‘SEDFREY Mt. CANDELARIA Dear LILY K. GRUBA i Associate Doan for Continuing Legal Education and Bar Review Director GIOVANNI F. VALLENTE Associate Dean for Student Affairs ATTY. JORGE ALFONSO MELO ATTY. JESS RAYMUND M. LOPEZ Bar Review Executive Committee LEILA S. LM Bar Review Secretariat ANGELO GARCIA RACHEL GUTIERREZ ANSO ALVANIZ ‘ABI CONTINUADO. ‘CAMILLE SAPRU EZRA CAPUCION KAREN OREO. MAICA JINGCO KYCIA CUE JOEL CONCEPCION HORTENSE VARELA FIELLE IGNACIO oo IRISBELENG LABOR LAW Voluntnare MARIA AVANCERA PAULINE ONGTENCO ‘Design Comes i J ENTRAL wos _govemments, on the time-honored Principle of Salus popull est suprema lox. (Calalang v. Wiliams, 70 Phil 726, 1940). ‘G& What are the rights of employees ‘under the 4987 Constitution? A: The tights to 2 Tho tights granted to employees are 2 To organize: 2. Te conduct collective bergaining ot To humane working conditions; 3. Tea lliving wage; and - To participate’ in policy and Processes affecting their rights and benefits 5 may be provided by taw (Article Xill, sa. 3. par. 2) : What are the fabor provisions in the Constitution? A: There are 6 main provisions regarding labor, t. The State shalt atford full Protection to labor, focal and activities, to security of tenure, humane conditions of work, and to 2 ving wage. Workers shall also private sectors, to form unions, associations, or sociaties for ‘purposes not contrary to faw shail notbe abridged. (Artioia 1H, sec. 8) Q: is the due process clause under the Constitution applicable to iabor cases? : No. The due process clause is 3 limitation on the exercise by the government of ts powers and does not . a Page 1 of 472016 LABOR LAW PREWEEX REVIEWER apply to the'exercise of preregatives of mrivatel entities, suc as the termination of employrnent under the Labor Code. (Serrano v. NLRC, GR No. 117040, Constitutional due process protects the individual fom the goverment and assures hin of his rights in criminal, chil ‘or adrninistrative proceedings: while statutory. due process found in the Labor Code ‘and implementing Rules protects ‘empleyees from being unjustly terminated just cause after notice and ‘Q: 1s employment a property right? A: Yes. The sight of 3 person to his labor is deemed to be his property within the meaning of the. consfitufonat guarantee When a person has no Lon ot tease of thot, wh ion ar means . worker shoukt therefore be protected and insulated against any arbitrary deprivation ‘of is job. {Phiips Semiconductors v. Fadriquela, GR. 141717, 2004). & What iz the difference between tabor ‘standards and labor relations? egregious, cannot violate the a protection guarantee. {Yrasuegu ¥. Pi GR. No, 168085, 2008). Gs What is the principte™ of co determination? A; The principle of co-datemminstion sefers to the right of workers to participste in the policy and decision making and benefits, without intruding into matters pertaining to managernent prerogative. {PAL v. NLRC, GR. No, 85985, 1993). @ Does a closed-shop agreement " violate the constitutional right to self- organization? A: No. The Supreme Coust has nuled that @ closed-shop agreement in a CBA is ‘atid, and is not a restriction of the right of freedom of association guaranteed by the ‘Constitution. (Villar v, inciong, GR. No. L- 50283.84, 1983}. OPER the status: rights; dues: as well as the institutional mechanisms that govem the individual and collective interactions between employees, and their ropreceriaites’ Dee be bea - eniployers and employees i the goat of Aabor law. . AND PLACEMENT: Q: What differentiates license from authority? A: A Ticense is a document Issued by the Department of Labor and Employment {COLE} authorizing @ person or entity to Sperate 3 private employment agency, while an authority is a document issued the DOLE authorizing @ person or location t engage ir ocrubant and placement activities. as 3 pri recrultment entity. (People v. Gasacaa, 474 SCRA 812, 2005}. a a TT a ee@ What are the types of ategat recruitment under the Labor Code? A There are four (4) types of iegal Prohibted practices enumerated under Article 34 of the Labor Coda. (Rolo: v: People, 581 SCRA. 24, . Q: What are the elements of ilegal recruitment in targe scate? individually of a8 a group. (People v. Rea, 698 SCRA 191, 2013). Q@ When is legal recruitment considered economic sabotage? ‘economic sabotage in two (2) instances, 1. committed by 2 syndicate: where 3 or more persons conspire with ‘one another in carrying out ar unlawful or egal transaction of scheme 2 committed fn targe scale: whore committed against 3 of more if 2618 LABOR LAW PRE-WEEK REVIEWER Persons individually or as 2 group, People. Duque, GR Ne 100285, 1992} commits an act that constitutes Megat recruitment? A: The corporation also incurs criminal liability tor the act of its employee or ageat- sot the other way around. The knowledge of the principal-foreign employer cannot, therefore, be imputed to its agent of recruitment agency. (Sunace international Management Services, inc. v. National Labor Relations Commission, 489 SCRA 146, 2006), & What kind of Wability does the foreign employer and recruitment agency share? Ac They are joint and solidary liability. This fe imposed by law against cecratment agencies and foreign employers as a > Page 3 of 47 co a - eae aan2015 LABOR LAW PRE.WEEK REVIEWER immediate and sufficient peyment of what is due him, This isin ine with the policy of ‘the State to protect and alleviate the plight of the working cles. (PF! Manpower Precamonta Ie 4 MAC. 2H See 45%, 1997, Q: What is. the effect of the pre- termination of the contract of » migrant worker? : A He is only entitled to fut reimbursement of the placement fee: with interest at 12% per anuris bus His salaries for the unexpired portiot of Rix’ _ employment contract or for three {3} months for every year of the unexpired farm, whichover tess (RA 10022,.s6c.. While RA 19022, which amended the Migrant Workers “Act revived the “3 months for every year mule, previously deciared unconstitubonal by the Suprema Court, the docttine in Serrano v. Gatlont (GR 187614, 2009) sit stands. A subsequent jaw canngt revive an unconstitutional taw especially @. the. formulation is the same. (Atty. Marion Manuel. @& Gan foreign employers hire a Filipina Worker directly? A”: Under Anicie 18 of the Labor Code, “No employer may hike @ Filipina worker for overseas employment except through the. Boatds and entiies authorized by the Secretary of Labor.” The reason for the ‘ban ig that “e Filipino worker hired dicectly by a foreign employer without government intervention, may not be assured of the best possible terms and conditions of ‘employment. (Alcantara, Philippine Labor aad Social Legisistion Annotated, Vol. 1, P69) See also: Sec. 1. Rule 1, Book Hi, POEA Rules and Regulations Governing ‘Overseas Employment Gr What percentage of the authorized ‘viting capital stock of 2 corporation is tequired to be owned and controlied by Fifpine citizens before being allowed to engage in recruitment and placement sctivitien? A; 75%. This is mandatory and cannot be lessened, except by Congress in a subsequent faw or amendment. (Labor Code, art 27). @: Would a travel agency be allowed to engage in recruitment and placement activities if it was created not for profit but rather to help Filipinos? activities. It dkd not distinguish between those for profit and those which do not derive profit. (Labor Gode, art. 28) G@: What are -the- pre-employment- grounds for disciplinary action by the POEA against overseas workers? ‘At the -pro-emplayment: stage,:.these: are ising: false. information: or: ocuments fora job application: 2. unjustified refusal to depart for the overseas ese ‘assignment he was ghen. (Sea H(A}, Rule Hl, POEA Rules and Regulations}. Q: What are the grounds during ‘employment for disciplinary action by the POEA against averseas workers? the employment stage, these are ~ ‘Commission of & criminal onense punishable by Phifippine or hast country faws; Unjustiisble breach of POEA contracts: Embezzlement of company funds; Embezzlement of money oF property cf fellow workers entrusted for delivery to Telatives ia tha Phitippines: ACAL 1 TA po 40ta7 ~ a gins2035 LAGOR LAW PREWEEK REVIEWER, Violation o* the reigious or sacred sopported by documentary practices afte Host country, profs whkh were not . Brunkenness and disorder considered in the course of Desartn and sbandboren of inspection. . &. Gimited to the Secretary) order B. Immoral activites such as stoppage of work due tonon- Poon compliance with the law oF RR 9, egal gambling that poses grave and imminent 1h, Geging trouble atthe worksite danger to the beatin and safety Liaivcek-avern * of workers in the workplace (@ 42. Inking oF joining 3 strike or work hearing within 24 hours shall Saas | Se ‘+ In case the violation is attributable to ihe ‘employer, he shak pay the employees’ salaries s powers. + See-alsa:. 2043+ Files. an Labor Laws: Campiiance: System: Dept. Order No. 131-13 Employment or his duly authorized representatives (Labor Code, art. 128). 1. Access: te employer's s a an inferior court tesue 3 TRO seconds and premives ot ary Sd the enforcement orders of the fine of me day or net Secretary in fine with his regulatory whenever work is being and visitorial powers? undertaken therein, and 2. the right to copy therefrom, A: “No inferior court or entity shall issue 3. 10 question any employee Ainccany or permanent injunction OF and investigate matters which restraining order or otherwise assurne may be (1) necessary to jurisdiction over any case involving the determine violations or @ enforcement orders issued: in which may aid inthe accordance with this Article.” {Labor enfercerment of labor laws oF Code, art. 128 (G)} 4. toissue compliance orders to G& Who has the power to issue rules give effect to the labor and regulations ia restricting and standards regulating the recruitment and 5. issue writs of execution, placement activities of ait agencies? except in cases where the employer {1} contests the A; The Secretary of Labor. Findings and (2) raises issues ad Ca Page 5 of 47Q: For which offenses is °OEA authorized” to conduct the necessary” proceadings” for the suspension or cancelation of license or authority of any agency or entity? A: {a} The imposition or acceptance, directly or indirectly, of any amount of money, goods or services, or any fee or bond in excess of what ic prescribed by the Administration. {2} Any other violation of perticent _ Provisions of the Labor Code and ‘ther relevant tows, cules and regulations. G What is the Administrator ~uvat -Stpowered to order? ‘A The Administrator was also given the power to order the dismissal of the case or the suspension of the ficense or authority of the respondent agency or contractor or tecommendé to the Minister (now Secretary) the cancellation thereof. @ What is the regulatory power of the DOLE Secretary with regand-..to- recruitment and placement activities of agencies? A: DOLE Secretary shail have the power ‘ter restrict and reguiate the recruitment and placement activites of all agencies within the coverage of this Tile and is hereby ‘authorized to issue ores snd promulgate niles and regulations to carry otjecties and inploment ihe previsors of the Title on Recruitment and Placement of Workers. (Labor Cade, art. 36). Q: What is the visitorial power of the Secretary of Labor? A: The Secretary of Labor or his duly authorized representatives may, ot any time, inspect the premises, books of accounts and records of any person ot entity covered by this Title, require i 10 submit reports regularly on presctibed forms, and sét_on violation “of any provisions of the Tita on Recruitment and 2515 LABOR LAW PREWEEK REVIEWER Placement of Workers (Labor Cade, art. a @: What is the jurisdiction of the Q: Does the Secretary of DOLE have the tight ta Issue search warrants and warrants of arrests? A: The Secretary of DOLE does not haves ‘the power fo issue search warrants and warrants of arrest. (Salazar ¥. Achacoso, @: Canam overseas: worker: sefuser ta remit his earings and instead deposit. the same in his country of work in onder fo avait of higher interest rates? fed to the detriment of the country’s balance of payments end economic. development progeans. Failure ta comoly would result in the imposition of effective sanctions, Q: What are the portions of earnings which workers are mandated to, remit to the Philippines in foreign exchange? Aw 3) Seamen or mariners: 70% of basic salary, b} Workers of Filipino contractors and construction campanics: 70% of basic salary: > Page 6 of 47 Pee2015 LABOR LAW PRE WEEK REVIEWER ‘employment contracts do not provide for free boart and lodging feciities: 80% of basic stacy; 50% of basic salary, 9) Ail other workers not felling under the alorementioned categories: 50% of basic satary. 