You are on page 1of 19

Labor Law: Frequently Asked Questions

SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

**Note: Pursuant to DOLE Advisory No. 1 Series of 2015, the Labor Code has been renumbered.
Please be guided accordingly on how the provisions of the Code are cited herein:

Art. XXX (YYY)

XXX – new numbering


YYY – old numbering

VISITORIAL AND ENFORCEMENT POWERS OF THE DOLE REGIONAL DIRECTOR

1. Sara has been working as housemaid for the Bojilov spouses for three (3) years. In
the early morning of July 28, the spouses and Sara were watching the live coverage
of the finals of an Olympic boxing match between a Bulgarian and a Filipino which
the foreign fighter won on points. Peeved by Sara's angry remarks that the scoring
was unfair, the Bojilov spouses fired her on the spot.Sara thereafter filed a complaint
with the Regional Director of the DOLE for unpaid salaries totaling P5,500.00. The
Bojilov spouses moved to dismiss the complaint on the belief that Sara's claim falls
within the Jurisdiction of the Labor Arbiter. Sara, however, claimed that the Regional
Director can decide on her claim by virtue of his plenary visitorial powers under Art.
128 and of Art. 129 of the Labor Code, as amended, which empowers the Regional
Director to hear and decide, among others, matters involving recovery of wages.

a. Whose position will you sustain? Explain.


b. Will your answer be the same if Sara's claim is P4,500.00 with reinstatement?
Explain.

ANSWER:
a. I will sustain the position of the Bojilov spouses. Art. 128 (128) is not applicable
because the case did not arise as a result of the exercise of visitorial and enforcement
powers by the Regional Director, as the duly authorized representative of the
Secretary of Labor and Employment. Instead,the case is a simple money claim under
Art. 129 (129), which could be under the jurisdiction of the Regional Director if the
claim does not exceed P5,000.

But the claim exceeds P5,000.00. Thus, it is the Labor Arbiter who has jurisdiction
under Art. 224 (217) (a) paragraph 6 of the Labor Code.

b. I will still hold that it is the Labor Arbiter that has jurisdiction. It is true that the
money claim no longer exceeds P5,000. But there is a claim for reinstatement. Thus,
this claim is under the jurisdiction of a Labor Arbiter, per Art. 129 (129) of the Labor
Code.

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
2
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

TERMINATION OF EMPLOYMENT

2. Lionel, an American citizen whose parents migrated to the U.S. from the Philippines,
was hired by JP Morgan in New York as a call center specialist. Hearing about the
phenomenal growth of the call center industry in his parents’ native land, Lionel
sought and was granted a transfer as a call center manager for JP Morgan’s
operations in Taguig City. Lionel’s employment contract did not specify a period for
his stay in the Philippines. After three years of working in the Philippines, Lionel
was advised that he was being recalled to New York and being promoted to the
position of director of international call center operations. However, because of
certain "family reasons," Lionel advised the company of his preference to stay in the
Philippines. He was dismissed by the company. Lionel now seeks your legal advice
on:

a. Whether he has a cause of action


b. Whether he can file a case in the Philippines
c. What are his chances of winning

ANSWER:
a. Lionel has a cause of action. He has the right to secure in his job pursuant to Art. 294
(279) of the Labor Code and his employer has the correlative obligation to respect
that right. Hence, his dismissal constitutes a violation of his tenurial right and said
violation caused him legal injury.

b. Lionel can file a case for illegal dismissal in the Philippines. A resident corporation
JP Morgan is subject to Philippine Law. Although hired abroad, Lionel worked in
Taguig. Therefore he can lodge a complaint with the NLRC-NCR which has the
territorial jurisdiction over his workplace (Sec 1, Rule IV, NLRC Rules of Procedure,
as amended).

c. Lionel has a reasonable chance of winning. His recall to the USA was not a lawful
lateral transfer that he could not refuse. On the contrary, it was a scalar transfer
amounting to a promotion which he could validly refuse. Absent willful
disobedience therefore as enumerated in Art. 297 (282) of the Labor Code as a
ground for a just cause for dismissal, therefore, his termination is groundless.

3. Oscar Pimentel was an agent supervisor, rising from the ranks, in a corporation
engaged in real estate. In order to promote the business, the company issued a
memorandum to all agent supervisors requiring them to submit a feasibility study
within their respective areas of operation. All agent supervisors complied except
Oscar. Reminded by the company to comply with the memorandum, Oscar
explained that being a drop-out in school and uneducated, he would be unable to
submit the required study. The company found the explanation unacceptable and
terminated his employment. Aggrieved, Oscar filed a complaint for illegal dismissal
against the company. Decide the case.

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
3
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

ANSWER:
Oscar cannot be dismissed for failure to comply with the memorandum to submit a
feasibility study on his area of operation (presumably for insubordination or willful
disobedience), because the same envisages the concurrence of at least two requisites: (1)
the employee’s assailed conduct must have been willful or intentional, the willfulness
being characterized by a wrongful and perverse attitude; and (2) the order violated must
have been reasonable, or lawful, made known to the employee and must pertain to the
duties which he had been engaged to discharge.

