice of Employment
Lateral Transfer (cannot be refused) vs. Scalar Transfer (can be refused because it is a promotion).
3. Art. 211
3.1. Free Collective Bargaining (CB is free if the selection of the EBR is free from employer or State
interference. How: Standby Rule; No Direct Certification Rule)
3.2. Participation (not codetermination)
4. Art. 110: Arts. 2241 & 2242, NCC, list of Special Preferred Credits (SPCs) vs. Art. 2244, list of Ordinary Preferred
Credits (OPCs). Only OPCs are affected by Art. 110. SPCs are liens which, by nature, attach to specific properties.
Those properties cannot be given to unpaid workers who just enjoy a mere preference.
9. Non-involvement Clause. Undertaking not to get employed by employer in the same industry for a period of time
after separation. It is not necessarily void for being in restraint of trade as long as: (1) there is a limitation as to
time or place; and (2) the restraint upon one party is not greater than the protection the other party requires.
9.1. Ferrazzini vs. Gsell. Against public policy for being in restraint of trade because: (1) the prohibition
was for 5 years; (2) with duty to get prior written permission from employer before engaging in similar
business or occupation in the Philippines. The limitation was limited as to time and space but not as to
nature of trade. It forces the employee to leave the Philippines to work should written permission be
denied.
9.2. G. Martini Ltd vs. Glaiserman. Prohibited for 1 year from engaging in any business similar to his
employers. Void because employee was only employed in connection to purchase and export of abaca,
among the many businesses of the employer. The restraint is too broad since it effectively prevented the
employee from working in any other business similar to his employers even if his employment was
limited only to one of its multifarious business activities.
9.3. Del Castillo vs. Richmond. Valid. The employee was restricted from opening, owning or having any
connection with any other drugstore within a radius of 4 miles from the employers place of business
during the time the employer was operating the drugstore.
9.4. Platinum Plans Case. Valid. It is limited as to trade and time. It only prohibits employee from engaging
in any pre-need business akin to employers for 2 years. The purpose is to protect trade secrets
considering that the employee is Asst. VP and Territorial Operations Head in charge of respondents
Hong Kong and Asean operations.
10. Distinct Impression Rule. Has the respondent/accused misrepresented his authority, ability, or influence to
procure employment for his recruit, reason the latter parted with his money? If yes, he is liable for illegal
recruitment. If not, he is not liable (Darvin v. CA).
4 |ABRC2015.Bullet Reminders in Labor Laws/Atty. BG Kato/EVSA/crys
II
LABOR PROCEDURE
A
Labor Jurisdiction
B
Employer-Employee Relationship
Employer
1. Statutory Employer (Art. 106, LC).
2. Employer under Art. 212 (e), LC. Acting in the interest of an employer.
3. Employer under Sec. 31, Corporation Code (Carag vs. NLRC, 2007)
4. Employer under Sec. 8, RA 8282 & Art. 153, LC.
5. Employer as a withholding agent under Rev. Memo Circ. 039-2012.
Employee
1. Employee after 60 (Sec. 5, RA 9994). A senior citizen has the right to be employed. Hence, EER (not only
independent contractorship) is legally possible after 60.
2. Employee under Art. 212 (f), LC. Terminated by reason of /on the occasion of ULP or current labor
dispute and has not found a substantially equivalent & permanent position; plus, he has contested his
dismissal before a forum of appropriate jurisdiction (LA or VA if there is an express stipulation to bring
case to VA).
EER Tests
1. Two-tiered Test. Four-fold Test and Economic Reality Test are combined in cases wherein it is difficult
to distinguish between corporate officer and corporate employee; employee and independent
contractor; consultant as employee and as an independent contractor, etc.
2. Ecclesiastical Affair Test (Austria v. NLRC; Taruc v. Bishop De La Cruz). Did the dispute arise from an
ecclesiastical affair? If so, judicial and quasi-judicial bodies have no jurisdiction.
3. Art. 280, LC is not an EER test but a regularity of employment test only (Atok Big Wedge Mining, 2011).
C
Interplay of Jurisdictions
III
DISTINCTIONS
IV
CONFLICTS IN LABOR LAW
Note: Use the same formula (but multiply by 90%) when computing sickness benefits. Multiply by
number of days sick.