1, LABOR STANDARDS A. HOURS OF WORK ‘: Who are covered by the provisions ‘on hours of work? A All employees in all establishments and undertakings, whether for profit or not. (kabor Code, ert. 82) @: Who are excluded from the provisions on nours of work? A: There are seven (7) classifications of employees excluded from the provisions: ‘Governmental employees ‘Managerial employees Field personnel Members of the family of the employer who are dependent oa hhim for support Domestic helpers Persons in the personat service of another Workers who ere paid by resuit {Labor Code, art. 82) ‘O: For purposes of the exclusion, what is meant by the term “manageriat employees”? AL Manageriat employees aré those whose primary duly consists of the management of the establishment in pene oe ie" Page 7 of 47 . ne Te ere - whkt they are employed" or of 3 department or subdivision thercot and to ‘other officers or members of the managerial staff. (Labor Code, art. 82) ‘This definition is only for purposes of the exemption and is diferent fom the Q@: What sre the duties and responsibilities of manageriat staff? A: These help determine whether aa employee is part of the managerial staff, excluded from the coverage of the provisions on houts Df work (Penaranda v. Baganaga Comp., GR. 189577, 2006). ‘Q: Who are field personnel? A: Field personne! are non-agricuturat employees who reguiarly perform their duties away trom the principal place of business ot branch office and whose actual hours of work in the field cannot be determined with reasonable certainty. (Labor Code, art, 82)7015 LABOR LAW PRE-WEER REVIEWER presence at the place of work oF b. I the interval is too brief to be ullized effectively and gpinfuly in the employee's ‘wn interest, ‘Q: What are the exceptions to the What are the cormat hours of work? Ac Nonmat work hours shail not exceed 8 hours a day. (Labor Code, ort. 83) Anyting beyond & hows & considered G: When is waiting time considered as. working time? ‘normal hours of work? A Woiting time spent by an employee A: The exceptions are ~ shall be considered as working fime if: 1. Compressed Work Week 1 Wating is an Integral part of his 2, Heath personne! 2:-TNe ahpiopee is. rquked or G: What is 2 Compressed Work Woek engeged by ths employes fo wait, (owy7 G: What are some guiding principles in A: A compressed work wask schema is determining number of hours worked? ‘one wherein the normal § day workweek {8 compressed to 5 days, which may resul A: There are several principles which must in mora than an 8-hour workday. No ‘be taken into consideration: gvertine pay would be paid for the 4. Alt hours are hours worked which the employee is required fo give Rig employer, regardless of whether or not such hours are . Spent in productive labor of involve Bhysical or mentat exertion. 2. An-emplayes. need not. leave.the.’ ©: What are the benofits of 2 CWW?™- A The CWW scheme would lessen ‘transportation costs, give the worker an extra-day. of:resk..and. Jessen: meahand*. snack expenses, G: What-standanis-must-be met for-a--- stops valict compressed work week? completely, and may ieave the A According to the Department Advisory ‘WW schemes workpiece. 3. the work performed was Opinion No, 32-2004, necessary or it benefited the = must ‘counted, it being sufficient that he working, may rest employer, of the employee could not abandon his work at the end of his normal working hours because he had no replacement, sll time spent for such work shall be considered as hours workad if the work was with the knowledge of his employer or supervisor. 4. The time during which an employee is inactive by reason of interruptions in his work beyond fis controf shall be considered working time if either of these conditions is present: & The imminence of the resumption of wark requires the employee's La 1. Resul from an express and voluntary agreement of the majority of the covered emplayees. in firms using substances and ~ processes that prolonged exposure to which may pose hazards to the employee's health or safety, there must be certification that work beyond B ‘hours #8 within the threshold licits to exposure. 3. Employer must natily DOLE, through the regionat office, af the CW scheme. This, must follow the CWW Report Form of DOLE. i a Page 8 of 472018 LABOR LAW PREWEEK REVIEWER and end wore at any hour. cavany day but. would not work for mote than 8 hours in @ day, nor more than 40 hours in one weak. ‘@ is there overtime work for hospital and elinic personnel? ‘A: Yes. Hospital and clinic personnet bbe scheduled to work for more than Gays of 40 hours in @ week, buf they must be paid for overtime work of at least 30% Of the hourly rate, per hour of overtime werk. Q: What Rappers if 2 brownout occurs? oo. A: Genesaily, brownouls are not Inchided. in hours worked. The exception is if a CBA, provides for it. @ What are the rules governing compensability during brownout? Ac} a worker's work is interrupted dus to brownout and — az ‘ brownaut doas not exceed. 20 minutes, i wit be treated as hours worked 2 brownou! exceeds 20 minutes and he employees can leave freely, won't be: 3. brownout exceeds 20 minutes and the employees can use the time however they want, it won't be compensable in gach case, the employer extend: the working hours of his employees outside the regular schedules, 19 A On calF time is the time when an employee is required to semain on call in the employer's premises or so close thereto that he cannot use the time atfectively or gainfully for his own purpose. ~~~ This is considered as part of hours: worked, ‘C:..Can the right.to,claim.avertime: pay. bewaived? At No: The-tight to clair overtime: pay-is- govemed by law and not merely by the: agreement of the parties, -Q: is there. an exception? A Yes. if the waiver is done in exchange for certain vatuable privileges whic compensate for such work, the waiver may be valid. if there is a stipulation regarding builtin overtime pay, duly approved by DOLE, then the non-payment of avertime is valid. ~ Q: What are the conditions to be entitled to OT pay? Actual rendition of OT work. ‘Submission of sufficient proof that said work was actually performed ‘OT work is with the knowledge and consent of the employer ! Ney Page 9 of a7,2015 LAGOR LAW PRE-WEEK REVIEWER Emergency Completion of wark started before the 8th hour and is necessary to prevent ‘serious obstruction or prejudice fo the business Urgent wore to be performed on Machines to avoid serious loss or “A On ordinary days, at least 25% of the. hourly rate, per hour of work in excess of ‘ight (6) hours. (Labor Code, art. 87). On scheduled rast days and holidays, at. Jeast 30% of the hourly rate, per hour of work in excess of eight (8} hours. The overtime pay may be increased by ‘stipulation beyond the minimum rate required by taw. (PNB v. PNB Assn, 115SCRA 507, 1982). '@ How do you compute for overtime pay? A First, determine the hourly rate, ie, Regular Wage Rate {8 hours = Hourly ‘Then, apply the appropriate overtime rate, ie, Houfy Rate x Overtime Rate x umber of hours of OT work = Overtime Pay. @: How much is an empfoyee eatitied to for night shift differential? A: 10% of the noutly cate, per héur of week between 10 p.m. and 6 am. a i> Page 10 af 47 . Fore B WAGES 1G: What makes up reguiar wage? AL Inchsdes the cash wage only, without deduction on account of facilities provided by the employer. @: What is the coverage of the Provisions on wages? A These coves the minimum wage rates prescribed by-law:-which shall be basic employees enjoy free of charge aside from the basic pay. : What are exchised from wages? A COLA profitshasing payments, premium payments, 13° month pay or ‘other monetary benefits which are not ‘conskiered a5 past of ar integrated into the regular salary of the worker, as weil as payments for leaves, nighti differential, regular hotay pay and premiums for holidays: are excluded: Q: Who are inchided ir the provisions: ~ for wages? Ae le on wanes apples to at When can it be said that there is a diminution of benefits? A There is diminution of benefits when it is shown that: 1. the grant or benefit is founded on a policy or has sipened into 3 praction aver a long period of time the practice is consistant and selberate the practice is not due to error in the construction or application of a doubtfil or difficult question of law me2015 LABOR LAW PRE-WEEK REVIEWER ee er LR, 4. diminution or discontinuance is (Supreme Stoel ¥. Nagkakeisang Meragegewe, GR Wo. 185504 4. Wher the deductions rre with the wetter authorization of the ‘employee for payment to 2 thied person and the employer agrees to ‘do 50, provided that the fatter does not feceiva benefit for the recompense the employer for the amount paid by fim as premium + {far the insurance: @: May an employer deduct froin an ‘transaction ‘employes’s wages without consent? 5. Deductions for value of meat and other facilities Ac An employer, by himself or through his 6. Deductions for premiums for SSS. representative, is prohibited fram making Phimeatth, employees’ ‘any deductions from the wages of his compensation and PAG-IBIG employees. The employer is not allowed 7. Withholding tax vdovmake unnecessary deductions without 8. Employee's debt to employes, 7 +s the: knowledge or authorization of the which is due and demandabie ‘e-einployees. 8 court against a wosker G: What deductions are atlewed under mde chowestantas whee the Acticie 1137 wages may be the subject of - -aftachment or execution but only A Article 413 provides for 3. allowable for debts incurred for food, deductions: clathing, shelter and medical 1. Jp cases where the worker ia assistance inowred with hic consent by the 10.When deduction fiom wages is ‘employer, and the deduction is to coxdefed by the court 41. Salary deductions trom a: member of = fegally established 2, Forunion dues, in cases where the. 0. <> Zight of the worker or his union te O:Whatirawage:distortion® » - A: A wage distortion isa situation where-- i ‘an increase in the prescribed wage rates 3. In cases where the employer is results in the elimination or severo contraction of intentional quantitative issued by the SOLE. differences in wage of salary rates between and among employee groups in & What are the other deductions an establishment as te effectively allowed? obfterate the distinctions embodied in such wage structure based on skits, A: The Labor Code and other fawe provide —_tength of service, of other logical bases of for other allowabie deductions: sifferentiation. 