In the case at bar, at least two requisites are absent, namely: (1) Oscar did not willfully
disobey the memorandum with a perverse attitude; and (2) the directive to make a
feasibility study did not pertain to his duties. Hence, the termination from employment
of Oscar Pimentel is not lawful.

4. An accidental fire gutted the JKL factory in Caloocan. JKL decided to suspend
operations and requested its employees to stop reporting for work. After six (6)
months, JKL resumed operations but hired a new set of employees. The old set of
employees filed a case for illegal dismissal. If you were the Labor Arbiter, how
would you decide the case?

ANSWER:
The employer is not guilty of illegal dismissal. The case involves a lay-off of employees
due to suspension of the employer’s operations. When the lay-off or suspension of
operations exceeds 6 months, the employment is no longer suspended but terminated.
Hence, the employer is no longer obliged to reinstate the employees to their former
positions. However, the employees are entitled to separation pay. JKL is not liable for
backwages and/or damages absent of bad faith on its part.

5. X was one of more than one hundred (100) employees who were dismissed from
employment due to the closure of Construction Corporation A. The Cruz family
owned Construction Company A. Upon the closure of Construction Company A, the
Cruzes established Construction Company B. Both corporations had the same
president, the same board of directors, the same corporate officers, and all the same
subscribers. From the General Information Sheet filed by both companies, it also
showed that they shared the same address and/or premises. Both companies also
hired the same accountant who prepared the books for both companies

X and his co-employees amended their Complaint with the Labor Arbiter to hold
Construction Corporation B joint and severally liable with Construction Company A
for illegal dismissal, payment of backwages and separation pay. Construction
Company B interposed a Motion to Dismiss contending that they are juridical
entities with distinct and separate personalities from Construction Corporation A
and therefore, they cannot be held jointly and severally liable for the money claims
of workers who are not their employees. Rule on the Motion to Dismiss. Should it be
granted or denied? Why?

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
4
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

ANSWER:
The Motion to Dismiss filed by Construction Corporation B should be denied. Under
Article 298 (283) of the Labor Code, the employer may also terminate the employment of
any employee in case of closure of business as a result of grave financial resources. In
Jiao v NLRC, the Court held that the purchaser will not be liable for debts of the selling
corporation except if the purchasing corporation is a merely a continuation of the selling
corporation and where the selling corporation fraudulently enters into the transaction to
escape liability for those debts. In this case, the purchasing company has the same
owners, officers and members living on the same address. Both companies are of the
same nature which is in construction. Looking at the totality of the circumstances, there
is no material and substantial alteration in the employing enterprise. Thus, the case must
properly be given due course and the motion to dismiss must be denied.

JURISDICTION OF LABOR ARBITER

6. Mariet Demetrio was a clerk-typist in the Office of the President of a multi-national


corporation. One day she was berated by the President of the company, the latter
shouting invectives at her in the presence of employees and visitors for a minor
infraction she committed. Mariet was reduced to tears out of shame and felt so bitter
about the incident that she filed a civil case for damages against the company
president before the regular courts. Soon thereafter, Mariet received a memorandum
transferring her to the Office of the General Manager without demotion in rank or
diminution in pay. Mariet refused to transfer.

With respect to the civil suit for damages, the company lawyer filed a Motion to
Dismiss for lack of jurisdiction considering the existence of an employer-employee
relationship and therefore, it is claimed that the case should have been filed before
the Labor Arbiter.

Rule on the Motion to Dismiss. Should it be granted or denied? Explain briefly.

ANSWER:
The Motion to Dismiss should be denied. It is a regular court and not a Labor Arbiter
that has jurisdiction on the suit for damages.

The damages are not arising from the employer- employee relations which would have
placed the suit under the jurisdiction of a Labor Arbiter. The suit arises from the fact that
the President of the company shouted invectives at Marlet Demetrio in the presence of
employees and visitors. Her complaint for damages is against an officer of the Company
based on slanderous language allegedly made by the latter. This falls under the
Jurisdiction of the ordinary courts. There is here a simple action for damages for tortious
acts allegedly committed by the defendant. Such being the case, the governing statute is
the Civil Code and not the Labor Code. (Medina v. Castro-Bartolome, 116 SCRA 597)

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
5
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

EMPLOYER – EMPLOYEE RELATIONSHIP

7. When does an employer- employee relationship exist?

ANSWER:
The Supreme Court, in a long line of decisions has consistently ruled that the following
are the elements of an employer-employee relationship:
A. Selection and engagement of the employee;
B. Payment of wages;
C. Power of discipline and dismissal; andD. Power to control the employee's conduct

LABOR ONLY CONTRACTOR VS LEGITIMATE LABOR CONTRACTOR

8. a. What is a "labor-only" contract?

b. Distinguish the liabilities of an employer who engages the services of a bonafide


"independent contractor" from one who engages a "labor-only" contractor

ANSWER:
a. "LABOR-ONLY" CONTRACT is a contract between an employer and a person who
supplies workers to such employer where the person supplying workers does not
have substantial capital or investment in the form of tools, equipment, machineries,
work premises, among others, and the workers recruited and placed by such person
are performing activities which are directly related to the principal business of such
employer. (Art. 106 (106), Labor Code)

b. An employer who engages the services of a contractor for the performance of the
employer’s work is called the “employer” or the principal, who is solidarily liable for
the unpaid wages and other labor standards benefits of the contractor’s employees.

