LABOR LAW AND SOCIAL LEGISLATION

1. Overtime work
a. Overtime work is work performed beyond 8 hours a day.
b. For the OT work, the employee must be paid:
i. An additional compensation equivalent to his regular hourly wage
PLUS 25% thereof.
ii. If on holiday or rest day, an additional compensation equivalent to the
rate on a holiday/rest day PLUS 30% thereof. (Art. 87)
c. Undertime is not offset by overtime
i. Undertime work shall not be offset by overtime work.
ii. Permission given to the employee to go on leave does not exempt the
employer from paying the additional compensation required. (Art. 88)
d. Overtime pay of seamen
i. The correct criterion in determining whether or not sailors are entitled
to overtime pay is not whether they were on board and cannot leave
ship beyond the regular eight working hours a day, but whether they
actually rendered service in excess of said number of hours. (Loadstar
Intl. Shipping Inc. v. Erispe, 2020) Thus, if the seaman was on board for
the whole day, but he only rendered eight hours of actual service, he
would not be entitled to overtime pay.
a. Compressed work week (CWW)
i. CWW scheme is an alternative arrangement whereby the normal
workweek is reduced to less than 6 days, but the total number of
normal houses remains at 48 hours. The normal workday is increased to
more than 8 hours WITHOUT OVERTIME premium.
1. The concept can be adjusted accordingly in cases the normal
workweek of the form is only 5 days.
ii. What are the conditions for a valid CWW scheme?
1. Expressly and voluntarily supported by MAJORITY of all
employees affected
2. The DOLE Regional Office is duly notified
3. In firms using substances, or operating in conditions that are
hazardous to health, a certification is needed from an
accredited safety organization.
iii. What are the effects of CWW?
1. Work beyond 8 hours shall NOT be compensable by
overtime premium PROVIDED the total number of hours
worked per day does NOT exceed 12 hours
2. They are entitled to meal periods of not less than 60 minutes,
consistent with Art. 85
3. Adoption of the CWW scheme shall NOT result in
diminution of existing benefits. (DOLE Advisory No. 02-04)
b. Built-in overtime

ATTY. ANSELMO S. RODIEL IV 1

 i. In case the employment contract:
1. STIPULATES that the COMPENSATION/SALARY
INCLUDES BUILT-IN OVERTIME PAY; and
2. the same is APPROVED by the Bureau of Local Employment
i. the NON-payment by the employer of ANY overtime
pay for overtime work is VALID. (Engineering
Equipment v Minister of Labor, 1985)
c. EXAMPLE:
i. Krys is a daily-paid factory worker who is required to render eight
hours of work per day. Two days ago, he rendered only seven hours of
work as he arrived late in the morning. Yesterday, Krys worked for
nine hours as he was required to assist in the processing of perishable
goods. His supervisor, Rudy, told Krys that he would not get any
overtime pay as his work for nine hours yesterday was meant to offset
the one-hour shortfall in his work the day before. (1) Is Rudy correct?
Explain briefly. (2) Assuming Krys is entitled to overtime pay, how
much will he get as overtime pay if his daily wage is Php 640.00?
Explain briefly.
1. No, Rudy is incorrect. Under the Labor Code, as amended,
undertime work on any particular day shall not be offset by
overtime work on any other day. Here, undertime work cannot be
offset by overtime work. Thus, Rudy’s statement that Krys would
not get any overtime pay, as his work for nine hours yesterday was
meant to offset the one-hour shortfall in his work the day before, is
incorrect.
2. Krys would get P100.00 as overtime pay. Under the Labor Code, as
amended, work may be performed beyond eight (8) hours a day
provided that the employee is paid for the overtime work, an
additional compensation equivalent to his regular wage plus at least
twenty-five percent (25%) thereof. Work performed beyond eight
hours on a holiday or rest day shall be paid an additional
compensation equivalent to the rate of the first eight hours on a
holiday or rest day plus at least thirty percent (30%) thereof. Here,
Krys worked overtime for one (1) hour. His daily wage was P640.00.
Further, his overtime pay shall be 125% of his hourly rate. Thus,
Krys would get P100.00 as overtime pay, because P640.00 divided
by 8 hours is P80.00, and P80.00 times 125% is P100.00.
2. Non-compensable hours; when compensable
a. Meal break/Rest period
i. An employee need not leave the premises of the workplace in order
that his rest period shall not be counted.

