LABOR LAW UST LAST MINUTE TIPS 2018

FUNDAMENTAL PRINCIPLES AND POLICIES

Constitutional foundation on protection to labor

The state shall afford full protection to labor, local and overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all (Sec. 3, Art. XIII, 1987 Constitution)
Application of Article 4 in Case of Doubt on Evidence

The consistent rule is that if doubts exist between the evidence presented by the employer and the employee, the scales
of justice must be tilted in favor of the latter. (Malabunga, Jr. v. Cathay Pacific Steel Corporation,. G. R. No. 198515, June
15, 2015)

RECRUITMENT AND PLACEMENT

Elements of Illegal Recruitment

1. The offender is a licensee/non-licensee or holder/non-holder of authority engaged in the recruitment and placement
of workers; and,
2. The offender undertakes: (CETCHUP)
a. Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and
includes referring, contract services, promising or advertising for employment abroad, whether for profit or not
[LC, Art. 13(b); R.A. 8042 as amended by R.A. 10022]; or,
b. Any prohibited practices enumerated (People vs. Sadiosa, GR 107084, May 15, 1998; RA 8042, Sec. 10) under
Section 5 of RA 10022. (LC, Art. 34; RA 8042, Sec. 5, as amended by RA 10022)

Required Capitalization of Private Entity

The required capitalization for a private entity to qualify for a grant of a POEA license for sole proprietor and
partnership shall have a minimum capitalization of Five Million Pesos (PhP5,000,000.00) and a minimum paid up
capital of Five Million Pesos (PhP5,000,000.00) in case of a corporation. Those with existing licenses shall, within four
(4) years from effectivity hereof, increase their capitalization or paid up capital, as the case may be, to Five Million
Pesos (PhP5,000,000.00) at the rate of Seven Hundred Fifty Thousand Pesos (PhP750,000.00) every year. (Section 2,
Rule I, Part II for Landbased OFW)

Disqualified to Engage in Recruitment and Placement of Workers for Overseas Employment

The following are disqualified to participate and engage in the recruitment and placement of workers for overseas
employment: (TOCISA)
a. Travel agencies and sales agencies of airline companies;
b. Officers or members of the Board of any corporation or partners in a partnership engaged in the business of a travel
agency;
c. Corporations and partnerships, where any of its officers, members of the board or partners is also an officer, member
of the board or partner of a corporation or partnership engaged in the business of a travel agency;
d. Individuals, partners, officers or directors of an insurance company who make, propose or provide an insurance
contract under the compulsory insurance coverage for agency-hired Overseas Filipino Workers;
e. Sole proprietors, partners or officers and members of the board with derogatory records, such as, but not limited to
the following:
1. Those convicted, or against whom probable cause or prima facie finding of guilt is determined by a
competent authority, for illegal recruitment, or for other related crimes or offenses committed in the course of,
related to, or resulting from, illegal recruitment, or for crimes involving moral turpitude;
2. Those agencies whose licenses have been revoked for violation of RA 8042 (Migrant Workers and Overseas
Filipinos Act of 1995), as amended, PD 442 (Labor Code of the Philippines), as amended, and RA 9208
(Trafficking in Persons Act of 2003), as amended, and their implementing rules and regulations;
3. Those agencies whose licenses have been cancelled, or those who, pursuant to the Order of the
Administrator, were included in the list of persons with derogatory record for violation of recruitment laws
and regulations; and
f. Any official or employee of the DOLE, POEA, OWWA, DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI, PNP, Civil Aviation
Authority of the Philippines (CAAP), international airport authorities, and other government agencies directly involved
in the implementation of RA 8042, as amended, and/or any of his/her relatives within the fourth civil degree of
consanguinity or affinity. (Section 3, Rule I, Part VII, POEA 2016 RULES FOR LANDBASED OFW)
Wage Deduction

When the deductions are with written authorization of the employees for payment to THE EMPLOYER or a third
person and the employer agrees to do so, provided that the latter does not receive any pecuniary benefit, directly or
indirectly, from the transaction." (Section 10(b), Rule VIII, of Book III of the Rules to Implement the Labor Code (on Article
113[c]) was amended by D.O. No. 195-18, Series of 2018)

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Q: Is the policy of suspending drivers pending payment of arrears in their boundary obligations reasonable?
A: YES. Respondents policy of suspending drivers who fail to remit the full amount of the boundary was fair and
reasonable under the circumstances. Respondent explained that he noticed that his drivers were getting lax in remitting
their boundary payments and, in fact, herein petitioners had already incurred a considerable amount of arrears. He had
to put a stop to it as he also relied on these boundary payments to raise the full amount of his monthly amortizations on
the jeepneys. Demonstrating their obstinacy, petitioners, on the days immediately following the implementation of the
policy, incurred deficiencies in their boundary remittances. (Caong, Jr. v. Regualos, G.R. No. 179428, January 26, 2011)

Pakyaw/Task Basis Workers vs. Field Personnel

PAKYAW/TASK BASIS WORKERS FIELD PERSONNEL

GR: Workers engaged on pakyaw or "task basis" are Not entitled to holiday pay.
entitled to holiday and service incentive leave pay (SIL)
provided they are not field personnel. The law requires that the actual hours of work in the field
be reasonably ascertained. Field Personnel’s actual hours
XPN: of work in the field cannot be determined with reasonable
(1) Exempted from the exceptions specifically provided certainty. (Union of Filipro Employees v. Vivar, Jr., et al., G.R.
under Article 94 (holiday pay) and No. 79255, January 20, 1992)
(2) Article 95 (SIL pay) of the Labor Code. However, if the
worker engaged on pakyaw or task basis also falls within Also not entitled to service incentive leave (SIL)
the meaning of "field personnel" under the law, then he is
not entitled to these monetary benefits. (David v. Macasio,
G.R. No. 195466, July 2, 2014)

Collection of Both Retirement Benefits and Seperation Pay

In Goodyear v. Marina Angus, G.R. No. 185499, 14 November 2014 it was ruled that in the absence of an express or
implied prohibition against it, collection of both retirement benefits and separation pay upon severance from
employment is allowed. This is grounded on the social justice policy that doubts should always be resolved in favor of
labor rights. (Aquino v. National Labor Relations Commission, G.R. No. 87653, February 11, 1992)

Compressed Work Week to Prevent Serious Losess

When compressed work week, is resorted by the employer to prevent serious losses due to causes beyond the
employer's control, it is not considered an illegal reduction of work. (Bureau of Working Conditions of DOLE)

The Court upheld the validity of the reduction of working hours, taking into consideration the following:
1. The arrangement was temporary;
2. It was a more humane solution instead of a retrenchment of personnel;
3. There was notice and consultations with the workers and supervisors, a consensus were reached on how to deal with
deteriorating economic conditions and it was sufficiently proven that the company was suffering from losses. (Linton
Commercial Company, Inc. v. Hellera, G.R. No. 163147, October 10, 2007, citing Philippine Graphic Arts, Inc. v. NLRC,G.R. No.
L-80737, 29 September 1988,)

Undertime not Offset by Overtime

Where a worker incurs undertime hours during his regular daily work, said undertime hours should not be offset
against the overtime hours on the same day or on any other day (1 Azucena, 2016, p.268; LC, Art. 88)

The proper method should be to deduct the undertime from the accrued leave but pay the employee the overtime to
which he is entitled. This method also obviates the irregular schedule that would result if the overtime should be set off
against the undertime for that would place the schedule for working hours dependent on the employee. (NAWASA v
NWSA Consolidated Union, 11 SCRA 766, 778)

Service Charges

These are charges collected by hotels, restaurants and similar establishments at the rate of 85% for covered Ees equally
distributed among them, and 15% for the management to answer for losses and breakages.