As for the person who engages the services of a "labor only" contractor, the latter is
considered merely as an agent of the former who shall be responsible to the workers
hired by the "labor only" contractor in the same manner and extent as if he directly
employed such workers.

Moreover, the employer/principal and an independent contractor cannot be made


solidarily liable for claims arising from illegal dismissal or ULP, unless the
employer/principal conspired with the contractor.

9. Sta. Monica Plywood Corporation entered into a contract with Arnold for the milling
of lumber as well as the hauling of waste wood products. The company provided the
equipment and tools because Arnold had neither tools and equipment nor capital for
the job. Arnold, on the other hand, hired his friends, relatives and neighbors for the
job. Their wages were paid by Sta. Monica Plywood Corp. to Arnold, based on their
production or the number of workers and the time used in certain areas of work. All
work activities and schedules were fixed by the company.
ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
6
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

a. Is Arnold a job contractor? Explain briefly.

b. Who is liable for the claims of the workers hired by Arnold? Explain briefly.

ANSWER:
a. No. In two cases decided by the Supreme Court, it was held that there is “job
contracting” where (1) the contractor carries on an independent business and
undertakes the contract work in his own account, under his own responsibility
according to his own manner and method, free from the control and direction of his
employer or principal in all matters connected with the performance of the work
except as to the results thereof; and (2) the contractor has substantial capital or
investment in the form of tools, equipment, machineries, work premises and other
materials which are necessary in the, conduct of his business. [Lim v. NLRC, 303
SCRA 432 (1999); Baguio v. NLRC, 202 SCRA 465(1991)]

In the problem given, Arnold did not have sufficient capital or investment for one.
For another Arnold was not free from the control and direction of Sta. Monica
Plywood Corp. because all work activities and schedules were fixed by the company.

Therefore, Arnold is not a job contractor. He is engaged in labor-only contracting.


b. Sta. Monica Plywood Corp. is liable for the claims of the workers hired by Arnold. A
finding that Arnold is a labor only contractor is equivalent to declaring that there
exist an Employer - employee relationship between Sta. Monica Plywood Corp. and
workers hired by Arnold. This is so because Arnold is considered a mere agent of
Sta. Monica Plywood Corp. [Lim v. NLRC, 303 SCRA 432, (1999); Baguio et. al. v.
NLRC, 202 SCRA 465 (1991)]

NATIONAL INTEREST DISPUTES

10. In a labor dispute, the Secretary of Labor issued an "Assumption Order" Give the
legal implications of such an order.

ANSWER:
Under Art. 278 (263) paragraph g of the Labor Code, such assumption shall have the
effect of automatically enjoining the intended or impending strike or lockout as specified
in the assumption order. If one had already taken place at the time of assumption, all
striking or lockout employees shall immediately return to work and the employer shall
immediately resume operations and re-admit all workers under the same terms and
conditions prevailing before the strike or lockout. The Secretary of Labor and
Employment may seek the assistance of law enforcement agencies to ensure compliance
with this provision as well as with such orders as he may issue to enforce the same. The
mere issuance of an assumption order by the Secretary of Labor automatically carries
with it a return-to-work order, even if the directive to return to work is not expressly
stated in the assumption order. Those who violate the foregoing shall be subject to
disciplinary action or even criminal prosecution.
ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
7
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

11. A deadlock in the negotiations for the collective bargaining agreement between
College X and the Union prompted the latter, after duly notifying the DOLE, to
declare a strike on November 5. The strike totally paralyzed the operations of the
school. The Labor Secretary immediately assumed jurisdiction over the dispute and
issued on the same day (November 5) a return to work order. Upon receipt of the
order, the striking union officers and members, on November 1, filed a Motion for
Reconsideration thereof questioning the Labor Secretary's assumption of jurisdiction,
and continued with the strike during the pendency of their motion. On November
30, the Labor Secretary denied the reconsideration of his return to work order and
further noting the strikers' failure to immediately return to work, terminated their
employment. In assailing the Labor Secretary's decision, the Union contends that:

• The Labor Secretary erroneously assumed jurisdiction over the dispute since
College X could not be considered an industry indispensable to national
interest;

• The strikers were under no obligation to immediately comply with the


November 5 return to work order because of their then pending Motion for
Reconsideration of such order; and

• The strike being legal, the employment of the striking Union officers and
members cannot be terminated.

Rule on these contentions. Explain.