1. Deductions for foss or damage under Article 144 Q: What are the elements of a wage 2. Deductions made for an agency distortion? fee from non-union membess who A: The elements are: soept the benefits under the CBA negotiated by the recognized or certified ‘anion, This : oY Page 11 of 47, 1. An existing hierarchy of positions with corresponding salary rates; 2. A significant change in the salary fala of a lower pay class without & coricomitant increase in the salary rate of a higher one;@: How would one correct a wage distortion? A: The folowing are veld ways for correcting a wage distortion: 1. By voluntary arbitration after NLRC, 234 SCRA 311, 1994), G: Whatis a bonus? A: A bonus is an amount granted and paid to an employee for his industry and Joyeity which contributed to the success ot the employers business and made possible the realization of profits. ft is an act of genorosity for which the employes should bs grateful, @ is a bonus demandable and enforceable? A: From a jegal point of view, a bonus is not demandable. it becomes 5o when itis made part of the wage or salary or compensation. in that case, the latter would be a fixed amount and the former would be a contingent one dependent upon the realization of profits. Without ‘profit, na bonus. (Luzon Stevedoring v. CIR, GR L-17471, 1988). : Can an employee volunteer to work on his rest day? A: Yes. This must, however, be in writing, subject to payment of additional compensation. i) Page 12 of 47 SaaSA Regular rate + at feast 30% premium pay. Q: What are the instances when the Emergency Rest Day Work is valid? AC{CLEEFS) 1. Nature of the work must be ‘Gontinvousty for seven (7} days in 3 week os more: and 2. Urgent work 16 be perlormed to 3. Actual oF impending Emergencies of force mejewe of imminent Sanger to public safety; 4. Necesssry to aval, of Bevironmental conditions. G: What is the effect of RA. 9492, 5. fo prevent serious loss of implementing the scheme of “holiday Borishable goods, economics", on the date of the ~ 6. Abnormal pressure of work due to holidays ‘Special circumstances, 10 other ? Ordinary measures: & The new law does not change the names, meaning of significance and the historieat-itates: of the- regular and-speciat>-—~ BD. HOLIDAYS ‘holidays. What & does is only to create no- Mondays for some of those hotkeys. - @ What are the different rates of or Premium pay? @& Gan and an andar into an agreeoent reucing oF percentage provided for night differential pay, ‘overtime pay, and premium pay? A While asa generat rule, the parties may enter into any Kind of stipulation in a Unworked [100% except In ‘contract and the sare shail be considered etait and service as the law between them, however, it establishments mac! £2 emphasized wat a labor contract employing less, fs not an ordinary contract since it is than 10 workers impressed with public inferest. Thus, the Falling on | Worked [First 27+ 30% parties are prohibited to enter into any rest day hours | af 200% ‘stipulation which may result in the Excess + 30% reduction of any employee benefits. in of the instant case, the seduction by the hourly employer, even with the consent of the ate employee, of the legally mandated Unworked | 100% night ditfereatiat pay, overtime pay and Nay PTs S Page 13 of.‘(Republic 117460, 1997). F. SERVICE CHARGES ‘Q: What are the rules on distribution of service charges? Az 4. 85% distibuted equally among the ‘employees: 2.15% for the disposition by. once every 2 weeks oF twice @ month at intervals not exceeding 16 days. 3. Supervisors share in the 15%. Labor Code speaks of “management” and not “managerial employee.” G. 12 MONTH PAY AND OTHER BONUSES: @: Who are entitied fo claim 13" month ‘pay and other bonuses? 2015 LABOR LAW PRE-WEEK REVIEWER A: Alt employers are required to pay ail ~ their rank-and-file employees; 2 13th, month pay sot later than December 24 of every your. @: Who are excluded from the 13° ‘month pay and ather bonuses? A: The following are excluded: 1. Government and any of its politicat subdivisions, including GOCCs. except those corporations operating essentially as private subsidiaries of already "employees 13th month pay of more ink a calendar year of its equivalent at the time of issuance of PD 851 NOTE: “Its equivalent” ~ includes ~ Christmas bonus, mid-yéar bonus, cash bonuses and other amounting fo nol less than 4/12 of the basic satary but shall nat inciude cash and stock dividends, COLA and. all other allowances regularly enjoyed by the employee 3s well as nan-monetary * benefits, 32 Employers’ of househokd: helpers and persons: in: the: personal: service: of ‘another in relation to such workers 4. Emplayers of those whe are paid on coraimission, boundary, of task basis, and those who are paid a fixed amount for performance of a spacific work, irrespactive of the time consumed in ‘the performance thereof > EXCEPTION: where the workers are pal on 2 piece rate fasis, in which case the employer | shall grant the ues 43th month pay 10 such workers. H. NIGHT WORK RA 1015t (An Act allowing the Employment of Night Workers) repeaies Article 130 and 131 of the Labor Code. ‘The pertinent matters are as follows.Whois aight worker? AL A night worker is any employed person whose work naquires performance of @ substantial number of hours of night work which exceeds a specified fit. Q: Whe are covered by the provisi on night work? mene A: Ail persons wha shall be employed or ermitied of suffered to work at night. & Who are excluded from the provisions on night work? jess than 7 consecutive hours, inchuding ‘the interval from midnight until Sam, to be determined by the SOLE after consulting the workers’ tapresantatives and employers. Q: What are night workers entitled 107 Ac Under RA. 10154, the. new. taw.on. night work, they are entitled to ~ 4. A health assessment, at their fequest, without charge, and to recaive advice on how to reduce health problems associated with their work. & Before taking up assignment as niightwasker, oF b. AL reguier intervals during such assignment, or c.f they experience heath problems during such an assignment which are not coused by factors other than the performance of nightwear. 2. Mandatory faciities 2. Suitable first ad facies , Arrangements where workers, when necessary, can’ be atvinediately taken to a place for appropriate treatment Lay 2018 LABOR LAW PRE-WEEK REVIEWER ©. Safe ang healtiiel working conditions. Resting quarters ‘Transportation fo and from work fo nearest point to sesidentce. f These are subject to guidefnes and exceptions by DOLE Q: What if someone is certified unfit for nightwork? A; They should be transferred, whenever practicable, to anottier job similar to their ‘Old one. if not practicable, these workers they should be granted the same benefits _as other workers unit for work, Af the unfitness is temporary, he enjoys the same protection against dismissal or notice 3s other workers prevented from work by reason of heath @: What if'a. woman is pregnant? po A: The, amendment by RA 4015¢ dictates that measures shall be taken ta 4. before or aller childbirth, for & period of af feast 16 weeks, which Shalt be divided between the tine: ‘before and after childbirth; 2. for additional periods ia respect of which a medical certificate is. produced stating that said additional periods are necessary for the health of tho mother or the i= @ during pregnancy: b. determined by DOLE after consultation with employer and labor representatives Q: When are pregnant women allowed to work at night? A: Only if a competent physician other than the-company physician shall certify their fitness to render aight work, and2645 LAGOR (Ai PREWEEK REWEWE! cee ee EEE specify the period of the preanancy that~ they can sstely work. A 4. MINOR WORKERS @: What are the conditions in order that a child below 15 years of age is allowed to work? A: The following conditions must be met: 4. Must be directly under the sole supervision of his parents or guardian {labor Code, art. 139} Candiét be made to work for more than 20 hotire week ‘Work shalt not be more than 4 hours perday Stevld nat work between pm and Work is not hazardous oF deleterious. fo the child's heath or morals (R.A 9231, Sec. 3} 2 a 4 5 4. EMPLOYMENT OF HOUSEHELPERS @: Whar are the rights of househelpers? A: (CO-THIN-E-LOVE) 4. Reasonable Gompensetion {minimum 2 amos) Gontract for household sesvice shalt NOT EXCEED 2 years ~ renewable from year to year - Termination only for just cause Just and Humane treatment indemnity for unjust termination of service ‘Not to be assigned to non-household work PN ore Euneral expenses must be paid by the employer if the houschelper has no ploce where the head of the family ves. Lodging, Food = and = Medicat aiiendance TO-Right not to be required: to work for more than 10 hrs. 2 day ~ if the househelper agrees to work Qvertime and there is additonal compensation, the same is permis 11. Right to 4 days Vacaton each month with pay ~ if the hefper does not ask for the vacation, the number of vacation days cannot be accumulated, hhe 13 only entitled only to iis monetary equivalent. 12. i under 18 years, an opportunity for at feast elementary Education — cost of which shall be pert of househelper's ‘orapensation K. EMPLOYMENT OF HOMEWORKERS Q: What are the mules on deductions? A: No. employee, contractor, or sub- ‘contractor shall make any deduction from the homeworker's eamings for the vate of materials which have been fost, earnings in a week. L. APPRENTICES AND LEARNERS Note: RA 7796 has transfered the authority over apprenticeship of the DOLE to the TESDA it emphasizes TESDA's approval of the apprenticeship program as 8 preveqisite for the firing of apprentices. (Century. Canning ‘Corporation v. CA, 539 SCRA 50%, 2007) ee Page 16 of 47 _ WS¢ GR. Na, 187320, 2017), @: How do you differentiate apprentices from learners? a 1. Practical Training. Both leamership ‘and apprenticeship involve practical {raining on-the-job. 2. Training: Agreement. Leamarship. is. 4, Theoratical instructions. Leamership may or may not be Supplemented by relates ineoretical instructions; while apprenticeship should always be supplemented by related theoretical instructions. 5. Ratio of theoretical fastructions and ‘onthejob training. For both feamership and apprenticeship. the normal ratio is one hundred (100) hours of theoretical instrictions for ‘every two thousand {2,000} hours of practical or on-the-job training. Theoretical struction time for ‘occupations zequiring fess than two thousand (2,000) hours for proficiency stondd be comptes on the besis of 6. Competeney-bssed system. Ustka feamership that it be implemented based on the TESOA-approved compatency-based system. 