Covered employees

GR: All Ees are covered, regardless of their position, designation, and employment status, irrespective of the method by
which their wages are paid.

NOTE: Applies only to hotels, restaurants and similar establishment collecting service charges.

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XPN: Managerial Ees. (IRR, Book III, Rule VI, Sec. 2)

Bonus

Refers to the payment in excess of regular or guaranteed wages. It is granted to an employee for his tangible
contribution to the success of the employer’s business, without which the employer may not realize bigger profits.
The contribution may be in the form of an employee’s commitment to the job, his industry and loyalty. (Metro Transit
Org., Inc. v. NLRC, G.R. No. 116008, July 11, 1995)

Decrease in Bonus is Not Diminution

The decrease in the grant of bonuses (midyear and year-end) does not constitute a diminution of the employees'
salaries. Bonuses are not part of labor standards in the same class as salaries, cost of living allowances, holiday pay, and
leave benefits, which are provided by the Labor Code said the Supreme Court in Traders Royal Bank v. NLRC, G.R. No.
88168 August 30, 1990.

Applicability of the Rule on Non-Diminution of Benefits

It is applicable if it is shown that:

1. Grant of benefit is based on a policy or has ripened into a practice over a long period;
2. Practice is consistent and deliberate;
3. Practice is not due to an error in the construction or application of a doubtful or difficult question of law; and,
4. It is done unilaterally by the employer.

Bona Fide Occupational Qualification (BFOQ)

In order to justify a BFOQ, the employer must prove that (1) the employment qualification is reasonably related to the
essential operation of the job involved; and (2) that there is factual basis for believing that all or substantially all
persons meeting the qualification would be unable to properly perform the duties of the job. (Star Paper Corporation v.
Simbol, G.R. No. 164774, April 12, 2006)

Justifying Marriage Qualification

A marriage or no-marriage qualification may be justified as a "bona fide occupational qualification". In Cadiz v. Brent
Hospital and Colleges, G.R. No. 187417, February 24, 2016, the High Court said that Brent must prove two factors
necessitating its imposition, viz: (1) that the employment qualification is reasonably related to the essential operation
of the job involved; and (2) that there is a factual basis for believing that all or substantially all persons meeting the
qualification would be unable to properly perform the duties of the job. (Star Paper Corporation v. Simbol, 521 Phil. 364,
375 [2006]) Brent has not shown the presence of neither of these factors.

The High Court weighed the said condition against the safeguards of Republic Act No. 9710 or the Magna Carta of
Women which protects women against discrimination in all matters relating to marriage and family relations, then it
becomes apparent that Brent's condition is coercive, oppressive and discriminatory. (Cadiz v. Brent Hospital and
Colleges, In.c G.R. No. 187417, February 24, 2016)

Standard of Morality with which an act should be gauged - it is public and secular, not religious. In Cadiz v. Brent
Hospital and Colleges, G.R. No. 187417, February 24, 2016, the Supreme Court explained that whether a conduct is
considered disgraceful or immoral should be made in accordance with the prevailing norms of conduct, which, refer to
those conducts which are proscribed because they are detrimental to conditions upon which depend the existence and
progress of human society. The fact that a particular act does not conform to the traditional moral views of a certain
sectarian institution is not sufficient reason to qualify such act as immoral unless it, likewise, does not conform to public
and secular standards. More importantly, there must be substantial evidence to establish that premarital sexual
relations and pregnancy out of wedlock is considered disgraceful or immoral.

Power of DOLE to Determine ER-EE Relationship

The Supreme Court in People's Broadcasting (Bombo Radyo, Phils., Inc.) v. The Secretary of Labor and Employment, et al.
G.R. No. 179652, March 6, 2012 had clarified its ruling in People's Broadcasting (Bombo Radyo, Phils., Inc.) v. The Secretary
of Labor and Employment, et al. G.R. No. 179652, May 8, 2009 and the Court now concedes that DOLE has the authority to
determine the existence of an employer-employee relationship, “subject to judicial review, not review by NLRC”.

Factors determining the existence of an employer-employee relationship

The four–fold test (indicia of determination):

1. Selection and engagement of the employee;
2. Payment of wages;
3. Power of dismissal; and
4. Power of control (1 Azucena, 2016 p. 189).

NOTE: It is the so-called “control test” that is the most important element.

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Control in Principal-Agent Relationship in Insurance Industry

The Labor Code concept of "control" was compared and distinguished with the "control" that must necessarily exist in a
principal-agent relationship in the Insurance industry. In the cases of the Great Pacific Life Assurance Corp. v. NLRC, G.R.
Nos. 80750-51, July 23, 1990 (where the Ruiz brothers’ were appointed from insurance agents to zone supervisor and
district manager, respectively) and Insular Life assurance vs NLRC : 119930 : March 12, 1998 (where the insurance agent
was appointed as unit manager under a management contract), the High Court said that when the insurance company
has exercised control over its agents so as to make them their employees, the relationship between the parties, which
normally an agency governed by the Civil Code and the Insurance Code, will now be governed by the Labor Code. The
reason for this is simple – the contract of agency has been transformed into an employer-employee relationship.

Two-Tiered Test

In cases where there is no written agreement to base the relationship on and where the various tasks performed by
the worker bring complexity to the relationship with the employer, the better approach would therefore be to adopt a
two-tiered test involving: a) the putative employer's power to control the employee with respect to the means and
methods by which the work is to be accomplished; and b) the underlying economic realities of the activity or
relationship. (Maricalum Mining Corporation v. Florentino, G. R. No. 221813, 222723, August 23, 2018)

APPRENTICESHIP
1. Apprenticeship

It is practical training on the job supplemented by related theoretical instruction involving a contract between an
apprentice and an employer on an approved apprenticeable occupation

TESDA implements the apprenticeship program

Section 18 of the TESDA Act of 1994, expressly empowers the TESDA to implement and administer the apprenticeship
program in accordance with existing laws, rules and regulations. It is no longer the SOLE, but the TESDA, who approves
apprenticeable occupations.