ANSWER:
On the first issue, the Labor Secretary correctly assumed jurisdiction over the dispute.
Article 278 (263) paragraph g of the Labor Code provides that when, in the Secretary’s
opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an
industry indispensable to the national interest, the Secretary of Labor and Employment
may assume jurisdiction over the dispute and decide it or certify the same to the
Commission for compulsory arbitration. In the case of PSBA v Noriel, the Supreme
Court upheld the assumption of jurisdiction of the Secretary of Labor and Employment
over labor disputes involving academic institutions will adversely affect national
interest since the work stoppage will unduly prejudice the student and will entail great
loss in terms of time, effort, and money of all concerned. In this case, the work stoppage
was due to a deadlock in negotiations in an educational institution which completely
paralyzed the operations of the school and as a result prejudices the students of College
X. Thus, the strike prejudices the students right and is a great loss of time, effort, and
money adversely affects national interests and falls under the jurisdiction of the Labor
Secretary under Article 278 (263) of the Labor Code.

On the second issue, Art 278 (263) (g) of the Labor Code also provides that “all striking
employees shall immediately return to work” means that a return-to-work order is

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
8
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

immediately effective and executory notwithstanding the filing of a motion for


reconsideration. In this case, the return-to-work order issued by the Secretary of Labor is
immediately executor notwithstanding the pendency of a motion for reconsideration.
Thus, the strikers must comply.

On the third issue, the strikers cannot argue that the strike being legal, the members of
the striking union cannot be dismissed from employment. From the moment a worker
defies the return-to-work order, he is deemed to have abandoned his job and it is
already in itself knowingly participating in an illegal act. In this case, the deliberate
refusal of the strikers to comply with the return to work order is deemed to have
participated in an illegal act and deemed to have lost their employment status.

SSS

12. A is an employee of B who in turn registered A with the Social Security System as
required by law. Unfortunately, B did not remit A’s contributions to the System. In
the course of his employment, A met a serious accident requiring his hospitalization.

a. Suppose he decides to retire from the firm because of the accident, is he


entitled to recover retirement benefits under the System? Explain your
answer.

b. Suppose that he died because of the accident, are his heirs entitled to death
benefits under the System? Explain your answer.

ANSWER:
a. A is entitled to receive benefits from the Social Security System even if his employer
did not remit A’s contribution to the System because the Social Security Law
provides (in Sec. 22(b) that the failure or refusal of the employer to pay or remit
contributions shall not prejudice the right of the covered employee to the benefits of
the coverage.

However, A is not entitled to retirement benefits in the form of a monthly pension


unless at the time of the accident, he has reached the age of sixty years and has paid
at least 120 monthly contributions prior to the semester of the accident. (Sec. 12-B,
Social Security Law).

b. The heirs are not entitled, but his primary beneficiaries or in the absence of primary
beneficiaries, his secondary beneficiaries are entitled.

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
9
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

13. Pablo was a farm-hand, in a plantation owned by ABC & Co., working
approximately 6 days a week for a good 15 years. Upon Pablo's death, his widow
filed a claim for burial grant and pension benefits with the Social Security System
(SSS) The claim was denied on the ground that Pablo had not been a registered
member-employee. Pablo’s widow filed a petition before the SSS asking that ABC &
Co. be directed to pay the premium contributions of Pablo and that his name be
reported for SSS coverage. ABC & Co. countered that Pablo was hired to plow,
harrow and burrow, using his own carabao and other implements and following his
own schedule of work hours, without any supervision from the company. If proven,
would this factual setting advanced by ABC & Co. be a valid defense against the
petition?

ANSWER:
ABC & Co. has a valid defense. Pablo should be an employee of ABC & Co. to be under
the compulsory coverage of the SSS. To be an employee, Pablo should be under the
control of ABC & Co. as regards his employment. But the facts show that he was not
under the control of ABC & Co. as regards his employment. Among others, he had his
own schedule of work hours, without any supervision from the company. Thus, he is an
independent contractor and not an employee. An independent contractor is not under
the compulsory coverage of the SSS. He maybe covered as a self-employed person. But
then as such, ABC & Co. has no legal obligation to report Pablo for coverage under the
SSS because ABC & Co. is not Pablo’s employer.

REINSTATEMENT AND BACKWAGES

14. A supervisor of the CRMS saw Damian leave Kamao’s headquarters. Sensing that
Damian would organize a union, he reported what he saw to management. Damian
did not know he was seen. Management acted on the report. The next day, his
foreman found Damian’s work of unacceptable quality and below output standards.
He was given a second warning. The following day, work exceeding allowed
tolerances were again found. He was suspended for a week and thus, was unable to
start organizing a union. When he came back, his work was again found deficient
and 50% was rejected and condemned as waste. He was given a 15-day notice of
termination on August 1, 1988, to take effect on August 16, 1988 and paid for 15 days
of accumulated leave; banned from entering company premises effective
immediately; and given termination pay equal to 12 days’ wages per year of service,
computed on his daily wage for 13 years. He reported what had happened to
Kamao. The matter was referred to you again for assistance.

a. Damian wants to know if he was unlawfully dismissed. Explain.

b. Damian asks you if he had been given all his terminal entitlements.