ATTY. ANSELMO S. RODIEL IV 2

 1. It is enough that he stops working, may rest completely and
may leave his work place, to go elsewhere, whether within or
outside the premises of his work place. (IRR of Labor Code,
Sec. 4(c))
ii. Meal breaks are NOT compensable, except:
1. when during the period, the laborers are required to standby
for emergency work or
2. said period is not one of complete rest,
i. Such period shall be considered overtime work. (Pan
American World v Pan American Employees, 1961)
iii. As a rule, it is the duty of the employer to give the employee at least 60
minutes time-off for their regular meals. (Art. 85) The 60-minute meal
break shall not be compensable. Further, the eight-hour work period
does not include the 60-minute meal break. (PAL v. NLRC, 1999)
1. It can be less than 60 minutes, provided:
i. It is at least 20 minutes
ii. The shortened meal time must be compensable, and
iii. It complies with the ANY of the following:
iv. The work is non-manual work/strenuous physical
exertion
v. Establishment regularly operates at least 16 hours a day
vi. In case of emergency/urgent work to be performed on
machineries to avoid serious loss; or
vii. Necessary to prevent serious loss on perishable goods.
viii. It CANNOT be less than 20 minutes, because that would
merely become a rest period for a short duration (coffee
break).
ix. In such case, the ―duty‖ of the employer to give meal
breaks will be violated.
2. The shortened meal time itself, which must be at least 20
minutes, shall be compensable.
b. Power interruptions or brownouts
i. Brownouts of short duration NOT exceeding 20 minutes are
compensable hours worked
ii. Brownouts running for more than 20 minutes may NOT be treated as
compensable hours worked, provided the following conditions are
present:
1. The employees can leave their workplace or go elsewhere within
or without the work premises; AND
2. The employees can use the time effectively for their own interest.
(IRR of Labor Code, Sec. 4(c); DOLE Policy Instruction No. 30)

ATTY. ANSELMO S. RODIEL IV 3

 i. NOTE: If the brownout lasted an hour, but the employee.
Can leave the workplace and use the time for their own
interest, then this hour shall not be compensable. If they
cannot use the time for their own interest, and they still
had to render services to the employer, then this hour shall
be compensable.
c. Idle time (Sleeping time)
i. Whether sleeping time is compensable will depend upon the agreement
of the parties.
ii. In the absence of agreement, it will depend on the nature of the service
and its relation to the working time.
1. Considered working time if sleeping time is:
i. Subject to serious interruption; or
2. Takes place under conditions substantially less desirable than
would be likely to exist at the employees’ home.
3. Not considered as working time, if there is an opportunity for
comparatively uninterrupted sleep under fairly desirable
conditions. (Azucena)
d. Travel time
i. Travel from home to work
1. As a rule, not compensable
2. As exceptions:
i. Emergency call and travel is necessary to proceed to work
ii. Travel through the vehicle of the employer
iii. Travel under the supervision and control of employer
iv. Travel under vexing and dangerous circumstance
ii. Travel from work to home
1. Not compensable
iii. Travel all in a day’s work, i.e., travel is principal activity from job site to
jobsite
iv. Travel away from home, i.e., travel that keeps him away from home
e. Commuting time
i. Employees performing tasks during their commute which are NOT
merely INCIDENTAL to the employee’s job, and
ii. Are primarily for the BENEFIT of the employer shall be compensable.
(Hilario Rada v NLRC, 1992)
1. Putting on makeup for her salesman job is not compensable
because the task is merely incidental to the job
2. Performing work in his laptop while on commute is
compensable because it is for the employer’s primary benefit.
f. Waiting time

ATTY. ANSELMO S. RODIEL IV 4

 i. Waiting time spent by an employee shall be considered as working time
if waiting is an integral part of his work or the employee is REQUIRED
or engaged by the employer to WAIT.
ii. An employee who is required to REMAIN ON CALL in the
EMPLOYER’S PREMISES or so close thereto that he cannot use the time
effectively and gainfully for his own purpose shall be considered as
working while on call.
1. If the employee is not required to remain on call on the
employer’s premises, but is merely required to leave word at
his home or with company officials where he may be reached,
he is NOT considered working while on call.
3. Rest Periods
a. It is the duty of the employer to provide a rest period at least 24 consecutive
hours after every 6 consecutive normal work days. (Art. 91)
i. The law says ―at least,‖ so they can agree to make the rest period 48
consecutive hours.
b. Who determines the rest day?
i. The employer, subject to the CBA and the rules the Secretary may
provide. (Art. 91(b))
c. When can the employee determine the rest day?
i. The employer shall respect the preference of the employee as to the
weekly rest day when the preference is based on RELIGIOUS
GROUNDS. (Art. 91)
d. What is the MINIMUM rate of additional compensation for work on a rest
day/holiday?