Requisites for employment of apprentices:

1. The employer should be engaged in a business that is considered a highly technical industry;
2. The job which the apprentice will work on should be an apprenticeable occupation.

2. Apprentice

Any worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities
recognized under the Labor Code.

3. Apprenticeable occupation

Any trade, form of employment or occupation which requires more than three (3) months of practical training with
theoretical instruction officially endorsed by the tripartite body and approved for apprenticeship by the TESDA.

Apprentices without compensation

The TESDA may authorize the hiring of apprentices without compensation whose training on the job is:
1. Required by the school or training program curriculum; or
2. As requisite for graduation or board examination

Learnership vs. Apprenticeship

BASIS Learnership Apprenticeship

Training on the job in semi-skilled and other
Training in trades which are apprenticeable,
industrial occupation or trades which are non-
that is, practical training on the job
apprenticeable and which may be learned thru
supplemented by related theoretical
practical training on the job in a relatively
instruction for more than 3 months.
Nature short period of time.
Duration of Min: 3 months
Max: 3 months
training Max: 6 months
With commitment to employ the learner as a
Commitment regular employee if he desires upon No commitment to hire
to employ completion of learnership
Considered a regular employee if pre-
termination occurs after 2 months of training
In case of pre- Worker not considered as regular employee.
and the dismissal is without fault of the
termination of
Learner.
contract

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Highly technical industries and only in

Semi-skilled/Industrial occupations
Cover-age industrial occupation
There is a list of learnable trades by TESDA No list
List
Written agree-
Requires learnership agreement Requires apprenticeship agreement
ment

JOB CONTRACTING

New D.O. 174-17 Prohibits Outsourcing of Jobs that are Core Activities of the Principal

The effect of prohibition under Section 6(f) of D.O. 174-17 declaring as contrary to law or public policy the act of
requiring the contractor's/subcontractor's employees to perform functions which are currently being performed by the
regular employees of the principal is to prohibit the outsourcing of jobs, works or services that are the core activities of
the principal.

Indeed, it is management prerogative to farm out any of its activities, regardless of whether such activity is peripheral
or core in nature. However, in order for such outsourcing to be valid, it must be made to an independent contractor
because the current labor rules expressly prohibit labor-only contracting. (Alviado v. Procter & Gamble Phils, Inc. G. R.
No. 160506, March 9, 2010)

Labor-Only Contracting

The outsourcing must not squarely fall under labor-only contracting where the contractor or sub-contractor merely
recruits, supplies or places workers to perform a job, work or service for a principal or if any of the following elements
is present:

i) The contractor or subcontractor does not have substantial capital or investment which relates to the job,
work or service to be performed and the employees recruited, supplied or placed by such contractor or
subcontractor are performing activities which are directly related to the main business of the principal; or
ii) The contractor does not exercise the right to control over the performance of the work of the
contractual employee.(Id.; Art. 106, Labor Code of the Philippines)

Test to Determine Independent Contractorship

Whether or not the one claiming to be an independent contractor has contracted to do the work according to his own
methods and without being subject to the control of the employer, except only as to the results of the work. (San Miguel
Corporation v. Semillano, G.R. No. 164257, July 25, 2010 citing San Miguel Corporation v. Aballa, G.R. No. 149011, June 28,
2005, 461 SCRA 421)

Contractor Is Presumed To Be Engaged In Labor Only Contracting

Except such contractor overcomes the burden of Proving that it has the substantial capital, investment, tools and the
like.

Effect of a Finding that there is Labor-Only Contracting

The contractor is considered merely an agent of the principal employer and the latter is responsible to the employees of
the labor-only contractor as if such employees had been directly employed by the principal employer. The principal
employer therefore becomes solidarily liable with the labor-only contractor for all the rightful claims of the employees."

Employee Must Prove ER-EE Relationship by Presenting Substantial Evidence

Corollarily, the following are the elements of an employer employee relationship: (SePaDisCo)
(l) Selection and engagement of the employee;
(2) Payment of wages;
(3) Power of Dismissal; and
(4) Power of Control (Valencia v. Classic Vinyl Products Corporation, G. R. No. 206390, January 30, 2017 DEL
CASTILLO CASE)

Status of Contractor; Burden of Proof

The burden of proving the supposed status of the contractor rests on the principal. The law presumes a contractor to be
a labor-only contractor and the employees are not expected to prove the negative fact that the contractor is a labor-only
contractor. Thus, it is not respondents but Petron which bears the burden of establishing that ABC is not a labor-only
contractor but a legitimate independent contractor. Where the principal is the one claiming that the contractor is a
legitimate contractor, the burden of proving the supposed status of the contractor rests on the principal." (Petron
Corporation v. Caberte, G. R. No. 182255, June 15, 2015)

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REGISTRATION WITH DOLE DOES NOT CREATE A PRESUMPTION THAT THE CONTRACTOR IS A LEGITIMATE
AND INDEPENDENT CONTRACTOR. The fact of registration with DOLE does not necessarily create a presumption that
a contractor is a legitimate and independent contractor. Failure to register shall give rise to the presumption that the
contractor is engaged in labor-only contracting (DO 18-A, Sec. 14; DO 174-17, Sec. 14). Registration does not confer a
conclusive presumption that the contractor is not engaged in labor-only contracting.

BUT THE ISSUANCE OF A CERTIFICATE OF REGISTRATION IS PRESUMED TO HAVE BEEN ISSUED IN THE
REGULAR PERFORMANCE OF OFFICIAL DUTY. The DOLE Certificate of Registration issued in favor of the contractor
is presumed to have been issued in the regular performance of official duty. In other words, the DOLE officer who
issued the certificate in favor of the contractor is presumed, unless proven otherwise, to have evaluated the application
for registration in accordance with the applicable rules and regulations. (DOLE DO No. 18-02, Section 12; Gallego v. Bayer
Philippines, Inc., et al., 612 Phil. 250, 263 [2009]) The petitioners must overcome the presumption of regularity accorded
to the official act of DOLE, which is no less than the agency primarily tasked with the regulation of job contracting. (DO
No. 18-A, Section 3[1]. Id.) (Mago v. Sun Power Manufacturing Limited, G. R. No. 210961, January 24, 2018 DEL CASTILLO
CASE)
LABOR RELATIONS

Who may unionize for purposes of collective bargaining

All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical or
educational institutions whether operating for profit or not, shall have the right to self-organization and to form, join, or
assist labor organizations of their own choosing for purposes of collective bargaining (LC, Art. 253)

Who may form a labor organization for purposes of mutual aid and protection

Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite
employers may form labor organizations for their mutual aid and protection (LC, Art. 253).

Who cannot form, join or assist labor organizations

1. Managerial employees
2. Confidential employees (in the field of labor relations)
3. Employees of international organizations
4. Employee-members of a cooperative
5. Foreign workers
6. Religious objectors; INC members
7. Members of AFP, police officers, policemen, firemen, and jail guards
8. High level government employees

Confidential Employees
Those who:
(1) Assist or act in a confidential capacity,
(2) Persons who formulate, determine, and effectuate management policies in the field of labor relations.