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
10
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

ANSWER:
a. Damian was unlawfully dismissed. There could be just cause for his termination if
his work is of unacceptable quality and below output standards which could be
considered as gross and habitual neglect of duties.However, the facts show that
CRMS was intended to terminate Damian not because of his poor performance but
because he was organizing a union. Thus, the act of CRMS is an unfair labor practice.
The dismissal is illegal.

b. An employee who is unjustly dismissed from work shall be entitled to reinstatement


without loss of seniority rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or their monetary equivalent
computed from the time his compensation was withheld from him up to the time of
his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March
21, 1989)

CLOSED SHOP AGREEMENT

15. Reconcile the compulsory nature of the closed shop provision in a Collective
Bargaining Agreement with the constitutional guarantee of freedom of association.
Discuss fully.

ANSWER:
Among the policies of the State in the field of labor relations is to promote trade
unionism and to foster the organization of a strong and united labor movement. UNION
SECURITY CLAUSES, like a closed shop agreement, is one way of implementing the
aforementioned labor relations policy. Implementing to some extent the concept of
freedom of association, an employee who is already a member of a union could not be
compelled to become a member of a bargaining union, even if there is a closed shop
agreement.

UNFAIR LABOR PRACTICE

16. After years of harmonious employer-employee relations, the Moonbeam Textile Mfg.
Co. had its first union, the militant Kapisanan Ng MgaUnyonista (KMU). A
certification election was a certainty. The aggressiveness of the solicitation drive by
the KMU was to be matched by the intensity of the company’s neutralization efforts.

The company developed a multipronged neutralization plan. This called for


department managers and supervisors to talk to their subordinates, individually and
in groups, telling them about the company’s employee-oriented policies and about
the burdens of membership in a militant union. There would be posters on the plant
walls and on prominent places on the plant premises warning of the dangers of
communism and accusing KMU of being a communist front. Other posters would
contain such teasers as “GO KMU AND LOSE YOUR FREEDOM,” “MOONBEAM
FILLS YOUR POCKETS, KMU EMPTIES IT,” “A VOTE FOR KMU IS A VOTE FOR
UNEMPLOYMENT.” After two weeks of this kind of campaign, the company would
ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
11
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

announce the payment of the traditional annual across-the-board wage increases but
advanced by two months, while the year-end bonus would be increased by 50% over
last year’s.

The company sought your advice about its neutralization plan. As company lawyer,
what advice will you give about the legality of the neutralization plan. Explain
briefly.

ANSWER:
I will advise the Company that its neutralization plan and its implementation by the
Company is an unfair labor practice. The Company is therefore interfering with,
restraining or coercing its employees in the exercise of their right to self-organization,
which is an unfair labor practice under Art. 259 (248) paragraph a of the Labor Code.

The right to self-organization includes the right of employees to choose the labor
organization which shall represent them for purposes of collective bargaining and for
mutual aid and protection.

In its neutralization plan, especially in its economic inducements, e.g. advance payment
of wage increases and increased bonus, the Company is interfering with, restraining or
coercing its employees of their right to choose in a certification election who shall be the
collective bargaining representative of its employees. This is clearly an unfair labor
practice.

CERTIFICATION ELECTION

17. Liwayway Glass had 600 rank-and-file employees. Three rival unions – A, B, and C ‒
participated in the certification elections ordered by the Med-Arbiter. 500 employees
voted. The unions obtained the following votes: A-200; B-150; C-50; 90 employees
voted "no union"; and 10 were challenged votes. Out of the challenged votes, four (4)
were cast by probationary employees and six (6) were cast by dismissed employees
whose respective cases are still on appeal. (10%)

a. Should the votes of the probationary and dismissed employees be counted in


the total votes cast for the purpose of determining the winning labor union?
b. Was there a valid election?
c. Should Union A be declared the winner?
d. Suppose the election is declared invalid, which of the contending unions
should represent the rank-and-file employees?
e. That in the election, the unions obtained the following votes: A-250; B-150; C-
50; 40 voted "no union"; and 10 were challenged votes. Should Union A be
certified as the bargaining representative?

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
12
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

ANSWER:
a. Probationary employees are eligible to vote as long as they are covered by the
collective bargaining unit. The Labor Code makes no distinction as to employment
status in determining who are eligible to vote in a certification election. (Airtime
Specialists Inc. Ferrefr-Calleja, 180 SCRA 749). As to the dismissed employees,
theyshall be considered as a qualified voters if theyhave contested the legality of
their dismissal in a forum of appropriate jurisdiction at the time of the issuance of
the order for the conduct of a certification election unless the dismissal was declared
valid in a final judgment at the time of the holding of the certification election
(Philippine Fruits vs. Torres, 211 SCRA 95).