7. Duration of training. Leamership involves practical training on the job for a pesiod not exceeding three (3) ‘months; while apprenticeship requires proficiency, more, than.three (3) months but not over-six (6} months ‘of practical training on the job. 8. Qualifications. The iaw does not expressly mention any, qualifications for jeamers; while “the following ‘qualifications are required fo be met by apprentices under Article 59 of the Labor Code: 2. Be al least fourteen (14) years in apprenticeship, in jeamership, the taw, Article 74 of the Labor Code, expresity prescribes the pre-requisites before learners may ba ‘validly employed, to.vit: a. When no experienced workers: are available; b. The employment of leamers is neceseary to—_—prevent curtailment of employment pportunities; ¢ The employment does not create vnfait competion in femns of labor costs of impair ‘or ower working standards. 10.Limitation on the number of trainees. in jearnership, a participating enterprise is stowed to teke in leamers only up to a maximum of twenty percent (20%}" of ts total regular workforce. No similar cap iS imposed in the case of apprenticeship. a : : a Page 17 of 47M. HANDICAPPED WORKERS: : What are the rules on handicapped workers? % Handicapped workers may be. ermlayed wen: ‘opportunities 2. Does sot create untair competition in labor costs 3. Does not impair or tower working standards, No disabled person shalt be denied aorese te corertlies, for matte employee shall be subjett to sare tet and conditions of employment and the ‘same compensation, privileges, benefits, fringe benefits, incentives of allowances 8 & qualified able-bodied person, TERMINATION OF EMPLOYMENT Q: How do you determine the existence ‘of an emptoyer-employes relationship? A The tests are: 1. Fourfold tests to determine EER (2) Payment of wages {b) Hising e} Frio, {@} Control (over meant and resut) 2 Economic Relations Test {secondary test) ~~ (a) Payment of PAGIBIG Fund ‘canitibutions 4b) Payment remittsnce of contributions to the State insurance Fund {e) Deduction of withholding tox (d) Deduction remittance of SSS 2015 LABOR LAW FREWEEK REVIEWER Qs Does the DOLE Secretary have the power to decide whether or not an employer-employee relationship existe? A. No. The existence of an employer ‘employee relationship is a matter which is not easily determinable from an ordinary inspection. in the exercise of its visitorial ‘ang enforcement power, the DOLE has to make a determination of thie existence of ‘an’ employer-ermpioyee relationship. This - datermination is not co-extensive with the existence: employer- felatinship is stit primarily Jodged wath the NURC. This is the meaning of the clause “in cases where the relationship of -employer-employee stil exists” in At. 128 (b}. (Paople'’s Broadcasting v. Secretary of DOLE, G.R. No. 179652, 2003). @: How do you _ differentiate managerial, supervisory, and rank-and file employees: - : & - ‘+ Managesial-employee: — one-who- Is vested with powers or prerogatives 10 fay down and execute management Tey-off, recall, discharge, assign, of ‘Giscipine employees + Supervisory employee — one wha, in # the exercise of such authority is not merely routinary of clerical ia nature tout requires the use of independent judgment + Rank-and-file employee — one who is not covered by the definitions of managerial and supervisory ‘employees (Labor Code, art. 252 (rn}}_machinery, toots or | investment in the 2. Tho workers recruited end placed equipment drectly | form of machinery, by such person are pesforming oF intended tobe | tools or equipment activities which are directly related selated to the job 10, the:;principal business of the contracted: emplorer:{Sy v. Fairland, G.R 1898582017). caries an ‘haa no independent, jadependent business O: What are the effects of fabor-only business different eontracting?. from the employer's | . A: Worker supplied by agency (contractor) undertakes to | "performs activities becomes emplayae of the client compary. perform the job | directly related to Client company is liable to the worker as if under its own | the main business he/she had been directly employed. aecount and of the principat (P8Cam v. NLRC, GR. Ma. 66598, 1986). responsibity, FREE from the Furthermore, | agency:hired employee principal's contrat becomes ented to benefits under the NGEERexcspt | Prncipal Wesied as | CBA:cf cant. company. (Tabas, etal. when the contractor | direct employer of California Manufacturing: Company, Inc or subcontractor | the person recruited GR. No. 80880, 1995). falls to pay the atl instances : What te a bilateral ip. ta employees’ wages. | {contractor is a relationship. deemed agent of job contracting? the principal) UMITED Tebiity | Principal's fabinty A It refers to a job contracting oF (principal soldarily | extends to all rights, subcontracting arrangement whvers there Table with | duties and liatiities | is & contract for @ specific job, work or contractor oF under fabor service between the principat ond the subcontractor only | standard lows contractor, and a contract of employment when latter fails to | including the right i comply with} to. oon between the contractor and its workers. feavmerents 09 te + 3 parties involved in coatracting or unpaid wages and ‘other Subcontracting arrangements: jabor ~ who decides to Sangarts farm out the ob, wok or BERMISSILE PROHIBITED 2, See IO 8 contrat is tho capacity to independently undertake the patfarmance of the job, work or service 3. workers = who sr@ encaged by the contractor to i) Page 19 of 47 OPER? -accomplish the job, work. oF ‘senice @: What are the rules on probationary employment? A: General rule: Employment must not exceed § months. Exceptions: ‘a. Covered by an appwenticestia . agreement stipulating 2 longer period - b. Voluntary agreement of parti: {especially wher nature of vod: dequites a longer period) * fs s. The employer gives the employee @ second chance fo pass the standards set (Labor Code, -art-» 281; Marwasa Manufacturing v. Leagardo, G.R, No. 74246, 1989}. ‘Q: What are the rules on students who are allowed to work in their schools in exchange for a free education (is there an employer-employee relationship)? ‘A: There is no EER between the student and. the’. school. college: of. university. where the student work for the totter in" ‘exchange for the privilege to study free of charge. provided the student is given real ‘oppadunity, Including such faciities 28 may be reasonable, necessary 10 finish thei chosen courses under such erangement. (Sec. 14, Rule X Book I fenplomenting Rules of the Labor Code). Q: What is the successor-employer doctrine? A. The ule is that unless expressly assumed, febor contracts such a3 employment contracts and collecting dargaining agreements are rich enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between the parties. A labor contract merely creates an action ia personam and does not create any reat right that should be respected by their parties. This conclision draws. its force from the right of an employer to select his employees and to decide when 2U1S LABOR LAW to engage thenr as protected ‘under our Constiution, and the same can anly be restricted by law through the exercise of the police power. AS a general rule, there is no law requiring '@ bone fide purchaser of assets of an ‘concer to absorb in its employ although the purchaser of the assets or enterprise is not legatly bound to absorb the employees of the seller of such assets or entergrise, the parties are Hable to the employees @ the transaction between the parties is colored with bad faith. ‘(Sundonmes Development Corp. ¥. NLRC, 180 SCRA 14, 1989}. « @: What economic components constitute backwages for a rank-and- “file employee? Are these components ‘equally applicable to a managerial employee? Ac An employee illegally dismissed is: entitled to full and reinstatement pursuant ta Article 279 of the Labor Code, as. amended. by RA. GEE: ty An employees whor is-~ unjustly dismissed: from work shalk be. entitled: to reinstatement without joss: of senionty rights and other privileges and te his full backwages, inclusive of from the time fis compensation withheld fram hirn up to the fime of his actual reinstatement. (Labor Code, art 279). 2. An unqualified award of backwages means that the employee is paid at the wage rate at the time of his dismissal. The base figure to be used in the computation of backwages due to the employee should inckule not just the basic salary, but also the regular allowances that he had been recetving such as the cy ving ‘allowances and the 13° month psy mandated under the taw. (Paramount Vinyk Product Corporation v. NLRC, et. ‘GR. 81200, 7998).147651, 1996). 4. A salary increase cannot be interpreted fo'mean an allowance or 2 ‘Saxiag, G.R, No. 164772, 2008). 5. Once there i @ finding of egal dismissal, the components consfituting the award of backwages is the same for managerial and other employees, » Alt. 278 of the Labor Code speaks of “employees”. Where the law does not distinguish, one must. not. also. 6. AS a general mule, the normal consequences of a finding that an employee has been illegally dismissed to the period from his Regal dismissal up ta his actual reinstatement. The two forms of relief ars, however, distinct ‘and separate from each other, Though the gront of reinstatement commoniy carries with it an award of Backwoges, the appropriateness oF non-availabtity ‘of one does not cary wih % the inappropriateness or non-availability of the other. In accordance with Moreno ¥. San Sebastien College (G.R 178289, 2008}, the Court may not onty mitigate, but also absolve entirely, the iabiity of the employer to pay Backwages where gacd faith is evident, Likewise, backwages may be Eliz 2016 LABOR LAW PRE-WEEK REVIEWER withheld from a dismissed employee where exceptional circumstances are availing. @ How do you differentiate project employee from casual employes? A; Project employee — employed for a specific ‘ot undertaking the completion or termination of which has been determined at the time of the engagement His work need not be incidental to the business of the erapioyer, and bis employment may exceed 1-yeat>~ without necessarily making him a-vegular- employee. Meme Casual employes — engaged to perform a {Jeb, work of servica which is incidental to. fhe business of the creployer, and the definite period of his is made known io him at the time of ‘his engagement, His continued employment afier the lapse of 1 year makes his a regular employes. in case of a project employes, his job is coterminous with a spsciic project or phase: thereot.detemined, at. the. time. ot. ‘engagement ofthe employee. itis further =~ required: that. a. termination report be: submitted. al-the nearest . employment. - 1997}. Q: What are confidential employees? A; Confidential employees are those who 4. assist or act in a confidential capacity 2 to persons whe formulate, determine, and —_ effectuate management policies in the field of labor selations. (Tunay Re Pogkakaisa v. Asia Brewery, GR. No. 162025, 2010). Page 21 of 472. Gres and hobo Hela . Gross And habitat the ‘employee of his duties ” 3. Eraud or Wilful breach by employes of the Trust teposed ia him by his ‘employer ot ‘aubborized representative {not mese suspicion) 4 Commission ef a Gta er Of by the employee against the person of his employer or any immediats member of his family oc duly authorized ‘& What are the twin requirements for valid dismissal? RT arama Urls (eee Seen vEEK REVIEWER Gr What’ is ttre. concept of witiful *- digabedience? A in order that willful disobedience may constitute a just cause for termination of an amployee, the orders, regulafions, or instructions of the employer or his representative must be: 4. Reasonable and lawhut 2. Suffcientty known to the employes 3. fx connection with the duties which. the employee has been engage to Philippine Coremarcial tatemational Bank v. Abad (G.R, 158045, 2005). As slated in San Miguel, where the cause Yor the termination of employment cannot be considered as one of mere inefficiency or incompetence but an act that constitutes an utter disregard of trust ceposed in him, the grant of ‘separation benefit is hardly justifiable. + In PLOT ¥, NLRC and Abucay (164 SCRA 871, 1988), twas dectared that while it would be compassionate £9 give separation pay to a salesman if ha were dismissed for his inability to Ril fis quota, surely, however, he does not deserve such generosity if hisge offense is the misspprogriation of the receipts of his sales. + In Gusto v. Wyatt Pas, ine. (GR. No, 149629, 2004), the at A party in a cace who did nat appeat is ct entitied to any affirmative reel. : What are the five instances when reinstatement is no fonger possible? & 4. Former position of the employee no- Rules of Book Vi, Rute f, Sec. 4 (2). 