The two criteria are cumulative, and both must be met if an employee is to be considered a confidential employee - that
is, the confidential relationship must exist between the employee and his supervisor, and the supervisor must handle
the prescribed responsibilities relating to labor relations. (San Miguel Foods, Inc. v. San Miguel Corporation Supervisors
and Exempt Union G.R. No. 146206, August 01, 2011)

TWO KINDS OF MANAGERIAL EMPLOYEES. Art. 212(m) [now 219(m)] of the Labor Code.
(1) Those who 'lay down x x x management policies', such as the Board of Trustees;
(2) Those who 'execute management policies and/or hire, transfer, suspend, lay-off, recall, discharge, assign or
discipline employees' (Asian Institute Of Management v. Asian Institute Of Management Faculty Association, G.R. No.
207971, January 23, 2017)

COLLECTIVE BARGAINING UNIT (CBU)

Refers to a group of employees sharing mutual interests within a given employer unit. (D.O. No. 40-03)

NOTE: Within one unit there may be one or more unions. But only one union should represent the whole CBU in
bargaining with the employer. There may be two or more certified bargaining agents serving different interests.
[Herrera- Veloso amendment (UP v. Ferrer-Calleja, July 14,1992)]

Tests to determine the appropriate bargaining unit

1. Community or mutuality of interest
2. Will of the employees or “Globe Doctrine”
3. Collective bargaining history
4. Similarity of employment status

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Subsidiaries and Spin-off Corporations

Subsidiaries or corporations formed out of former divisions of a mother company following a re-organization may
constitute a separate bargaining unit.

NOTE: In determining an appropriate bargaining unit, the test of grouping is mutuality or commonality of interests.
Considering the spin-offs, the companies would have their respective and distinctive concerns in terms of the nature of
work, wages, hours of work and other conditions of employment. Interests of employees in the different companies per
force differ. (San Miguel Corp. Union v. San Miguel Corp., Magnolia Corp., and San Miguel Foods, Inc., G.R. No. 111262, Sept.
19, 1996)

Certification Election
Is the process of determining the sole and exclusive bargaining agent of the employees in an appropriate bargaining
unit for purposes of collective bargaining.

Collective bargaining agreement

Is the negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work
and all other terms and conditions of employment in a bargaining unit. (Honda Phils, Inc. v. Samahan ng Malayang
Manggagawa sa Honda, G.R. No. 145561, June 15, 2005)

The conduct of a certification election has a two-fold objective:

(1) to determine the appropriate bargaining unit; and
(2) to ascertain the majority representation of the bargaining representative, if the employees desire to be represented
at all by anyone. It is not simply the determination of who between two or more contending unions won, but whether it
effectively ascertains the will of the members of the bargaining unit as to whether they want to be represented and
which union they want to represent them. (National Union Of Workers In Hotels, Restaurants And Allied Industries-
Manila Pavilion Hotel Chapter v. Secretary of Labor and Employment, G.R. No. 181531, July 31, 2009)

Qualified Voters for Certification Election

ALL EMPLOYEES who are members of the appropriate bargaining unit sought to be represented by the petitioner at the
time of the issuance of the order granting the conduct of a certification election shall be ELIGIBLE TO VOTE.

An EMPLOYEE who has been DISMISSED from work but has contested the legality of the dismissal in a forum of
appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be
considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct
of the certification election. (Section 5, Rule IX, Rules to Implement the Labor Code)

SEBA Certification

Process where a union requests the DOLE regional director to recognize and certify the union as the SEBA (sole and
exclusive bargaining agent) of the BU it purports to represent for purposes of collective bargaining with the employer.

Conditions:
1. The bargaining unit is not unionized;
2. The requesting union is the only union in that bargaining unit;
3. The CBU majority are members of the union.

NOTE: This is a new mode of determining SEBA. D.O. No. 40-I-15, s. 2015 issued on September 07, 2015, has expressly
repealed the entire set of Rules applicable to Voluntary Recognition in the Implementing Rules on Book V of the Labor
Code. (Chan, 2017)

Certification Election; Double Majority Rule

Under the so-called double majority rule, for there to be a valid certification election, majority of the bargaining unit
must have voted AND the winning union must have garnered majority of the valid votes cast. xxx. Under Art. 256 [now
268] of the Labor Code, the union obtaining the majority of the valid votes cast by the eligible voters shall be certified as
the sole and exclusive bargaining agent of all the workers in the appropriate bargaining unit. This majority is 50% + 1.
Hence, 50% of 337 is 168.5 + 1 or at least 170. (National Union Of Workers In Hotels, Restaurants And Allied Industries-
Manila Pavilion Hotel Chapter v. Secretary Of Labor And Employment, G.R. No. 181531, July 31, 2009)

Probationary Employees Can Vote in a Certification Election

In a certification election, all rank and file employees in the appropriate bargaining unit, whether probationary or
permanent are entitled to vote. The Code makes no distinction as to their employment status as basis for eligibility in
supporting the petition for certification election. All they need to be eligible to support the petition is to belong to the
bargaining unit. (Airtime Specialists, Inc. v. Ferrer-Calleja, cited in National Union of Workers In Hotels, Restaurants And
Allied Industries- Manila Pavilion Hotel Chapter v. Secretary Of Labor And Employment, G.R. No. 181531, July 31, 2009)

Agency fee (Anti-Free Rider Clause)

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It is an amount equivalent to union dues, which a non-union member pays to the union because he benefits from the
CBA negotiated by the union.

NOTE: Payment by non-union members of agency fees does not amount to unjust enrichment because the purpose of
such dues is to avoid discrimination between union and non-union members.

STRIKE

A strike is temporary stoppage of work arising out of a labor or industrial dispute.

Lockout takes place when an employer temporarily refuses to furnish work as a result of a labor or industrial dispute.

7-Day Strike Ban Is Mandatory

In the event the result of the strike/lockout ballot is filed within the cooling-off period, the 7-day requirement shall be
counted from the day following the expiration of the cooling-off period. It must be stressed that the requirements of
cooling-off period and 7-day strike ban must both be complied with, although the labor union may take a strike vote
and report the same within the statutory cooling-off period. (NSFW vs. Ovejera, G.R. No. 59743, May 31, 1982)

Cooling Off Period

The 15 to 30-day cooling-off period is designed to afford the parties the opportunity to amicably resolve the dispute
with the assistance of the NCMB conciliator/mediator, while the 7 day strike ban is intended to give the DOLE an
opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members.
(PHIMCO INDUSTRIES, INC.,v. PHIMCO INDUSTRIES LABOR ASSOCIATION, G.R. No. 170830 G.R. August 11, 2010 citing
Capitol Medical Center, Inc. v. NLRC, 496 Phil. 707, 717 (2005), citing Primer on Strike, Picketing and Lockout, National
Conciliation and Mediation Board Department of Labor and Employment, Intramuros, Manila, 1996 ed., p. 6.)