Day Rate of Additional compensation

Work on rest day/Sunday (PREMIUM 30% of regular wage

PAY)

No regular workdays and no specific rest 30% of regular wage on Sunday

days (PREMIUM PAY)

Work on a special holiday (PREMIUM 30% of regular wage for work performed
PAY) during Sundays or special holidays

Work on a special holiday that falls on a 50% of regular wage (Art. 93)
rest day (PREMIUM PAY)

ATTY. ANSELMO S. RODIEL IV 5

 Regular holiday (HOLIDAY PAY) 100% of regular wage (Art. 94)

COMMENT: More on holidays on Wages.

4. Service charge - Department Order No. 242-24 (New rule on February 1, 2024)
a. All service charges must be distributed, completely and equally, to all
employees.
b. Distribution is based on actual hours or days of work or service rendered.
c. Distribution must be made once every two weeks or twice a month at intervals
not exceeding 16 days.
d. If there’s an increase in minimum wage, the shares in the service charges are not
to be included in the computation of the new minimum wage.
i. Employees here refer to all employees (except managerial employees)
regardless of their position, designations, employment status, or
method by which their wages are paid.This rule applies to all
establishments that collect service charges for work or services they
offer, such as hotels, restaurants, lodging houses, nightclubs, cocktail
lounges, massage clinics, bars, casinos, gambling houses, and sports
clubs.
e. If the establishments like hotel, motels, restaurants, and the likes collect service
charges and/or the customers give tips for their services the following rules must
be observed:
i. Services-charges or compensation for service rendered,
ii. Tips are for the recognition for satisfactory or efficient service
iii. The service charges must be pooled,
iv. The total amount collected shall be divided to all the covered
employees,
v. It shall be given twice a month with intervals of not more than 15 days,
vi. If discontinued, removed, or stopped, the average share of the
employees of their service charge or tips shall be integrated with their
basic wage.

B. Wages - Labor Code, Implementing Rules and Regulations (IRR), R.A. No. 6727, R.A. No.
9504, R.A. No. 9178

1. Definition, components, and exclusions

a. Wage vs. Salary

Wage Salary

ATTY. ANSELMO S. RODIEL IV 6

Blue collar White collar (Gaa v CA, 1985)

As a rule, exempt from Not exempt from execution,

execution, garnishment, or garnishment, or attachment
attachment. (Art. 1708) An
exception is garnishment
under VAWC.

i. Who are excluded from the coverage of the Title on Wages? (FD-NCCB)
1. Farm – Farm tenancy or leasehold
2. Domestic - Household or domestic helpers
3. Needle-work - Home Workers engaged in needle-work
4. Cottage - Workers employed in any establishment registered with
the National Cottage Industry Development Authority (Art. 98)
5. Cooperative - Workers in duly registered cooperatives upon
approval by the Secretary
6. BMBE - Workers of a Barangay Micro Business Enterprise
ii. Meaning of wage
1. ―Wage‖ paid to an employee shall mean the remuneration or
earnings, HOWEVER DESIGNATED,
2. Capable of being expressed in terms of money, whether fixed or
ascertained on a time/task/piece/COMMISSION basis/other
method
3. Which is payable by an employee to an employee
4. Under a written or unwritten contract of employment
5. For work done or to be done, or for service rendered or to be
rendered
6. And includes the fair and reasonable value of board, lodging, or
other facilities CUSTOMARILY furnished by the employer to the
employee
7. ―Fair and reasonable‖ shall not include any profit to the employer,
or to any person affiliated with the employer. (Art. 97)
i. Hence, compute based on cost only. (However designated
+ Commission basis + Customarily furnished)
1. Respondent's remuneration, albeit denominated as
talent fees, was still considered as ―wage‖ since the
Labor Code states ―however designated.‖ (Legend
Hotel v Realuyo, 2012)
2. Article 97(f) of the Labor Code explicitly includes
(sales) commissions as part of wages. The nature of the
work of a salesman and the reason for such type of

