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Principle and Policies nor shall any person be denied the equal protection
of the laws.
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protect and enhance the right of all the people to promote and protect their physical, moral,
human dignity, reduce social, economic, and spiritual, intellectual, and social well-being. It shall
political inequalities, and remove cultural inculcate in the youth patriotism and nationalism,
inequities by equitably diffusing wealth and and encourage their involvement in public and civic
political power for the common good. affairs.
To this end, the State shall regulate the Article XIII, Section 14. The State shall protect
acquisition, ownership, use, and disposition of working women by providing safe and healthful
property and its increments. working conditions, taking into account their
maternal functions, and such facilities and
Article XIII, Section 2. The promotion of social opportunities that will enhance their welfare and
justice shall include the commitment to create enable them to realize their full potential in the
economic opportunities based on freedom of service of the nation.
initiative and self-reliance.
B. CIVIL CODE
Article XIII, Section 3. The State shall afford full
B.1. ARTICLE 19
protection to labor, local and overseas, organized
Article 19. Every person must, in the exercise of his
and unorganized, and promote full employment
rights and in the performance of his duties, act with
and equality of employment opportunities for all.
justice, give everyone his due, and observe honesty
and good faith.
It shall guarantee the rights of all workers to self-
organization, collective bargaining and
negotiations, and peaceful concerted activities,
B.2. ARTICLE 1700
including the right to strike in accordance with law.
Article 1700. The relations between capital and
They shall be entitled to security of tenure, humane
labor are not merely contractual. They are so
conditions of work, and a living wage. They shall
impressed with public interest that labor contracts
also participate in policy and decision-making
must yield to the common good. Therefore, such
processes affecting their rights and benefits as may
contracts are subject to the special laws on labor
be provided by law.
unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of
The State shall promote the principle of shared
labor and similar subjects.
responsibility between workers and employers and
the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce B.3. ARTICLE 1702
their mutual compliance therewith to foster Article 1702. In case of doubt, all labor legislation
industrial peace. and all labor contracts shall be construed in
favor of the safety and decent living for the
The State shall regulate the relations between laborer.
workers and employers, recognizing the right of
labor to its just share in the fruits of production and Liberal Construction
the right of enterprises to reasonable returns to All doubts in the implementation and
investments, and to expansion and growth. interpretation of the provisions of this Code,
including its implementing rules and
Limits to Management Prerogative regulations, shall be resolved in favour of
(1) Good faith labor. [PAL v. Santos, G.R. No. 77875, February
(2) Without grave abuse of discretion 4, 1993].
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LC, Art. 3. Declaration of basic policy. The State (c) To foster the free and voluntary organization
shall afford protection to labor, promote full of a strong and united labor movement;
employment, ensure equal work opportunities (d) To promote the enlightenment of workers
regardless of sex, race or creed and regulate the concerning their rights and obligations as union
relations between workers and employers. The members and as employees;
State shall assure the rights of workers to self- (e) To provide an adequate administrative
organization, collective bargaining, security of machinery for the expeditious settlement of
tenure, and just and humane conditions of work. labor or industrial disputes;
(f) To ensure a stable but dynamic and just
C.2. ARTICLE 4 industrial peace; and
LC, Art. 4. Construction in favor of labor. All doubts (g) To ensure the participation of workers in
in the implementation and interpretation of the decision and policy-making processes affecting
provisions of this Code, including its implementing their rights, duties and welfare.
rules and regulations, shall be resolved in favor of
labor B. To encourage a truly democratic method of
regulating the relations between the employers
and employees by means of agreements freely
Liberality in Application of Rules entered into through collective bargaining, no
It is settled that subsequent and substantial court or administrative agency or official shall
compliance may call for the relaxation of the have the power to set or fix wages, rates of pay,
rules of procedure. The Court has time and hours of work or other terms and conditions of
again relaxed the rigid application of the rules employment, except as otherwise provided under
to offer full opportunity for parties to ventilate this Code.
their causes and defenses in order to promote
rather than frustrate the ends of justice. [Ma. C.5. ARTICLE 212 (NOW ARTICLE 218)
Ligaya Santos vs. Litton Mills (2011)] Article 212. Definitions. –
(a) “Commission” means the National Labor
Relations Commission or any of its divisions, as
C.3. ARTICLE 166 (NOW ARTICLE 172) the case may be, as provided under this Code.
Article 166. Policy. - The State shall promote and (b) “Bureau” means the Bureau of Labor
develop a tax-exempt employees’ compensation Relations and/or the Labor Relations Divisions in
program whereby employees and their the regional offices established under
dependents, in the event of work-connected Presidential Decree No. 1, in the Department of
disability or death, may promptly secure Labor.
adequate income benefit and medical related (c) “Board” means the National Conciliation and
benefits. Mediation Board established under Executive
Order No. 126.
C.4. ARTICLE 211 (NOW ARTICLE 217) (d) “Council” means the Tripartite Voluntary
Article 211. Declaration of Policy. – Arbitration Advisory Council established under
A. It is the policy of the State: Executive Order No. 126, as amended.
(a) To promote and emphasize the primacy of (e) “Employer” includes any person acting in the
free collective bargaining and negotiations, interest of an employer, directly or indirectly. The
including voluntary arbitration, mediation and term shall not include any labor organization or
conciliation, as modes of settling labor or any of its officers or agents except when acting
industrial disputes; as employer.
(b) To promote free trade unionism as an (f) “Employee” includes any person in the employ
instrument for the enhancement of democracy of an employer. The term shall not be limited to
and the promotion of social justice and the employees of a particular employer, unless
development; the Code so explicitly states. It shall include any
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individual whose work has ceased as a result of Conciliation and Mediation Board, pursuant to a
or in connection with any current labor dispute or selection procedure agreed upon in the
because of any unfair labor practice if he has not Collective Bargaining Agreement, or any official
obtained any other substantially equivalent and that may be authorized by the Secretary of Labor
regular employment. and Employment to act as Voluntary Arbitrator
(g) “Labor organization” means any union or upon the written request and agreement of the
association of employees which exists in whole or parties to a labor dispute.
in part for the purpose of collective bargaining or (o) “Strike” means any temporary stoppage of
of dealing with employers concerning terms and work by the concerted action of employees as a
conditions of employment. result of an industrial or labor dispute.
(h) “Legitimate labor organization” means any (p) “Lockout” means any temporary refusal of an
labor organization duly registered with the employer to furnish work as a result of an
Department of Labor and Employment, and industrial or labor dispute.
includes any branch or local thereof. (q) “Internal union dispute” includes all disputes
(i) “Company union” means any labor or grievances arising from any violation of or
organization whose formation, function or disagreement over any provision of the
administration has been assisted by any act constitution and by laws of a union, including
defined as unfair labor practice by this Code. any violation of the rights and conditions of
(j) “Bargaining representative” means a union membership provided for in this Code.
legitimate labor organization whether or not (r) “Strike-breaker” means any person who
employed by the employer. obstructs, impedes, or interferes with by force,
(k) “Unfair labor practice” means any unfair labor violence, coercion, threats, or intimidation any
practice as expressly defined by the Code. peaceful picketing affecting wages, hours or
(l) “Labor dispute” includes any controversy or conditions of work or in the exercise of the right
matter concerning terms and conditions of of self-organization or collective bargaining.
employment or the association or representation (s) “Strike area” means the establishment,
of persons in negotiating, fixing, maintaining, warehouses, depots, plants or offices, including
changing or arranging the terms and conditions the sites or premises used as runaway shops, of
of employment, regardless of whether the the employer struck against, as well as the
disputants stand in the proximate relation of immediate vicinity actually used by picketing
employer and employee. strikers in moving to and fro before all points of
(m) “Managerial employee” is one who is vested entrance to and exit from said establishment.
with the powers or prerogatives to lay down and
execute management policies and/or to hire, C.6. ARTICLE 255 (NOW ARTICLE 261)
transfer, suspend, lay-off, recall, discharge, Article 255. Exclusive bargaining representation
assign or discipline employees. Supervisory and workers’ participation in policy and decision
employees are those who, in the interest of the making. - The labor organization designated or
employer, effectively recommend such selected by the majority of the employees in an
managerial actions if the exercise of such appropriate collective bargaining unit shall be
authority is not merely routinary or clerical in the exclusive representative of the employees in
nature but requires the use of independent such unit for the purpose of collective
judgment. All employees not falling within any of bargaining. However, an individual employee or
the above definitions are considered rank-and- group of employees shall have the right at any
file employees for purposes of this Book. time to present grievances to their employer.
(n) “Voluntary Arbitrator” means any person
accredited by the Board as such or any person Any provision of law to the contrary
named or designated in the Collective notwithstanding, workers shall have the right,
Bargaining Agreement by the parties to act as subject to such rules and regulations as the
their Voluntary Arbitrator, or one chosen with or Secretary of Labor and Employment may
without the assistance of the National
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promulgate, to participate in policy and decision- (c) Any employee, whether employed for a
making processes of the establishment where definite period or not, shall, beginning on his first
they are employed insofar as said processes will day of service, be considered as an employee for
directly affect their rights, benefits and welfare. purposes of membership in any labor union.
For this purpose, workers and employers may (d) No docket fee shall be assessed in labor
form labor-management councils: Provided, standards disputes. In all other disputes, docket
That the representatives of the workers in such fees may be assessed against the filing party,
labor-management councils shall be elected by provided that in bargaining deadlock, such fees
at least the majority of all employees in said shall be shared equally by the negotiating
establishment. parties. (e) The Minister of Labor and
Employment and the Minister of the Budget shall
C.7. ARTICLE 277 (NOW ARTICLE 283) cause to be created or reclassified in accordance
Article 277. Miscellaneous provisions. – with law such positions as may be necessary to
(a) All unions are authorized to collect carry out the objectives of this Code and cause
reasonable membership fees, union dues, the upgrading of the salaries of the personnel
assessments and fines and other contributions involved in the Labor Relations System of the
for labor education and research, mutual death Ministry. Funds needed for this purpose shall be
and hospitalization benefits, welfare fund, strike provided out of the Special Activities Fund
fund and credit and cooperative undertakings. appropriated by Batas Pambansa Blg. 80 and
(b) Subject to the constitutional right of workers from annual appropriations thereafter.
to security of tenure and their right to be (f) A special Voluntary Arbitration Fund is hereby
protected against dismissal except for a just and established in the Board to subsidize the cost of
authorized cause and without prejudice to the voluntary arbitration in cases involving the
requirement of notice under Article 283 of this interpretation and implementation of the
Code, the employer shall furnish the worker Collective Bargaining Agreement, including the
whose employment is sought to be terminated a Arbitrator’s fees, and for such other related
written notice containing a statement of the purposes to promote and develop voluntary
causes for termination and shall afford the latter arbitration. The Board shall administer the
ample opportunity to be heard and to defend Special Voluntary Arbitration Fund in accordance
himself with the assistance of his representative with the guidelines it may adopt upon the
if he so desires in accordance with company rules recommendation of the Council, which
and regulations promulgated pursuant to guidelines shall be subject to the approval of the
guidelines set by the Department of Labor and Secretary of Labor and Employment. Continuing
Employment. Any decision taken by the funds needed for this purpose in the initial yearly
employer shall be without prejudice to the right amount of fifteen million pesos
of the worker to contest the validity or legality of (P15,000,000.00) shall be provided in the 1989
his dismissal by filing a complaint with the annual general appropriations acts.
regional branch of the National Labor Relations
Commission. The burden of proving that the The amount of subsidy in appropriate cases shall
termination was for a valid or authorized cause be determined by the Board in accordance with
shall rest on the employer. The Secretary of the established guidelines issued by it upon the
Department of Labor and Employment may recommendation of the Council.
suspend the effects of the termination pending The Fund shall also be utilized for the operation
resolution of the dispute in the event of a prima of the Council, the training and education of
facie finding by the appropriate official of the Voluntary Arbitrators, and the Voluntary
Department of Labor and Employment before Arbitration Program.
whom such dispute is pending that the (g) The Ministry shall help promote and
termination may cause a serious labor dispute or gradually develop, with the agreement of labor
is in implementation of a mass lay-off. organizations and employers, labor-
management cooperation programs at
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in order to offer him another unless the by the Department of Labor and
transfer is designed to liberate a worker Employment;
from oppressive terms and conditions of l. Failure to reimburse expenses incurred by
employment; the worker in connection with his
e. To influence or attempt to influence any documentation and processing for
person or entity not to employ any worker purposes of deployment, in cases where
who has not applied for employment the deployment does not actually take
through his agency or who has formed, place without the worker's fault. Illegal
joined or supported, or has contacted or is recruitment when committed by a
supported by any union or workers' syndicate or in large scale shall be
organization; considered an offense involving economic
f. To engage in the recruitment or placement sabotage; and
of workers in jobs harmful to public health m. To allow a non-Filipino citizen to head or
or morality or to the dignity of the manage a licensed recruitment/manning
Republic of the Philippines; agency.
g. To fail to submit reports on the status of
employment, placement vacancies, In addition to the acts enumerated above, it
remittance of foreign exchange earnings, shall also be unlawful for any person or entity
separation from jobs, departures and such to commit the following prohibited acts:
other matters or information as may be (1) Grant a loan to an overseas Filipino worker
required by the Secretary of Labor and with interest exceeding eight percent (8%)
Employment; per annum, which will be used for
h. To substitute or alter to the prejudice of payment of legal and allowable placement
the worker, employment contracts fees and make the migrant worker issue,
approved and verified by the Department either personally or through a guarantor or
of Labor and Employment from the time of accommodation party, postdated checks
actual signing thereof by the parties up to in relation to the said loan;
and including the period of the expiration (2) Impose a compulsory and exclusive
of the same without the approval of the arrangement whereby an overseas Filipino
Department of Labor and Employment; worker is required to avail of a loan only
i. For an officer or agent of a recruitment or from specifically designated institutions,
placement agency to become an officer or entities or persons;
member of the Board of any corporation (3) Refuse to condone or renegotiate a loan
engaged in travel agency or to be engaged incurred by an overseas Filipino worker
directly or indirectly in the management of after the latter's employment contract has
travel agency; been prematurely terminated through no
j. To withhold or deny travel documents fault of his or her own;
from applicant workers before departure (4) Impose a compulsory and exclusive
for monetary or financial considerations, arrangement whereby an overseas Filipino
or for any other reasons, other than those worker is required to undergo health
authorized under the Labor Code and its examinations only from specifically
implementing rules and regulations; designated medical clinics, institutions,
k. Failure to actually deploy a contracted entities or persons, except in the case of a
worker without valid reason as determined seafarer whose medical examination cost
is shouldered by the principal/shipowner;
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(5) Impose a compulsory and exclusive (1) The accused engages in acts of
arrangement whereby an overseas Filipino recruitment and placement of workers
worker is required to undergo training, defined under Article 13(b) of the Labor
seminar, instruction or schooling of any Code or in any prohibited activities under
kind only from specifically designated Article 43 of the Labor Code;
institutions, entities or persons, except for (2) The accused has not complied with the
recommendatory trainings mandated by guidelines issued by the Secretary of
principals/shipowners where the latter Labor and Employment, particularly with
shoulder the cost of such trainings; respect to the securing of license or an
(6) For a suspended recruitment/manning authority to recruit and deploy workers,
agency to engage in any kind of either locally or overseas; and
recruitment activity including the (3) The accused commits the unlawful acts
processing of pending workers' against three or more persons individually
applications; and or as a group.
(7) For a recruitment/manning agency or a
foreign principal/employer to pass on the Illegal recruitment as economic sabotage
overseas Filipino worker or deduct from his Offense involving Economic Sabotage (Large-
or her salary the payment of the cost of Scale or by a Syndicate)
insurance fees, premium or other Illegal recruitment is considered economic
insurance related charges, as provided sabotage when the commission thereof is
under the compulsory worker's insurance attended by the ff. qualifying circumstances:
coverage. (Sec. 6, RA 8042 as amended) (1) By a syndicate - if carried out by a group of
3 or more persons conspiring and
Illegal recruitment in large scale confederating with one another;
Illegal recruitment by a syndicate In large scale - if committed against 3 or more
(1) The offender undertakes either any activity persons individually or as a group. (Art. 38(b),
within the meaning of "recruitment and LC)
placement" defined under Article 13(b), or
any of the prohibited practices Liabilities
enumerated under Art. 34 of the Labor Local Recruitment Agency
Code; Illegal Recruitment Involving Local Workers
(2) He has no valid license or authority (Art. 39, LC)
required by law to enable one to lawfully Act Penalty
engage in recruitment and placement of Illegal recruitment Life imprisonment AND
workers; AND constituting economic Fine: P100,000.00
(3) The illegal recruitment is committed by a sabotage
group of three (3) or more persons Licensee or holder or 2 years ≤ Imprisonment
authority violating or ≤ 5 years OR
conspiring or confederating with one
causing another to P10,000 ≤ Fine ≤
another. [People v. Gallo (2010)]
violate Title I, Book I, LC P50,000 OR both
Violating or causing 4 years ≤ Imprisonment
Illegal recruitment in large scale another to violate Title I, ≤ 8 years OR
The acts committed by the accused Book I, LC P20,000 ≤ Fine ≤
constituted illegal recruitment in large scale, P100,000 OR both
whose essential elements are the following:
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Illegal Recruitment Involving Migrant Workers with the corporation or partnership for the
(Sec. 7, RA 8042 as amended by RA 10022) aforesaid claims and damages. [Becmen
Act Penalty Service Exporter and Promotion, Inc. v.