b. Yes, There was a valid election pursuant to Art. 268 (256) of the Labor Code. It
requires that for a certification election to be valid, at least a majority of all eligible
voters in the unit must have cast their votes. Here, the number of eligible voters were
600, 500 or more than a majority voted. Thus, the election was valid.

c. No, Union A should not be declared winner because it failed to garner majority of
the votes. The majority vote (50% plus 1) to elect a bargaining agent is based on the
number of valid votes cast not 500, since the 10 challenged votes are not as yet
considered valid votes – so only 490 votes and majority will be 246 votes. In the case,
no union won. The 10 challenged votes are not material since they will not
substantially alter the results of the CE. (Atty. Nicanor Jimeno)

d. None of the participating unions can represent the rank-and-file employees for
purposes of collective bargaining because none of them enjoys majority
representative status. However, there will be a run-off election between A and B, the
2 unions with the 2 highest number of votes. (Atty. Nicanor Jimeno)

e. Yes because it garnered more than the needed majority vote of 246. The valid votes
cast are only 490. 10 of the 500 eligible votes are challenged votes. They will not be
considered as valid votes cast unless the med-arbiter declares them to be valid after
they are considered as material challenged votes. Based on the facts, they are not
material challenged vote because Union A has already gotten he majority votes so
that even if all the challenged votes are considered valid and voted for Union B, still
Union A has the majority vote. (Atty. Nicanor Jimeno)

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
13
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

STRIKES

18. As a result of a bargaining deadlock between Lazo Corporation and Lazo Employees
Union, the latter staged a strike. During the strike, several employees committed
illegal acts. Eventually, its members informed the company of their intention to
return to work.

a. Can Lazo Corporation refuse to admit the strikers?


b. Assuming the company admits the strikers, can it later on dismiss those
employees who committed illegal acts?
c. If due to prolonged strike, Lazo Corporation hired replacements, can it refuse
to admit the replaced strikers?

ANSWER:
a. No, Lazo Corporation cannot refuse to admit all the strikers who inform the
company of their intention to return to work, except those workers who may have
committed illegal acts during the strike who can be declared as having lost their
employment status pursuant to Art. 279 (264) paragraph a of the Labor Code.

b. Yes. Even if as its initial response, the company admitted all the strikers, the
company is not estopped from afterwards dismissing those employees who
committed illegal acts during the strike Art. 279 (264) paragraph a of the Labor Code
expressly states that "any worker xxx who knowingly participates in the commission
of illegal acts during a strike may be declared to have lost his employment status.
(Note: The employer has to accept also those who may have committed illegal acts
during the strike. Loss of employment status under Art. 279 is not automatic. That is
why Art. 279 provides “maybe declared” but the employer can institute dismissal
proceeding against them after they have returned to work – Atty. Nicanor Jimeno)

c. No, Lazo Corporation cannot refuse to admit the strikers if they did not commit any
illegal acts during a lawful strike. The Labor Code is very clear: Workers who went
on strike have not lost their employment status even if the company had hired their
replacements.

STATUTORY LEAVES

19. Because of the stress in caring for her four (4) growing children, Tammy suffered a
miscarriage late in her pregnancy and had to undergo an operation. In the course of
the operation, her obstetrician further discovered a suspicious-looking mass that
required the subsequent removal of her uterus (hysterectomy). After surgery, her
physician advised Tammy to be on full bed rest for six (6) weeks. Meanwhile, the
biopsy of the sample tissue taken from the mass in Tammy's uterus showed a
beginning malignancy that required an immediate series of chemotherapy once a
week for four (4) weeks.

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
14
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

a. What benefits can Tammy claim under existing social legislation?


b. What can Roger-Tammy's 2nd husband and the father of her two (2) younger
children -claim as benefits under the circumstances?

ANSWERS:
a. Tammy may claim for the benefits that are secured to her by RA 9710 (The Magna
Carta of Women). This law gives her, among others, these benefits relevant to her
situation:
1. Comprehensive health services and health information and education
covering all stages of a woman's life cycle, and whichaddresses the major
causes of women's mortality and morbidity,including access to among
others, maternal care, responsible,ethical, legal, safe and effective methods of
family planning, andencouraging healthy lifestyle activities to prevent
diseases;
2. Most importantly, Leave benefits of two (2) months with full pay based on
grossmonthly compensation, for women employees who undergosurgery
caused by gynecological disorders, provided that they haverendered
continuous aggregate employment service of at least six(6) months for the
last twelve (12) months

b. Roger may apply for paternity leave of seven (7) days with full pay for the first four
(4) deliveries of the legitimate spouse with whom he is cohabiting with his employer
in order to allow him to lend support to his wife during her period of recovery
and/or in nursing her newborn child. For purposes such act, delivery shall include
childbirth or any miscarriage. Under RA 8187, the conditions of entitlement are as
follows: 1) He is an employee at the time of the delivery of his child; 2) He is
cohabiting with his spouse at the time that she gives birth or suffers a miscarriage; 3)
He has applied for paternity leave with his employer within a reasonable period of
time; and d) His wife has given birth or suffered a miscarriage

SPECIAL WORKING CONDITIONS FOR SPECIAL TYPES OF WORKERS

20. For humanitarian reasons, a bank hired several handicapped workers to count and
sort out currencies. The handicapped workers knew that the contract was only for a
period of six-months and the same period was provided in their employment
contracts. After six months, the bank terminated their employment on the ground
that their contract has expired. This prompted the workers to file with the Labor
Arbiter a complaint for illegal dismissal. Will their action prosper? Why or why not?