ATTY. ANSELMO S. RODIEL IV 7

 remuneration for services rendered demonstrate
clearly that commissions are part of a salesman's wage
or salary. (Iran v. NLRC, 1998)
iii. Time frequency on payment of wages
1. General Rule:
i. Wages shall be paid at least once every two (2) weeks or twice
a month at intervals not exceeding sixteen (16)days. (Article
103, Labor Code)
2. Exception:
i. If on account of force majeure or circumstances beyond the
employer's control, payment of wages on or within the time
herein provided cannot be made, the employer shall pay the
wages immediately after such force majeure or circumstances
have ceased. No employer shall make payment with less
frequency than once a month. (Article 103, Labor Code)
iv. Payment of wages on a task which cannot be completed in two (2) weeks
1. The payment of wages of employees engaged to perform a task which
cannot be completed in two (2) weeks shall be subject to the following
conditions, in the absence of a collective bargaining agreement or
arbitration award:
i. (1) That payments are made at intervals not exceeding sixteen
(16) days, in proportion to the amount of work completed;
ii. (2) That final settlement is made upon completion of the work.
(Article 103, Labor Code)
v. Direct payment to the worker
1. Wages shall be paid directly to the workers to whom they are due.
(Article 104, Labor Code)
b. Bonus, 13th month
i. Bonus
1. A bonus is an amount granted and paid to an employee
for his industry and loyalty which contributed to the
success of the employer’s business. (Producers Bank of
the Philippines v NLRC, 2001)
2. It is merely an act of generosity, and as a rule, not
demandable or enforceable.
3. For a bonus to be enforceable:
i. It must have been promised by the employer and expressly
agreed upon by the parties, OR
ii. It must have had a fixed amount and had been a long and
regular practice on the part of the employer. (American Wire v
American Wire, 2005)
1. A bonus becomes a demandable or enforceable

ATTY. ANSELMO S. RODIEL IV 8

 obligation when it is made part of the wage or salary or
compensation of the employee. (Philippine National
Construction Corp. v. National Labor Relations
Commission, 366 Phil. 678 (1999)
ii. 13th month pay (13th month pay law)
1. Section 1 of PD 851 is hereby modified to the extent that all employers
are hereby required to pay ALL their rank-and-file employees a 13th
month pay not later than December 24 of every year. (Revised
Guidelines on the Implementation of the 13th Month Pay Law)
i. Hence, a field personnel is entitled to 13th month pay since he
is a ―rank-and-file‖ employee.
2. The minimum 13th month pay shall be at least 1/12 of the total basic
salary earned by an employee within a calendar year.
3. ―Basic salary‖ means all remunerations or earnings paid by the
employer for services rendered but does NOT include allowances and
monetary benefits which are not integrated as part of the basic salary,
such as sick leave credits, overtime, night differential, holiday pay,
and COLA, unless otherwise provided by the CBA/policy. (Revised
Guidelines)
i. For monetary benefits, in general, COLA shall not be included.
ii. However, for holiday pay, it must be included. Why? Because
Art. 94 states that ―every worker shall be paid his regular daily
wage during regular holidays.‖
4. Who are exempted from giving 13th month pay?
i. Already paying employees a 13th month pay or more
ii. Government, including GOCCs except those corporations
operating essentially as private subsidiaries; and
iii. Paid on Commission, boundary, task basis, and those paid a
fixed amount for a specific work, irrespective of the time
consumed (qualified by case)
1. Workers paid on piece-rate basis by the employer shall
be granted the required 13th month pay.
2. Domestic workers are also entitled under the
Kasambahay Law.
5. When is commission deemed part of 13th month pay?
i. If the commission is integrated as part of the ―basic salary‖ of
the employee. (Reyes v NLRC, 2007)
ii. Examples are commissions paid to real estate brokers, and
commissions paid to car salesmen.
6. When is commission NOT deemed part of 13th month pay?
i. Commission paid in the nature of ―productivity bonuses‖ are
excluded from the term ―basic salary‖ in computing the 13th
month pay. Such bonuses closely resemble profit-sharing
payments and have no clear, direct, and necessary relation to
the amount of work actually done by the employee.
(Philippine Duplicators v NLRC, 1995) Why? Because it is
NOT part of ―total basic salary.‖