Illegal 12 years and 1 day ≤ Spouses Cuaresma, G.R. 182978-79, April 7,
recruitment Imprisonment ≤ 20 years AND 2009]
P1M ≤ Fine ≤ P2M
Illegal Life imprisonment AND (4) Foreign employer shall assume joint and
recruitment P2M ≤ Fine ≤ P5M
solidary liability with the employer for all
constituting
claims and liabilities which may arise in
economic Maximum penalty:
sabotage 1. illegally recruited person connection with the implementation of the
below 18 years old OR contract, including but not limited to
2. Without license/authority payment of wages, death and disability
Prohibited 6 years and 1 day ≤ compensation and repatriation
Act/s Imprisonment ≤ 12 years AND
P500k ≤ Fine ≤ P1M Common Rules on Illegal Recruitment (Local or
Overseas)
Common Rules on Liability Venue
(1) Employees of a company corporation A criminal action arising from illegal
engaged in illegal recruitment may be held recruitment shall be filed with the RTC of the
liable as principal, together with his employer, province or city:
if it is shown that he actively and (1) where the offense was committed or
consciously participated in illegal (2) where the offended party actually resides at
recruitment. the time of the commission of the offense.
(Sec. 9, R.A. 8042 [this part was not
(2) Local Employment Agency is solidarily liable amended by R.A. 10022]).
with foreign principal. Severance of relations 11
between local agent and foreign principal Prescriptive Periods
does not affect liability of local recruiter. (1) Simple Illegal Recruitment – 5 years
Private employment agencies are held (2) Illegal Recruitment involving Economic
jointly and severally liable with the foreign- Sabotage – 20 years. (Sec. 12, R.A. 8042
based employer for any violation of the [this part was not amended by R.A,
recruitment agreement or contract of 10022]).
employment. This joint and solidary liability
imposed by law against recruitment Foreign Employer
agencies and foreign employers is meant to Foreign employer shall assume joint and solidary
assure the aggrieved worker of immediate liability with the employer for all claims and
and sufficient payment of what is due him. liabilities which may arise in connection with
[Becmen Service Exporter and Promotion, the implementation of the contract, including
Inc. v. Spouses Cuaresma, G.R. 182978-79, but not limited to payment of wages, death
April 7, 2009] and disability compensation and repatriation
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The power to suspend or cancel any license or (3) Doctors, engineers, teachers, nurses
authority to recruit employees for overseas and other professional workers whose
employment is concurrently vested with the contract provide for free board and
POEA and the Secretary of Labor. [People v. lodging – 70%
Diaz, 259 SCRA 441 (1996)] (4) All other professional workers whose
employment contracts do not provide
B.2. REGULATORY AND VISITORIAL for free board and lodging facilities –
POWERS OF THE DOLE SECRETARY 50%
(5) Domestic and other service workers –
Regulatory powers (Art. 36, LC) 50%
The Secretary of Labor shall have the power to (6) All other workers not falling under the
restrict and regulate the recruitment and aforementioned categories – 50%
placement activities of all agencies within the (7) Performing artists – 50%
coverage of this Title and is hereby authorized
to issue orders and promulgate rules and Individuals exempted from the mandatory
regulations to carry out the objectives and remittance requirement:
implement the provisions of this Title. (1) The immediate family members,
dependents or beneficiaries of migrant
Visitorial powers (Art. 37, LC) workers residing with the latter
The Secretary of Labor or his duly authorized abroad;
representatives may, at any time, inspect the (2) Filipino servicemen working within US
premises, books of accounts and records of military installations;
any person or entity covered by this Title, (3) Immigrants and Filipino professionals
require it to submit reports regularly on working with the United Nations and
prescribed forms, and act on violations of any its agencies or other specialized
provisions of this Title. bodies.
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securing a license or authority under this It shall likewise include the following acts,
Code. whether committed by any person, whether a
(d) To induce or attempt to induce a worker non-licensee, non-holder, licensee or holder of
already employed to quit his employment authority:
in order to offer him to another unless the a. To charge or accept directly or indirectly
transfer is designed to liberate the worker any amount greater than that specified
from oppressive terms and conditions of in the schedule of allowable fees
employment; prescribed by the Secretary of Labor and
(e) To influence or to attempt to influence any Employment, or to make a worker pay or
person or entity not to employ any worker acknowledge any amount greater than
who has not applied for employment that actually received by him as a loan or
through his agency; advance;
(f) To engage in the recruitment or placement b. To furnish or publish any false notice or
of workers in jobs harmful to public health information or document in relation to
or morality or to the dignity of the recruitment or employment;
Republic of the Philippines; c. To give any false notice, testimony,
(g) To obstruct or attempt to obstruct information or document or commit any
inspection by the Secretary of Labor or by act of misrepresentation for the purpose
his duly authorized representatives; of securing a license or authority under
(h) To fail to file reports on the status of the Labor Code, or for the purpose of
employment, placement vacancies, documenting hired workers with the
remittance of foreign exchange earnings, POEA, which include the act of
separation from jobs, departures and such reprocessing workers through a job
other matters or information as may be order that pertains to nonexistent work,
required by the Secretary of Labor. work different from the actual overseas
(i) To substitute or alter employment work, or work with a different employer
contracts approved and verified by the whether registered or not with the
Department of Labor from the time of POEA;
actual signing thereof by the parties up to d. To include or attempt to induce a worker
and including the periods of expiration of already employed to quit his
the same without the approval of the employment in order to offer him
Secretary of Labor; another unless the transfer is designed
(j) To become an officer or member of the to liberate a worker from oppressive
Board of any corporation engaged in travel terms and conditions of employment;
agency or to be engaged directly or e. To influence or attempt to influence any
indirectly in the management of a travel person or entity not to employ any
agency; and worker who has not applied for
To withhold or deny travel documents from employment through his agency or who
applicant workers before departure for has formed, joined or supported, or has
monetary or financial considerations other contacted or is supported by any union
than those authorized under this Code and its or workers' organization;
implementing rules and regulations. (Art. 34, f. To engage in the recruitment or
LC) placement of workers in jobs harmful to
public health or morality or to the
Other prohibited acts
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(6) For a suspended recruitment/manning However, note that GOCCs with their own
agency to engage in any kind of charter are governed by Civil Service Rules.
recruitment activity including the The Labor Code is only applicable to those
processing of pending workers' created under the General Corporation Law.
applications; and (Sec. 2(i) Art. IX-B of 1987 Phil. Constitution)
(7) For a recruitment/manning agency or a
foreign principal/employer to pass on (b) Managerial employees
the overseas Filipino worker or deduct
from his or her salary the payment of the Two definitions of “managerial employees” in
cost of insurance fees, premium or other the Labor Code
insurance related charges, as provided Article 82: Those whose primary duty
under the compulsory worker's consists of the management of the
insurance coverage. (Sec. 6, RA 8042 as establishment in which they are employed or
amended) of a department or subdivision thereof, and
to other officers or members of the
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3. They have the authority to hire or fire 2. whose actual hours of work in the field
employees of lower rank; or their cannot be determined with reasonable
suggestions and recommendations as to certainty. (Art. 82, LC)
hiring and firing and as to the promotion
or any other change of status of other Test: Whether or not the employee’s time
employees, are given particular weight. and performance are constantly supervised by
the employer. [Far East Agricultural Supply v.
Managerial Staff also included (Book 3, Rule Lebatique [2007)]
1, Sec. 2(c), IRR)
(d) Dependent family members
Officers or members of a managerial staff
also qualify for the exception if they perform Workers who are family members of the
the following duties and responsibilities: employer, and who are dependent on him
1. The primary duty consists of the for their support, are outside the coverage of
performance of work directly related to this Title on working conditions and rest
management policies of their employer; periods.
2. Customarily and regularly exercise
discretion and independent judgment; (e) Domestic helpers
(a) Regularly and directly assist a "Domestic or household service" shall mean
proprietor or a managerial employee service in the employer’s home which is
whose primary duty consists of the usually necessary or desirable for the
management of the establishment in maintenance and enjoyment thereof and
which he is employed or subdivision includes ministering to the personal comfort
thereof; OR and convenience of the members of the
(b) Execute under general supervision employer’s household, including services of
work along specialized or technical lines family drivers. (Art. 141, LC)
requiring special training, experience, or
knowledge; OR Note: The Kasambahay Law (RA 10361) has
(c) Execute, under general supervision, redefined “domestic worker” or
special assignments and tasks; “kasambahay”:
3. Who do not devote more than 20 percent
Domestic worker or “Kasambahay” refers to
of their hours worked in a work week to
any person engaged in domestic work within
activities which are not directly and closely
an employment relationship such as, but not
related to the performance of the work
limited to, the following: general househelp,
described in paragraphs (1), (2) and (3)
nursemaid or “yaya”, cook, gardener, or
above.
laundry person, but shall exclude any person
who performs domestic work only
(c) Field personnel
occasionally or sporadically and not on an
occupational basis. (RA 10361 Art. 1, Sec. 4
Non-agricultural employees
(d))
1. who regularly perform their duties
away from the principal place of
(f) Persons in personal service of another
business or branch office of the
employer AND
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Domestic servants and persons in the a. cities and municipalities with a population
personal service of another if they perform of at least one million (1,000,000) OR
such services in the employer’s home which b.hospitals and clinics with a bed capacity of
are usually necessary or desirable for the at least one hundred (100) shall hold
maintenance and enjoyment thereof, or regular office hours for eight (8) hours a
minister to the personal comfort, day, for five (5) days a week, exclusive of
convenience, or safety of the employer as time for meals, except where the
well as the members of his employer’s exigencies of the service require that such
household. (Book 3, Rule 1, Sec. 2 (d), IRR) personnel work for six (6) days or forty-
eight (48) hours, in which case, they shall
Note that the definition contemplates a be entitled to an additional compensation
domestic servant who is employed in the of at least thirty percent (30%) of their
employer’s home to minister exclusively to regular wage for work on the sixth day.
the personal comfort and enjoyment of the
employer’s family. (Azucena) For purposes of this Article, "health
personnel" shall include resident physicians,
(g) Workers Paid by Result nurses, nutritionists, dietitians, pharmacists,
Workers who are paid by results, including social workers, laboratory technicians,
those who are paid on piece-work, “takay,” paramedical technicians, psychologists,
“pakiao” or task basis, and other non-time midwives, attendants and all other hospital
work if their output rates are in accordance or clinic personnel. (Art. 38, LC) Medical
with the standards prescribed under Section secretaries are also considered clinic
8, Rule VII, Book Three of these regulations, personnel. (Azucena)
or where such rates have been fixed by the
Secretary of Labor and Employment in Compensable Hours of Work (Art. 84, LC)
accordance with the aforesaid Section. Hours worked shall include
(Book 3, Rule 1, Sec. 2 (e), IRR) (a) All time during which an employee is
required to be on duty or to be at a
B. HOURS OF WORK prescribed workplace; AND
(b) All time during which an employee is
B.1. COVERAGE/EXCLUSIONS suffered or permitted to work.
supra
Rest period – short duration or “coffee
B.2. NORMAL HOURS OF WORK break”
Rest periods of short duration during
General Rule: 8-Hour Labor Law working hours shall be counted as hours
The normal hours of work of any employee worked. (Art. 84, par. 2, LC)
shall not exceed eight (8) hours a day. (Art.
83, LC) Rest periods or coffee breaks running from
five (5) to twenty (20) minutes shall be
considered as compensable working time.
Exception to the 8-Hour Law: Work Hours of (Bk III, Rule 1, Sec. 7, par. 2, IRR)
Health Personnel
Health personnel in An employee need not leave the premises of
the work place in order that his rest period
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shall not be counted, it being enough that case, the employer may extend the working
he stops working, may rest completely and hours beyond the regular schedule on that
may leave his work place, to go elsewhere, day to compensate for the loss of productive
whether within or outside the premises of his man-hours without being liable for overtime
work place. (Book 3, Rule 1, Sec. 4 (b) of the pay. (Policy Instruction No. 36, May 22, 1978)
IRR)
Note: The time during which an employee is
On call inactive by reason of work interruptions
An employee who is beyond his control is considered working
a. required to remain on call in the time, either if the imminence of the
employer’s premises or so close thereto resumption of work requires the employee’s
b.that he cannot use the time effectively and presence at the place of work or if the
gainfully for his own purpose interval is too brief to be utilized effectively
shall be considered as working while on call. and gainfully in the employee’s own interest.
(Book III, Rule 1 Sec. 4-c OR)
An employee who is not required to leave
word at his home or with company officials Necessary Work After Normal Hours
where he may be reached is not working If the work performed was necessary, or it
while on call. (Book III, Rule 1, Sec. 5(b), IRR) benefited the employer, or the employee
could not abandon his work at the end of his
Inactive due to work interruptions normal working hours because he had no
The time during which an employee is replacement, all the time spent for such
inactive by reason of interruptions in his work shall be considered as hours worked if
work beyond his control shall be considered the work was with the knowledge of his
working time either: employer or immediate supervisor. [IRR, Book
a. if the imminence of the resumption of III, Rule 1, Sec. 4(c)]
work requires the employee's presence at
the place of work OR Lectures, meetings, trainings
b.if the interval is too brief to be utilized Attendance at lectures, meetings, training
effectively and gainfully in the employee's programs, and other similar activities shall
own interest. (Book III, Rule 1, Sec. 4(d), not be counted as working time if ALL of the
IRR) following conditions are met:
1. Attendance is outside of the employee’s
Work interruption due to brownouts regular working hours;
Brownouts of short duration, but not 2. Attendance is in fact voluntary; and
exceeding 20 minutes, shall be treated as
3. The employee does not perform any
hours worked, whether used productively by
productive work during such attendance.
the employees or not.
(IRR, Book III, Rule 1, Sec. 6)
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The works schedule is not continuous but adoption of the CWW scheme. The
the work hours within the day or week notice shall be in DOLE CWW Report
remain. Form attached to this Advisory. (DOLE
Advisory No. 02-04)
Flexi-holidays
The employees agree to avail the holidays at B.3. MEAL BREAK
some other days provided there is no
diminution of existing benefits as a result of General Rule: Subject to such regulations as
such arrangement. the Secretary of Labor may prescribe, it shall
be the duty of every employer to give his
Compressed Work Week (CWW) employees not less than sixty (60) minutes
Under the CWW scheme, the normal time-off for their regular meals (Art. 85, LC)
workday goes beyond eight hours without
the corresponding overtime premium. Exception:
Employees may be given a meal period of
The total hours of work, however, shall not not less than twenty (20) minutes provided
exceed 12 hours a day or 48 hours a week, or that such shorter meal period is credited as
the employer is obliged to pay the worker compensable hours worked of the employee:
the overtime premium in excess of said work
hours. (a) Where the work is non-manual work in
nature or does not involve strenuous
Conditions for CWW physical exertion;
(1) The CWW scheme is undertaken as a (b) Where the establishment regularly
result of an express and voluntary operates not less than sixteen (16) hours a
agreement of majority of the covered day;
employees or their duly authorized (c) In case of actual or impending
representatives. emergencies or there is urgent work to be
performed on machineries, equipment or
(2) In firms using substances, chemicals installations to avoid serious loss which the
and processes or operating under employer would otherwise suffer; and
conditions where there are airborne (d) Where the work is necessary to prevent
contaminants, human carcinogens or serious loss of perishable goods (Book 3,
noise prolonged exposure to which may Rule 1, Sec. 7 par 1, IRR)
pose hazards to employees’ health and
safety, there must be a certification from Synthesis of the Rules
an accredited health and safety General Rule: Meal periods are NOT
organization or practitioner from the compensable.
firm’s safety committee that work
beyond eight hours is within threshold Exception:
limits or tolerable levels of exposure, as It becomes compensable:
set in the OSHS. (1) Where the lunch period or meal time is
predominantly spent for the employer’s
(3) The employer shall notify DOLE, benefit. (Azucena citing 31 Am. Jur. 881;
through the Regional Office having Duka, Labor Laws and Social
jurisdiction over the workplace, of the Legislation)
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Undertime work on any particular day shall (b) During a specified time beyond the
not be offset by overtime work on any other period, after childbirth is fixed
day. Permission given to the employee to go pursuant to subparagraph (1)
on leave on some other day of the week shall above, the length of which shall be
not exempt the employer from paying the determined by the DOLE after
additional compensation required in this consulting the labor organizations
Chapter. (Art. 88, LC) and employers.