Assumption of Jurisdiction; National Interest Case.

Industries/services deemed indispensable to the national interest for filing of petition of assumption of jurisdiction:
a. Hospital sector;
b. Electric power industry;
c. Water supply services, to exclude small water supply services. Such as bottling and refilling stations;
d. Air traffic control; and
e. Such other industries as may be recommended by the National Tripartite Industrial Peace Council (TIPC).”
(Section 16, Rule XXII, Book V, Rules to Implement the Labor Code, as amended by Department Order No. 40-H-13, Series
of 2013)

Conditions for Exercise of Assumption of Jurisdiction.

Valid exercise of the assumption of jurisdiction (Article 278 (g) of the Labor Code):
a. Both parties have requested the Secretary of Labor and Employment to assume jurisdiction over the labor
dispute; or
b. After a conference called by the Office of the Secretary of Labor and Employment on the propriety of the issuance
of the Assumption or Certification Order, motu proprio or upon a request or petition by either party to the labor
dispute. In the said conference. the parties shall also be encouraged to amicably settle the dispute. (See Section 2,
Operational Guidelines of Department Order No. 40-G-03, Series of 2010, dated February 24, 2011)

It is well settled in our jurisprudence that the authority of the Secretary of Labor to assume jurisdiction over a labor
dispute causing or likely to cause a strike or lockout in an industry indispensable to national interest includes and
extends to all questions and controversies arising therefrom. The power is plenary and discretionary in nature to
enable him to effectively and efficiently dispose of the primary dispute.

Meaning of Status Quo in National Interest Cases

The status quo is the status of the employment of the employees the day before the occurrence of the strike or lockout .

Effect of Return-to-work Order

Article 278(g) of the Labor Code provides that the assumption and certification of the SOLE shall automatically enjoin
the intended or impending strike. When a strike has already taken place at the time the SOLE assumes jurisdiction over
the labor dispute, all striking employees shall immediately return to work. Moreover, the employer shall immediately
resume operations, and readmit all workers under the same terms and conditions prevailing before the strike

Order of Reinstatement vs. Return-To-Work Order

ORDER OF REINSTATEMENT RETURN TO WORK ORDER

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Is awarded by a LA to an illegally dismissed employee Is issued by the SOLE when he or she assumes jurisdiction
pursuant to Article 294 of the Labor Code. If actual over a labor dispute in an industry that is considered
reinstatement is no longer possible, the employee indispensable to the national interest
becomes entitled to separation pay in lieu of
reinstatement.
A judgment on the merits handed down by the LA Interlocutory in nature, and is merely meant to maintain
pursuant to the original and exclusive jurisdiction status quo while the main issue is being threshed out in
provided for under Article 224(a) of the Labor Code. the proper forum.

Both immediately executory

Merger; CBA with Union Shop Clause

A corporation cannot invoke its merger with another corporation as a valid ground to exempt its absorbed employees
from the coverage of a union shop clause contained in its existing Collective Bargaining Agreement (CBA) with its own
certified labor union. In Bank Of The Philippine Islands v. Bpi Employees Union-Davao Chapter-Federation Of Unions In Bpi
Unibank, G.R. No. 164301, August 10, 2010, the High Court resolved the question in this manner: At the outset, we should
remember the provisions on the Labor Code on union security clauses, specifically Article 248 (e), which states, x x x
Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective
bargaining agent as a condition for employment, except those employees who are already members of another union at
the time of the signing of the collective bargaining agreement. This case which involves the application of a collective
bargaining agreement with a union shop clause should be resolved principally from the standpoint of the clear
provisions of our labor laws, and the express terms of the CBA in question, and not by inference from the general
consequence of the merger of corporations under the Corporation Code, which obviously does not deal with and,
therefore, is silent on the terms and conditions of employment in corporations or juridical entities.

Principle of Substitution or Substitutionary Doctrine

This principle is a compromise solution to the problem when there occurs a shift in employees' union allegiance after
the execution of a bargaining contract with their employer, states that even during the effectivity of a CBA executed
between employer and employees thru their agent, the employees can change said agent but the contract continues to
bind them up to its expiration date.
They may bargain however for the shortening of said expiration date. Stated otherwise, the "substitutionary" doctrine
only provides that the employees cannot revoke the validly executed CBA with their employer by changing their
bargaining agent. And it is in the light of this that the phrase "said new agent would have to respect said contract" must
be understood. It only means that the employees, thru their new bargaining agent, cannot renege on their collective
bargaining contract, except of course to negotiate with management for the shortening thereof. (Benguet Consolidated,
Inc. vs. BCI Employees' and Workers' Union-PAFLU, G.R. No. L-24711, 1968)

Good Faith in Bargaining Depends on the Facts of each Case.

The crucial question whether or not a party has met his statutory duty to bargain in good faith typically turns to the
facts of the individual case. There is no per se test of good faith in bargaining. Good faith or bad faith is an inference to
be drawn from the facts. (The Hongkong and Shanghai Banking Corporation Employees Union v. National Labor Relations
Commission, 346 Phil. 524, 534 [1997]) “The effect of an employer's or a union's actions individually is not the test of
good-faith bargaining, but the impact of all such occasions or actions, considered as a whole x x x"

Q: Is the violation of a union security clause in the CBA a ULP?

A: NO. Violation of the union shop agreement in the CBA, even assuming it was malicious and flagrant, is not a violation
of an economic provision in the agreement.

ONLY GROSS VIOLATIONS OF CBA ARE CONSIDERED AS ULP. IF IT IS NOT GROSS, IT IS MERE GRIEVANCE.
Violation of CBA as ULP is if it is gross in character, which means flagrant and/or malicious refusal to comply with the
economic provisions of such agreement under Article 274 [261] of the Labor Code. Otherwise, they are mere
grievances.

UNION SECURITY CLAUSE. Union security clause refers to an agreement which imposes upon employees the obligation
to acquire or retain union membership as a condition affecting employment. (also known as closed shop agreement)

ENFORCEMENT OF UNION SECURITY CLAUSE. Although a union security clause in a CBA may be validly enforced and
dismissal pursuant thereto may likewise be valid, this does not erode the fundamental requirement of due process. In
terminating the employment of an employee by enforcing the union security clause, the employer needs only to
determine and prove that:
(1) The union security clause is applicable;
(2) The union is requesting for enforcement of the union security provisions in the CBA; and
(3) There is sufficient evidence to support the union’s decision to expel the employee from the union. (Alabang Country
Club v. NLRC, 198 SCRA 748, 1991)

KINDS OF UNION SECURITY AGREEMENTS

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1. CLOSED SHOP- only members of the contracting union shall be employed
-membership should be maintained on good standing if none it shall be construed against the closed shop agreement
-if they did not agree on closed shop agreement they agreed merely on hiring agreement

2. UNION SHOP- Nonmembers may be hired, but to retain employment must become union members after a certain
period. The requirement applies to present and future employees.