ANSWER:
Yes. In the case of Bernardo v. NLRC, it was held that Section 5 of the Magna Carta for
Disabled Persons mandates that qualified disabled persons be granted the same terms
and conditions of employment andthe same compensation, privileges, benefits, fringe
benefits, incentives or allowances as qualified able-bodied employees. Once they have
attained the status of regular workers, they should be accorded all the benefits granted

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
15
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

by law, notwithstanding written or verbal contracts to the contrary. This treatment is


rooted not merely on charity or accommodation, but on justice for all.

21. Mam-manu Aviation Company (Mam-manu) is a new airline company recruiting flight
attendants for its domestic flights. It requires that the applicant be single, not more than
24 years old, attractive, and familiar with three (3) dialects, viz: llonggo, Cebuano and
Kapampangan. lngga, 23 years old, was accepted as she possesses all the qualifications.
After passing the probationary period, lngga disclosed that she got married when she
was 18 years old but the marriage was already in the process of being annulled on the
ground that her husband was afflicted with a sexually transmissible disease at the time
of the celebration of their marriage. As a result of this revelation, lngga was not hired as
a regular flight attendant. Consequently, she filed a complaint against Mam-manu
alleging that the pre-employment qualifications violate relevant provisions of the Labor
Code and are against public policy. Is the contention of lngga tenable? Why?

ANSWER:
Yes. Article 134 (136) of the Labor Code provides that stipulation against marriage. It shall
be unlawful for an employer to require as a condition of employment or continuation of
employment that a woman employee shall not get married, or to stipulate expressly or
tacitly that upon getting married, a woman employee shall be deemed resigned or
separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman
employee merely by reason of her marriage.

In the case of Zialcita v PAL, it was ruled that the company policy runs against the mandate
of the Labor Code and the protection to labor clause of the Constitution; thus, the same
could not be legally enforced.

The prohibition of stipulation against marriage for employment is further highlighted by a


Supreme Court decision which ruled that a female employee cannot be removed from her
employment by mere false statement of her civil status in her application sheet (PT&T v
NLRC).

WHEN TO FILE PETITION FOR CERTIFICATION ELECTION; FREEDOM PERIOD

22. Llanas Corporation and Union X, the certified bargaining agent of its employees,
concluded a CBA for the period January 1, 2000 to December 31, 2004. But, long before
the CBA expired, members of Union Y, the minority union, showed dissatisfaction with
the CBA under the belief that Union X was a company union. Agitated by its members,
Union Y filed a petition for a Certification Election on December 1, 2002. Will the
petition prosper?

ANSWER:
The petition will not prosper. When the establishment is organized, wherein there is a
certified bargaining agent and an existing CBA, the petition for a certification election will
not prosper since under Article 268 (256) the filing for said petition should be made within
the last sixty days of the fifth year of the CBA or the freedom period. Applying the doctrine
ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
16
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

to the case at hand, the petition for a certification election will not prosper since it was filed
on the third year of the life of the CBA. Due to the existence of a valid CBA between the
corporation and the union, the existence of the said CBA constituted a bar to the holding of
a certification election. For the petition to prosper, it should have been filed within the last
sixty days of the fifth year of the CBA.

RECRUITMENT AND PLACEMENT OF WORKERS

23. What do you mean by recruitment and placement?

ANSWER:
Article 13 (13) states that “it is the act of canvassing, enlisting, contracting, transporting,
utilizing, hiring or procuring workers, including referrals, contract services, promising or
advertising for employment, locally or abroad, whether for profit or not.”

OVERTIME PAY

24. Inter-Garments Co. manufactures garments for export and requires its employees to
render overtime work ranging from two to three hours a day to meet its clients'
deadlines. Since 2009, it has been paying its employees on overtime an additional 35% of
their hourly rate for work rendered in excess of their regular eight working hours.
Due to the slowdown of its export business in 2012, Inter-Garments had to reduce its
overtime work; at the same time, it adjusted the overtime rates so that those who
worked overtime were only paid an additional 25%instead of the previous 35%. To
replace the workers' overtime rate loss, the company granted a one-time 5% across-the-
board wage increase.

Vigilant Union, the rank-and-file bargaining agent, charged the company with Unfair
Labor Practice on the ground that (1) no consultations had been made on who would
render overtime work; and (2) the unilateral overtime pay rate reduction is a violation of
Article 100 (entitled Prohibition Against Elimination or Diminution of Benefits) of the
Labor Code.

Is the union position meritorious?