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holidays. These days are reckoned as procures for the general market, whether the
calendar days which start at midnight and same is on hand at the time or not, is a
end at the following midnight. The premium contract of sale
pay for the night shift also starts or ends at
midnight. However, the employment BUT if the goods are to be manufactured
contract, company policy or CBA may specially for the customer and upon his
provide that in the case of night shift special order, and not for the general
workers, days—including special days and market, it is a contract for a piece of work.
regular holidays—shall begin on the night (Article 1467, CC)
before a calendar day.
C. WAGES
Transfer (Art. 157, RA 10151)
Night workers who are certified as unfit for Definition
night work, due to health reasons, shall be a. It is the remuneration or earnings,
transferred to a similar job for which they are however designated, capable of being
fit to work. If such is not practicable, they expressed in terms of money,
shall be granted the same benefits as other b. whether fixed or ascertained on a time,
workers who are unable to work, or to secure task, piece, or commission basis, or
employment during such period. other method of calculating the same,
c. which is payable by an employer to an
B. 7. PART-TIME WORK employee
d. under a written or unwritten contract of
A single, regular or voluntary form of employment for work done or to be
employment with hours of work done, or for services rendered or to be
substantially shorter than those considered rendered and
as normal in the establishment. e. includes the fair and reasonable value,
(International Labor Organization) as determined by the Secretary of Labor
and Employment, of board, lodging, or
This excludes those forms of employment other facilities customarily furnished by
which, although referred to as part-time the employer to the employee
work, are in particular, irregular, temporary
or intermittent employment, or in cases Fair and reasonable value - shall not include
where hours of work have been temporarily any profit to the employer, or to any person
reduced for economic, technical or structural affiliated with the employer. (Art. 97(f))
reasons.
“No work no pay” principle
The wage and benefits of part-time worker General Rule: the age old rule governing the
are in proportion to the number of hours relation between labor and capital or
worked. management and employee is that a "fair
day's wage for a fair day's labor."
B.8. CONTRACT FOR PIECE OF WORK
Exception: When the laborer was able, willing
A contract for the delivery at a certain price and ready to work but was illegally locked
of an article which the vendor in the ordinary out, suspended or dismissed, or otherwise
course of his business manufactures or illegally prevented from working.
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without compensation whose training on the wages in determining compliance with the
job is required by the school or training minimum wage law. [Iran v. NLRC (1998)]
program curriculum or as requisite for
graduation or board examination. (Art. 72, C.5. DEDUCTIONS FROM WAGES
LC)
General Rule: No employer, in his own
C.3.3. Minimum wage of persons with behalf or in behalf of any person, shall make
disability any deduction from the wages of his
A qualified disabled EE shall be subject to employees. (Art. 113)
the same terms and conditions of
employment and the same compensation, Exceptions:
privileges, benefits, fringe benefits or (1) In cases where the worker is insured with
allowances as a qualified able-bodied his consent by the employer, and the
persons. (Sec 5, RA 7277, The Magna Carta deduction is to recompense the employer
for Disabled Persons) for the amount paid by him as premium on
the insurance;
C.4. COMMISSIONS (2) For union dues, in cases where the right of
the worker or his union to check-off has
Commissions have been defined as the been recognized by the employer or
recompense, compensation or reward of an authorized in writing by the individual
agent, salesman, executor, trustee, receiver, worker concerned; and
factor, broker or bailee, when the same is (3) In cases where the employer is authorized
calculated as a percentage on the amount of by law or regulations issued by the
his transactions or on the profit to the Secretary of Labor and Employment (Art.
principal. [Philippine Duplicator’s, Inc. v. 113), such as:
NLRC (1993)] (a) Employee debt to employer is due
and demandable (CC 1706);
Commissions as part of minimum wage (b) Attachment or execution in cases
The Court held that the definition of “wage” of debts incurred for necessities:
under Art. 97 (f) of the LC explicitly includes food, shelter, clothing, medical
commissions as part of wages. While attendance (CC 1708);
commissions are, indeed, incentives or forms (c) Withholding tax;
of encouragement to inspire employees to (d) Deductions of a legally established
put a little more industry on the jobs cooperative;
particularly assigned to them, still these (e) Payment to 3rd parties upon written
commissions are direct remunerations for authority by employee;
services rendered. (f) Deductions for loss or damage;
(g) SSS, Medicare, Pag-IBIG
Likewise, there is no law mandating that premiums;
commissions be paid only after the (h) Deduction for value meals and
minimum wage has been paid to the other facilities.
employee. Verily, the establishment of a
minimum wage only sets a floor below It shall be unlawful to make any deduction
which an employee’s remuneration cannot from the wages of any employee for the
fall, not that commissions are excluded from benefit of the employer as consideration of a
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Mere availment is not sufficient to allow (2) Disputes shall be settled through the
deductions from employees’ wages. Before National Conciliation and Mediation
the value of facilities can be deducted from Board.
the employees’ wages, the following (3) If still unresolved after 10 calendar days of
requisites must all be attendant: conciliation, it shall be referred to the
1. proof must be shown that such facilities appropriate branch of the NLRC –
are customarily furnished by the trade; compulsory arbitration
2. the provision of deductible facilities Both the employer and employee
must be voluntarily accepted in writing cannot use economic weapons.
by the employee; and (4) Employer cannot declare a lock-out;
3. facilities must be charged at reasonable Employee cannot declare a strike because
value. the law has provided for a procedure for
(SLL International Cable Specialists v. settling
NLRC, 2011) (5) The salary or wage differential does not
need to be maintained. (National
C.8. WAGE Federation of Labor v. NLRC, 1994)
DISTORTION/RECTIFICATION
National Conciliation and Mediation Board
A situation where an increase in prescribed if unresolved, COMPULSORY arbitration
wage rates results in the elimination or by the NLRC
severe contraction of intentional
quantitative differences in wage or salary CBA vis-à-vis Wage Orders – CBA
rates between and among employee groups creditability
in an establishment as to effectively In determining an employee’s regular wage,
obliterate the distinctions embodied in such the pertinent stipulations in the CBA are
wage structure based on skills, length of controlling, provided the result is not less
service, or other logical bases of than the statutory requirement (Philippine
differentiation (Art. 124) National Bank vs. PEMA, 1982)
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days)
Where 296 ordinary working
365 days – days c. For those who do not work and
days/year 52 days rest days are not considered paid on
= – regular holidays Saturdays and Sundays or rest
10 days special days days:
–
7 days – 278 days/year
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Work on any regular Regular holiday- is due them. (BWC-WHSD Opinion No. 053,
holiday which falls on on-rest day rate s. 1998)
scheduled rest day, if it
(200% of regular
exceeds 8daily wage plus Successive holiday pay
hours/overtime 30% of such According to IRR, Rule IV, Sec. 10, an
amount) + 30% employee is entitled to holiday pay for both
of hourly rate on days, IF:
said day. (1) He is present on day immediately
Work on special holiday Regular daily preceding first holiday; or
not exceeding 8 hours wage + 30% (2) He works on first holiday, which
thereof entitles him to pay on second holiday.
Work on special holiday Regular daily
wage + 50% Divisors
thereof The divisor assumes an important role in
determining whether or not holiday pay is
According to DOLE Memo Circular 1-04, a already computed.
“special holiday”/”special day” includes the (1) Monthly paid employees are not
National Special Days, and declared special entitled to the holiday pay if their total
days such as Special Non-working Holiday, annual income is divided by 365 days
Special Public Holiday and Special National resulting in a wage which is beyond
Holiday. Such days are entitled to the rates the minimum wage per day because
prescribed above. These days are not the they are considered paid everyday of
same as a special working holiday. the year including holidays, rest days,
and other non-working days. The 365
A special working holiday is considered an days are as follows:
ordinary working day, so there is no 365 days = 296 days – ordinary days
premium pay. 52 days – rest days
10 days – regular holidays
Double holiday pay 7 days – special holidays
According to “DOLE Explanatory Bulletin on (2) As a general rule, for a company with a
Worker’s Entitlement to Holiday Pay on 9 6-day working schedule, the divisor
April 1993,” if two holidays fall on the same 313 already means that the legal
day: holidays are included in the monthly
(1) If unworked, 200% of basic wage. pay of the employee. The divisor is
(2) If worked, 300% of basic wage. arrived at by subtracting all Sundays
(Azucena) from the total number of calendar
days in a year.
Double Holiday Rule for Monthly-paid (3) As a general rule for a company with a
employees 5-day working schedule, the divisor
For covered employees whose monthly 287 means that the holiday pay is
salaries are computed based on 365 days already included in the monthly salary
and for those other employees who are paid of the employee.
using factor 314, or 262, or any other factor
which already considers the payment for the Sundays
11 regular holidays, NO additional payment
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(1) When a holiday falls on a Sunday, the (b) The regular holiday during the cessation of
following Monday will not be considered a operation of an enterprise due to business
holiday unless a proclamation says so. reverses as authorized by the Secretary of
(2) Furthermore as stated in the Wellington Labor may not be paid by the employer.
case (see below), a legal holiday falling on (IRR, Book III, Rule IV, Sec 7)
a Sunday does not create a legal
obligation to pay extra, aside from the An employee is entitled to holiday pay for
usual holiday pay, to monthly-paid the regular holidays falling within the period
employees. (Azucena citing Letter of in cases of temporary shutdowns or
Instruction No. 1087) cessation of work, when:
(1) an annual inventory; or
Non-working/scheduled rest day (2) repair or cleaning of machineries and
Where the day immediately preceding the equipment is undertaken.
holiday is a non-working day in the
establishment or the scheduled rest day of The employer may not pay his employees for
the employee, he shall not be deemed to be the regular holidays during the suspension
on leave of absence on that day, in which of work if: the cessation of operation is due
case he shall be entitled to the holiday pay if to business reverses, and is authorized by the
he worked on the day immediately Secretary of Labor.
preceding the non-working day or rest day.
[IRR, Book III, Rule V, Sec 6 (c)] E.2. TEACHERS, PIECE WORKERS,
SEAFARERS, SEASONAL WORKERS,
Right to holiday pay ETC.
Private school teachers, including faculty
In case of absences members of colleges and universities, may
All covered employees shall be entitled to not be paid for the regular holidays during
the benefit provided herein when they are on semestral vacations. They shall, however, be
leave of absence with pay. paid for the regular holidays during
Christmas vacation;
Employees who are on leave of absence
without pay on the day immediately Where a covered employee, is paid by results
preceding a regular holiday may not be paid or output, such as payment on piece work,
the required holiday pay if he has not his holiday pay shall not be less than his
worked on such regular holiday. [IRR, Book average daily earnings for the last seven (7)
III, Rule IV, Sec 6(a)] actual working days preceding the regular
holiday; Provided, However, that in no case
In case of temporary cessation of work shall the holiday pay be less than the
(a) In cases of temporary or periodic applicable statutory minimum wage rate.
shutdown and temporary cessation of
work of an establishment, as when a Seasonal workers may not be paid the
yearly inventory or when the repair or required holiday pay during off-season when
cleaning of machineries and equipment is they are not at work
undertaken, the regular holidays falling (a) Workers who have no regular working days
within the periods shall be compensated shall be entitled to the benefits provided in
in accordance with this Rule. this Rule.
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(Book III, Rule IV, Sec. 8 of IRR) (3) Househelpers and persons in the
personal service of another;
Piece workers (4) Workers who are paid by results,
Philosophy underlying the exclusion of piece including those who are paid on piece
workers from the 8-hour law is that said rate, takay, pakyaw, or task basis, and
workers are paid depending upon the work other noontime work, if their output rates
they do irrespective of the amount of time are in accordance with the standards
employed in doing said work. (Red v. prescribed in the regulations, or where
Coconut Products Ltd., v. CIR, 1966) such rates have been fixed by the
Secretary of Labor and Employment;
Seafarers (5) Field personnel, if they regularly perform
Any hours of work or duty including hours of their duties away from the principal or
watch-keeping performed by the seafarer on branch office or place of business of the
designated rest days and holidays shall be ER and whose actual hours of work in the
paid rest day or holiday pay. (Section 11.C, filed cannot be determined with
Standard Terms and Conditions Governing reasonable certainty.
the Employment of Filipino Seafarers on
Board Ocean-Going Vessels) Premium pay rates (DOLE Memorandum
Circular 1, Series of 2004)
Seasonal workers
Seasonal workers who do not work during WHEN WORK
PREMIUM PAY
off-season are not entitled to pay for the PERFORMED
regular holidays occurring during their off- On scheduled rest 30% of regular
season. Workers assigned to “skeleton day wage
crews” that work during the off-season have On Sunday ONLY IF 30% of regular
the right to be paid on regular holidays ESTABLISHED rest wage
falling in that duration. day
No regular work and 30% of regular
F. PREMIUM PAY rest days wage for work
Premium pay refers to the additional performed on
compensation for work performed within 8 Sundays and
hours on non-work days, such as rest days holidays
and special days. On any special 30% of regular
holiday/special day wage
Coverage (Book 3, Rule 3, Sec. 7 of the IRR) On any special 50% of regular
holiday /special day wage
General Rule: All employees falling on scheduled
Exceptions: rest day
(1) Those of the government and any of the On any regular 230% of regular
political subdivision, including holiday falling on wage
government-owned and controlled scheduled rest day
corporations;
(2) Managerial employees as defined in Book Where the collective bargaining agreement
III; or other applicable employment contract
stipulates the payment of a higher premium
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pay than that prescribed under this Article, irrespective of the time consumed in the
the employer shall pay such higher rate. performance thereof;
(Art. 93 (d)) (5) Those who are already enjoying the benefit
herein provided;
Nothing in this Rule shall justify an (6) Those enjoying vacation leave with pay of
employer in reducing the compensation of at least 5 days;
his employees for the unworked Sundays, (7) Those employed in establishments
holidays, or other rest days which are regularly employing less than 10
considered paid-off days or holidays by employees.
agreement or practice subsisting upon the (Book 3, Rule 5, Sec. 1 of the IRR)
effectivity of the Code. (Book III, Rule III, Sec.
8 of the IRR) Employer may require employee to work
The employer may require an employee to
Nothing herein shall prevent the employer work on any holiday but such employee shall
and his employees or their representatives in be paid a compensation equivalent to twice
entering into any agreement with terms his regular rate (Art. 95(b))
more favorable to the employees than those
provided herein, or be used to diminish any Meaning of “1 year of service”
benefit granted to the employees under The term "at least one-year service" shall
existing laws, agreements, and voluntary mean service for not less than 12 months,
employer practices. (Book III, Rule II, Sec. 9 whether continuous or broken, reckoned
of the IRR) from the date the employee started working,
including authorized absences and paid
G. LEAVES regular holidays unless the working days in
the establishment as a matter of practice or
G.1. SERVICE INCENTIVE LEAVE PAY policy, or that provided in the employment
Every employee who has rendered at least contract is less than 12 months, in which
one year of service shall be entitled to a case said period shall be considered as one
yearly service incentive leave of five days year. (Book III, Rule V, Sec. 3 of the IRR)
with pay. (Art. 95(a))
Entitlement
Service Incentive Leave DOES NOT apply to The grant of benefit in excess of that
the following employees: provided herein shall not be made a subject
(1) Those of the government and any of its of arbitration or any court or administrative
political subdivisions, including GOCCs; action. (Art. 95 (c))
(2) Domestic helpers and persons in the
personal service of another; Commutable nature of benefit
(3) Managerial employees as defined in Book The service incentive leave shall be
3 of this Code; commutable to its money equivalent if not
(4) Field personnel and other employees used or exhausted at the end of the year.
whose performance is unsupervised by the
employer including those who are G.2. MATERNITY LEAVE [SEC. 14-A OF
engaged on task or contract basis, purely RA 1161 (SOCIAL SECURITY LAW) AS
commission basis, or those who are paid a AMENDED BY RA 7322 AND RA 8282]
fixed amount for performing work
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Coverage
Every pregnant woman in the private sector, Other conditions
whether married or unmarried, is entitled to (1) Employer shall advance the payment
the maternity leave benefits. subject to reimbursement by the SSS
within 30 days from filing of leave
This is applicable to both childbirth and application.
miscarriage. (2) Availment shall be a bar to the recovery of
sickness benefits provided by this Act for
Requisites the same period for which daily maternity
(1) Employment: A female employee benefits have been received.
employed at the time of delivery, (3) Employee may only avail of benefit for the
miscarriage or abortion first four (4) deliveries or miscarriages.
(2) Contribution: who has paid at least 3 (4) Sanction:
monthly contributions in the 12-month That if an employee should give birth or
period immediately preceding the suffer miscarriage
semester of her childbirth, or miscarriage. a. without the required contributions
(3) Notice: employee notified employer of her having been remitted for her by her
pregnancy and the probable date of her ER to the SSS, or
childbirth, which notice shall be b. without the latter having been
transmitted to the SSS in accordance with previously notified by the ER of
the rules and regulations it may provide. time of the pregnancy, then the
employer shall pay to the SSS
Benefit received damages equivalent to the benefits
A daily maternity benefit equivalent to 100% which said employee member
of her average daily salary credit for: would otherwise have been entitled
(1) 60 days for normal delivery to.
