LABOR STANDARDS

-provide the law where the economic benefits of workers while working are enumerated.

*Living Wage – wage that can provide the worker including its family to live in reasonable comfort.

*Wage order issued should be in accord of wage standard fixing

*In case the employer will not comply with the wage order (increase wage), the employer will be liable
to pay twice the amount of the benefits under the principle of double indemnity.

*Escalator Clause – increase in salary when there is an increase in primary commodities

SOCIAL JUSTICE is "neither communism, nor despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social and economic forces by the State so that justice in
its rational and objectively secular conception may at least be approximated. Social justice means the
promotion of the welfare of all the people, the adoption by the Government of measures calculated to
insure economic stability of all the competent elements of society, through the maintenance of a proper
economic and social equilibrium in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through
the exercise of powers underlying the existence of all governments on the time-honored principle of
salus populi est suprema lex.

Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance
equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has
been assessed by the company-designated physician but in no case shall this period exceed one hundred
twenty (120) days.
*Oct. 6, 2008 and below – 120-day rule in applying for disability claim in maritime (Vergara Case)
*Oct. 6, 2008 and up – 240-day rule when applying for disability claim in maritime
If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires
further medical attention, then the temporary total disability period may be extended up to a maximum
of 240 days, subject to the right of the employer to declare within this period that a permanent partial or
total disability already exists.

*Illegal dismissal must be proved by the employer on a clear and convincing evidence.
*Gambling is considered as “Serious misconduct because of it pernicious effect.
*Service Charge is part of wages because when they are abolished it is deemed integrated into the
wages.
*In theft, if the amount of property stolen is negligible, dismissal is too harsh a penalty.
*When an employee has stolen a thing owned by his co-employee, it is not serious misconduct since it is
not connected in company’s property, dismissal is too harsh a penalty.
*Length of service is overshadowed by the gravity of the offense.”

CONSTRUCTIVE DISMISSAL -demotion in rank, diminution in pay, unreasonable transfer, prejudicial

transfer

RESIGNATION – voluntary act of an employee, in writing with acceptance in writing.

*When an employee verbally resigns then it is already a “fait accompli.
LABOR ONLY CONTRACTING -against the law, no e-e relationship, agents’ perform the job of employer,
no substantial capital, equipment,
JOB CONTRACTING – valid, there is substantial capital equipment, there is e-e, independent from the
control of the employer

RECRUITMENT – canvassing, transporting, placing, fulfilled or not fulfilled, with or without money paid
to the recruiter.
*Money is not an element in an illegal recruitment.

TYPES OF ILLEGAL RECRUITMENT

1. Syndicated – economic sabotage
2. Large Scale/Qualified – economic sabotage
3. Simple
4. Non-licensee

*DOCTRINE OF IMPUTED KNOWLEDGE:

Situation: Contract signed by the ee, foreign er and local er, in accord with POEA standards. EE and
Foreign ER extended the contract with the knowledge of Local ER. The Local ER is not a privy to the
extended contract; therefore, it cannot be ascribed, imputed to the Local ER, under the doctrine of
Imputed knowledge.

*A license issued to Recruitment Agency is personal in nature and therefore cannot be transferred.

REQUIREMENTS for AGENCY:

 Sole prop/Partnership -Filipino, 2M capital, bond:100K, Escrow Agreement: 1M
 Corporation – 75%Fil-25%-foreign, 2M PAID UP, bond: 100K, Escrow Agreement: 1M
*Bond and Escrow Agreement are required to prevent proliferation of fly by night agencies.

*Non-Diminution of Benefits except in compromise agreemebt

LABOR RELATIONS LAW

2 STRIKABLE ISSUES:

1. Bargaining deadlock
2. ULP

*SOCIAL JUSTICE – 1st part: It is neither nepotism or depotism…

- 2nd part: promotion of welfare of all the people…

In general, the quantum of evidence required in a labor law is substantial evidence. The quantum of
evidence required in a dismissal made by the employer shall be: Clear and Convincing Evidence.