2. The establishment has closed or ceased operations or the former osition no fonger exists at the fime ‘of reinstatement for reasons not attributable to the fault of the ‘employer — the worker is entitad to & separation pay equivalent to at least ‘one-month pay of at least one month pay per every year of service whichever is higher, a fraction of at Jeast six months shall be considered as ane whole year. (li Fiutes of Book Vi, Rute 1, Seo, $ ()). 2018 LABOR LAW PRE-WEEK REVIEWER employes it ‘separation pay in Sez of reinstatement. (Labor v. NLRC, G.R. $19388, 1995}. 4, Reinstatement no longer possible due to strained relations ~ where the NLRC, G.R.£-67680, 1985). lersuch cases, it should be proved that-~ GR 82511, 1992). 5. When a substantial amount of years have japsed from the fling of the case to tts finality. G: What is the effect if reinstatement is no longer passible? Ac According to the SC, “in Hew of feinstatement, pettioner ie entited to ‘separation pay equivalent to one {1} month salary fer every year of service seckoned from the time he commenced his employment with TAWTRASCO unit firality of this Decision.” (Bafiares vs. TAWTRASCO, 694 SCRA 312, 2013). ae i? Page 23 of 47 oa a: Whatis constructive dismissal? A: tt exists when an act of clear » Siscrimination, insansibilty or disdain on the part of the employer has become so undearable as to leave an employee with RO choice fut to forego. continued employment. In the case of Bafares vs. TAWTRASCO (694 SCRA 312, 2013), the SC found that by sit providing proper offica space, office supplies, or a living allowance after being transferred to the province, there was a clear case of constructive dismissal, stair Q: What is the definition ‘of serious misconduct? Ac Serious misconduct is imergper or ‘wong conduct; the transgression of some established and definite mie of action, 2° Torbidden act, 3 dereliction of duty, willful in character ‘and implies wrongful intent ‘and not mese esror in judgment. To be secious. within the meaning and intendment of the law, the misconduct must Be of such grave and aggravated character and net meroly trivial and {Vilamor Golf Clb vs. Pohi.- unimportant GR. No. 168152, 2005), Q: What are the various remedies for an iilegal dismissal? Av An employee who is unjustly dismissed irom work sha be ented seinstatoment without loss of seniority rights and other privieges and to his full backwoges, inclusive of allowances and to his other benefts of their monstary allowances, and to his other benefits or their manstary equivalent computed from the time his compensation was withheld from hie up to the fime of his actual reinstatement. Q: When is retrenchment justified? ‘A Management cannot be denied recourse to retrenchment # if can successtully grove the existence of the following: + 4. Substantiaf losses which are not merely de minimis in extent: A: Due process under the Labor Code, like Constiutional due process, has two. aspects: substantive, te., the valid and authorized causes ef employment temaination under the Labor Cod: and2015 CABOR LAW PRE.WEEK REVIEWER & What are the tegat imptications of an employee being on “floating status?" A; Being placed on floating status is legal. ht means “wailing to be posted.” However, ‘this status must noi exceed 6 menths. ‘Otherwise, it would amount to constructive dismissal.’ (Reyes vs. BP Guerteas Seounty Agency, in, 696 SCRA 820 Gi Whats the effect of non-compliance with procedural due process when the dismissatis for just cause? A In a case where there was a just eatise fos terminating the services of an "employee but non-compkance with the two-notice requicement, the SC provided that “i the dismissal is based on a just ‘cause, then the non-compBance with Procedurat due process should not render the termination from damages” The demistal wae uphond sed the employer was not made fable for the payment of either backwages or ‘Separation pay. {Mendoza vs. MS Credit ‘Corporation, G.R. No, 187232, 2013). @: May ordinary rank-and-file employees be terminated for toss of trust and confiderce? A: With respect to rank-and-file personne! tess of trust and confidence as ground for valid dismissal requis proat of invohement in the alleged events in question, and that mere uncerraborated assertions and accusations by the employer will not be sufficient, (Etcuban ur. vs. Suipicio Lines, inc, G.R. 148410, 2008}. Sear ie toe pnctoet tere tor whether particular omplopeen’ are prefect empleyeos at distinguished Srom segular employes? A The test is whether or not the project ‘employees were assigned to cany out a specific project of undertaking, the duration and scope of which were specified at the time the emplayees were engaged for that aroject. G& Does the filing of 3 criminal caso against an employee have the effect of A: No. The filing of the.crimina! cass ‘against an employee does not have the effect of suspanding or interrupting the prescriptive period for the filing of an action for iegat dismissal. Such an action is an administrative case which is entirely separate. and distinct from- a riminal-- ‘of the other, (Pepsi Cola Botting Company vs. Guanzon, GR. 81612, 1989p: (Qz> What:: damages: cnt aga: employer? @& Moral, exemplary and nominal damages. 1. Moral damages is recoverable only where the dismissal of the employee” ‘was atterried by bad faith o¢ fraud, oF constituted an act opprassive to labor, of was done in 2 manner contrary 10 morals, good customs or public policy. {PAL vs. NLRC, G.R. 132605, 1999). An avrars of moral damages cannot be justified solely upon the premise (otherwise sufficient for tedress under the Labor Code) that the employer fired his employee ‘without jest cause or due process. Additional facts must be pleaded and proven to Warrant the grant of morat damages under the Civil Code ie) Page 25 of 47 PERS(Primer vs, IAG, 56 SCRA’ 435, 7987). 2. Exemplary damages may ba awarded only if the dismissal was shown 10 not be recquared where the party involved is not entitled to moral or compensatory damages. (Cee Hua eg Reyes, GR. No. 72182, 1 3. Nominal damages may be granted only # the dismissal is for an dismissal. (Agabon vs. NLRC, G.R. No. 158693, 2008) ‘e What imitations, if any, do the law and: jurispridence impose on an employer's right to terminate the servieas of a probationary employes? A: A: probationary. -employea may. be: terminated af any time but only for just and authorized causes. Termination is alsa valid, according to Article 28t of the Labor Code, when such employee fails to qualify as’ @ regelar employee in accordance with seasonable standards made ‘known by the employer to the employee at the time of his engagement. im alt cases of probationary employment, ‘the employer shall make known f the employee the standards under which he will qualify as a regular employes at the time of his engagement. Where no standards are made known fo the employes atthe ine he ehall be deemed 2 regular employee. (Aberdeen Court vs. Agustin, G.R. 149371, 2005}. Double or successive probation is not allowed. The evil sought to be prevented is to discourage scheming employers from using te system to circumvent the mandate of the law on regularization and make it easier for them to terminate their 2045 LABOR LAW PREWEEK REVIEWER employees. (Holitay Inn Menila vs: NLRC, GR. 109144, 7993) : What are the requisites for an employer to justify or effect a valid redundancy program? & 1. Avwniten notice served on both the employees snd the DOLE at least ‘one month prior ta the intended date of retrenchment; “ °2, Payment of separation pay sis equivalent to at Jeest one month with whom he is cohabiting, acconting to Section 2 of RA BIE? Patemity Leave refers to the benefits grnied to 3 maried male employee allowing him not to report for work for seven (7} days but continues ta earn the compensation therefor, on the condition that his spouse hae delivered a chid or suffered a miscarriage for purposes of enabling him to effectively lend support to his wife'in her period of recovery andlor fa the nursing-of he newly-born child, as per Section 3 atthe same RA. -wwemnaa,. child, fiving'in with a married man on the ground that she is not married? AL While feave is rightfully denied, the reason is misplaced. The SSS Law does not require mamiage for entitement, However, since the woman is akeady pregnant with het Sch. sho can no tonger ein for GOCCs, they are covered by the Civil Service Law, 2 Employees of retail, service, and agrioutturat : Can an individual, the sole propristor of a business enterprise, be said to have violated the Anti-Sexual Harassment Act of 1995 if he clearly discriminates against women in the adoption of policy standards for and 2: No. Work-related sexual harazement is2015 LABOR LAWW PRE-WEEK REVIEWER ina work-related or employment environment, sexual harassment is committed when: o 2. The above acts would impair the ‘empbyse's fights or privieges~ under existing labor taws; or 3. The above acts would result in an intimidating, hostile, or offensive: Q: Would a complaint for sexuat harassment be premature if the same was not referred to the Commities on Decorum and Discipline? A: No, There is no need for a prior referral ‘of the complaint to the Committoa on Jp the taw prociudas the victim of sexval rasement a separate and independent action for and other affirmative selief, as per Section 6 of RA 7877. LABOR RELATIONS: G: Whats a labor organization? A Any union of association of employees which mists in ovhole or in part for the pispose of collective bargaining or of dealing with employers concerning terms, and conditions af employment. (Art, 242 (@}, Labor Code}. @ What Is an appropriate bargaining “anit? AC _A group of employees of a given ‘ernployer, comprised W ail or less than ak & the ene body of employees, which the: indicate to be the best sulted to serve the reciprocal rights and duties of the parties ‘under the collective bargaining provisions: of the law. (UP ¥. Fesrer-Calloja, GR. No. 98189, 1982). G: Naw does the concept of “mutual, interests!" come: Inte: play. in.relation.: 2 with a bargaining nit. Q: What is the minimum membership requirement for a union to be valid? Ac The Supreme Court ruled in NAGA- PEMA vs, NASECO (G.R. No. 185442, 2010}, that Article 234 of the Labor Code merely requis 2 20% —minirwmn membership during the application for ‘union registration. It does ot mandate that 2 union must maintain the 20% minimum membership requirement aib throughout ils existence, Se Page 30 of 47satification of its-constitution and by-laws; the minutes-of ratification; or the minutes of the election officers; ist of voters, Ac The requirements are — 3% Fity pesos (50.00) regisraion othe names of its officers, their addresses, the principal address of the tabor crganization, the minules of the otganizational meetings and the fist of the workers: who, 4f the applicant union bas been in ‘existence fer one or mote years, copies of its annual fnanciat reports; and ©. Four copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the fist of the members who participated in it, (ait, 238, Labor Cade, as amended by R.A, No. 984%, 2007) 2015 LABOR LAW PRE-WEEK REVIEWER Is a mixture of rank and file and supervisory employees a ground for anceliation of registration of 2 union? A: No. Although this used to be a ground, ‘under the current rules and regulations, ‘this mixture in 2 union would be valid. 