(2) 78 days for caesarean delivery
This benefit shall NOT be included in the G.3. PATERNITY LEAVE [RA 8187
computation of 13th month pay as it is (PATERNITY LEAVE ACT OF 1996)]
granted to an employee in lieu of wages
which is the basis for computing 13th month. Coverage and purpose
Paternity leave is granted to all married
Only 4 maternity leaves available male employees in the private and public
The maternity benefits provided under the sectors, regardless of their employment
Social Security Law shall be paid only for the status (e.g. probationary, regular,
first four (4) deliveries or miscarriages contractual, project basis). The purpose of
this benefit is to allow the husband to lend
SSS pays for the maternity leave support to his wife during her period of
The employer advances the benefit to the recovery and/or in nursing her newborn
employee but the SSS shall immediately child. (Sec. 3, RA 8187)
reimburse the employer of one hundred
percent (100%) of the amount upon Benefit
receipt of satisfactory proof of such
payment and legality thereof
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It shall apply to the first 4 deliveries of the See number 4 under conditions for
employee’s lawful wife with whom he is entitlement.
cohabiting.
In case of miscarriage, prior application for
It shall be for 7 calendar days, with full pay, paternity leave shall not be required. (Sec. 4,
consisting of basic salary and mandatory IRR, RA 8187)
allowances fixed by the Regional Wage
Board, if any, provided that his pay shall not Non-conversion to cash
be less than the mandated minimum wage. In the event that the paternity leave is not
(Sec. 2, RA 8187) availed of, it shall not be convertible to cash
and shall not be cumulative. (Sec. 7, IRR, RA
Cohabiting means the obligation of the 8187)
husband and wife to live together. If the
spouses are not physically living together Crediting of existing benefits
because of the workstation or occupation, 1. If the existing paternity leave benefit under
the male employee is still entitled to the the CBA, contract, or company policy is
paternity leave benefit. (Sec. 1, IRR, RA 8187) greater than 7 calendar days as provided for
in RA 8187, the greater benefit shall prevail.
Usage of the benefit 2. If the existing paternity leave benefit is
Usage of the leave shall be after the less than that provided in RA 8187, the ER
delivery, without prejudice to an employer’s shall adjust the existing benefit to cover the
policy of allowing the employee to avail of difference.
the benefit before or during the delivery,
provided that the total number of days shall Where a company policy, contract, or CBA
not be more than 7 days for each covered provides for an emergency or contingency
delivery. (Sec. 5, IRR, RA 8187) leave without specific provisions on paternity
leave, the ER shall grant to the employee 7
Conditions for entitlement (Sec. 3, IRR, RA calendar days of paternity leave. (Sec. 9, IRR,
8187) RA 8187)
(1) He is married;
(2) He is an employee at the time of the G.4. PARENTAL LEAVE [RA 8972 (SOLO
delivery of his child; PARENTS’ WELFARE ACT OF 2000)]
(3) He is cohabiting with his spouse at the
time that she gives birth or suffers a Leave benefits granted to a solo parent to
miscarriage; enable him/her to perform parental duties
(4) He has applied for paternity leave with his and responsibilities where physical presence
ER within a reasonable period of time from is required. [Sec. 3 (d), RA 8972]
the expected date of delivery by his
pregnant spouse, or within such period as Coverage
may be provided by company rules and Any solo parent or individual who is left
regulations, or by CBA; and, alone with the responsibility of parenthood
(5) His wife has given birth or suffered a due to:
miscarriage. (1) Giving birth as a result of rape or and other
crimes against chastity even without a
Application for paternity leave final conviction of the offender: Provided,
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That the mother keeps and raises the (2) He/she has notified his/her employer that
child; he/she will avail himself/herself of it,
(2) Death of spouse; within a reasonable period of time; and
(3) Spouse is detained or is serving sentence (3) He/she has presented to his/her employer
for a criminal conviction for at least one (1) a Solo Parent Identification Card, which
year; may be obtained from the DSWD office of
(4) Physical and/or mental incapacity of the city or municipality where he/she
spouse as certified by a public medical resides. (Sec 19, Art. V, IRR, RA 8972)
practitioner;
(5) Legal separation or de facto separation Availment
from spouse for at least one (1) year: The parental leave is in addition to leave
Provided, that he/she is entrusted with the privileges under existing laws with full pay,
custody of the children; consisting of basic salary and mandatory
(6) Declaration of nullity or annulment of allowances. It shall not be more than seven
marriage as decreed by a court or by a (7) working days every year. (Sec. 8, RA 8972)
church: Provided, that he/she is entrusted
with the custody of the children; Grant of flexible work schedule
(7) Abandonment of spouse for at least one (1) The employer shall provide for a flexible
year; working schedule for solo parents: Provided,
(8) Unmarried father/mother who has That the same shall not affect individual and
preferred to keep and rear his/her company productivity: Provided, further,
child/children, instead of having others That any employer may request exemption
care for them or give them up to a welfare from the above requirements from the DOLE
institution; on certain meritorious grounds. (Sec. 6, RA
(9) Any other person who solely provides 8972)
parental care and support to a child or
children: Provided, that he/she is duly Protection against work discrimination
licensed as a foster parent by the No employer shall discriminate against any
Department of Social Welfare and solo parent employee with respect to terms
Development (DSWD) or duly appointed and conditions of employment on account of
legal guardian by the court; and his/her status. (Sec. 7, RA 8972)
(10) Any family member who assumes the
responsibility of head of family as a result Termination of the benefit
of the death, abandonment, A change in the status or circumstance of
disappearance, or prolonged absence of the parent claiming the benefit under the
the parents or solo parent for at least one law, such that he/she is no longer left alone
(1) year. [Sec. 3 (a), RA 8972] with the responsibility of parenthood, shall
terminate his/her eligibility for these
Conditions for entitlement benefits. [Sec. 3 (a), RA 8972]
A solo parent employee shall be entitled to
the parental leave under the following G.5. LEAVES FOR VICTIMS OF VIOLENCE
conditions: AGAINST WOMEN [RA 9262 (ANTI-
(1) He/she has rendered at least one (1) year VIOLENCE AGAINST WOMEN AND THEIR
of service, whether continuous or broken; CHILDREN ACT OF 2004)]
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should have been with the company for 12 written form within a reasonable period of
months prior to surgery. An aggregate time and provided further that after the
service of at least six (6) months within the surgery or appropriate recuperating period,
said 12-month period is sufficient to entitle the female employee shall immediately file
her to avail of the special leave benefit. her application using the prescribed form.
(Sec. 3, DO 112)
Employment service - includes absences
with pay such as use of other mandated Period of entitlement
leaves, company-granted leaves and The 2 months special leave is the maximum
maternity leaves period of leave with pay that a woman
employee may avail of under RA 9710.
Competent physician - a medical doctor
preferably specializing in gynecological For purposes of determining the period of
disorders or is in the position to determine leave with pay that will be allowed to a
the period of recuperation of the woman female employee, the certification of a
employee. (Sec. 1, DO 112, as amended) competent physician as to the required
period of recuperation shall be controlling.
Conditions for entitlement of special leave (Sec. 4, DO 112, as amended)
Any female employee, regardless of age and
civil status, shall be entitled to a special Availment
leave benefit, provided she has complied The special leave shall be granted to the
with the following conditions: qualified employee after she has undergone
(a) She has rendered at least 6 months surgery. (Sec. 5, DO 112, as amended)
continuous aggregate employment service
for the last 12 months prior to surgery; Frequency of availment
(b) She has filed an application for special A woman employee can avail of the SLB for
leave every instance of surgery due to
(c) She has undergone surgery due to gynecological disorder for a maximum total
gynecological disorders as certified by a period of 2 months per year. (Sec. 6, DO 112,
competent physician. (Sec. 2, DO 112) as amended)
Application for special leave Special leave benefit vis-à-vis SSS sickness
Application before surgery benefit
The employee shall file her application for The SLB is different from the SSS sickness
leave with her employer within a reasonable benefit. The former is granted by the
period of time from the expected date of employer in accordance with RA 9710.
surgery, or within such period as may be
provided by company rules and regulations It is granted to a woman employee who has
or by CBA. undergone surgery due to gynecological
disorder. The SSS sickness benefit, on the
Application after surgery other hand, is administered and given by the
Prior application for leave shall not be SSS in accordance with RA 1161 as amended
necessary in cases requiring emergency by RA 8282. (Sec. 7, DO 112, as amended)
surgical procedure, provided that the
employer shall be notified verbally or in
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Special leave benefit vis-à-vis existing The term “similar or equal benefits” refers to
statutory leaves leave benefits which are of the same nature
The SLB cannot be taken from existing and purpose as that of the SLB. (Sec. 10, DO
statutory leaves (i.e. 5-day SIL, leave for 112, as amended)
victims of VAWC, Parental leave for solo
parents). The grant of SLB under the law is Mode of payment
in recognition of the fact that patients with The SLB is a leave privilege. The woman
gynecological disorder needing surgery employee shall not report for work for the
require a longer period of recovery. The duration of the leave but she will still receive
benefit is considered an addition to the leave her salary covering said period. The
benefits granted under existing laws and employer, in its discretion, may allow said
should be added on top of said statutory employee to receive her pay for the period
leave entitlements. covered by the approved leave before or
during the surgery. The computation of her
If the SLB has already been exhausted, the “pay” shall be based on her prevailing salary
company leave and other mandated leave at the time of the surgery. (Sec. 11, DO 112, as
benefits may be availed of by the woman amended)
employee. (Sec. 8, DO 112, as amended)
Non-commutation of the benefit
Special leave benefit vis-à-vis maternity leave The SLB shall be non-cumulative and non-
benefit convertible to cash unless otherwise
Where the woman employee had undergone provided by a CBA (Sec. 12, DO 112, as
surgery due to gynecological disorder during amended)
her maternity leave, she is entitled only to
the difference between the SLB and F. SERVICE CHARGES
maternity leave benefit. (Sec. 9, DO 112, as
amended) Coverage
Employers (Sec 1, Rule VI, Book 3, IRR)
Crediting of existing or similar benefits This rule shall apply only to establishments
If there are existing or similar benefits under which collect service charges such as:
a company policy, practice or CBA providing (a) Hotels, restaurants, lodging houses,
similar or equal benefits to what is night clubs, cocktail lounge, massage
mandated by law, the same shall be clinics, bars, casinos and gambling
considered as compliance, unless the houses and similar enterprises
company policy, practice or CBA provides (b) Including those entities operating
otherwise. primarily as private subsidiaries of the
Government
In the event the company policy, practice or
CBA provides lesser benefits, the company Employees
shall grant the difference. Shall apply to ALL employees of covered
employers
More liberal existing or similar benefits a. Regardless of their positions,
cannot be withdrawn or reduced by reason designations, or employment status,
of the mandate of RA 9710. b. Irrespective of the method by which
their wages are paid.
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(2) Employers already paying their employees (3) But not the allowances and monetary
a 13th month pay or more in a calendar benefits which are not considered or
year or its equivalent at the time of this integrated as part of the regular or basic
issuance; salary, such as the cash equivalent of:
(3) Employers of household helpers and a. unused vacation and sick leave
persons in the personal service of another credits,
relation to such workers; and b. overtime,
(4) Employers of those who are paid on purely c. premium,
commission, boundary or task basis and d. night differential,
those who are paid a fixed amount for e. holiday pay and, and
performing specific work, irrespective of f. cost-of-living allowances.
the time consumed in the performance
thereof (except those workers who are Time of payment
paid on piece-rate basis, in which case General Rule: paid not later than Dec 24 of
their employer shall grant them 13th month each year.
pay).
Exception: ER may give to his employees half
“Equivalent” includes: (½) of the required 13th Month Pay before
(a) Christmas bonus, mid-year bonus, the opening of the regular school year and
cash bonuses the other half on or before the 24th of
(b) and other payments amounting to not December every year.
less than 1/12 of the basic salary
(c) but shall NOT INCLUDE cash and The frequency of payment of this monetary
stock dividends, cost of living benefit may be the subject of agreement
allowances and all other allowances between the employer and the recognized
regularly enjoyed by the employee as CBA of the employees.
well a non-monetary benefits.
13th Month Pay in Special Cases
Workers paid on a piece-rate basis (1) Paid by Results: Employees who are paid
Those who are paid a standard amount for on piece work basis are, by law, entitled to
every piece or unit of work produced that is the 13th Month Pay. (Revised Guidelines
more or less regularly replicated, without on the Implementation of the 13th Month
regard to the time spent in producing the Pay Law)
same. (1) Fixed or Guaranteed Wage: Employees
Minimum Amount: 1/12 of the total basic who are paid a fixed or guaranteed wage
salary earned by an employee within a plus commission are entitled to 13th
calendar year month pay (not purely commission); the
basis for computation shall be both their
BASE AMOUNT, which is the basic salary fixed or guaranteed wage and
shall include: commission. (Revised Guidelines)
(1) cost of living allowances (COLA) (2) Those with Multiple Employers:
integrated into the basic salary of a Government Employees working part time
covered employee pursuant to EO 178. in a private enterprise, including private
(2) all remunerations or earnings paid by this educational institutions, as well as
employer for services rendered. Employees working in two or more private
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firms, whether on full or part time bases, (2) Substitute Payment not allowed: Benefits
are entitled to the required 13th Month Pay in the form of food or free electricity,
from all their private Employers regardless assuming they were given, were not a
of their total earnings from each or all proper substitute for the 13th month pay
their employers. (Revised Guidelines) required by law. Neither may year-end
(3) Private School Teachers: Private school rewards for loyalty and service be
teachers, including faculty members of considered in lieu of 13th month pay.
universities and colleges, are entitled to (Framanlis Farms, Inc. vs MOLE, 1989)
the required 13th month pay, regardless of (3) 14th Month Pay is not mandated: Employers
the number of months they teach or are already paying their employees a 13th
paid within a year, if they have rendered month pay or its equivalent are not
service for at least one (1) month within a covered by this Decree. (Kamaya Point
year. (Revised Guidelines) Hotel vs NLRC, 1989)
(4) Resigned or Separated Employee: An
Employee who has resigned or whose Note: Overload pay is NOT included in the
services were terminated at any time computation for 13th month pay; overload is
before the time for payment of the 13th not overtime as it is additional work done
month pay is entitled to this monetary within the normal shift [Letran Calamba
benefit in proportion to the length of time Faculty vs NLRC, (2008)]
he worked during the year, reckoned from
the time he started working during the I. SEPARATION PAY (Art. 283 &
calendar year up to the time of his
284, LC, DOLE Handbook on
resignation or termination from service.
(Revised Guidelines) Worker’s Statutory Monetary
(5) Wage Difference: The difference between Benefits, 2014)
the minimum wage and the actual salary
received by the Employee cannot be Separation pay is defined as the amount
deemed as his 13th month pay as such that an employee receives at the time of his
difference is not equivalent to or of the severance from the service and is designed
same import as the said benefit to provide the employee with the
contemplated by law. (JPL Marketing wherewithal during the period that he is
Promotions vs CA, 2005) looking for another employment. [A’ Prime
(6) Terminated Employees: The payment of Security Services vs NLRC (1993)]
the 13th month pay may be demanded by
the employee upon the cessation of General rule: The rule embodied in the Labor
employer-employee relationship. (Archilles Code is that a person dismissed for cause as
Manufacturing Corp. vs NLRC, 1995) defined therein (see Art. 282) is not entitled
to separation pay. (PLDT vs NLRC, 1988)
Additional Rules:
(1) Commissions: If the commissions may be Exception:
properly considered part of the basic Considerations of equity and the employee
salary, then they should be INCLUDED. If was not dismissed on the ground of
they are not an integral part of the basic misconduct or for cause reflecting his moral
salary, then they should be EXCLUDED. character.
(Phil. Duplicators Inc. vs NLRC, 1995)
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which their wages are paid (Sec. 1, IRR, RA The minimum retirement pay shall be
7641) equivalent to one-half (1/2) month salary for
every year of service, a fraction of at least six
The only exceptions are: (6) months being considered as one whole
(1) employees covered by the Civil Service year.
Law;
(2) domestic helpers and persons in the For the purpose of computing retirement
personal service of another, and pay, “one-half month salary” shall include
(3) employees in retail, service and all of the following:
agricultural establishments or operations 1. Fifteen (15) days salary based on the
regularly employing not more than ten latest salary rate;
employees (Sec. 2, IRR, RA 7641) 2. Cash equivalent of five (5) days of service
incentive leave;
Exclusions from coverage 3. One-twelfth (1/12) of the 13th month pay.