ATTY. ANSELMO S. RODIEL IV 9

 7. Is the 13th month pay included to determine overtime pay?
i. No. The 13th month pay is an additional income based on the
wage but NOT PART of the wage. (Central Azucarera De
Tarlac v Central Azucarera De Tarlac Labor Union, 2010)
Hence, it is not credited as part of regular wage for
determining overtime and premium pays, fringe benefits
insurance fund, Social Security, Medicare and private
retirement plans. (Revised Guidelines)
8. How much is the 13th month pay of a resigned or
separated employee?
i. An employee who has resigned or whose services were
terminated at any time before the time for payment of the 13th
month pay is entitled to 13th month pay IN PROPORTION TO
THE LENGTH OF TIME he worked during the year, reckoned
from the time he started working during the calendar year up
to the time of his resignation or termination from the services.
(Revised Guidelines)
c. Holiday Pay
i. Labor Code, Executive Order 203, IRR, R.A. No. 9492, R.A. No. 9849,
R.A. No. 10966
1. Every worker shall be paid his regular daily wage during regular
holidays (even if unworked)
a. Since it says ―regular daily wage,‖ it includes COLA in the
computation.
2. If the employer requires the employee to work, he shall be paid
equivalent to twice his regular rate. (Art. 94)
3. What are the 6 special holidays?
a. Chinese New Year - Movable date (January 25, 2020;
February 12, 2021)
b. EDSA People Power - February 25
c. Black Saturday - Movable date (April 11, 2020; April 3,
2021) 4. Ninoy Aquino Day - August 21
d. All Saints Day - November 1
e. Immaculate Conception Day - December 8
f. All Souls’ Day – November 2
g. Day before Christmas Day - December 24
h. Last day of the year - December 31
4. What are the 12 regular holidays?
a. New Year - January 1
b. Maundy Thursday - Movable Date (April 9, 2020; April 1,
2021)
c. Good Friday - Movable Date (April 10, 2020; April 2, 2021)

ATTY. ANSELMO S. RODIEL IV 10

 d. Araw ng Kagitingan - April 9
e. Labor Day - May 1
f. Eid al-Fitr - Movable Date (May 25, 2020; May 13, 2021)
g. Independence Day - June 12
h. Eid al-Adha - Movable Date (July 31, 2020; July 20, 2021)
i. National Heroes’ Day - Last Monday of August
j. Bonifacio Day - November 30
k. Christmas Day - December 25
l. Rizal Day - December 30
5. Who are not covered by the rule on holiday pay? (GRD-MFUC)
a. Government including GOCC
b. Retail and service establishments regularly employing less
than 10 workers
c. Domestic helpers
d. Managerial employees
e. Field personnel
f. Unsupervised employees
g. Employees engaged on task or contract basis, purely
Commission basis, or those who are pad a fixed amount
for performing work irrespective of time consumed (DOLE
Handbook)
6. Working on a Regular Holiday that Falls on a Rest Day
a. An employee who is required to work on a regular holiday
shall be paid at least 200% of his/her regular daily wage
with the qualification that if the holiday work falls on the
scheduled rest day of the employee, he/she shall be
entitled to all additional premium of at least 30% of
his/her regular holiday rate of 200% based on his/her
regular wage rate. (Nippon Paints Phils. v. Nippon Paints
Phils. Employees Assoc., 2021) In short, if the regular
holiday falls on a rest day, he is entitled to 260% of his
regular wage rate.
7. Working on Two Regular Holidays Falling on the Same Day
a. An employee who worked on two regular holidays shall
be entitled to 300% of his regular daily wage. (2024
Handbook on Workers’ Statutory Monetary Benefits Dole
Bureau of Working Conditions; Asian Transmission vs.
Court of Appeals, 2004)
i. EXAMPLE: When Araw ng Kagitingan falls on the
same day as Maundy Thursday
ii. EXAMPLE:

ATTY. ANSELMO S. RODIEL IV 11

 1. Q: Ms. F, a sales assistant, is one of the eight (8) workers regularly
employed by ABC Convenience Store. She was required to report
on December 25 and 30. Should ABC Convenience Store pay her
holiday pay? Explain. (2019 Bar Examination)
a. A: No, ABC Convenience Store should not pay her holiday
pay. Under the Labor Code, every worker shall be paid his
regular daily wage during regular holidays, except in retail
establishment regularly employing less than 10 workers.
Here, Ms. F is being employment by a retail establishment
which regularly employs less than 10 workers. Thus, Ms. F
is not entitled to holiday pay even if she is required to
report on December 25 and 30.
2. Principles
a. No work, no pay
i. Under this principle, if there is no work performed by the
employee, there can be no wage or pay UNLESS the laborer was
ABLE, willing, and ready to work but was PREVENTED by
management or was ILLEGALLY locked out, suspended, or
dismissed. (PAL v NLRC, 1989)
ii. The "No work, no pay" principle contemplates a "no work"
situation where the employees VOLUNTARILY absent
themselves. (Protective Maximum-Security Agency, Inc. v.
Fuentes, 2015, Leonen)
1. Hence, a worker who is absent without any leave benefits
should not be paid for the days of absence.
iii. For project employees, the ―no work, no pay‖ principle applies
during the interval between the end of the project and the start of
the new one.
iv. For seasonal employees, the same applies.
v. Daily-paid employees, weekly-paid employees, and monthly-
paid employees are not entitled to wages on unworked days, rest
days and Sundays. This is consistent with the no work, no pay
principle. As an exception, they are entitled to wages on regular
holidays, even if they did not work on these dates.
b. Equal pay for equal work
i. Under this principle, persons who work with SUBSTANTIALLY
EQUAL qualifications, skill, effort, responsibilities, and
conditions, shall be paid SIMILAR salaries.
ii. If an employer accords employees the same position and rank,
the presumption is that these employees perform equal work.
Hence, they must be equally paid. (International School Alliance

ATTY. ANSELMO S. RODIEL IV 12

 of Educators v. Hon. Quisumbing, 2000)
1. Hence, it does not matter if the genders or nationalities of
the workers are different. If they perform ―equal work,‖
they must be ―equally paid.‖
2. If the employer pays one employee less than the rest, the
employer has discriminated against that employee; it is
for the employer to explain why the employee is treated
unfairly.
iii. For government employees, RA 6758 (Revised Compensation and
Position Classification System) was also enacted to promote "the
policy of the State to provide equal pay for substantially equal
work and to base differences in pay upon substantive differences
in duties and responsibilities, and qualification requirements of
the positions." (Maritime Industry Authority v. Commission on
Audit, 2015, Leonen)
c. Fair day’s wage for a fair day’s work
i. The age-old rule governing the relation between labor and
capital, or management and employee, of a "fair day's wage for a
fair day's labor" remains the basic factor in determining
employees' wages. If there is no work performed by the
employee, there can be no wage. In cases where the employee's
failure to work was occasioned neither by his abandonment nor
by termination, the burden of economic loss is not rightfully
shifted to the employer; each party must bear his own loss. In
other words, where the employee is willing and able to work and
is not illegally prevented from doing so, no wage is due to him.
To hold otherwise would be to grant to the employee that which
he did not earn at the prejudice of the employer. (Coca-
ColaBottlers v. ICCPELU, 2018)
d. Non-diminution of benefits
i. Nothing in this Book shall be construed to eliminate, or in any
way diminish supplements, or other employee benefits being
enjoyed at the time of promulgation of this Code. (Art. 100)
ii. There is diminution when the following requisites are present:
(PCUE) 1. The grant or benefit is founded on a Policy or a written
Agreement or has ripened into Practice for a long period of time
(most important)
1. The practice is Consistent and deliberate
2. The diminution or discontinuance is done Unilaterally by
the employer
3. The practice is NOT due to Error in the construction of