*BELATED DUE PROCESS: Dismissal with just and authorized causes but WITHOUT Due Process.

*JUST CAUSE DISMISSAL: initiated by the employee/ NO Separation pay except “in lieu of reinstatement
cases”

*AUTHORIZED CAUSE DISMISSAL: initiated by the employer/

*Sexual intercourse inflamed by lust or affection should be done in a manner that it should not offend
public decency.

*Doctrine of Commensurate Penalty-

*First offense rule does not apply as against the gravity of the case. – “Dismissal is proper considering
that despite the length of service, the Length of service is overshadowed by the gravity of the offense.”

“Dismissal is too harsh a penalty considering that the amount stolen is negligible.”

“Dismissal is too harsh a penalty because in his 15 years of service, he did not commit any infraction in
light of the first offense rule.”

*Verbal resignation is allowed since there is no prohibition in the law. The acceptance of the employer
of the verbal resignation in writing makes the resignation as a fait accompli.

*Constructive Dismissal = Illegal Dismissal: Normal Consequences: Reinstatement, full back wages,
damages, other benefits that may be awarded by the labor arbiter, 6% legal interest of monetary
benefits.

*Retrenchment – to reduce company personnel/ downsize, in order to prevent company losses

*The reinstatement in Arbiter’s stage is self-executory, but in NLRC, you need to file a motion for the
issuance of writ of execution.

*Case of Illegal Dismissal should be filed with the Regional Arbitration Branch of the NLRC, having
jurisdiction of the workplace of the complainant.
Termination -> LA (preliminary conferences 2x) ->Submission of Position paper, simultaneously. –>
submission of reply, simultaneously, -> RESOLUTION

*Technical rules and procedure of evidence are deemed relax in a labor proceeding.

*Non-payment of docket fee is fatal to appeal because it is a jurisdictional requirement.

TYPES OF EMPLOYMENT:

1. A. REGULAR Employment as to NATURE of work – usual and necessary or desirable in the usual
course of business (employee must be in the service for at least 1 year in case of continuous re-
hiring)
B. REGULAR Employment as to LENGTH of service -
2. PROBATIONARY Employment – training period, worker has to learn the skills of the job in this
period.
3. APPRENTICESHIP – training period, like probationary period (so if you give apprenticeship plus
probationary period that will be DOUBLE PROBATIONARY which is prohibited under the law.
4. LEARNERSHIP
5. FIXED PERIOD/CONTRACTUAL – period or term is terminated on a certain day. No need to notify
the employee about the termination, because upon the expiration of contract or period, the
contract terminates by itself.
6. SEASONAL- employee is employed only for a specific season. *If the employee is being hired
from season to season, performing the same task for every season, then the legal consequence
is that he becomes a regular employee.
7. PROJECT – employed for a specific project/undertaking only. Upon expiration of the project, no
need for notice of termination. If there is constant re-hiring doing the same task, the employee
becomes regular.
8. NON-PROJECT – (1) Casual – performs job incidental to the principal job of the employer, (2)
Probationary, (3) Regular

RETIREMENT – 15 days salary for every year of service

PRESCRIPTIVE PERIOD

(purely) Money claims – 3 yrs

Incremental proceeds out of tuition fee hatch.. – 3 yrs

ECC claims – 3 yrs

Union funds – 3 yrs

SILP – 3 yrs from the date of denial (so there was a demand from the employee)

Criminal cases under the labor code – 3 yrs, ULP – 1 year, Simple illegal recruitment- 5 yrs., Syndicated
large scale:- 20 years,
Illegal dismissal – 4 yrs. (we follow the civil code due to the injury caused to the employee)

*Under the GSIS Law, there are two claims which are imprescriptible: (1) Life Insurance Claim;
(2) Retirement Claim

*Escalator clause in CBA- agreement when in the event of consumer price increase (prime
commodities), there is gradual increase of wage.