R.A. No. 7641, otherwise known as "The (1/12 x 365/12 = .083 x 30.41 = 2.52)
Retirement Pay Law," only applies in a
situation where Thus, “one-half month salary” is equivalent
(1) There is no collective bargaining to 22.5 days. (Capitol Wireless, Inc. vs Sec.
agreement or other applicable employment Confessor, 1996)
contract providing for retirement benefits for
an employee; OR Other benefits may be included in the
(2) There is a collective bargaining computation of the retirement pay upon
agreement or other applicable employment agreement of the ER and the EE or if
contract providing for retirement benefits for provided in the CBA.
an employee, but it is below the
requirements set for by law. Retirement Benefits under a CBA or
Applicable Contract
Age of retirement Any EE may retire or be retired by his/her ER
upon reaching the age established in the
Optional retirement – in the absence of a CBA or other applicable agreement/contract
retirement plan or other applicable and shall receive the retirement benefits
agreement providing for retirement benefits granted therein; provided, however, that
of EEs in an establishment, an EE may retire such retirement benefits shall not be less
upon reaching the age of 60 or more if he than the retirement pay required under RA
has served for at least 5 years in said 7641, and provided further that if such
establishment. retirement benefits under the agreement are
less, the ER shall pay the difference.
Compulsory retirement – in the absence of a
retirement plan or other applicable Where both the ER and the EE contribute to
agreement providing for retirement benefits a retirement fund pursuant to the applicable
of EEs in an establishment, an EE shall be agreement, the ER’s total contributions and
retired at the age of 65 years. (Sec. 4, IRR, the accrued interest thereof should not be
RA 7641) less than the total retirement benefits to
which the EE would have been entitled had
J.2. AMOUNT OF RETIREMENT PAY there been no such retirement benefits’
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fund. If such total portion from the ER is received by officials and employees of
less, the ER shall pay the deficiency. private firms, whether individual or
corporate, in accordance with a reasonable
J.3. RETIREMENT BENEFITS OF private benefit plan maintained by the
WORKERS WHO ARE PAID BY RESULTS employer
1. shall be exempt from all taxes and
For covered workers who are paid by result 2. shall not be liable to attachment,
and do not have a fixed monthly salary rate, garnishment, levy or seizure by or under any
the basis for the determination of the salary legal or equitable process whatsoever
for 15 days shall be their average daily salary
(ADS). The ADS is derived by dividing the Exception
total salary or earning for the last 12 months Except to pay a debt of the official or
reckoned from the date of retirement by the employee concerned to the private benefit
number of actual working days in that plan or that arising from liability imposed in
particular period, provided that the a criminal action:
determination of rates of payment by results
are in accordance with established Additional conditions
regulations 1. That the retiring official or employee has
been in the service of the same employer for
J.4. RETIREMENT BENEFIT OF PART- at least ten (10) years and is not less than
TIME WORKERS fifty years of age at the time of his
retirement;
Part-time workers are also entitled to 2. That the retirement benefits shall be
retirement pay of “one-month salary” for availed of by an official or employee only
every year of service under RA 7641 after once; and,
satisfying the following conditions precedent 3. That in case of separation of an official or
for optional retirement: employee from the service of the employer
(a) There’s no retirement plan between the due to death, sickness or other physical
ER and the EE; and, disability or for any cause beyond the control
(b) The EE should have reached the age of of the said official or employee, any amount
60 years, and should have rendered at received by him or by his heirs from the
least 5 years of service with the ER. employer as a consequence of such
separation shall likewise be exempt as
Applying the foregoing principle, the hereinabove provided.
components of retirement benefit of part-
time workers may likewise be computed at "Reasonable private benefit plan" means a
least in proportion to the salary and related pension, gratuity, stock bonus or profit
benefits due them. (DOLE Handbook on sharing plan maintained by an employer for
Workers’ Statutory Monetary Benefits, 2014 the benefit of some or all of his officials and
ed.) employees, wherein contributions are made
by such employer or officials and employees,
or both, for the purpose of distributing to
J.5. TAXABILITY (SEC. 1, RA 4917)
such officials and employees the earnings
and principal of the fund thus accumulated,
Any provision of law to the contrary
and wherein it is provided in said plan that
notwithstanding, the retirement benefits
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at no time shall any part of the corpus or merely by reason of her marriage.
income of the fund be used for, or be (Art. 134)
diverted to, any purpose other than for the
exclusive benefit of the said officials and Exceptions:
employees. 1. Reasonable demands of business require
the distinction based on marital status AND
K. WOMEN WORKERS there is no better available policy to
accomplish the business purpose.
K.1. PROVISIONS AGAINST 2. Spouse is an employee of the competitor
DISCRIMINATION
K.3. PROHIBITED ACTS (ART. 135)
It shall be unlawful for any employer to
discriminate against any woman employee Note: Nightwork/ Exception (Art 130-131) –
with respect to terms and conditions of No more nightwork prohibition under R.A.
employment solely on account of her sex. 10151.
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under the Code [Book III, Rule XII, Sec 13(d), environment for the
IRR] employee.
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The Employer or Head of Office shall have the involvement in public and civic affairs.
duty:
(1) to prevent the commission of such acts
and Child - refers to any person under 18 years of
(2) to lay down the procedure for the age
resolution, settlement or prosecution of
committed acts. (Sec. 4, RA 7877) Child labor - refers to any work or economic
activity performed by a child that subjects
He shall be solidarily liable for damages: him/her to any form of exploitation or is
(1) if he is informed of such acts by the harmful to his/her health and safety or
offended party and physical, mental or psychosocial
(2) no immediate action is taken thereon. development
(Sec. 5, RA 7877)
General Rule: Children below 15 shall NOT
Independent Action for Damages be employed
The victim of work, education or training-
related sexual harassment can institute a Exceptions
separate and independent action for (1) Child works directly under the sole
damages and other affirmative relief. (Sec. responsibility of his parents or legal
6, RA 7877) guardian and where only members of the
ER’s family are employed, provided:
Sanctions (a) his employment does NOT endanger
(1) Criminal: imprisonment of 1 month to mos. his life, safety, health and morals,
Or fine of P10k to P20k or both (b) nor impairs his normal development,
Prescription of such action is in 3 years. and
(2) Termination (Sec. 7, RA 7877) (c) the parent or legal guardian shall
provide the said minor child with the
L. MINOR WORKERS prescribed primary and/or secondary
education; (Sec. 12 of RA 7610 as
Relevant Laws: RA 7610 (Special Protection amended by RA 7658)
of Children Against Abuse, Exploitation and
Discrimination Act), RA 9231 (Special (2) child’s employment or participation in
Protection of Children Against Child Abuse, public entertainment or information
Exploitation and Discrimination Act), Art. through cinema, theater, radio or
137(a) television is essential, provided that:
(a) employment does NOT involve ads or
Constitutional basis: Art II, Sec. 13 of the 1987 commercials promoting alcohol,
Constitution tobacco and its by-products or violence
The State recognizes the vital role of the [Sec. 14 of RA 7610]
youth in nation-building and shall promote (b) the employment contract is concluded
and protect their physical, moral, spiritual, by the child’s parents or guardian, and
intellectual, and social well-being. It shall approved by DOLE
inculcate in the youth patriotism and (c) The ER shall ensure the protection,
nationalism, and encourage their health, safety and morals of the child
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The minimum wage of domestic workers The employer shall grant the domestic
shall not be less than the following: worker access to outside communication
(1) P2,500 a month for those employed in during free time: Provided, That in case of
NCR emergency, access to communication shall
(2) P2,000 a month for those employed in be granted even during work time. (Sec. 8,
chartered cities and first class RA 10361)
municipalities
(3) P1,500 a month for those employed in (f) Education and Training
other municipalities The employer shall afford the domestic
Within one year from the effectivity of the worker the opportunity to finish basic
Act, and periodically thereafter, the education and may allow access to
Regional Tripartite and Productivity Wage alternative learning systems and, as far as
Boards shall review, and if proper, determine practicable, higher education or technical
and adjust the minimum wage rates of and vocational training. (Sec. 9, RA 10361)
domestic workers. (Sec. 24, RA 10361)
(g) Social and Other Benefits
(b) Standard of Treatment A domestic worker who has rendered at
The employer or any member of the least one (1) month of service shall be
household shall not subject a domestic covered by the Social Security System (SSS),
worker or “kasambahay” to any kind of the Philippine Health Insurance Corporation
abuse nor inflict any form of physical (PhilHealth), and the Home Development
violence or harassment or any act tending to Mutual Fund or Pag-IBIG, and shall be
degrade the dignity of a domestic worker. entitled to all the benefits in accordance
(Sec. 5, RA 10361) with the pertinent provisions provided by
law.
(c) Board, Lodging and Medical
Attendance (h) Leave Benefits
The employer shall provide for the basic A domestic worker who has rendered at
necessities of the domestic worker to include least one (1) year of service shall be entitled
at least three (3) adequate meals a day and to an annual service incentive leave of five
humane sleeping arrangements that ensure (5) days with pay (Sec. 29, RA 10361)
safety and shall provide appropriate rest and
assistance to the domestic worker in case of Pre-Employment Requirement
illnesses and injuries sustained during Prior to the execution of the employment
service without loss of benefits. (Sec. 6, RA contract, the employer may require the
10361) following from the domestic worker:
(a) Medical certificate or a health certificate
(d) Privacy issued by a local government health officer;
Respect for the privacy of the domestic (b) Barangay and police clearance;
worker shall be guaranteed at all times and (c) National Bureau of Investigation (NBI)
shall extend to all forms of communication clearance; and
and personal effects (Sec. 7, RA 10361) (d) Duly authenticated birth certificate or if
not available, any other document showing
(e) Access to Outside Communication the age of the domestic worker such as
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Right against assignment to non-household B. Initiated by the employer (at any time)
work at a wage rate lower than that (a) Misconduct or willful disobedience by the
mandated for agricultural or non- domestic worker of the lawful order of the
agricultural enterprises depending on the employer in connection with the former’s
case. (Sec. 22, RA 10361) work;
(b) Gross or habitual neglect or inefficiency
Employment Age of Domestic Workers: by the domestic worker in the performance
Unlawful to employ any person below fifteen of duties;
(15) years of age as a domestic worker (Sec. (c) Fraud or willful breach of the trust
16, RA 10361) reposed by the employer on the domestic
worker;
Persons between 15-18 years old should only (d) Commission of a crime or offense by the
be employed in non-hazardous work. (DO 4- domestic worker against the person of the
99 Sec. 4) employer or any immediate member of the
employer’s family;
Daily Rest Period: Aggregate of eight (8) (e) Violation by the domestic worker of the
hours per day. (Sec. 20, RA 10361) terms and conditions of the employment
contract and other standards set forth under
Employment Certification: ER shall give the this law;
househelper a written statement of the (f) Any disease prejudicial to the health of
nature and duration of the service and his or the domestic worker, the employer, or
her work performance as househelper upon member/s of the household; and
severance. (Sec. 35, RA 10361) (g) Other causes analogous to the foregoing.
(Sec. 34, RA 10361)
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(3) Immediate payment upon ER’s receipt Homework is prohibited in the ff:
of finished goods or articles (Sec 6, (1) explosives, fireworks and articles of
Rule XIV, Book III, IRR) like character;
(4) SSS, MEDICARE and ECC premium (2) drugs and poisons; and
contributions shall be deducted from (3) other articles, the processing of which
their pay and shall be remitted by requires exposure to toxic substances.
ER/contractor/subcontractor to the (Sec 13, Rule XIV, Book III, IRR)
SSS (Sec 6, Rule XIV, Book III, IRR)
Conditions for deduction from homeworker’s
Liability of Employer earnings
(1) ER may require No deduction from the homeworker’s
homeworker to redo work earnings for the value of materials lost,
improperly executed destroyed or damaged unless:
without additional pay (1) Homeworker is clearly shown to be
(Sec 9a, Rule XIV, Book III, responsible for loss or damage
IRR) (2) Reasonable opportunity to be heard
(2) ER need not pay (3) Amount of deduction is fair and
homeworker for any work reasonable, and does not exceed
done on goods or articles actual loss or damage
not returned due to (4) Deduction does not exceed 20% of
homeworker’s fault (Sec homeworker’s weekly earnings (Sec. 8,
9b, Rule XIV, Book III, IRR) Rule XIV, Book III, IRR)
(3) If
subcontractor/contractor O. APPRENTICES AND LEARNERS
fails to pay homeworker,
ER is jointly and severally Relevant Law: RA 7796 (Technical Education
liable with the former to and Skills Development Act of 1994 or
the homeworker for TESDA Act of 1994)
his/her wage (Sec 11, Rule
XIV, Book III, IRR) O.1. APPRENTICES
(4) ER shall assist the
homeworkers in the Art. 58 has been superseded by Section 4 (j),
maintenance of basic safe (k), (l), (m) of RA 7796 quoted below:
and healthful working
conditions at the (j) "Apprenticeship" training within
homeworkers’ place of employment with compulsory related
work. (Sec 11, Rule XIV, theoretical instruction involving a contract
Book III, IRR of LC) between an apprentice and an employer on
an approved apprenticeable occupation.
Regional Office shall provide technical
assistance to registered homeworkers’ (k)“Apprentice" is a person undergoing
organizations (Sec 14, Rule XIV, Book III, IRR training for an approved apprenticeable
of LC) occupation during an apprenticeship
agreement.
Prohibited Homework
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in exchange for the privilege to study free of All learners who have been allowed or
charge, provided, the students are given real suffered to work during the first two
opportunities, including such facilities as (2) months shall be deemed regular
may be reasonable and necessary to finish employees if training is terminated by
their chosen courses under such agreement. the employer before the end of the
(Sec. 14, Rule X, IRR) stipulated period through no fault of
N.2. LEARNERS the learners.
Persons hired as trainees in semi-skilled and The learnership agreement shall be subject
other industrial occupations which are non- to inspection by the Secretary of Labor and
apprenticeable. Learnership programs must Employment or his duly authorized
be approved by the authority. (Sec. 4, RA representative. (Art. 75, LC)
7796)
Learners employed in piece or incentive-rate
[Occupations] which may be learned jobs during the training period shall be paid
through practical training on the job in a in full for the work done. (Art. 76, LC)
relatively short period of time which shall
not exceed three (3) months. (Art. 73(2), LC) P. HANDICAPPED WORKERS –
DIFFERENTLY-ABLED WORKERS (RA
When may learners be hired
7277 - MAGNA CARTA FOR DISABLED
(1) No experienced workers are available;
(2) The employment of learners being
PERSONS, AS AMENDED BY RA 9442)
necessary to prevent the curtailment of
employment opportunities; and Disabled Persons are those suffering from
(3) The employment will neither create restriction or different abilities, as a result of
unfair competition in terms of labor a mental, physical or sensory impairment, to
costs nor impair working standards. perform an activity in the manner or within
(Art. 74, LC) the range considered normal for a human
being [Sec. 4(a), RA 7277]
Learnership Agreement
Any employer desiring to employ learners Impairment is any loss, diminution or
shall enter into a learnership agreement aberration of psychological, physiological, or
with them, which agreement shall include: anatomical structure or function [Sec. 4(b),
(1) The names and addresses of the RA 7277]
learners;
(2) The duration of the learnership period, Disability shall mean:
which shall not exceed three (3) a. physical or mental impairment that
months; substantially limits one or more
(3) The wages or salary rates of the psychological, physiological or
learners which shall begin at not less anatomical function of an individual or
than seventy-five percent (75%) of the activities of such individual; OR
applicable minimum wage; and b. a record of such an impairment; OR
(4) A commitment to employ the learners c. being regarded as having such an
if they so desire, as regular employees impairment [Sec 4(c), RA 7277]
upon completion of the learnership.
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Handicap refers to a disadvantage for a The most important element is the employer’s
given individual, resulting from an control of the employee’s conduct, not only as
impairment or a disability that limits or to the result of the work to be done, but also
prevents the function, or activity that is as to the means and methods to accomplish it.
considered normal given the age and sex of (Lirio v. Genovia, G.R. No. 169757, Nov. 23,
the individual. [Sec 4(d), RA 7277] 2011).
Rights of disabled workers The control test calls merely for the
“existence” of the right to control and not the
(1) Equal opportunity for employment “actual exercise” of the right. (Zanotte Shoes v.
(2) Reserved contractual positions NLRC, G.R. No. 100665, Feb. 13, 1995).
5% of all casual, emergency and contractual
positions in the DSWD; DOH, DepEd; and Economic Dependence Test
other government agencies, offices or Two-tiered approach.
corporations engaged in social development (1) First Tier: Control Test (refer to the Four-
[Sec 5 (par. 2), RA 7277] Fold Test)
(3) Sheltered employment (2) Second Tier: The underlying economic
(4) Apprenticeship opportunity realities of the activity or relationship.
(5) Full minimum wage (Sec 6, Wage (Sevilla v. Court of Appeals, G.R. Nos. L-
Order No. NCR-17, May 17, 2012) 41182-3, Apr. 15, 1988).