ATTY. ANSELMO S. RODIEL IV 13

 application of a doubtful question of law (TSPIC Corp. v
TSPIC Employees Union, 2008)
iii. Exceptions to non-diminution of benefits: (NEW-CRIB)
1. Negotiated benefits (not unilateral)
2. Error correction (not due to error)
3. Wage order compliance (not unilateral)
4. Contingent benefits of conditional bonus (not
consistent and deliberate)
5. Reclassification of position, i.e., promotion (not
consistent and deliberate)
6. Incentives for productivity incentives (not
consistent and deliberate)
7. Benefits on reimbursement basis (not consistent and deliberate)
iv. EXAMPLE:
1. Q: In computing the 13th month pay of its employees, Liwayway
Company (LC) includes as basis not only the regular base pay but
also the cash value of unused vacation and sick leaves. LC had
been implementing this method for two years when it suddenly
announced that the method was erroneous and would therefore
be discontinued. May LC lawfully discontinue using this method?
Discuss. (2023 Bar Examination)
a. A: No, LC may not lawfully discontinue using this method.
Case law dictates that, to be considered as a regular
company practice, the employee must prove by substantial
evidence that the giving of the benefit is done over a long
period of time, and that it has been made consistently and
deliberately. It requires an indubitable showing that the
employer agreed to continue giving the benefit knowing
fully well that the employees are not covered by any
provision of the law or agreement requiring payment
thereof. Meanwhile, under P.D. No. 851, the ―13th month
pay‖ shall mean one twelfth (1/12) of the basic salary of an
employee within a calendar year. Further, the ―basic
salary‖ shall include all remunerations or earnings paid by
an employer to an employee for services rendered but may
not include cost-of-living allowances, profit-sharing
payments, and all allowances and monetary benefits which
are not considered or integrated as part of the regular or
basic salary of the employee. Here, the employees were not
able to indubitably show that LC agreed to compute the
13th month pay by including the cash value of unused
vacation and sick leaves, knowing fully well that this is not
covered by P.D. No. 851. Thus, LC can discontinue using
this method, as this computation did not ripen into
company practice.

ATTY. ANSELMO S. RODIEL IV 14

 2. Q: D, one of the sales representatives of OP, Inc., was receiving a
basic pay of ₱50,000.00 a month, plus a 1% overriding commission
on his actual sales transactions. In addition, beginning three (3)
months ago, or in August 2019, D was able to receive a monthly
gas and transportation allowance of ₱5,000.00 despite the lack of
any company therefor. In November 2019, D approached his
manager and asked for his gas and transportation allowance for
the month. The manager declined his request, saying that the
company had decided to discontinue the aforementioned
allowance considering the increased costs of its overhead
expenses. In response, D argued that OP, Inc.’s removal of the gas
and transportation allowance amounted to a violation of the rule
on non diminution of benefits. Is the argument of D tenable?
Explain. (2019 Bar Examination)
a. A: No, D’s argument is not tenable. The rule on non-
dimunition of benefits prohibits the employer from
diminishing any supplement or benefit being enjoyed by
the employee at the time of promulgation of the Labor
Code. Further, case law dictates that the rule on non-
dimunition of benefits only applies if the benefit is based
on an express policy, a written contract, or has ripened into
practice. Here, the grant of gas and transportation
allowance to D was not founded on an express policy or
written contract. Further, the same was only granted for a
few months. Thus, it has not yet ripened into practice. All
in all, the rule on non-dimunition of benefits does not
apply in this case.
3. Minimum wage
Statutory minimum wage is the lowest wage rate fixed by law that an employee can pay
his workers. (IRR of RA 6727)
a. Payment by hours worked
i. The minimum wage rates for agricultural and non-agricultural employees
and workers in each and every region of the country shall be those
prescribed by the Regional Tripartite Wages and Productivity Boards.
(Art. 99)
ii. Minimum Wage in NCR for non-agricultural employees P537/day
(COLA is integrated, which is P20)
1. COLA shall NOT be included in determining OT pay, premium
pay (rest day/special holiday), retirement pay, 13th month pay,
NSD
2. COLA shall ONLY be included for holiday pay (regular holiday)
3. Payment by results
b. Payment by results
i. The Secretary of Labor and Employment shall regulate the payment of
wages by results, including pakyao, piecework, and other non- time
work, in order to ensure the payment of fair and reasonable wage rates,
preferably through time and motion studies or in consultation with