ANSWER:
On the first ground, the union’s position is not meritorious. Under Labor law, it is well-
settled rule that it rests on management prerogative as to who among its employees
should render overtime work.

On the second ground, the union’s position is meritorious. The employer violated
Article 100 (100) which prohibits the diminution of benefits because payment of the
additional compensation of 35% overtime pay has already ripened into company
practice.Inter-Garments benefits have been giving 35% overtime pay to its employees
consistently, deliberately and unconditionally since 2009 or for 6 years which is a
considerable period of time. Additionally, there was no showing that that such act was a
ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
17
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

product of a mistake of fact or erroneous interpretation of a doubtful or difficult


question of law or provision in the CBA. Hence, since the giving of 35% overtime pay
has ripened into company practice. Inter-Garments cannot unilaterally reduce the
overtime pay without violation such provision

NO-INJUNCTION POLICY IN LABOR DISPUTES

25. On August 01, 2008, Y, a corporation engaged in the manufacture of textile garments,
entered into a collective bargaining agreement with Union X in representation of the
rank and-file employees of the corporation. The CBA was effective up to June 20, 2011.
The contract had an automatic renewal clause which would allow the agreement after its
expiry date to still apply until both parties would have been able to execute a new
agreement. On May 10, 2011, Union X submitted to Y's management their proposals for
the negotiation of a new CBA. The next day, Y suspended negotiations with Union X
since Y had entered into a merger with z, a corporation also engaged in the manufacture
of textile garments. Z assumed all the assets and liabilities of Y. Union X filed a
complaint with the Regional Trial Court for specific performance and damages with a
prayer for preliminary injunction against Y and Z and Z filed a Motion to Dismiss based
on lack of jurisdiction. Rule on the Motion to Dismiss.

ANSWER:
The Motion to Dismiss should be granted on the ground that the RTC lacks jurisdiction over
the complaint for specific performance with a prayer of preliminary injunction. Article 266
(254) of the Labor Code explicitly provides that no temporary or permanent injunction or
restraining order in any case involving or growing out of labor disputes shall be issued by
any court or other entity, except as otherwise provided in Articles 225 (218) and 279 (264) of
this Code. According to MERALCO Worker’s Union v. Yatco, an injunction is valid when it
was issued against acts of violence and intimidation committed against the employer and
non-striking employees. In this case, such acts are not present to warrant the issuance of an
injuction. It is clear that the issue between the Union X, Y, and Z is a labor disputes fall
under the provision of the Labor Code cited above thereby divesting the RTC jurisdiction
over the complaint.

THE PREROGATIVE OF MANAGEMENT

26. Venus Department Store decided to contract out the security services that its 10 direct-
hired full-time security guards provided. The company paid the men separation pay.
With this move, the Store was able to cut costs and secure efficient outside professional
security services but the dismissed security guards complained of illegal dismissal,
claiming that regular jobs such as theirs could not be contracted out. Will their
complaint prosper?

ANSWER:
Complaint will not prosper. In the case of Meralco v Quisimbing, the company can
determine in its best business judgment whether it should contract out the performance of
some of its work for as long as the employer is motivated by good faith, and the contracting
ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
18
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas
Labor Law: Frequently Asked Questions
SAN BEDA COLLEGE ALABANG ACADEMIC BAR OPERATIONS 2015

out must not have been resorted to circumvent the law or must not have been the result of
malicious arbitrary action. Good faith is presumed.

CAN AN EMPLOYER COMPEL EMPLOYEES TO WORK OVERTIME?

27. During a typhoon, the owner of a furniture store required his employees to work
overtime, claiming that it is necessary to preserve the furniture and prevent damage to
them. May the owner compel his workers to do so?

ANSWER:
Yes. Under Article 89 (89) of the Labor Code, any employee may be required by the
employer to perform overtime work 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.

CLASSIFICATION OF EMPLOYEES ACCORDING TO NATURE OF ENGAGEMENT

28. Differentiate regular employment, casual employment, project employment and


seasonalemployment.

ANSWER:
Under Article 295 (280) of the Labor Code, 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. Where the employee has rendered
at least one year of service, whether such service is continuous or broken, he shall be
considered a regular employee with respect to the activity in which he is employed.

An employment is casual where the employee is engaged to perform activities which are
not usually necessary or desirable in the usual business or trade of the employer.

Project employment is one 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.

Seasonal employment is one where the work or service to be performed is seasonal in nature
and the employment is for the duration of the season.

Project and seasonal employees perform activities which are usually necessary or desirable
in the usual business or trade of the employer but they are not considered as regular
employees even if their employment exceeds one year.

ADVISER: Atty. Paulino Ungos Jr. & Atty. Nicanor B. Jimeno | SUBJECT HEAD: Ysabel Ubana | ASST. SUBJECT HEAD: Maris
Gabornes | MEMBERS: Maricar Abad, Angeli Newin Agraam, Maria Christina Arce, Juan Gabriel Arellano, Kathleen Mae Benitez,
19
Rodel Cadorniga Jr., Cassandra Catalo, Paula Jane Escasinas