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employment is also considered regular, but business operations of the employer (Villa
only with respect to such activity and while v. NLRC, G.R. No. 117043, Jan. 14, 1988)
such activity exists. (Forever Richons Trading
Corp. v. Molina, G.R. No. 206061, Sept. 16, Work pool employee
2013). A project employee or a member of a work
pool may acquire the status of a regular
Length of time involved employee when the following concur:
Length of time is not controlling, merely (1) There is a continuous rehiring of project
serves as a badge of regular employment. employees even after cessation of a
(Maraguinot v. NLRC, G.R. No. 120969. Jan. project; and
22, 1998) (2) The tasks performed by the alleged
“project employee” are vital, necessary,
III. PROJECT EMPLOYMENT and indispensable to the usual business or
A project employee is one who is hired for trade of the employer. However, the
carrying out a separate job, distinct from the length of time during which the employee
other undertakings of the company, the scope was continuously rehired is not
and duration of which has been determined controlling, but merely serves as a badge
and made known to the employees at the time of regular employment.
of employment. (Hanjin Heavy Industries &
Const. Co. v. Ibañez, G.R. No. 170181, June 26, A work pool may exist although the workers in
2008) the pool do not receive salaries and are free to
seek other employment during temporary
Whether or not the project has a direct relation breaks in the business, provided, that the
to the business of the employer is not worker shall be available when called to report
important, BUT: for a project. Although primarily applicable to
(1) Employee must be informed of the nature regular seasonal workers, this set-up can
and duration of project likewise be applied to project workers insofar
(2) Project and principal business of ER are as the effect of temporary cessation of work is
two separate things concerned. (Maraguinot v. NLRC, G.R. No.
(3) No attempt to deny security of tenure to 120969. Jan. 22, 1998)
the worker
IV. SEASONAL
Two Kinds of Project Employee Seasonal employees are those whose work or
(1) For a particular job or undertaking that is services to be performed are seasonal in
WITHIN the regular or usual business of nature, employment is for the duration of the
the employer company, but which is season.
distinct and separate, and identifiable as
such, from the other undertakings of the There is no continuing need for the worker.
company (i.e. construction)
(2) For a particular job or undertaking that is V. CASUAL
NOT within the regular business of the A casual employee is engaged to perform a
corporation. Such a job or undertaking job, work or service which is merely incidental
must also be identifiably separate and to the business of the employer, and such job,
distinct from the ordinary or regular work or service is for a definite period made
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known to the employee at the time of contractor and of the latter’s subcontractor, if
engagement. any, shall be paid in accordance with the
provisions of this Code.
Someone who is not a regular, project or
seasonal employee. In the event that the contractor or
subcontractor fails to pay the wages of his
Requirements to become regular employee: employees in accordance with this Code, the
(1) One (1) year service, continuous or broken employer shall be jointly and severally liable
with respect to activity employed with his contractor or subcontractor to such
(2) Employment shall continue while such employees to the extent of the work performed
activity exists under the contract, in the same manner and
extent that he is liable to employees directly
VI. FIXED-TERM employed by him.
Art. 286 has no application to instances where The Secretary of Labor and Employment may,
a fixed period of employment was agreed by appropriate regulations, restrict or prohibit
upon knowingly and voluntarily by the parties, the contracting-out of labor to protect the
without any force, duress or improper pressure rights of workers established under this Code.
being brought to bear upon the employee and In so prohibiting or restricting, he may make
absent any other circumstances vitiating his appropriate distinctions between labor-only
consent, or where it satisfactorily appears that contracting and job contracting as well as
the employer and employee dealt with each differentiations within these types of
other on more or less equal terms with no contracting and determine who among the
moral dominance whatever being exercised by parties involved shall be considered the
the former over the latter. (Brent School v. employer for purposes of this Code, to prevent
Zamora, G.R. No. L-48494, Feb. 5, 1990) any violation or circumvention of any provision
of this Code.
Conditions for the validity of fixed contract
agreement between employer and employee There is "labor-only" contracting where the
(1) Fixed period of employment was person supplying workers to an employer does
knowingly and voluntarily agreed upon by not have substantial capital or investment in
the parties without any force, duress, or the form of tools, equipment, machineries,
improper pressure or any other work premises, among others, and the workers
circumstances vitiating his consent; or recruited and placed by such person are
(2) The employer and the employee dealt with performing activities which are directly related
each other on more or less equal terms to the principal business of such employer. In
with no moral dominance exercised by the such cases, the person or intermediary shall be
former or the latter. 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
A.3. JOB CONTRACTING directly employed by him.
I. ARTICLES 106 – 109
Art. 106, LC: Contractor or subcontractor. Art. 107, LC: Indirect employer. The provisions
Whenever an employer enters into a contract of the immediately preceding article shall
with another person for the performance of likewise apply to any person, partnership,
the former’s work, the employees of the association or corporation which, not being an
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Agreement and including unremitted legal completed within or outside the premises of
not due to mandatory contributions, the principal; or
authorized e.g., SSS, PhilHealth, Pag- (b) The contractor does not exercise the right
causes ibig, ECC, shall be borne by to control the performance of the work of the
the party at fault, without employee.
prejudice to the solidary
liability of the parties to the Substantial capital – refers to paid-up capital
Service Agreement. stocks/shares of at least P3,000,000 in the
case of corporations, partnerships and
cooperatives; in case of single proprietorship,
Due to expiration Employee may opt for
a net worth of at least P3,000,000.
of Service payment of separation
Agreement, or benefits as may be
Mandatory registration
from the provided by law or the
It shall be mandatory for all persons or
completion of the Service Agreement, without
entities, including cooperative, acting as
phase of the job, prejudice to his/her
contractors, to register with the Regional
work or service entitlement to the
Office of the DOLE where it principally
for which the completion bonuses or
operates.
employee is other emoluments,
Failure to register shall give rise to the
engaged including retirement
presumption that the contractor is engaged in
benefits whenever
labor-only contracting.
applicable
Accordingly, the registration system
governing contracting arrangements and
Prohibition against labor-only contracting implemented by the Regional Offices of the
Labor-only contracting, a prohibited act, is an DOLE is hereby established, with the Bureau
arrangement where the contractor or of Working Conditions (BWC) as the central
subcontractor merely recruits, supplies or registry. (Sec. 14, D.O. 18-A-11)
places workers to perform a job, work or
service for a principal. (Polyfoam-RGC III. DEPARTMENT CIRCULAR NO. 01-12
International Corp. v. Concepcion, G.R. No. Applicability of D.O. 18-A-11 to BPO
172349, June 13, 2012) DO 18-A speaks of a trilateral relationship that
characterizes the covered contracting/sub-
ELEMENTS OF LABOR-ONLY CONTRACTING: contracting arrangement. Thus, vendor-
(a.1) The contractor does not have substantial vendee relationship for entire business
capital or investments in the form of tools, processes covered by the applicable provisions
equipment, machineries, work premises, of the Civil Code on Contracts is excluded.
among others, and
(a.2) The employees recruited and places are DO 18-A contemplates generic or focused
performing activities which are usually singular activity in one contract between the
necessary or desirable to the operation of the principal and the contractor (for example,
company, or directly related to the main janitorial, security, merchandising, specific
business of the principal within a definite or production work) and does not contemplate
predetermined period, regardless of whether information technology-enabled services
such job, work or service is to be performed or involving an entire process (for example, BPO,
KPO, legal process outsourcing, hardware
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and/or software support, medical latter's employees, in the same manner and
transcription, animation services, back office extent that the principal is liable to employees
operations/support). These companies directly hired by him/her, as provided in Article
engaged in BPOs may hire employees in 106 of the Labor Code, as amended.
accordance with applicable laws, and
maintain these EEs based on business A finding of commission of any of the
requirements, which may or may not be for prohibited activities in Sec. 7, or violation of
different clients of the BPOs at different either Secs. 8 or 9 hereof shall render the
periods of the EE’s employment. principal the direct employer of the employees
of the contractor or subcontractor, pursuant to
Applicability of D.O. 18-A-11 to the Construction Article 109 of the Labor Code, as amended.
Industry (Sec. 27, D.O 18-A-11)
Licensing and the exercise of regulatory
powers over the construction industry is V. TRILATERAL RELATIONSHIP IN JOB
lodged with PCAB which is under the CONTRACTING
Construction Industry Authority of the
Philippines and not with the DOLE or any of its (1) Principal refers to any employer, whether a
regional offices. person or entity, including government
Thus, the DOLE, through its regional offices agencies and GOCCs, who/which puts out
shall not require contractors licensed by PCAB or farms out a job, service or work to a
in the Construction Industry to register under contractor.
DO 18-A. Moreover, findings of violation/s on (2) Contractor refers to any person or entity,
labor standards and occupational health and including a cooperative, engaged in a
safety standards shall be coordinated with legitimate contracting or subcontracting
PCAB for its appropriate action, including the arrangement providing either services,
possible cancellation/suspension of the skilled worker, temporary workers or a
contractor’s license. combination of services to a principal
under a Service Agreement.
IV. EFFECTS OF LABOR-ONLY CONTRACTING (3) Contractor’s employee includes one
Employees become regular employees employed by a contractor to perform or
Where an entity is declared to be a labor-only complete a job, work, or service pursuant
contractor, the employees supplied by said to a Service Agreement with a principal
contractor to the principal employer become It shall also refer to regular employees of
regular employees of the latter. Having gained the contractor whose functions are not
regular status, the employees are entitled to dependent on the performance or
security of tenure and can only be dismissed completion of a specific job, work or
for just or authorized causes and after they service within a definite period of time i.e.
had been afforded due process. (Norkis administrative staff.
Trading v. Buenavista, G.R. No. 182018. Oct. 10,
2012) Relationships that exist in a legitimate
contracting or subcontracting:
Contractor solidarily liable with principal (1) An employer-employee relationship
A finding by competent authority of labor-only between the contractor and the employees
contracting shall render the principal jointly it engaged to perform the specific job,
and severally liable with the contractor to the work or service being contracted; and
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(2) A contractual relationship between the under special laws or under valid
principal and the contractor as governed agreements. (San Miguel Brewery Sales
by the provisions of the Civil Code. (Sec. 5, Force Union v. Ople, G.R. No. 53515,
par. 1, D.O. 18-A-11) February 8, 1989)
Gross and Habitual Neglect In order to constitute just cause for an EE’s dismissal due to
negligence, it must not only be gross, but also habitual. A
single or an isolated act that cannot be categorized as
habitual, hence, not a just cause for their dismissal.
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Loss of Trust and Confidence (a) There must be an act, omission, or concealment
(b) The act, omission or concealment justifies the loss of trust
and confidence of the employer to the employee;
(c) The employee concerned must be holding a position of
trust and confidence;
(d) The loss of trust and confidence should not be simulated;
(e) It should not be used as a subterfuge for causes which are
improper, illegal, or unjustified; and
(f) It must be genuine and not a mere afterthought to justify
an earlier action taken in bad faith (China City Restaurant
Corp. v. NLRC, 217 SCRA 443; Midas Touch v. NLRC, G.R.
No. 111639, 29 July 1996)
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(6) Antipathy and antagonism (Wensha Spa (4) SP as a benefit in the CBA or company
Center v. Yung, G.R. No. 185122, Aug. 16, policy
2010)
(7) Job with a totally different nature (DUP Instances when the award of separation pay, in
Sound Phils. v. CA, G.R. No. 168317m Nov. lieu of reinstatement to an illegally dismissed
21, 2011) employee, is proper:
(8) Long passage of time (1) When reinstatement is no longer possible,
(9) Inimical to the employer's interest in cases where the dismissed employee's
(10) When supervening facts have transpired position is no longer available;
which make execution on that score unjust (2) The continued relationship between the
or inequitable or, to an increasing extent employer and the employee is no longer
(Emeritus Security & Maintenance Systems, viable due to the strained relations
Inc. v. Dailig, G.R. No. 204761, April 2, between them; and
2014) (3) When the dismissed employee opted not
to be reinstated, or the payment of
Prescription Period separation benefits would be for the best
4 years from the time of dismissal. [Art. 1146, interest of the parties involved. (Book VI,
CC] Rule 1, Section 4 (b), Rule I, IRR)
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Indemnity of Employer
Doctrine in Validity of
Period Liability of ER
effect Dismissal
Prior 1989 Pre-Wenphil Illegal Reinstatement + Backwages
Feb. 1989 – 1999 Wenphil Valid Dismiss now, indemnity pay later
Jan. 2000 – Oct. Serrano Ineffectual Full backwages up to reinstatement/finality of
2004 decision
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advancement of the employer’s interest and When the transfer is not unreasonable, or
not for the purpose of defeating or inconvenient, or prejudicial to the employee,
circumventing the rights of the employees and it does not involve a demotion in rank or
under special laws or under valid agreements, diminution of salaries, benefits, and other
this Court will uphold them…Even as the law is privileges, the employee may not complain
solicitous of the welfare of the employees, it that it amounts to a constructive dismissal.
must also protect the right of an employer to [Bisig ng Manggagawa sa TRYCO v. NLRC,
exercise what are clearly management 2008]
prerogatives. The free will of management to
conduct its own business affairs to achieve its C. PRODUCTIVITY STANDARD
purpose cannot be denied. [Ernesto G. Ymbong
vs. ABS-CBN Broadcasting Corp., 2012] The employer has the right to demote and
transfer an employee who has failed to
A. DISCIPLINE observe proper diligence in his work and
incurred habitual tardiness and absences and
The employer’s right to conduct the affairs of indolence in his assigned work. [Petrophil
his business, according to its own discretion Corporation vs. NLRC, 1986]
and judgment, includes the prerogative to
instill discipline in its employees and to D. GRANT OF BONUS
impose penalties, including dismissal, upon
erring employees. [Consolidated Food A bonus is "a gratuity or act of liberality of the
Corporation vs. NRLC, 1999] [St. Michael’s giver which the recipient has no right to
Institute vs. Santos, 2001] demand as a matter of right" [Aragon vs. Cebu
Portland Cement Co., 61 O.G. 4597].
Although we recognize the right of employers
to shape their own work force, this The granting of a bonus is basically a
management prerogative must not curtail the management prerogative which cannot be
basic right of employees to security of tenure. forced upon the employer "who may not be
[Alert Security & Investigation Agency, Inc. vs. obliged to assume the onerous burden of
Saidali Pasawilan, et. al., 2011] granting bonuses or other benefits aside from
the employee's basic salaries or wages" xxx
B. TRANSFER OF EMPLOYEES [Kamaya Point Hotel vs. National Labor
Relations Commission, Federation of Free
The Employer has the right to transfer or Workers and Nemia Quiambao, G.R. No. 75289,
assign Employees from one area of operation August 31, 1989]. [Traders Royal Bank vs.
to another, or one office to another or in NLRC, 1990]
pursuit of its legitimate business interest,
Provided there is no demotion in rank or E. CHANGE OF WORKING HOURS
diminution of salary, benefits and other
privileges and not motivated by discrimination Further, management retains the prerogative,
or made in bad faith, or effected as a form of whenever exigencies of the service so require,
punishment or demotion without sufficient to change the working hours of its
cause. [Westin Phil. Plaza Hotel v. NLRC, 1999] employees. So long as such prerogative is
exercised in good faith for the advancement of
the employer’s interest and not for the
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purpose of defeating or circumventing the possibility that a competitor company will gain
rights of the employees under special laws or access to its secrets and procedures. [Star
under valid agreements, this Court will uphold Paper Corp. vs. Simbol, 2006]
such exercise. [Sime Darby Pilipinas Inc. v.
NLRC, 1998] G. POST-EMPLOYMENT BAN
In cases where an employee assails a contract
containing a provision prohibiting him or her
F. RULES ON MARRIAGE BETWEEN from accepting competitive employment as
EMPLOYEES OF COMPETITOR- against public policy, the employer has to
EMPLOYERS adduce evidence to prove that the restriction is
reasonable and not greater than necessary to
The prohibition against personal or marital protect the employer’s legitimate business
relationships with employees of competitor interests. The restraint may not be unduly
companies is reasonable because harsh or oppressive in curtailing the
relationships of that nature might compromise employee’s legitimate efforts to earn a
the interests of the company. The company livelihood and must be reasonable in light of
only aims to protect its interests against the sound public policy. [Rivera v Solidbank, 2006]
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A.3. BENEFITS
I. MONTHLY PENSION [SEC.12] The monthly pension shall be suspended upon
Computation of monthly pension the reemployment or resumption of self-
The monthly pension shall be the highest of employment of a retired member who is less
the following amounts: than sixty-five [65] years old.