2: Are positions with access to salary and compensation excluded from the ‘bargaining unit? A: No. in SMFI vs. SMC Supervisors and Exempt Union {@.R_No. 146206, 201%, confidential ernpioyees are these who {3} assist oF act in a confidential capacity, in policies inthe fiekd of Sabor relations. They shoukt be exciuded from the bargaining unit, as theit access to confidential information may become the source of undue advantage. The Payroll Master and employees with access to salary and certification election from the date it was issued 3 charter certificate, : How does 2 focal chapter acquire the same sights and privileges of 3 labor union? A: A chapter shalf be entitled to ail other, Tights and privileges of a legitimate Isbor ‘organization only upon the submission of the following: a. The names of the chapter's officers, their addresses, and the Srincipat officer of the chapter; an "> ‘Page 31 of 47 Oe2, The chapter's constitstion and by- tows; but if sakt charter's ‘conetintion and by-taws are similar 4p that of the federation or national ator union, such fact must be indicated. fart, 240, Labor Code, as amended by RA No, 9841, 2007} @: How long is the period of = bargaining representative's exclusive bargaining status? Pater Unon va Some among ve “"Naghaksisang Manggagawa {GR No. 176249, 200%), that by express provision only for five years and can be challenged within sity (60) days prior to the expiration of the CBAs first five years, G: Does the: Union have the authority ta. compromise individual rights? A: No. Tha court held in Golden Donuts ys. NLRC (GR. 113666-68, 2000) that the showing of the Union's special authority to compromise the individual claims of private respondents for reinstatement and backwages, there is no valid waiver of the atcresaid rights. @: What is the concept of collective bargaining agresment? ‘A: A CBA is executed upon the request of either the employer or the exclusive of work, and all other terme and conditions of employment, including the mandatory provisions for grievance and arbivation 2015 LABOR LAW PRE WEEK REVIEWER (Deveo —Integreted au Stevedoring Services ¥. Absrquez, GR 102132, 1983). Q: What are the mandatory subjects of bargaining? machineries. collective At Accoeding to Article 252 of the Labor Code, the duly to bargain coliectively means the perfomance of a mutual ‘obligation to meet and convene promplty and expediticusly in good faith for the purpose of negotiating an agreesnert with. Fespect to wages, hours of work and alle meq: other terms and conditions of employment... 1-54334, 22 January 1986) provides: 1. Possession of the status of majority" representation of | the einployees' representative 2. Proof of majority representation 32. Demand to bargain under Art. 250 a)Agency shop agreement — employees must either join the union or pay to the union as exclusive ing agent 2 snes : Whatis a Union Security Ciause? A: itis a generic term which is applied to and comprehends any torn of agreement which imposes upon employees an obligation to acquire es retain union ‘sense, there ie diccrimination when certain, employees are obliged fo join a particular union. But since & is discrimination favoring unionism, @ fs a valid kind of cng Qi. What. are: the. diffrent: Kinds.of. Union Security Agreements? & . + Closed-Shop: only union members ‘employment + Modified Union Shop: employees who are not-union members at the: ‘ima of the signing of the contract are ‘Rot required to join the union. but af workers hired after are cequired to join + Maintenance of Membership Shop: employees are not compelled t join the union, out ail present or future Lun rg Page 33.08 47 ORY AUS LA8OR Lal PREWEEK REVIEWER from.:anether. company: 2%. regular; and: = from the: beginning: of their sorperation, 1t bears relterating here that-. these differences ars foo insubstantial to warrant the exclusion of the absorbed employers from the application of the Union Shop Clause. Although Ht is accepted that non-compliance with 2 tunion security clause fs a valld ground for an employee's dismissal, jurisprudence dictates that such a dismissal must stil be done in accordance with due process. (6P! vs BPI Employaes Union, GA. 164301, 2011), 2: Is a union prohibited from offering and agreeing to reduce wages and benefits of the employees? A: No. Asticle 100 of the Labor Code prohibits elimination or diminution of benefits atready being enjoyed at the time of promulgation. it dees not prohibit 2 union fram oifesing and ayreeing2016 LABOR LAW PRE-WEEK REVIEWER NR redce wages. and benete: of. the Employees Union v. Watertront, GR. 174040-41, 2010). ‘G: What “benefits” are covered Article 1007 Ac The term “benefits” mentioned in the benefits cr privileges gen to the ‘employee with monetary equivatents, This feroaved the chairs provided to the employees from the purview of Article 100 of the Labor Code. (Royat Plant Workers Union ¥s. Coca-Cola Battlers Phiippines, Inc.-Cebu Platt, GR. 198783, 2013}, G; Would an agreement that effectively abrogates the right of workers fo self- organization and collective bargaining ”” be void for boing unconstitutional and against public policy? Ar Generally yes, however in Rivero vs. Espirty {G.R._ 135547, 2002, the Court suled that the assailed PAL-PALEA Barcemont was the resi of vountary Grderaken ane a og anes: financial siluation faced by the employer, with the peculiar and anique intention of not merely promoting industriat peace at PAL, but preventing the latter's closure, it was PALEA, o& the exchaa bargaining agent of PAL's ground eraployees that ‘voluntarily entered into the CBA with PAL. Rt was also PALEA that voluntarily opted for the 1Oyear suspension of ihe CSA. Either case was the union's exercise of ts sight to collective bargaining. The right to free collective bargaining. afterall, includes the right to suspend wt. What are the cules on levying assessments and colfecting dues from _ union members? & 4. Rute on Levy: > Article 241, par. (0) of the Labor Code provides iat 10 special’ assessment oF extracidinary fees may be levied upon the members of a labor organization uniess authorized by a written’ resolution of a majority of aif thermembers at 2 general membership meeting duly called for the urpane, The secretary of ts omsenteaton shalt record the minutes of the meeting including the fst of all members present, the votes cast, the purpose of the special ‘assessment or fees and the recipient of ‘Such assessment or fees. The record shat be aftasted to by the president. % Rule on Caltection: ~ Attila 241, par (0) of the Labor Code vpeavides that other than for mandatory ‘eetivities. under the Code, no special “assessments, attormey's fees, negotiation fees or any other extraordinary fees may ‘be checked off from any amount due to an “employee without an individual written AC in contract: bar eute,.na’ peltion: Far: ceriifcation election may be filed where there is an existing CBA which has bees: duly registered. A petition for certification election may on be filed within the last 60 days of the Bh year of the CBA Os the other hand, in deadlock bar rule, no certification election may be held if there is 3 pending bargaining deadlock which has been submitted to conciliation or arbitration ar kas become the subject of a ‘valid notice of stike oF fockout. : What is the “automatic renewat slause” in a collective bargaining agreement? A: Aufomatic renewal clause means that {at the expiration of the freedom period, the employer shat continue to recognize the majority status of | the incumbent bargaining agent where no petiion for certification slection is filed. it chall bs the Page M of 47duty of hoth partes to ke 2p therstatus quar and'fo continue in fF force and effect the @: Do employees of a cooperative have a rightto form a union? vy. Fesrar-Calej Q: Do workers have a right NOT fo join a labor organization? Av Yee, What the Constitstion guarantees: is the right to forn or join organizations. It is the employee who should decide for ‘himself whether he should join oF not ip an sesociation. The right.to join a union joctudes the right fo abstain trom joing any union. (Vitoriano ¥. Elizakie Rope ‘Workers’ Union, GR. L-25248, 1974). @: Do employees of non-stock, non- profit organizations or alien employees have the right fo self-organization? Yes. Al persons employed in commercial, industrial and agricuitural enterprises and in religious, charitable, medical, or educational institutions, whether operating for prafit ar nat, shat have the right to seif-organization and to form, join, or assist labor organizations of their’ own choosing for purposes of collective bargaining. Ambulant, intermittent and ‘itinerant workers, self employed people, surat workers and those without any definite emnplayers may form AC When such labor organization is registered with DOLE and carrespondingly issued a cerfificate of registration. 