3. AGENCY SHOP OR MAINTENANCE OF TREASURY SHOP- An agreement whereby employees must either join the
union or pay to the union as exclusive bargaining agent a sum equal to that paid by members.

4. MODIFIED UNION SHOP- Employees who are not union members at the time of signing the contract need not join
the union, but all workers hired thereafter must join.

5. MAINTENANCE OF MEMBERSHIP SHOP- No employee is compelled to join the union, but all present or future
members must, as a conditionof employment , remain in good standing in the union.

6. EXCLUSIVE BARGAINING SHOP- The union is recognized as the exclusive bargaining agent for all employees in the
bargaining unit, whether union members or not.

KINDS OF EMPLOYEES

TEST TO DETERMINE PROJECT-BASED EMPLOYEE. The principal test in determining whether particular employees
were engaged as project-based employees, as distinguished from regular employees, is whether they were assigned to
carry out a specific project or undertaking, the duration and scope of which was specified at, and made known to them,
at the time of their engagement.

PROJECT-BASED EMPLOYEES MAY PERFORM TASKS USUALLY NECESSARY AND DESIRABLE IN THE USUAL
BUSINESS OF THE EMPLOYER AND THIS DOES NOT IMPLY REGULAR EMPLOYMENT. Project-based employees may
or may not be performing tasks usually necessary or desirable in the usual business or trade of the employer. The fact
that the job is usually necessary or desirable in the business operation of the employer does not automatically imply
regular employment; neither does it impair the validity of the project employment contract stipulating fixed duration of
employment.

REPEATED AND SUCCESSIVE REHIRING DOES NOT QUALIFY A PROJECT EMPLOYEE AS A REGULAR EMPLOYEE.
[T]he repeated and successive rehiring [of respondents as project-based employees] does not [also], by and of itself,
qualify them as regular employees. Case law states that length of service (through rehiring) is not the controlling
determinant of the employment tenure, whether the employment has been fixed for a specific project or undertaking,
with its completion having been determined at the time of [their] engagement." (Herma Shipyard v. Oliveros, G. R. No.
208936, April 17, 2017)

SECURITY OF TENURE

SECURITY OF TENURE OF OFWS. Even if a Filipino is employed abroad, he or she is entitled to security of tenure. Since
the employment contracts of OFWs are perfected in the Philippines, and following the principle of lex loci contractus
(the law of the place where the contract is made), these contracts are governed by our laws, primarily the Labor Code of
the Philippines and its implementing rules and regulations. At the same time, our laws generally apply even to
employment contracts of OFWs as our Constitution explicitly provides that the State shall afford full protection to labor,
whether local or overseas. (Dagasdas v. Grand Placement and General Services Corp, G. R. No. 205727, January 18, 2017)

Valid Dismissal; Procedural Due Process.

In order to validly dismiss an employee, he must be accorded both substantive and procedural due process by the
employer. Procedural due process requires that the employee be given a notice of the charge against him, an ample
opportunity to be heard, and a notice of termination. Even if the aforesaid procedure is conducted after the filing of the
illegal dismissal case, the legality of the dismissal, as to its procedural aspect, will be upheld provided that the employer
is able to show that compliance with these requirements was not a mere afterthought. (New Puerto Commercial v. Lopez,
G. R. 169999, July 26, 2010)

Procedural Requirements of a Valid Dismissal

These are:
(1) Written notice specifying the ground or grounds for the dismissal;
(2) Ample opportunity for the employee to be heard and defend himself; and
(3) Written notice of termination stating that upon due consideration of all the circumstances, grounds have been
established to justify his dismissal.

Of the two requisites for a valid dismissal, the presence or absence of just or authorized cause is the more crucial. The
absence of a valid cause automatically renders any dismissal action invalid, regardless of the employer's observance of
the procedural due process requirements. (Inocente v. St. Vincent Foundation for Children and Aging,. Inc., G.R. No.
202621, June 22, 2016)

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Valid Implementation of a Redundancy Program

The following should be present: (NoSeGoCri)

(1) written notice served on both the employees and the Department of Labor and Employment at least one month
prior to the intended date of retrenchment;
(2) payment of separation pay equivalent to at least one month pay or at least one month pay for every year of
service, whichever is higher;
(3) good faith in abolishing the redundant positions; and
(4) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly
abolished. (San Fernando Coca-Cola Rank-And-File Union (Sacoru) Vs. Coca-Cola Bottlers Philippines, Inc.
(CCBPI), G. R. No. 200499, August 4, 2017)

NOTE: To establish GOOD FAITH the company must provide SUBSTANTIAL PROOF that the services of the employees
are in excess of what is required of the company, and that FAIR AND REASONABLE CRITERIA WERE USED to
determine the redundant positions.

REDUNDANCY PROGRAM IS STILL VALID EVEN IF SERVICES OF AN INDEPENDENT CONTRACTOR IS AVAILED OF

BY THE EMPLOYER AFTER. An employer's good faith in implementing a redundancy program is not necessarily
destroyed by availment of services of an independent contractor to replace the services of the terminated employees.
The SC held previously that the reduction of the number of workers in a company made necessary by the introduction
of the services of an independent contractor is justified when the latter is undertaken in order to effectuate more
economic and efficient methods of production. (Asian Alcohol vs. NLRC, 305 SCRA 416)

TERMINATION OF SERVICE AGREEMENT; RE-EMPLOYMENT WITHIN 3 MONTHS. When termination of the Service
Agreement (between the principal and contractor/subcontractor) results from expiration or from the completion of the
phase of the job for which the employee is engaged, the latter may opt to wait for re-employment within 3 months or to
resign and transfer to another contractor-employer. Failure of the contractor to provide new employment for the
employee shall entitle the latter to payment of separation pay benefits as may be provided by law or the Service
Agreement, whichever is higher, without prejudice to completion bonuses or other emoluments, including retirement
benefits whenever applicable.The mere expiration of the Service Agreement shall not be deemed as a termination of
employment of the contractor's/subcontractor's employees who are regular employees of the latter. (Section 13 par 3,
D.O No. 174-17)

POSITION OF TRUST AND CONFIDENCE. "It is not the job title but the actual work that the employee performs that
determines whether he or she occupies a position of trust and confidence. As ruled in In this case, while respondent's
position was denominated as Sales Clerk, the nature of her work included inventory and cashiering, a function that
clearly falls within the sphere of rank-and-file positions imbued with trust and confidence. (Bluer Than Blue Joint
Ventures Company/Mary Ann Dela Vega, v. Glyza Esteban, G.R. No. 192582, April 7, 2014)