(1) P300 + [20% x [average monthly credit]] +
[2% x [average monthly credit] x [# of cash In Case of Death of Member
credited years of service in excess of 10 (1) His/her primary beneficiaries as of the
years]]; date of his/her retirement shall be entitled
(2) 40% x [average monthly credit]; to receive the monthly pension; or
(3) P1,000; provided, that the monthly (2) If he/she has no primary beneficiaries AND
pension shall in no case be paid for an he/she dies within sixty [60] months from
aggregate amount of less than 60 the start of his/her monthly pension,
months. his/her secondary beneficiaries shall be
entitled to a lump sum benefit equivalent
Note: Notwithstanding the abovementioned, to the total monthly pensions
minimum pension is P1,200 for members with corresponding to the balance of the five-
at least 10 years credit service, P2,400 for year guaranteed period, excluding the
those with 20 years. dependents’ pension.
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(5) Maximum of 120 days per 1 calendar year reimbursement must be filed within one [1]
[i.e maximum permissible for the same year from the last day of confinement.
sickness and confinement is 240 days for 2
consecutive years]; IX. MATERNITY LEAVE BENEFITS [SEC.
(6) The employer has been notified, or, if a 14-A]
separated, voluntary or self-employed Eligibility Requirements
member, the SSS directly notified within 5 (1) A female member
days of confinement; (2) Paid at least three [3] monthly
(7) Notice to employer or SSS not needed contributions in the twelve-month period
when confinement is in a hospital; notice immediately preceding the semester of her
to employer not required as well when childbirth or miscarriage
Employee became sick or injured while (3) She shall have notified her employer of her
working or within premises of the pregnancy and the probable date of her
employer. childbirth, which notice shall be
transmitted to the SSS in accordance with
Benefit: daily cash allowance paid for the the rules and regulations it may provide;
number of days a member is unable to work
due to sickness or injury equivalent to 90% x Process
[average daily salary credit] The full payment shall be advanced by the
employer within thirty [30] days from the filing
Note: One hundred percent [100%] of the daily of the maternity leave application;
benefits provided in the preceding paragraph
shall be reimbursed by the SSS to said Coverage
employer upon receipt of satisfactory proof of The maternity benefits provided under this
such payment and legality thereof if the section shall be paid only for the first four [4]
following conditions are met: deliveries or miscarriages;
(1) The employer notified the SSS of the
confinement within five calendar days Employer’s Reimbursement
after receipt of the notification from the That the SSS shall immediately reimburse the
employee member employer of one hundred percent [100%] of
(2) If the notification to the SSS is made by the amount of maternity benefits advanced to
the employer beyond five calendar days the employee by the employer upon receipt of
after receipt of the notification from the satisfactory proof of such payment and legality
employee member, he shall be reimbursed thereof. Note: All of these benefits are tax-exempt.
only for each day of confinement starting
from the tenth calendar day immediately A.4. BENEFICIARIES
preceding the date of notification to the
1. PRIMARY
SSS.
(1) Dependent spouse – until remarriage [see
(3) SSS shall reimburse the employer or pay
above];
the unemployed member only for
(2) Dependent children [legitimate,
confinement within the one-year period
legitimated, legally adopted, and
immediately preceding the date the claim
illegitimate] [see above]; illegitimate
for benefit or reimbursement is received by
children are entitled only to 50% of the
the SSS, except confinement in a hospital
share of legitimate children unless there
in which case the claim for benefit or
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are no legitimate children, in which case, separation which is compensable under this
they get 100%. Act, all service credited for retirement,
resignation or separation for which
2. SECONDARY corresponding benefits have been awarded
Shall only receive when the primary under this Act or other laws shall be excluded
beneficiaries are absent in the computation of service
Dependent parents
Note: The GSIS may prescribe rules for the
3. OTHERS – shall only receive when the inclusion of part time and other services with
primary and secondary beneficiaries are compensation.
absent
Any other person designated by I. MONTHLY PENSION [SEC. 9]
member as his/her secondary The amount shall be:
beneficiary. (a) 37.5% x [revalued ave. monthly
compensation]
(b) Plus 2.5 x [revalued ave. monthly
B. GSIS [RA 8291]
compensation] x [years in service in excess
of 15 years].
B.1. COVERAGE
The monthly pension shall not exceed
All public sector employees below the
90% of the average monthly
compulsory retirement age of 65, irrespective
compensation.
of employment status.
It shall not be less than P2,400 for those
with 20 years of service and not less than
B.2. EXCLUSIONS FROM COVERAGE
P1,300 for everyone else.
(1) AFP and PNP;
(2) Members of the Judiciary and
Constitutional Commissions who are
II. RETIREMENT BENEFITS [SEC. 13]
covered only by life insurance as they have Eligibility requirements [Sec. 13-A]
separate retirement schemes; (1) 15 years service;
(3) Contractual employees with no employer- (2) 60 years of age; and
employee relationship with the agency (3) Not receiving pension benefit from
they serve. permanent total disability.
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(b) Cash payment equivalent to 18 x [basic Paid according to GSIS prescribed schedule
monthly pension] plus monthly pension for [this is similar to the scheme used by SSS;
life immediately but with no 5-year refer to section II subsection D-3 above];
guarantee member availing of permanent partial
Note: Subject to periodic adjustment [Sec. 14] disability must satisfy condition E.1.a. above
regarding the disability not being due to his
III. PERMANENT DISABILITY BENEFITS own fault and either E.1.b.i. or E.1.b.ii.
Eligibility requirements for Permanent Total regarding employment status and services
Disability rendered.
(1) Disability not due to employee’s own grave
misconduct, notorious negligence, IV. DEATH BENEFITS [SEC. 21]
habitual intoxication, or willful intention to When member dies, the primary beneficiaries
kill himself or another; are entitled to only one of the following:
(2) Employee is: (1) Survivorship pension
(a) In service at the time of disability; or a. If he was in the service when he died;
(b) Even if separated, he has paid at least or
36 monthly contributions within the 5- b. Even if separated from the service, he
year period immediately prior to has at least 3 years of service and has
disability or has paid a total of at least paid 36 monthly contributions within
180 monthly contributions prior to the 5 years immediately preceding
disability; and death; or
(c) Member is not enjoying old-age c. Even if separated from the service, he
retirement benefit. has paid 180 monthly contributions
prior to death.
Benefit for Permanent Total Disability (2) Survivorship pension plus cash payment of
Monthly income benefit for life equal to 100% ave. monthly compensation for
basic monthly pension – This is effective every year of service [so essentially,
from date of disability; pension plus total contributions made]
If member is in service at the time of a. If he was in the service when he died;
disability and he has paid at least 180 and
monthly contributions, in addition to the b. With 3 years of service.
monthly income benefit, he shall receive (3) Cash payment equivalent to 100% ave.
an additional cash payment of 18 times monthly compensation for each year of
basic monthly pension. service he paid contributions or P12,000
whichever is higher
To the ineligible a. With 3 years of service; and
If member has rendered at least 3 years of b. He has failed to qualify in the prior 2
service, then he shall receive cash payment schemes.
equal to 100% of ave. monthly compensation
for each year of service [essentially total
amount of contributions made] or P12,000 V. FUNERAL BENEFITS [SEC. 23]
whichever is higher. Fixed by GSIS rules and regulations
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(2) Member separated from service but still payment of 100% of ave. monthly
entitled to funeral benefit; compensation for each year of service [so
(3) Pensioner; essentially, the total amount of all
(4) Retiree who at the time of retirement was contributions paid] or P12,000 whichever
of pensionable age but opted to retire is higher.
under RA 1616. (2) Below 60 years of age and at least 15 years
of service: cash payment equivalent to 18 x
VI. LOAN [monthly pension] at the time of
GSIS website provides for this resignation or separation plus an old-age
pension benefit equal to basic monthly
VII. TEMPORARY DISABILITY BENEFITS pension.
Similar to sickness
IX. UNEMPLOYMENT BENEFITS [SEC. 11]
Eligibility requirements and other conditions: Eligibility requirements
(1) Employee must be: (1) Employee separated from service due to
I. in service at the time of disability; or abolition of his office or position; and
II. if separated, he has rendered at least (2) Employee has been paying integrated
3 years of service and paid at least 6 contributions for at least 1 year prior to
monthly contributions in the 12 separation.
month period immediately prior to
disability; Benefit
(2) All sick leave credits including CBA sick Monthly cash payments of 50% of average
leaves for the current year has been used monthly compensation for a duration which is
up; and proportional to years rendered, ranging from 2
(3) Maximum of 120 days per 1 calendar year months to 6 months.
[so maximum permissible for the same
sickness and confinement is 240 days for 2 X. SURVIVORSHIP BENEFITS
consecutive years]. Beneficiaries are entitled to the following:
(1) Basic survivorship pension which is 50% of
Benefit basic monthly pension; and
75% of the current daily compensation for (2) Dependent children’s pension not
every day or fraction thereof of disability or exceeding 50% of the basic monthly
P70 whichever is higher. pension.
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SSS GSIS
Enabling law RA 1161 as amended by RA 8282: RA 8291 amending PD 1146
Social Security Act of 1997
Definition of Employer – any person, natural or juridical, Employer – National government, its
Terms domestic or foreign, who carries on in the political subdivisions, branches,
Philippines any trade business, industry, agencies or instrumentalities,
undertaking, and uses the services of including government-owned or
another person who is under his orders as controlled corporations and financial
regards the employment, except those institutions with original charters
considered as employer under the GSIS. A [GOCCs]; constitutional commissions;
self-employed person shall be both and judiciary
employer and employee at the same time.
Employee – any person who performs Employee – any person receiving
services for an employer in which either or compensation while in service of an
both mental and physical efforts are used employer whether by election or
and who receives compensation for such appointment, irrespective of status of
services, where there is an employer— appointment; baranggay officials; and
employee relationship; also, a self- sangguniang officials
employed person who is both employee
and employer at the same time
Self-employed – any person whose income Note: No counterpart for self-
is not derived from employment, including, employed.
but not limited to:
self-employed professionals;
partners and single proprietors of
businesses;
actors, directors, scriptwriters, news
correspondents not considered as
employees under the above definition;
athletes, coaches, trainers, jockeys;
and
individual farmers and fishers.
Dependents: Same except that a child here is below
Legal spouse entitled by law to receive 18
support;
Child – unmarried, not gainfully
employed, and below 21 or
Child over 21 if he or she became
permanently incapacitated and
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A.2. REQUISITES FOR A VALID STRIKE the results of the voting at least 7 days
A valid strike must have a lawful ground and before the intended strike1 or lockout,
must conform with the procedural requirements subject to the cooling-off period herein
set by law. provided. [Art. 269 (f)]
(6) Observance of the 7-day waiting period
Substantial Requirements/Grounds
A strike or lockout may be declared in cases of: Compliance with both cooling-off and waiting
Bargaining deadlocks periods
ULP [Art. 263 (c)] The observance of both periods must be
complied with, although a labor union may take
Note: Only gross violations of the economic a strike vote and report the same within the
provisions of the CBA are treated as ULP. [BPI statutory cooling-off period. The cooling-off and
Employees Union-Davao FUBU v. BPI, 2013] 7-day strike ban provisions of law constitute a
valid exercise of police power of the State.
When no lawful strike can be declared [National Federation of Sugar Workers v. Ovejera,
(1) Ground is an inter-union or intra-union 1982]
dispute
(2) No notice of strike A.3. REQUISITES FOR A VALID LOCKOUT
(3) No strike vote obtained and reported to the
NCMB Lockout
(4) After assumption or certification by the Lockout is the temporary refusal of an employer
Secretary of Labor to furnish work as a result of an industrial or
labor dispute. [Art. 218 (p)]
Procedural requirements
(1) Effort to bargain Limitations
(2) Filing and service of notice of strike [N]o employer may declare a lockout on
With the Department at least 30 days grounds involving inter-union and intra-union
before intended date of strike. (Art. disputes. [Art. 269 (b)]
269(c))
(3) Observance of cooling-off period Grounds
bargaining deadlock – 30 days Similar to a strike, the proper grounds for a
ULP but not union busting – 15 days lockout are
ULP and union busting – no cooling-off (1) bargaining deadlock
period (2) ULP by labor organizations
(4) Strike vote
Requisites
Requirements:
(1) Effort to bargain
(a) approval by a majority of the total
union membership in the (2) Filing and service of notice of lockout
bargaining nit concerned [Filed] with the Department at least 30
(b) approval is obtained by secret ballot days before the intended date thereof.
in a meeting/referendum called for […] (Art. 269(c))
the purpose Notice must be served to the employees
(5) Strike vote report
through the representative union.
[I]n every case, the union or the
employer shall furnish the Department
1 7-day “Waiting Period”.
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totally foreign to the context of the dispute (1) Automatic injunction of intended of
[PCIB v. Philnabank Employees Association] impending strike or lockout
[S]uch assumption or certification shall have
Picketing and libel the effect of automatically enjoining the
Libel laws are not applied strictly considering intended or impending strike or lockout as
that there is emotional tension in the picket specified in the assumption or certification
lines and expected discourteous and impolite order. […] [Art.269 (g)]
exchanges between the employees and the
employer. [PCIB v. Philnabank Employees (2) Return-to-work and readmission if strike or
Association, 1981] lockout has already taken place
[A]ll striking or locked out employees shall
A.4. ASSUMPTION OF JURISDICTION BY immediately return-to-work and the employer
THE DOLE SECRETARY OR shall immediately resume operations and
CERTIFICATION OF THE LABOR DISPUTE readmit all workers under the same terms and
TO THE NLRC FOR COMPULSORY conditions prevailing before the strike or
lockout. […] [Art.269 (g)]
ARBITRATION
Nature of return-to-work order
When Sec. of Labor can Assume Jurisdiction:
[T]he return-to-work order not so much confers
(1) When the labor dispute is in an industry
a right as it imposes a duty[…] The worker must
indispensable to the national interest
return to his job together with his co-workers so
(2) Such dispute is causing or is likely to cause
the operations of the company can be resumed
a strike or lockout
and it can continue serving the public and
promoting its interest. That is the real reason
Powers of the Secretary of Labor (alternative)
such return can be compelled. So imperative is
(1) Assumption of jurisdiction. The Secretary of
the order in fact that it is not even considered
Labor will decide the labor dispute
violative of the right against involuntary
himself/herself.
servitude. [Kaisahan ng Mga Manggagawa sa
(2) Certification for compulsory arbitration. The
Kahoy v. Gotamco Sawmills, 1948]
Secretary of Labor will certify the labor
dispute to the NLRC for compulsory
(3) Immediately executory
arbitration.
The assumption and certification orders are
executory in character and must be strictly
Powers of the President (not precluded by the
complied with by the parties. [Allied Banking v.
powers of the Secretary of Labor)
NLRC, 1996]
(1) determine the industries indispensable to
the national interest
(2) assume jurisdiction over any such labor B. DEFINITIONS/CONCEPTS
dispute to settle or terminate such dispute
Labor Dispute
A.5. NATURE OF ASSUMPTION ORDER “Labor Dispute” includes any controversy or
OR CERTIFICATION ORDER matter concerning terms and conditions of
employment or the association or
(1) Automatic injunction
representation of persons in negotiating, fixing,
(2) Return-to-work and admission
maintaining, changing or arranging the terms
(3) Immediately executory
and conditions of employment, regardless of
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the names of the local chapter’s officers and labor organization and one of those rights is the
members. [Art. 263] right to be chosen as the exclusive bargaining
representative. This is one way the law
4. Employer encourages union registration.
When requested to bargain collectively, an
employer may petition the Bureau for an Venue
election. [Art. 264] BLR Regional Office which issued the
petitioning union’s certificate of registration or
Bystander rule certificate of creation of chartered local.
The employer shall not be considered a party in
the petition with a concomitant right to oppose C.2.b. CERTIFICATION ELECTION IN AN
a petition for certification election. The ORGANIZED ESTABLISHMENT
employer’s participation shall be limited to:
(1) being notified or informed of petitions of Procedure
such nature (1) A verified petition questioning the majority
(2) submitting the list of employees during the status shall be filed by a legitimate labor
pre-election conference should the Med- organization
arbiter act favorably on the petition [Art (2) It must be filed within the 60-day period
258-A introduced by RA 9481] before expiration of CBA (freedom period)
(3) Supported by written consent of at least
The employer is a total stranger in the process 25% of ALL employees in the bargaining
of certification election. The employer has no unit (substantial support)
standing to file a motion to dismiss. [PT&T v
Laguesma, 1993] Substantial support rule
In organized establishments, the incumbent
Venue for filing the petition sole bargaining agent should not be easily
BLR Regional Office which issued the replaced for that would disturb industrial peace.
petitioning union’s certificate of registration or To justify the disturbance, it must appear that at
certificate of creation of chartered local. least a substantial number (25% requirement)
seeks to have a new exclusive bargaining unit.
C.2.a. CERTIFICATION ELECTION IN AN
UNORGANIZED ESTABLISHMENT Rule does not apply to Motions for Intervention
The requisite written consent representing
Procedure substantial support of the workers in the
(1) A petition for certification election shall be bargaining unit [as required in Art. 256 applies
filed by a legitimate labor organization. to petitions for certification only, and not to
(2) Upon filing of the petition, the Med- Arbiter motions for intervention. [PAFLU v Calleja, 1989]
shall automatically conduct a certification
election. Discretionary rule
If the petition does not comply with the
Filing of petition is by a legitimate labor substantial support requirement, the BLR may
organization exercise its discretion in determining whether or
It cannot be an unregistered labor organization. not a certification election must be conducted.