STRIKE:

1. Particular/ordinary Strike – confined only in a particular area of office

2. General – (political) strike staged against non-employers/ affects wider region or territory of state.

3. Slow-down – Strike on installment basis.. purpose: to reduce production

4. Sit-down – workers remain in the company premises but refused to perform their work.

5. Quickie – workers outside the plant for a quick break/ quick strike to reduce production.

6. Lightning – brief. Concise. Short. Impromptu meeting of union members (when union members are
the only employees.

7. Sympathetic

8. Union Recognition – to compel the employer to recognize the union as the bargaining agent

REPRESENTATION

Bargaining Unit – Bigger group of employees (sharing mutual interest in an employer unit) – composed
of all or less than all employees in a given company.

In an organized establishment – Petition for Certification election should be filed within 60 days prior to
the expiration of the existing CBA (freedom period). When the petitioner is the challenger, the petition
must be accompanied by 25% signature support of all the employees covered by the bargaining unit, the
Med-arbiter will then order an election by Secret ballot.

***An establishment is organized if there is an incumbent bargaining agent. Existence of unions or LLOs
still makes an establishment unorganized if there is no bargaining agent.

Unorganized establishment may file the Pet. for Certification election ANY TIME.

*If no Petition was filed within the 60 days freedom period, the incumbent bargaining agent shall retain
its status as the sole and exclusive bargaining agent.

Contract Bar rule – If there is a DULY REGISTERED CBA, no petition should be entertained by the DOLE
within the freedom period.

NOT A GROUND FOR SUSPENSION OF PETITION FOR CERTIFICATION ELECTION

1. Employer-employee issue
2. Legal personality of an organization
3. Inclusion of members outside the bargaining unit (ex. Rank&file union + supervisory employees)
 -the supervisory employees will only be removed.

Certification Election or Consent election- process of selecting the sole and exclusive bargaining
representative through secret ballot.

CERTIFICATION ELEC – ordered by the Department of Labor

CONSENT ELEC – voluntarily agreed upon to be conducted by the parties, with or without the
intervention of the DOLE.

ELECTION PROCEEDINGS

ONE YEAR BAR RULE -Within one year from the time of the previous valid election (last day of election
proceedings), there is a one-year bar rule to file the petition for Certification Election.

GROUNDS FOR DISMISSAL OF PETITION:

1. Contract Bar
2. One Year Bar
3. Deadlock Bar
4. Petitioner is not listed in LLO list
5. On record, there is revocation of legal personality with finality
6. Local chapter did not issue a chapter certificate
7. Sustained negotiations – a union may negotiate ad infinitum before reaching a CBA

Failure of Election -> Re-Run Election

When there is tie -> Re-Run election

*NO MORE Voluntary Recognition

CBA -representation aspect – 5 years term

STRIKE - Temporary stoppage, concerted action, industrial or labor dispute

PICKETING –

ULP- violates the constitutional rights of the workers to self-organization

PROCEDURAL STEPS AND PROCESS REQUIRED IN A STRIKE

1. File Notice of Strike (1st notice) – the filing starts a period (cooling off period)

*Deadlock – 30 days cooling off period

*ULP – 15 days cooling off period, if there is union busting (duly elected union officers
dismissed), the 15 day will not apply, union may conduct strike vote immediately after filing the
notice of strike.
2. Conciliation/Mediation in NCMB
3. Notice to conduct strike vote filed by the union at DOLE..:) within 24 hrs. before the strike vote
4.
DO 40: *Electricity, Airline, Water, Hospital industries – Areas where the Sec. of Labor may assume
jurisdiction or certify dispute. The national TIPC (Tripartite Industrial Peace Council) may recommend
other industries.

*A mere declaration that the strike is illegal doesn’t tantamount to dismissal of all employees, only
when there is a defiance of an assumption order of certification can all the employees be dismissed.

*When a union officer knowingly participates in an illegal strike, he can be dismissed. When a mere
union member participates in an illegal strike, he cannot be dismissed unless he committed an act in
further defiance of the law (eg. Killed the manager).

TERMINATION OF EMPLOYEE (Regular)

AUTHORIZED CAUSES

1. Installation of labor saving device (reduction of personnel due to use of machinery/equipment)

2. Redundancy (in excess of the needs of operation) -no duplication of work function, a position is
redundant when it is superfluous (over-hiring).