CRIMINAL CONVICTION IS NOT NECESSARY TO FIND JUST CAUSE FOR EMPLOYMENT TERMINATION. A criminal
conviction is not necessary to find just cause for employment termination. Otherwise stated, an employee’s acquittal in
a criminal case, especially one that is grounded on reasonable doubt, will not preclude a determination in a labor case
that he is guilty of acts inimical to the employer’s interests. (Nicolas v. National Labor Relations Commission, 258 SCRA
250, 1996)

LENGTH OF SERVICE AND A PREVIOUSLY CLEAN EMPLOYMENT RECORD CANNOT SIMPLY ERASE THE GRAVITY
OF THE BETRAYAL EXHIBITED BY A MALFEASANT EMPLOYEE. Length of service and a previously clean
employment record cannot simply erase the gravity of the betrayal exhibited by a malfeasant employee. Length of
service is not a bargaining chip that can simply be stacked against the employer. After all, an employer-employee
relationship is symbiotic where both parties benefit from mutual loyalty and dedicated service. If an employer had
treated his employee well, has accorded him fairness and adequate compensation as determined by law, it is only fair to
expect a long-time employee to return such fairness with at least some respect and honesty. Thus, betrayal by a
longtime employee is more insulting and odious for a fair employer. (Reno Foods, Inc. v. Nagkakaisang Lakas ng
Manggagawa (NLM)-Katipunan, G. R. No. 164016, March 15, 2010)

Basis of Computation of Backwages

The computation of backwages depends on the final awards adjudged as a consequence of illegal dismissal, in that:

First, when reinstatement is ordered, the backwages computed from the time of dismissal until the employee’s
reinstatement. The computation of backwages (and similar benefits considered part of the backwages) can even
continue beyond the decision of the labor arbiter or NLRC and ends only when the employee is actually reinstated.
Second, when separation pay is ordered in lieu of reinstatement (in the event that this aspect of the case is disputed) or
reinstatement is waived by the employee (in the event that the payment of separation pay, in lieu, is not disputed),
backwages is computed from the time of dismissal until the finality of the decision ordering separation pay.
Third, when separation pay is ordered after the finality of the decision ordering the reinstatement by reason of a
supervening event that makes the award of reinstatement no longer possible x x x backwages is computed from the
time of dismissal until the finality of the decision ordering separation pay. (U-Bix Corporation v. Hollero, G.R. 199660, July
13, 2015)

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ATTORNEY’S FEES
Ordinary concept - an attorney’s fee is the reasonable compensation paid to a lawyer by his client for the legal services
the lawyer has rendered to the client. The basis of this compensation is the fact of the attorney’s employment by and
his agreement with the client.
Extraordinary concept - attorney’s fees are deemed indemnity for damages ordered by the court to be paid by the
losing party in a litigation. The instances in which these maybe awarded are those enumerated in article 2208 of the
Civil Code, specifically paragraph 7 thereof which pertains to actions for recovery of wages, and is payable not to the
lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation
or as part thereof. Article 111 of the Labor Code, as amended, contemplates the concept of extraordinary fees.

SEPARATION PAY IS NOT ALLOWED WHEN AN EMPLOYEE IS DISMISSED FOR JUST CAUSE SUCH AS SERIOUS
MISCONDUCT. Separation pay is only warranted when the cause for termination is not attributable to the employee’s
fault, such as those provided in Articles 283 and 284 of the Labor Code, as well as in cases of illegal dismissal in which
reinstatement is no longer feasible. It is not allowed when an employee is dismissed for just cause, such as serious
misconduct.

THEFT OF COMPANY PROPERTY IS A SERIOUS MISCONDUCT AND THE AWARD OF SEPARATION PAY TO THE
ERRING EMPLOYEE SHOULD BE DENIED. Jurisprudence has classified theft of company property as a serious
misconduct and denied the award of separation pay to the erring employee. We see no reason why the same should not
be similarly applied in the case of Capor. She attempted to steal the property of her long time employer. For committing
such misconduct, she is definitely not entitled to an award of separation pay. (Reno Foods, Inc. v. Nagkakaisang Lakas ng
Manggagawa (NLM)-Katipunan, G. R. No. 164016, March 15, 2010)

Constructive Dismissal; Burden of Proof.

In constructive dismissal cases, the employer has the burden of proving that the transfer of an employee is for just or
valid ground, such as genuine business necessity. The employer must demonstrate that the transfer does not involve a
demotion in rank or a diminution in salary and other benefits. “If the employer fails to overcome this burden of proof,
the employee’s transfer is tantamount to unlawful constructive dismissal. (Julie’s Bakeshop v. Arnaiz, et.al. G.R. No.
173882, 15 February 2012)

Q: What governs the probationary status of teaching personnel?

A: PROBATIONARY STATUS OF TEACHING PERSONNEL IS SUPPLEMENTED BY MANUAL OF REGULATIONS FOR

PRIVATE SCHOOLS. Cases dealing with employment on probationary status of teaching personnel are not governed
solely by the Labor Code as the law is supplemented, with respect to the period of probation, by special rules found in
the Manual of Regulations for Private Schools (the Manual). The probationary employment of academic teaching
personnel shall not be more than a period of six (6) consecutive semesters or nine (9) consecutive trimesters of
satisfactory service, as the case may be. (Sec. 117, Manual of Regulations for Private Higher Education; Colegio Del
Santisimo Rosario v. Emmanuel Rojo, G.R. No. 170388, September 4, 2013)

PREVENTIVE SUSPENSION is justified where the employee's continued employment poses a serious and imminent
threat to the life or property of the employer or of the employee's co-workers. Without this kind of threat, preventive
suspension is not proper. The High Court did not sustain the preventive suspension of an Operation Staff, which was a
rank and file position, as he could not and would not be able to sabotage the operations of respondent. The difficulty of
finding a logical and reasonable connection between his assigned tasks and the necessity of his preventive suspension is
apparent from the fact that even respondent was not able to present concrete evidence to support its general allegation.
(Maula v. Ximex Delivery Express, Inc. G.R. No. 207838, January 25, 2017)

PROCEDURE AND JURISDICTION

Legal effects of an Assumption Order

a. It has the effect of writ of injunction;
b. The striking workers shall return to work; otherwise, they could be validly dismissed because they are already
engaged in a prohibited activity;
c. Return-to-work order is not necessary in an Assumption order. The mere issuance of Assumption order
automatically carries with it return-to-work order;
d. Assumption Order contemplates only actual reinstatement; however, under special circumstances, they could be
reinstated in the payroll;
e. With the Assumption Order issued, the Secretary of Labor can take cognizance of cases under the jurisdiction of the
Labor Arbiter; and
f. Cases pending with the Labor Arbiter can be taken over by the Secretary of Labor, provided they are the issues
under assumption.

FILING OF POSITION PAPER FORECLOSES THE RAISING OF OTHER MATTERS CONSTITUTIVE OF THE CAUSE OF
ACTION. The parties could allege and present evidence to prove any cause or causes of action included, not only in the
complaint, but in the position papers as well.