This is best read in relation to Art. 242 which [Scout Albano Memorial College v. Noriel, 1978]
enumerates the rights granted to a legitimate
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Employees who have been improperly laid off C.2.c. RUN-OFF ELECTION
but who have a present, unabandoned right to A "Run-Off election" refers to an election
or expectation of reemployment, are eligible to between the labor unions receiving the 2
vote in certification elections. If the dismissal is highest number of votes in a certification
under question, employees concerned could election.
still qualify to vote in the elections. [Philippine
Fruits v Torres, 1992] C.2.c.i. Run-off election: Requirements
(1) majority of the bargaining unit voted (first
Rationale for Non-Distinction Policy majority of the double majority rule)
Collective bargaining covers all aspects of the (2) three or more choices are available (note:
employment relation and the resultant CBA “no union” is a choice)
binds all employees in the bargaining unit. All (3) not one of the choices receives a majority of
rank and file employees, probationary or the valid votes cast
permanent, have a substantial interest in the (4) total number of votes for all contending
selection of the bargaining representative. unions is at least 50% of the total number
[Reyes v. Trajano, 1992] of votes cast (this means that at least 50%
of the bargaining unit wants to have a
Voting List and Voters union)
The basis of determining voters may be agreed (5) the run-off election shall be conducted
upon by the parties (i.e. the use of payroll). between the labor unions receiving the two
[Acoje Workers Union v NAMAWU, 1963] highest number of votes
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DEFINITIONS
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The sole essence of affiliation is to increase, by Limitations: Terms of the affiliation agreement
collective action, the common bargaining power (e.g. agreement may require 2/3 vote to
of local unions for the effective enhancement disaffiliate instead of a majority) [Phil.
and protection of their interests. Admittedly, Skylanders v. NLRC]
there are times when without succor and
support local unions may find it hard, unaided Generally, a labor union may disaffiliate from
by other support groups, to secure justice for the mother union to form a local or independent
themselves. [Philippine Skylanders v. NLRC, union only during the 60-day freedom period
1992] immediately preceding the expiration of the
CBA. However, even before the onset of the
Nature of Relationship (Agency) freedom period, disaffiliation may be carried out
The mother union, acting for and in behalf of its when there is a shift of allegiance on the part of
affiliate, had the status of an agent while the the majority of the members of the union.
local remained the basic unit of the association, [ANGLO KMU v Samana Bay, G.R. No. 118562
free to serve the common interest of all its July 5, 1996]
members, subject only to restraints imposed by
the constitution and by the by-laws of the Effect of disaffiliation
association. The same is true even if the local is A registered independent union retains its legal
not a legitimate labor organization. [Filipino personality while a chartered local loses its
Pipe and Foundry Corp v. NLRC, 1998] legal personality unless it registers itself.
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reinstatement with full backwages. Any intimidation or obstruct the free ingress to
union officer who knowingly participates in or egress from the employer’s premises for
an illegal strike and any worker or union lawful purposes, or obstruct public
officer who knowingly participates in the thoroughfares.
commission of illegal acts during a strike
may be declared to have lost his E. APPEAL/PROCEDURAL REMEDIES
employment status: Provided, That mere
participation of a worker in a lawful strike E.1. REINSTATEMENT PENDING APPEAL
shall not constitute sufficient ground for An order for reinstatement entitles an employee
termination of his employment, even if a to receive his accrued backwages from the
replacement had been hired by the moment the reinstatement order was issued up
employer during such lawful strike. to the date when the same was reversed by a
higher court without fear of refunding what he
(2) No person shall obstruct, impede, or had received. [Garcia v. Philippine Airlines, Inc.,
interfere with, by force, violence, coercion, G.R. No.164856, 2009]
threats or intimidation, any peaceful
picketing by employees during any labor E.1.a. REQUIREMENTS TO PERFECT
controversy or in the exercise of the right to
APPEAL TO NLRC
self-organization or collective bargaining,
(1) The appeal should be filed within the
or shall aid or abet such obstruction or
reglementary period;
interference.
(2) The Memorandum of Appeal should be
under oath;
(3) No employer shall use or employ any strike-
(3) The appeal fee should be paid;
breaker, nor shall any person be employed
(4) There should be posting of cash or surety
as a strike-breaker.
bond, if judgment involves monetary award;
and
(4) No public official or employee, including
(5) There should be proof of service to the
officers and personnel of the New Armed
adverse party.
Forces of the Philippines or the Integrated
National Police, or armed person, shall
E.2.a. NATIONAL LABOR RELATIONS
bring in, introduce or escort in any manner,
any individual who seeks to replace strikers
COMMISSION (NLRC)
in entering or leaving the premises of a
strike area, or work in place of the strikers. NLRC divisions
The police force shall keep out of the picket (1) Original Jurisdiction: Over petitions for
lines unless actual violence or other injunction or temporary restraining order
criminal acts occur therein: Provided, That under Art. 218 (e).
nothing herein shall be interpreted to (2) Exclusive Appellate Jurisdiction: over all
prevent any public officer from taking any cases decided by labor arbiters (Art 217[b])
measure necessary to maintain peace and and the DOLE regional directors under Art
order, protect life and property, and/or 129.
enforce the law and legal order.
Period of Appeal
(5) No person engaged in picketing shall (1) Labor Arbiter to NLRC: Decisions and
commit any act of violence, coercion or Resolutions of the LA shall be final and
executory unless appealed to the NLRC by
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any or both parties within 10 calendar days Requisites for Perfection of Appeal to the Court
from receipt thereof. [2005 NLRC Rules of of Appeals [Rule 43]
Procedure] (1) The appeal shall be:
(2) Regional director to NLRC: Decisions of the Filed within the reglementary period;
Regional director shall be final and Verified by the appellant himself in
executory unless appealed within 5 days accordance with §4, Rule 7 of the Rules
from receipt thereof. [Art. 129] of Court;
In the form of a memorandum of appeal
Note: If the last day of the reglementary period which shall state the grounds relied
falls on a Sunday or a holiday, the last day shall upon and the arguments in support
be the next working day. thereof, the relief prayed for, and with a
statement of the date the appellant
Grounds of Appeal received the appealed decision,
(1) If there is prima facie evidence of abuse of resolution or order;
discretion on the part of the Labor Arbiter or In three (3) legibly typewritten or
Regional Director; printed copies; and
(2) If the decision, resolution or order was
Accompanied by (a) proof of payment of
secured through fraud or coercion,
the required appeal fee; (b) posting of a
including graft and corruption;
cash or surety bond as provided in
(3) If made purely on questions of law; and/or
Section 6 of the 2005 NLRC Rules, (c) a
(4) If serious errors in the findings of fact are
certificate of non-forum shopping; and
raised which, if not corrected, would cause
(d) proof of service upon the other
grave or irreparable injury to the appellant
parties.
(2) A mere notice of appeal without complying
E.2.b. EFFECT OF NLRC REVERSAL OF with the other requisites aforestated shall
LABOR ARBITER’S ORDER OF not stop the running of the period for
REINSTATEMENT perfecting an appeal.
Even if the order of reinstatement of the Labor (3) The appellee may file with the Regional
Arbiter is reversed on appeal, it is obligatory on Arbitration Branch or Regional Office where
the part of the employer to reinstate and pay the appeal was filed, his answer or reply to
the wages of the dismissed employee during appellant’s memorandum of appeal, not
the period of appeal until reversal by the higher later than 10 calendar days from receipt
court. thereof. Failure on the part of the appellee
who was properly furnished with a copy of
On the other hand, if the employee has been the appeal to file his answer or reply within
reinstated during the appeal period and such the said period may be construed as a
reinstatement order is reversed with finality, the waiver on his part to file the same.
employee is not required to reimburse whatever Subject to the provisions of Article 218 of the
salary he received for he is entitled to such, Labor Code, once the appeal is perfected in
more so if he actually rendered services during accordance with these Rules, the Commission
the period. [Garcia v. Philippine Airlines, Inc., shall limit itself to reviewing and deciding only
G.R. No.164856, 2009] the specific issues that were elevated on appeal.
E.3. REMEDIES
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General rule: it is ULP to discriminate in regard attorney's fees which will ultimately lead to
to wages, hours of work and other terms and sweetheart contracts.
conditions of employment in order to encourage
or discourage membership in any labor (9) To violate a collective bargaining agreement
organization. [Art. 254 [e]]
Flagrant and/or malicious refusal required
Exception (union security clause): Violations of collective bargaining agreements,
Nothing in this Code or in any other law shall except flagrant and/or malicious refusal to
stop the parties from requiring membership in a comply with its economic provisions, shall not
recognized collective bargaining agent as a be considered unfair labor practice and shall
condition for employment. [Art. 254 [e]] not be strikeable. (IRR)
Exception to exception: Those employees who Note: The list in Art. 254 is not exhaustive.
are already members of another union at the Other acts which are analogous to those
time of the signing of the collective bargaining enumerated can be ULPs.
agreement. [Art. 254 [e]]
The alleged violation of the CBA, even
(6) Testimony assuming it was malicious and flagrant, is not a
It is an act of ULP by an employer to dismiss, violation of an economic provision, thus not an
discharge or otherwise prejudice or discriminate Unfair Labor Practice. [BPI Employees Union-
against an employee for having given or being Davao FUBU v. BPI, 2013]
about to give testimony under this Code. [Art.
254 (f)] G. JURISDICTION OF LABOR ARBITERS
AND THE COMMISSION
(7) Violate duty to bargain collectively
Duty to bargain collectively is a continuous Labor Arbiter: Jurisdiction
process, non-compliance constitutes ULP. Except as otherwise provided under the Code
Collective bargaining does not end with the the Labor Arbiters shall have original and
execution of an agreement, being a continuous exclusive jurisdiction to hear and decide:
process, the duty to bargain necessarily (1) Unfair labor practices cases;
imposing on the parties the obligation to live up (2) Termination disputes;
to the terms of such a collective bargaining (3) If accompanied with a claim for
agreement if entered into, it is undeniable that reinstatement, those cases that workers
non-compliance therewith constitutes an unfair may file involving wages, rates of pay, hours
labor practice. [Shell Oil Workers Union v Shell of work and other terms and conditions of
Co., 1971] employment;
(4) Claims for actual, moral, exemplary and
(8) Payment of negotiation or attorney's fees other forms of damages arising from the
Sweetheart contracts employer-employee relations;
Sweetheart contracts are favorable both to the (5) Cases arising from any violation of Art. 264
union and the employer at the expense of the of this Code, including questions involving
employees. The settlement of bargaining issues the legality of strikes and lockouts;
must be made by fair bargaining in good faith, (6) Except claims for Employees
and not through the payment of negotiation or Compensation, Social Security, Medicare
and maternity benefits, all other claims,
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arising from employer-employee relations, (2) the claim does not exceed P5,000
including those of persons in domestic or
household service, involving an amount Notes:
exceeding five thousand pesos (P5,000) (1) The money claim must arise from law or
regardless of whether accompanied with a contracts other than CBA.
claim for reinstatement. [Art. 217] (2) For money claims arising from the
(7) Money claims arising out of employer- implementation of a CBA – Voluntary
employee relationship or by virtue of any Arbitrator or Panel of Voluntary Arbitrators
law or contract, involving claims for actual, have jurisdiction.
moral, exemplary an other forms of (3) For money claims which do not arise from
damages, as well as employment ER-EE relations – Regular Courts have
termination of OFWs; jurisdiction.
(8) Wage distortion disputes in unorganized (4) Nature of Proceeding: Non-litigious. The
establishments not voluntarily settled by Labor Arbiter is not bound by the technical
the parties. [Art. 124] rules of procedure.
(9) Enforcement of compromise agreements (5) The Labor Arbiter shall use all reasonable
when there is non-compliance by any of the means to ascertain the facts in each
parties. [Art. 227] speedily and objectively. [Art. 221]
(10) Other cases as may be provided by law. (6) Employer-employee relationship is a
jurisdictional requisite, absent of which, the
“Exclusive and Original” Jurisdiction subject to NLRC has no jurisdiction to hear and decide
Articles 261 and 262. the case. [Hawaiian-Philippine Company v.
A case under Art 217 may be lodged instead Gulmatico]
with a voluntary arbitrator. The policy of the law (7) Venue: Regional Arbitration Branch (RAB)
is to give primacy to voluntary modes of settling having jurisdiction over the workplace of the
dispute. complainant or petitioner.
(8) Workplace – place or locality where the
G.1. VERSUS REGIONAL DIRECTOR employee is regularly assigned at the time
Jurisdiction on Money Claims (Labor Arbiter vs. the cause of action arose.
Regional Director) (9) In the case of field employees, ambulant or
A money claim arising from employer-employee itinerant workers, their workplace is (a)
relations, except SSS, ECC/Medicare claims, is where they are regularly assigned or (b)
within the jurisdiction of a labor arbiter if: where they are supposed to regularly
(1) The claim, regardless of amount, is receive their salaries and wages or work
accompanied with a claim of reinstatement; instructions from, and report the results of
or their assignment to their employers.
(2) The claim exceeds P5,000, whether or not
there is a claim for reinstatement.
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the workplace of the complainant, that first employees. [Toyota Motor Phil. Corp. v Toyota
which acquired jurisdiction over the case Motor Phil. Corp. Labor Union, 1997]
shall exclude others.
(2) Waiver. When venue is not objected to Effect of Mixed Membership
before the filing of position papers, such The inclusion as union members of employees
issue shall be deemed waived. outside the bargaining unit shall not be a
(3) Transfer. Venue of an action may be ground for the cancellation of the registration of
transferred to a different Regional the union. Said employees are automatically
Arbitration Branch upon written agreement deemed removed from the list of membership
of the parties or upon order of the LA in of said union. [Art. 251-A]
meritorious cases and on motion of the
proper party. Note: [T]he rank and file union and the
supervisors’ union operating the same
OFW Cases. Cases involving overseas Filipino establishment may join the same federation or
workers may be filed before the RAB having national union. [Art. 251]
jurisdiction over the place where the
complainant resides or where the principal Managerial Employees
office of any of the respondents is situated. A managerial employee is one who is vested
with the powers or prerogatives to lay down and
H. RIGHT OF MANAGERIAL AND execute management policies and/or to hire,
SUPERVISORY EMPLOYEES transfer, suspend, lay-off, recall, discharge,
assign or discipline employees. [Art. 218 (m)]
CONCERNING SELF-ORGANIZATION
Managerial employees are not eligible to join,
Supervisory Employees
assist or form any labor organization. [Art. 251]
Supervisory employees are those who, in the
interest of the employer, effectively recommend
such managerial actions if the exercise of such I.RIGHTS AND CONDITIONS OF
authority is not merely routinary or clerical in MEMBERSHIP IN A LABOR
nature but requires the use of independent ORGANIZATION
judgment. [Art. 218 (m)]
I.1. UNION SECURITY
Supervisory employees shall not be eligible for Union security is any form of agreement which
membership in a labor organization of the rank- imposes upon employees the obligation to
and-file employees but may join, assist or form acquire or retain union membership as a
separate labor organizations of their own. [Art. condition affecting employment. [GMC v. Casio,
251] 2010]
Rationale Purpose
Supervisory employees, while in the To safeguard and ensure the existence of the
performance of supervisory functions, become union and thus, promote unionism in general as
the alter ego of the management in the making a state policy.
and the implementing of key decisions. It Limitation
would be difficult to find unity or mutuality of Employees who are already members of
interests in a bargaining unit consisting of a another union at the time of the signing of the
mixture of rank-and-file and supervisory
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collective bargaining agreement may not be continued employment until they are promoted
compelled by any union security clause to join or transferred out of the bargaining unit or the
any union. [Art. 254 (e)] agreement is terminated. [GMC v. Casio, 2010]
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The system of check-off is primarily for the agreement, the Med-Arbiter shall automatically
benefit of the Union, and only indirectly, for the order an election by secret ballot when the
benefit of the individual employees. [Marino v. verified petition is supported by the written
Garnilla, 2009] consent of at least twenty-five percent (25%) of
all the employees in the bargaining unit to
Note: For a check-off to be valid, it must comply ascertain the will of the employees in the
with the requirements of a valid special appropriate bargaining unit.
assessment.
[A]t the expiration of the freedom period, the
Jurisdiction over Check-off disputes employer shall continue to recognize the
The Bureau of Labor Relations has jurisdiction majority status of the incumbent bargaining
to hear, decide and to mete out punishment any agent where no petition for certification election
reported violation under Article 241. is filed. [Art. 256)]
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Effects:
(1) new bargaining agent cannot revoke and
must respect the existing CBA
(2) it may negotiate with management to
shorten the existing CBA’s lifetime
109