3. Retrenchment to prevent business losses (must be proved to be an effective measure, other

strategies proved to be unsuccessful)

4. Closure or cessation of operation – (may be complete of partial)

5. Disease – should be diagnosed by a government doctor, government hospital. If incurable within 6

mos. should be dismissed.

JUST CAUSES

1. Gross (absence of diligence that a prudent man uses in his regular affairs) and Habitual Neglect
(repeated failure to perform regular duties) of duties

2. Serious misconduct (inherently wrong) or willful disobedience (insubordination)

3. Fraud and willful breach of trust (loss of confidence) reposed by the employer – can only be
committed by employees with utmost trust and confidence such as (1) MANAGERIAL employees, and
(2) those who have in their custody either property or cash of substantial value because of the nature of
their function such as cashier, driver of delivery truck, etc.

4. Commission of a crime against the employer, any member of his immediate family, duly authorized
representative

5. Other causes analogous to the foregoing

*Probationary employee is also covered by security of tenure and may only be dismissed on just and
authorized causes and upon failure to meet the standards of probation which was made known to him
when he was hired.

PROCEDURE OF TERMINATION DUE TO JUST CAUSES

(1) written notice specifying cause of termination, narration of acts constituting such cause of
termination (to be answered by the employee)

(2) Give the employee and ample opportunity to be heard (can be verbal or written)

(3) Notice of termination

PROCEDURE OF TERMINATION DUE TO AUTHORIZED CAUSES

1) written notice to the employee and the Regional office of DOLE, 30 days before the effectivity of the
termination, specifying the grounds of termination

2) Payment of Separation Pay for (1) Installation of labor-saving devices, (2) redundancy, (3)
retrenchment, (4) closure or cessation of business (if the owner merely closes because he’s leaving the
country.

SP: 1month salary X years of service (6 months service = 1year service) = (1) Installation of labor-saving
devices, (2) redundancy

SP: ½ month salary X years of service = 3) retrenchment, (4) closure or cessation of business (if the
owner merely closes because he’s leaving the country.

*In case of closure or cessation of business due to serious business loses, then there is NO SEPARATION
PAY.

*The Sec. of Labor may suspend the effects of termination ie. Implementation of mass lay-off., pending
the resolution of dispute.

*Case of Illegal Dismissal should be filed with the Regional Arbitration Branch of the NLRC, having
jurisdiction of the workplace of the complainant.

REMEDIES of ILLEGALLY DISMISSED EMPLOYEE:

1. Reinstatement to former position or to an equivalent position, if impossible, in lieu of reinstatement,

employee shall receive separation pay (last known salary X years of service).

2. Reinstatement without loss of seniority rights

3. Payment of full back wages without deductions from the time the compensation was withheld up to
the time of reinstatement (punitive damages, punishment to the employer) *backwages – monthly basis
including 13th month pay. (salary X 13 months X years of service), or if there is no reinstatement, but only
payment of separation pay, then the computation of backwages will be up to the finality of judgment in
SC.

3. Moral damages – prove bad faith on the illegal dismissal

*Dismissal w/o cause = ILLEGAL DISMISSAL

*Dismissal w/cause but w/o compliance with the procedural requirements = NOT ILLEGAL DISMISSAL. -
> no reinstatement, no backwages, may receive NOMINAL DAMAGES: 30,000-JUST CAUSES; 50,000-
AUTHORIZED CAUSES

*No Reinstatement in cases: (1) under RA 8042 as amended by RA10022 (Migrants workers and
Overseas Filipino Act); (2) Kasambahay law;

*In cases of seafarer illegally dismissed, they should be paid with salaries corresponding to the
unexpired term of the employment contract regardless of the duration of the contract.

REMEDIES OF EMPLOYEE WHEN THE EMPLOYER IS OBSTINAN (STUBBORN) IN GRANTING THE

REINSTATEMENT

1. File a motion to cite the employer in contempt

2. File a motion to ask for monthly salary
*2011 rules of NLRC, LA may motu proprio issue motion of execution to execute reinstatement.