1G: What is the Globe Doctrine? A: The Globe Doctrine, as fs enunciated in the cass of Globe Mochine & Stomping Company (3 NLRB 294, 1937) refers 10 the method of determining the wit or dese of the employees which is an Important factor in determining the appropriate bargaining unit. The best vay to determine such preference is. through referendum or plebiscite, Q: What ts the Community of Interest Rute? AL According to: the case of San Miquel ‘Corporation vs. Laguesma (G.R. 100485, 1984}, the Community of Interest Rule appropriate: bargaining unit must have consnonaity. of collective: bargaining. interests in the terms of employment and working conditions as evidenced by the type of work they perform. @: in what instance may a petition for cartification election be filed outside the freedom period of a current collective bargaining agreement? A: A patition for certification election may be filed outside the teedort period only wien the existing collective bargaining agreement is sot registered with the DOLE Regional Office where the bargaining union is registered or where it principally operates. Non-registration of the CBA fenders the contract-bar rule inoperative.Q: Are-prohationary employees entitie d to vote:in a certification election? itis proper only in case there is onty one legitimate labor organization existing and What is the rational for the legal mandate of making some instances of certification election mandatory? A; The Labor Code fists Articles 256, 257, 288 which prescribe a mandatory ‘The purpose: of ‘cestication’ eléction, as enunciated in the case of (GHE Philippines: Corporation United Rank and Fle Association - Federation of Fro Workers ¥. Bukled ag Manggagawa ng DHL Philippines Corporation, GR 152094, 2004} is precisely to ascertain the majority oF the emplyyees" choice of an appropriate bargaining unit ~ to be or not to be represented by a labor organization and, in the affirmative case, by which one. The rafionate for the conduct of cetifcation elactions is ta provide democratic space to everyone in the ‘bargaining unit, and to ensure that the union has the. support of the majority. Q: Gan 2 “nounion® win in a certification election? A: Yes. "No Union’ is always a choice in a certification election. This proceeds from the premise that the sight fo join a union carries with if the concomitant right not to2015 LABOR LAW PRE.WEEX REVIEWER. Ietemational vs, Kilusang GR. No, 189754, 2011), the established rule conrectly followed by the public respondent: that an order to hol a certification election is proper despite the pendency of the petition for cancellation of the registration cerfifcate of | the respondent-union,- The rationale for this is. that at the time the respondent unian filed {pation it si had the legal persnaity to perform such act absent an directing the cancellation.” Q: What is unfair tabor practica? A: Unfair labor practices are violations of the constitutional sight of workers and employers te self-organization, are inimical to the legitimate interest of both labor and management, including their Fight to bargain collectively and otherwise ‘deaf with each other in an atmosphere of freedom and mutual respect, and disrupt industial peace and hinder the promotion of healthy and stable labor-management relations. A: Yes. The court applied, in (Legends KilusangMangagawa, (Q: What is the nature of ULP? A: The victims of the offense are not just thé workers 28 3 body and the well — invaning employees who vatue peace, but the State as well. Thus, the attack fo this constitutiacalr ght is considered @ orime which caries both civit and criminat Kabities. LULP is considered @ criminal act, because the commission of ULP is an offense ‘against a public right or interest and should be considered a public offense. Furthermore, all profibited aris are selated in some way to the sighi fo self: ‘organization. Not every unfair act is ULP: a is a eatin Sit hat supervisors 2 form of discrimination: ~ against rank and file employees7 Ac No. The Court in (Wise and Co. wince Wise and Co Union, GR. 87872, 1989}. tuled thet there couk! be na discrimination, committed by petitoner as the situation of the union employees is different and distinct from the con-union employees. Discrimination per se is not untawful. ‘These can be no discrimination where the employees ‘concemed are not similarly situated. OQ: Carr'the’ commission of unfair tabor~ procticas.ot an-omployar bersubjected: - to criminal action? 4 Yes. ULPs are also criminal offenses against the State which shall be subject to final judgment shalt neither be binding on the criminal case, nor be considered as evidence of guilt’ At best, it wouk! oaly serve as ptoof compliance of the requirement set forth in Asticie 247. Q: Whatis the concept of a strike? AL A strike is any temporary work stoppage by the concerted action of emplayees as a result of an industrial or labor dispute. It is a coercive activity sesorted to by the employees to enforce their dernands. e" Page 37 of 47 a2015 LABOR LAW PRE-IWEEK REVIEWER report 1s decared Ter an | Conducted Tora] fora valid strike? untawful purpose. | tswful purpose. The such as inducing | only, two stikeabla } A: the empioyer to | grounds that may 4. Status of the striking union — For a commit 3 ULP| validly support a ULP strike oc bargaining:deadiock, against non-union | strike are: on ayo Gu erie employees; oF 4. collective bargaining. deadlock, andior 2. Procedural reqsicements: i employer's a. Notice of strike — fle notice of ‘woke labor intent to strike with the NCMB- practicn b. Coofing-of Period must de Employs uniawil| Parsued within the observed means is the|bounds of law or co ULE 15 days before pusut of its} means employed intended strike. objectives, such | within the bounds of © Bargaining deadlock: 30 as widespread | law, Does not commit days. terrorism of non-| any of the following 3. Strike voia and filing of the same sitters: oF activites with the NOMB act of violence, 4. 7-day sire ban must be observed coercion, of 5. Cause - 3 labor or iridusicial intimidation dispute . i obstruct the free ingress to or Compfiance with all the legal egress from the requirements, as. stated by National employer's Fedoration of Sugar Workers vs. Ovajera premises for {G.R. L-59743, 1982), are meant fo be tawhul purposes and should be mandatory. Page 38 of 47,Necessarily, a stike must comply with the Surpose and means tact white moans that the purpose and the means to carry + out the strike must be legal. The purpose: wet -be based ‘on bargaining deadlock {economic} andfor unfair labor practice (political). The means fo cary out the strike shoult alsa be legal where there should be no illegal acts committed in the course of the strike, @: What comprises a strike? destroy of sabotage plent equipment. The fact that the conventional term “strike” fen't use fs of na moment. {Solidbank v. Gamier, G.R. 159460, 2010) Q: Whon may strikes or lock-outs be Gectaced? Seeretary or after certification or submission of tha dispute to compulsory or voluntary arbitration or during the pendency of cases involving the some grounds for the strike of tock out. (Rule Xxv, Sec. 8) G: What are the effects of a strike on an ‘employer-omployes relationship? A: Strikers remain as employees while they are on strike; the effects of -employrnent are merely suspended during that time, When the strike is over, the employees go back to work and the effects of employer-employee relationship ® _ 2015 LABOR LAW PREAWEEK REVIEWER ee Nn SEK REVIEWER “"8te resumed. The code says in Art. 264 that mere participation of a worker in 2 fawlut sirke shall not constitute sufficient ground for termination of his employment, ‘even if a replacement fad been hired by the employer during such lawful strike, Even if dectared ilegal, the strike need not fave been stiended with such 2 drastic consequence as termination of ‘employment of relationship, : What are the provisions on ilfegat oekout? Le, when is it committed? ae 1, Ast 263 (b): The right of legitimate labor organizations to strike and picket and of employers fo tockout, consistent with the netional the partners in a partnership, obtained by secret ballot in 3 meeting called for that purpose. ‘The decision shat be valid for the ae Page 39 of 47voting at least seven. days before the jatendad strike or fockout, subject to the sooling-of period herein provided. «ss ‘Thus, a Jock-out is prope only when the following requisites are met: 1. notice of intention to deciare 2 Jockout has been filed. with the Department of Labor; 2. at least thirty days has elapsed since the fling of the noica before lock-out is declared; GR, 147749, 2006}. Q: fa the act of not showing up for work considered a fosm of strike? A: Yes. The Court held in Toyota vs. NLAC (GR. 158786, 2007) that the strikes were Wegat because they were in reality lemporary stoppages of work perpetrated through the concerted action ‘of the employees who deliberately failed to report for work. Apart from the fact that they defied the assumption order of the ‘Secretary of DOLE, it wes apparent that the vtimate goat of the union members was to coerce Toyota to acknowiedge them as the sole bargaining agent of the ‘company. Q: What is the difference between 2 aympathy strike and 2 general strike? A. Workers ga on 4 syitpatty strike to show their sympathy for a certain workers, who ate on strike. in a general strike, workers in the country oF in a region, province, or city, or municipality go on a iia 2015 LABOR LAW PRE-WEEK REVIEWER strike to pub! ay protest 2 cestain policy or action tzken by the goverment. O; What is picketing? Az This involves the presence of striking ‘workers of their union brothers who pace back and forth before the place of business of an employer considered “unfair to organized tabor.” The purpase of such act is to peacefully persuade other workers not fo work in the establishment, and customers tot ta do business there, G What are the requisites for lawful picketing? Ac Lawful purpose AND jawful means. @: fs picketing legal it non-omployees of the —stike-bound — employer participate in the activity? A: Yes, Peaceful picketing may be tegally carfied out even in the absence of : for it is) under the fmedom of speech and af the press under the Constitution Gz Car picketing activity be curtailed" when itagal acts are committed: by: the: icketing workers in the course of the. activity? ‘Ac The pickoting must be peaceful as the Jaw provides that “po. person engaged fr ‘picketing shail coment any act of violence, ‘coercion of intimidation, or obstruct the free ingress to or egress from the employer's premises for fawiul purposes, ‘or obstruct public thoroughfares. (Art. 264 {e), Labor Code) While the law provides that police force should be kept out of the picket fines, @ proviso provides thet nothing heroin shall be interpreted to pravent any public officer from taking any meazure necessary 10 maintain peace and order, protect life and property, and/or ‘enforos the law and legat order. Page 40 of 47: Witat are the legal effects of an assumption of jurisdiction order? A: The assumption of jorisdiction order ‘has the effect of automatically enjoining the intended oF impending strike of fock- ‘out 23 specified im the assumption or certification. 1f one has already taken place at the time of assumption oF certification, all striking or focked-out emolayees shalt immediately retun to ‘work and the employer shall immediately sesume operations and readmit elt workers under the same tems and vonditions prevailing before the strike or fock-sat. : Are retrenched employees excluded _ fromthe: coverage of 3 return-to-work order? A; No, The determination of wha among, the strikers couid be admitted back 10 work cannot be made to depend upon the discretion: of employer, lest we strip the certification or assumption-of jurisdiction interests wil be affected. (¥SS Employees Union vs. YSS Laboratories, G.R. 158128, 20083, @: When and under what circumstances can the Secretary of Labor fssue an assumption of jurisdiction order? A; The Secretary of Labor may issue an assumptinn of jurisdiction order when in is opinion there exists a tzbor dispute causing of likely to cause a strike or lock- ‘gut in an industry indispensable to the national interest. @: What happens upon defiance of the assumption or certification order? A: Non-compliance shat! be considered as ‘sn legal act committed in the course of strike oF fockout. 2015 LABOR LAW PRE.WEEK REVIEWER. 