Note:
Is there a WD to adjust in the following:
A, B, C & D received less than P100 daily while E, F and G received P110 daily. A law was passed
directing payment of +P10 to workers receiving less than P100 per day. On the day it took effect, a CBA was
concluded. By stipulation, its economic provisions providing for a salary increase of +P10 were made retroactive
by six months. E, F and G complained of wage distortion. Adjust.
There is nothing to adjust because what would have been a wage distortion was aborted. Since the +P10
provision of the CBA was made retroactive, nobody was receiving below P10 anymore at the time the law took
effect. Hence, nobody qualified. As a result, the wage advantage/gap enjoyed by E, F & G was neither eliminated
nor compressed. Besides, the CBA gave all employees +P10.
Computation:
a. Basic Salary
P30K x 18 months = P540,000.00
b. 13MP
P540,000 / 12 months = P 45,000.00
c. SIL
(P1,153.85 x 5 / 12) x 18 = P 8,653.85
P593,653.85
12. 13th Month Pay: Is A entitled to 13th month pay? If so, how much?
12.1. Is the claimant a land-based (not a seafarer) rank-n-filer?
12.2. If land-based but not rank-n-filer, is there a CBA, contract, policy or practice granting him 13 th month
pay?
12.2. Is he a MES G WPD (subject to RA 10361) employee?
12.3. If W (worker paid by result) employee, is he a piece-rater? Yes. Then entitled because his employer is
not exempt.
12.4. If paid on commission basis, does he also receive basic salary? Yes. Then entitled.
12.5. Do I know how to divide total annual basic monthly salary by 12 w/o my cp? No. Then practice w/o cp
now!
9 |ABRC2015.Bullet Reminders in Labor Laws/Atty. BG Kato/EVSA/crys
13. Solidary Liability under D.O. 18-A: Is the contracting legitimate?
13.1. Is the contractor substantially capitalized or with investment?
13.2. Does he actually and directly use his capital or investment in performing or completing the work
contracted out to him?
13.3. Does he perform his work on his own account and responsibility?
13.4. Is he independent of his principal as to his means and methods?
13.5. Was he issued a D.O. 18-A CR by the DOLE RD?
13.6. Does his service agreement with his principal contain protective provisions in favour of his workers?
Yes to 1-6. Then he is a legitimate JC. As to his principal, the limit of his solidary liability is up to
withheld salaries and benefits only (Meralco Industrial Engg Services Ruling, 2008). He cannot be
ordered to pay backwages and separation pay in lieu of reinstatement. This can be done only if his
contactor is a labor-only contractor.
13.7. Is the job contracting void for being against public policy? (In-house contracting, etc)
14. Total Permanent Disability Compensation (POEA-SEC): Is the disability claim meritorious?
14.1. Is the disability total in that the seafarer can no longer continue performing his customary onboard
work?
14.2. Is the disease/injury resulting in disability work-related?
14.3. Is there a medical repatriation?
14.4. Is there a showing that the seafarer reported within 3 days from arrival to his manning agent?
14.5. Was he given a medical referral and did he submit himself to further medical examination and treatment
w/o abandoning the medical intervention of the company-designated physician?
14.6. Did the company-designated physician assess his disability (not work-related, resolved, Grade lower
than Grade 1)?
14.7. If he consulted his own physician, did he disclose the latters medical opinion as to allow his employer to
initiate the selection of a third physician?
14.8. Is the medical opinion of the third physician credible (supported with diagnostic results, etc.)?
14.9. Did the company-designated physician issue his assessment within 120 days/240 days?
16. Foreign GOCCs: Is Ich Hachtung, a German corporation doing business in Ph, immune from suit?
16.1. Is it registered or not?
Not registered it has immunity (deemed as extension of Germany).
16.2. If registered, under what private law of Germany?
16.3. Does that private law give it the power to sue?
Yes. It has no immunity.
16.4. Did you fail to see the private law?
Yes. Presumed to be the same as Ph Corporation Code which gives power to sue (Processual
Presumption Doctrine). No immunity. (NTZ Case)
God Bless