RESIGNATION W/O NOTICE TO EMPLOYER

1. Serious insult
2. Inhuman/unbearable treatment (constructive dismissal
3. Crime committed
4. Analogous causes
*Suspension of operation may be valid as long as it will not go beyond 6 months.

DISPUTE SETTLEMENT

1. Simple money claims – 5K below, asking only for payment of money, recovery of wages and benefits,
covers all employees or persons in the domestic or household service, provided that such claim does not
involve a claim for reinstatement. -JURISDICTION: Regional Director of DOLE

Above 5k, the JURISDICTION is with the: LABOR ARBITER, except those covered by the ECC such as SSS,
PHIC, HDMF.

PROCEDURE: RD Decision in favor of employee, Employer appeals to NLRC within 5 days from the
judgment of RD.

2. Reinstatement, regardless of amount – LABOR ARBITER

*All labor disputes, will be appealed to CA, then to SC.

VISITORIAL AND ENFORCEMENT POWERS (DOLE SECRETARY and REGIONAL DIRECTOR)

VISTORIAL: shall have access to employer’s record/premises anytime whenever there is work rendered,
including right to copy the available docs, access to persons to identify labor violations of monetary
compliance and OSHS (operational safety and health standards),
ENFORECEMENT: issuance of compliance order, ordering the employer to comply with labor laws
PROCEDURE: RD issues compliance order, Appeal to Sec. of Labor
*Only Sec. of Labor can issue stoppage of work for violations of OSHS, employees should still be paid

CASES UNDER LABOR ARBITER

1. ULP Cases
2. Illegal Dismissal Cases
3. Actual, Moral, Exemplary damages
4. Monetary claims under illegal dismissal
5. Violation of Art. 264, issue of legality of strike, lock-out
6. cases filed by migrant works, OFWs

LA Decision -> File a notice of appeal and memorandum of appeal within 10 days from decision of LA,
TO NLRC Commissioner (grounds: abuse of discretion, decision was secured through fraud, including
graft and corruption, purely questions of law, serious errors in findings of facts) *In case the LA’s
decision is with award of money, the employer shall post an appeal bond (cash/surety) in the amount of
the monetary award.

NLRC TO CA -via Petition of Certiorari under Rule 65 (original action because the commission’s decision
becomes final)

Grievance:
Issue/s:
1. Interpretation/Implementation of CBA and the code of conduct of employee
*to be resolved under the Grievance Machinery, if unsettled, proceed to Voluntary Arbitration

Grievance -> Grievance Machinery -> Voluntary Arbitrator – Decision of VA becomes final after 10
calendar days from the receipt of the decision, subject to MR. After the decision on MR, it becomes final
and executory. MODE OF REVIEW: Rule 43:

*Dispose/Dismiss the case and refer it to the Grievance Machinery/Voluntary Arbitrator specified in
CBA, if a grievance is filed to any other office other than the Voluntary Arbitrator.

*The Voluntary Arbitrator may take cognizance of other labor disputes under the jurisdiction of the
Labor Arbiter, as long as the parties agree to submit such disputes to the VA.

BLR (Bureau of Labor Relations)

Jurisdiction: INTRA/INTER UNION CONFLICTS

BLR AND REG. OFFICE (LABOR RELATIONS DIVISION) – jurisdiction over intra/inter union conflicts
ORIGINAL JURISDICTION:
*BLR-> Federations
*REG. OFFICE (LRD) -> Independent unions, chapters
APPELLATE:
*REG. OFFICE (LRD) -> appeal to BLR (within 10 days) -> CA -> SC
*BLR -> Sec. of Labor - > CA -> SC

*In most cases, CA is the third adjudicator, except in: Sec. of Labor (assumption order) -> CA.

PRESCRIPTION:
3 yrs – penal Offenses
1 yr – ULP
3 yrs – Money claims from the time the cause of action accrued
4 yrs – Illegal Dismissal (injury to the rights of the plaintiff)