2 Dismissal © Payment of backwages or damages of : employer : Can the issue of wage distortion be raised ina notice of strike? Explain. A: No, a strike is legal if based on alleged salary distortion, tt is specifically provided fn the law that “any issue involving wage distorfion sha not be 2 ground for @ strikefockout.” ‘The seasen for the prohibition is that it is the legislative infent that solution to the problem of wage distortions should be sought by voluntary negotiation oF arbitration, and not by tikes, lockouts oF ‘ther concerted activities of | the employees or management. Can the employer ‘dismiss ath the employees {both officers and rank-and-. file} who: ctaged-aniliegal strike? ~ Az Theres. nor -wholesaie- dismissal of stikers even i the'sirike was declared legal. Under Art. 264 of the Laber Code, mere participation of a worker in an itlegal employment status, For a worker of union snember fo suffer toss of emptoyment, he must have knowingly participated in the ‘commission of illegal acts during the strike. (CBP! Postenix Workers Union vs. NLR, GR. Mo. 114521, 1998). @: When is there a waiver of the legality of a strike? A: Where the employer voluntarily agreed to reinstate the strikers, such agreement ‘on the part of the employer constitutes a waiver of the defense that the stike was ‘ihegal. Page 41 of 47Exception: "National interest” cases under Article 264. @ What is the Innocent Bystander Rule? A: Innocent bystander: They are ihird parties whose enjoyment of their premises js adversely affected by activities of the union in picketing. They are neutrat to the Jabor dispute between the union and the ‘employer. The fight of the union to picket may be © if such would result to create ‘an impression that an “innocent by-stander” is included in the Jabor dispute or of the picketing activity constitute to an invasion of fhe fights of the “innocent by- stander" 7 PROCEDURE AND JURISDICTION Q: What ave the various prescriptive periods for actions rélating t labor disputes? A: General Rula: 2 years from the time the cause af action accrued. . Exception: ULP cases presisibe within. 1 year from accrual of such unfair labor practice. Q: Does the period of prescription in Atticle 291 of the Labor Code apply only to money claims so that the period ‘of prescription for other cases of injury fo the rights of employees is governed by the Civil Code, 2g, an action for reinstatement for injury to an 2015 LABOR LAW PRE.WEEK REVIEWER employee's rights prescribes:in four (4) years 2x provided in Article 1348 of the ‘Civii Code? A: Yes. A complaint founded on ilegat constitution and by-laws: Provided, That such inquiry or examination shalk not be conducted during the 80-day freedom Period nor within the 30 days immediately s Page 43 of 47, eR : 235 LASOR LAW PRE-WEEK REVIEWER TS aE ay cause of action bared an quasédetict'or preceding: the date of election: of union officials, Q: May noa-tawyers appear before the NLRC or Labor Arbiter and may they charge attorney's fees for such appearance provided it is charged against union funds and in an amount freely agreed upon by the partes? A Yes, non-lewyers may appear before the Commission or any Labor Arbiter ony: (1) if they represent themselves; or (2) if thay represent their own fogitimale Jabor organization or members thereof, of (3) if they are duly accredited by a Legat Aida: Procedurally, how do you stay a decision, award, or order of the Labor A: Ast 227 provides that any compromise agreertent involving iebor matters entered into by the parties with the assistance of, the DOLE shall be final and binding upon agency 2s may be deputized by the DOLE of NLRC, R may also be issued moky propio by the Labor Arbiter. (Labor Code, ‘ant. 223 & 224) @: What are the instances when an order of execution may be appeaied? A 1. When execution becomes. impossible or unjust, it may be modified ar altered an appeat to harmonize the same with justice i 2015 LABOR LAW PRE-WEEK REVIEWER ‘and: the facts’ (Tores vs. NLAC; GR Ra. 107014, 2000). 2. Supervening events may warrant modification in the execution of judgment, as when reinstatement is no longer possible because the postion was abolished as a cost- cutting measure due to fosses. (Absios vs. Philex Mining Com, GR 140374, 2002). 3. Where the wit is found defective, exceads or varies the award andlor is irregularly issued. (DBP ¥. Union Bank, G.R. No, 155836. 2008). 4. Where there @ wrongful computation of the award. @ May 2 decision of the Labor Arbiter which has become final and executor be novated through a compromise agreement of the parties? ‘Ac Compromise agreement is encouraged and authorized by faw. Hence, they may be made even when the judgment is finat of the principles of contract, and not by the tine it was entered into-as provided by this law: > ‘on contracts, @ valid compromise must: hava the foRowing elements: 4. The consent of the parties to the ‘compromise; 2. An objects cetain that is the subject mater of the compromise; 3, The cause of the obtigation that is established. Q: PD 1508 requires the submission of disputes before the Barangay Lupong Tagapamayapa prior to the filing of cases with the courts or other sont bodies. May Ris decree be used ‘to defeat a tabor case fled directly with the Labor Arbiter? ‘A: Labor disputes are the exception to PD 1808, Under Ast, 228, motions to dismiss before the Labor Arbiter ace only allowed ‘on grounds of tack of jurisdiction, improper venne and bar by poor judgment or prescription, Hence, failure to resort to Page 44 of 47 &barangay conciliation is not 3 valt-ground: to deféar the fatior case. Q: What issues or controversies may ‘be the aubject of voluntary arbitration? & 1. Arte 264 of the Labor Code provides that Voluntary Arbitrator grevances arising ftom... the interpretation of implementation of the CBA and those arising fromm the interpretation of enforcementivof paligise ‘corresponding to his two years’ salary under the POEA-approved contract. SR and MRA traversed Richie's complaint, raising that the Labor Arbiter has 0 Jurisdiction aver the case; Decide, At The Labor Arbiter has newly soquired jurisdiction over monetary claims arising ‘ut cf by virtue of any law or contract fnvolving FILIPINO WORKERS FOR OVERSEAS DEPLOYMENT, | including claims for actual, moral, exemplary andl other forms of damages. Lua 2015 LABOR LAW PRE-WEEK 2E VIEWER Gr What aretha cules” on domestic: helpers? x ‘Domestic or household service” shal mean service in the employer's home which is tsually necessary of desirable for the ‘maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience af the members of the employer's. household, inckding services of family drivers. 2. The oxiginal contract of service may at exceed more than 2 years but may be renewed pon mutiat agreement ofthe patios 3. No househalper shal be assigned to work in a commercial, indusiial, saree enterprise ota wous or salary rate lower than that 4. if the househelper is under the age ‘of 1 yeare, the employer shalt give him of hes an opportunty for at least uniess there is @ stiputation to the- contrary. 5. The employer shat fumish the househeiper, free of charge, ‘suiteole and sanitary tving quarters: a8 well as adequale food and medical attendance. &. if the period of household service is. fixed, neither the employer nor the househelper may terminate the ‘contract before the expiration of the ter, except for a just cause. if the househelger is unjustly dismissed, he or she hall be paid the compensation already seamed pis. that for Bfteen (15) days by way of indemnity. T. Wf the duration of the household service is nat determined either in “househielper may give notioe to put an end to the relationship five (5) Ry Page 45 of 47and duration of the service and his or her efficiency and conduct as househelper. Q May a house help be assigned to non-household work? A: No, Undarirt:145 of the Labor Code, nierpase at wage or scar tao lower than that provided for agricukural or nen agricuturat workers as deecribed herein. @: inday was employed by mining company X to perform taundry service at its staff house. While attending to her assigned task, she slipped and hit her back on a stone. Unable to continue her work, she was permitted to 90 on leave for medication, but. _ thereatter she was not allowed to ratum to work, She Sled 2 comphiint. for illegal dismissal buy her employer X contended that Inday was not 2 regutar employee but a mere househelp. Decide. 4: Inday is 2 reguler employee because she perfomns work thet is usually necessary ond desirable in tha business oF the mining company. Services rendered in a staff house of @ company within the premises of @ company cannat be conskiered #3 household work. (Apex Mining Company, ine. vs. NLRC, GR No. 94951, 1991). Q: What are the statutory restrictions on the employmont of minors? Ac Under Art, 139 of the Labor Code, 3 undertakings. It also prescribes that no child below 15 shail be employed unless he works directly under his parents or guardians and his work does not interfere “by the sherif; (Yupangoo Cotton ¥s. CA” 2015 LABGR LAW PRE-WEEK REVIEWER ‘with his schooling: those between 15 and 18 shall comply with appropriate DOLE regulations, @: When is retirement due for underground miners? A: Optionat retirement is due for underground cinars. upan reaching the age of 50 years or more and compulsory retirement of age 60 provided he has served at east 5 years as such, (RA 8558} Gi Wat are te comedies een over third-party claiming ownership over a property levied in a labor proceeding? A (a) Fite 2 third party claim with the sheriff of the Labor Arbiter, and (®) if the third party claim is denied, the {his party may appeal the denial to the RC. {c) Even i a third party claim was denied, 2 tiird party may sill fle 2 proper action with competent court to recover . ‘ovmership. of the: propady. legally, seized. GR 126322, $6 dansary $6 20023. @: Does the SOLE generally have jurisdiction over appeals? A: No, In (The Hontage Hotel va. Notional Uoion of Workers, GR. 178296, 2011), remained with the BUR the BLA Director's inhibition. When the DOLE Secretary resolved the appeal, she merely stepped into the shoes of the BLR Director and performed 3 function that the fetter could not himselt perform. Sh did so pursuant to her power of supervision and controi over the BLR.” Q: {s 2 dispute, settled through voluntary arbitration, inconsistent with Article 217 of the Labor Code? A: No, The Supreme Court in (The University of Immaculate Conception vs. RLRC, GR 181146, 2011) stated thatArticle 262 provides of an exception, ALG TH ore(GR. 190515, 2017). Q: Are decisions of a VA appealable to thre CAP A Yes, via 2 petition for review under Rule 43. A petition for certioradt is the wrong remedy, which may fesut in ‘outiight dismissal oY Page 47 of 47 SPER 15 LABOR LAW PRE-WEEK REVIEWER, @ May the amount of an appeat bond be reduce despite the amount being fixed by law? A: Yes, The bond may be reduced upon meritorious grounds and upon posting of & partial bond. One example of 2 meritorious ground is if the corporation is under recewership. (University Plans ¥. ‘Solano, G.R. 170436, 2017). Q: ts the simuttaneous filing of motion to reduce bond and posting of the feduced amount substantial compliance with Article 223 of the Labor Code? A; Yes. While the bond requirement on appeals imwoWing @ monetary award has been relaxed in certain cases, this can only be done where there was Substantial fiance with the mules or where the sppeliants, at the very least, exhibited wilingness ta pay by posting a partial bord. (Magdala: Multipursose v. KMLMS, GR. 19453822, 2077), @: May the union. president sign the forwer shoppingion behalf of a tmion?: Yes. The union president. tin: nest in a labor case (PSTMSOWO ¥. PNCC ‘Skyway Corporation, GR. 171231, 2010). -