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The complaint is not the only document from which the complainant's cause of action is determined in a labor case. Any
cause of action that may not have been included in the complaint or position paper, can no longer be alleged after the
position paper is submitted by the parties. In other words, the filing of the position paper is the operative act which
forecloses the raising of other matters constitutive of the cause of action. This necessarily implies that the cause of
action is finally ascertained only after both the complaint and position paper are properly evaluated. (Dee Jay's Inn and
Cafe V. Razneses, G.R. No. 191825, October 5, 2016)

LABOR STANDARDS CASE UNDER LABOR ARBITERS’ JURISDICTION. If the labor standards case is covered by the
exception clause in Article 128 (b) of the Labor Code, then jurisdiction belongs to the Labor Arbiters of the NLRC.

In order to divest the Regional Director or his representatives of jurisdiction, the following elements must be present:
(a) that the employer contests the findings of the labor regulations officer and raises issues thereon;
(b) that in order to resolve such issues, there is a need to examine evidentiary matters; and
(c) that such matters are not verifiable in the normal course of inspection. The rules also provide that the employer
shall raise such objections during the hearing of the case or at any time after receipt of the notice of inspection results.
(Balladares v. Peak Ventures Corporation, G. R. No. 161794, June 16, 2009)

VOLUNTARY ARBITER (VA) MAY RESOLVE ULP CASES BUT MUST BE EXPRESSLY STIPULATED IN THE CBA THAT
ULP SHOULD BE RESOLVED BY THE VA. There is a need for an express stipulation in the CBA that unfair labor
practices should be resolved in the ultimate by the voluntary arbitrator or panel of voluntary arbitrators since the
same falls within a special class of disputes that are generally within the exclusive original jurisdiction of the Labor
Arbiter by express provision of the law. "Absent such express stipulation, the phrase 'all disputes' [or "any other
matter or dispute" for that matter] should be construed as limited to the areas of conflict traditionally within the
jurisdiction of Voluntary Arbitrators, i.e., disputes relating to contract-interpretation, contract-implementation, or
interpretation or enforcement of company personnel policies. [Unfair labor practices cases] - not falling within any of
these categories - should then be considered as a special area of interest governed by a specific provision of law."
(Vivero v. Court of Appeals, 398 Phil. 158,169 (2000)

Injunctive power of NLRC

To preserve the status quo until the merits of the case are fully heard. The issuance requires a hearing at which parties
are given the opportunity to be heard.

Q: May the NLRC issue a Temporary restraining Order ex parte?

A: YES. It is a mere interlocutory order which contemplates further hearing for the application of a temporary
injunction upon notice of the adverse party. Indeed, it can be issued without notice and hearing when the urgency of the
situation or extreme necessity demands (Bisig v. NLRC, 226 SCRA 499).

JURISDICTION; TRANSFER OF OWNERSHIP OF VEHICLE ASSIGNED TO EMPLOYEE. Supreme Court ruled that since
the transfer of ownership of the vehicle to the employee was connected to his separation from the employer and arose
from the employer-employee relationship of the parties, the employer’s claim fell within the Labor Arbiter’s
jurisdiction. (Domondon v. National Labor Relations Commission, 508 Phil. 541, 2005)

CORPORATE OFFICER v. ORDINARY CORPORATE EMPLOYEE. The criteria for distinguishing between corporate
officers who may be ousted from office at will, on one hand, and ordinary corporate employees, who may only be
terminated for just cause, on the other, DO NOT DEPEND ON THE NATURE OF THE SERVICES PERFORMED, BUT ON
THE MANNER OF CREATION OF THE OFFICE (De Castro v. Court of Appeals, G.R.No. 204261, October 05, 2016)

EVIDENCE; NLRC PROCEEDINGS; SUMMARY IN NATURE. The written statements of co-employees admitting their
participation in a scheme to defraud the employer are admissible in evidence. The argument by an employee that the
said statements constitute hearsay because the authors thereof were not presented for their cross-examination does
not persuade, because the rules of evidence are not strictly observed in proceedings before the National Labor Relations
Commission (NLRC), which are summary in nature and decisions may be made on the basis of position papers. (Castillo
v. Prudentiallife Plans Inc. G. R. No. 196142, March 26, 2014)

SUBMISSION AGREEMENT. Generally, the arbitrator is expected to decide only those questions expressly delineated
by the submission agreement. Nevertheless, the arbitrator can assume that he has the necessary power to make a final
settlement since arbitration is the final resort for the adjudication of the disputes.

VA DECISION FINAL AND EXECUTORY AFTER 10 DAYS. Decisions of VA are final and executory after 10 calendar
days from receipt of the copy of the award or decision by the parties (Art. 262-A, LC).

VA DECISION APPEALABLE WITHIN 15 DAYS. Appeal to the CA via Rule 43 of the Rules of Court within 15 days from
the date of receipt of VA’s decision (Luzon Dev’t Bank v. Ass’n of Luzon Dev’t Bank Ee’s, G.R. No. 120319, October 6, 1995).

SOCIAL LEGISLATION

Acts of ministration/Personal comfort doctrine

Acts performed by an Ee within the time and space limits of his employment, to minister personal comfort, such as
satisfaction of his thirst, hunger, or other physical demands, shall be deemed incidental to his employment and injuries

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suffered in the performance of such act shall be considered compensable and arising out of and in the course of
employment.

“Street Peril” or “Going to/ Coming from work”

GR: In the absence of special circumstances, an Ee injured while going to or coming from his place of work is
excluded from the benefits of Workmen’s Compensation Act.

XPNs:
1. Where the Ee is proceeding to or from his work on the premises of the Er;
2. Proximity Rule—where the Ee is about to enter or about to leave the premises of his Er by way of exclusive or
customary means of ingress and egress;
3. Ee is charged, while on his way to or from his place of employment or at his home, or during this employment with
some duty or special errand connected with his employment; and
Where the Er as an incident of the employment provides the means of transportation to and from the place of
employment.

KASAMBAHAY ENTITLED TO SPECIAL LEAVE, SOLO PARENT LEAVE, VAWC LEAVE. In addition to five (5) days
Service Incentive Leave under Article 95 of the Labor Code Kasambahay shall be entitled to Special Leave Benefit
(RA9710), Solo Parent Leave (RA 8972), Violence Against Women and their Children (VAWC) Leave (RA 9262)
provided he/she meets all the conditions for entitlement. (Labor Advisory No. 10-18, Series of 2018)

OTHER SPECIAL LAW

Authorized Drug Testing

Drug testing shall consist of both the (1) screening test and the (2) confirmatory test; the latter to be carried out should
the screening test turn positive. The employee concerned must be informed of the test results whether positive or
negative.

Effect of Finding an Employee Positive of Drug Use

Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively in accordance
with the provisions of Art. 282 of the Labor Code.

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