ATTY. ANSELMO S. RODIEL IV 15

 representatives of workers and employer’s organizations. (Art. 101)
ii. The basis for the establishment of rates for piece, output, or contract work
shall be the performance of an ordinary worker of minimum skill or
ability.
iii. An ordinary worker of minimum skill or ability is the average worker of
the lowest producing group representing 50% of the total number of
employees engaged in similar employment in a particular establishment,
excluding learners, apprentices and handicapped workers employed
therein. (Sec. 8, Rule VII-A, Book III, IRR)
4. Payment of wages
a. Wages shall be paid in legal tender.
i. Promissory notes/vouchers/coupons are absolutely prohibited, even if
expressly requested by employee
ii. Checks and money orders are allowed if customary or necessary
b. Wages shall be paid twice a month at intervals not exceeding 16 days.
i. Exception:
1. Force majeure/beyond the control of employer - pay the wages
immediately after such circumstance has ceased.
c. Wages shall be paid at or near the place of undertaking. Payment in a place other
than the workplace shall be permissible only under the following circumstances:
i. No employer shall pay his employees in a bar/night club/drinking
establishment/massage clinic/dance hall/similar places where games are
played with stakes of money EXCEPT if the person is employed in said
place
ii. Emergencies caused by calamity rendering payment thereat impossible
iii. Free transportation to the employees back and forth
iv. Analogous circumstances, but the time spent in collecting shall be
compensable hours of work
d. Wages shall be paid directly to the worker. The following are the exceptions:
i. Through another person - force majeure
ii. Through the heir’s – death
iii. Through family member - authorized in writing
5. Prohibitions regarding wages
a. No employer shall limit or interfere with the freedom of any employee to dispose
of his wages
b. No employer shall force, compel, or oblige to purchase merchandise,
commodities, or other property from the employer or from any other person, or
otherwise oblige to make use of any store or services of such employer or any
other person.
c. No employer shall make any deductions from the employee’s wages except:
i. Insurance - When the worker is INSURED with his consent by the
employer, and the deduction is to RECOMPENSE the latter for the
amount paid by him as insurance premium
ii. Union dues/Check-off - When the right of the worker/union to check-off
has been

ATTY. ANSELMO S. RODIEL IV 16

 1. Recognized by the employer, or
2. Authorized in writing by the worker
iii. Authorized by law or regulation
d. No employer may require his worker to make deposits from which deductions
shall be made for loss/damage to tools/materials/equipment supplied by the
employer, except
i. When the employer is engaged in business the PRACTICE of making
deductions is RECOGNIZED as determined by the Secretary.
1. Making deposits is a recognized practice in security guards. 2. It is
prohibited for house helpers (Kasambahay law) and
homeworkers. However, the employer may deduct from their
wages
e. No employer shall make any deduction from the employee’s deposits for the
actual amount of the loss or damage, unless
i. Clearly shown - The responsibility is clearly shown.
ii. Opportunity - The employee is given reasonable opportunity to show
cause why deduction should not be made
iii. Fair and reasonable - The amount is fair and reasonable and shall not
exceed actual loss
iv. 20% - The deduction does not exceed 20% of the employee’s weekly
wage. (IRR of Labor Code)
f. No employer shall withhold any amount from the wages unless authorized to do
so
g. No employer shall induce the employee to give up any part of his wages by
force/stealth/intimidation/threat/dismissal/without worker consent
h. No employer shall make a deduction as consideration of a promise/ retention of
employment.
i. No employer shall refuse to pay/reduce wages/discharge employee/
discriminate against the employee after he filed any complaint under this Title,
or has testified or is about to testify in such proceedings
j. No employer shall make any statement, report, or record knowing such to be
false in any material respect.
6. Wage determination - Labor Code, R.A. No. 6727, R.A. No. 8188, R.A. No. 9178, Latest
Wage Order from http://www.nwpc.dole.gov.ph/
a. Wage order
i. A wage order is issued by the Regional Tripartite Wages and Productivity
Board (RTWPB), whenever conditions in the region so warrant, after
investigating and studying all pertinent facts, and based on the standards
and criteria prescribed by this Code. (Art. 123)
ii. A wage order takes effect 15 days after the complete publication in at
least 1 newspaper of general circulation in the region. (IRR of Labor

ATTY. ANSELMO S. RODIEL IV 17

 Code)
iii. What is the remedy of the party aggrieved by the wage order?
1. He may appeal such order to the Commission (National Wages
and Productivity Commission) within 10 calendar days from the
publication of such order. (Art. 123) The grounds for appeal on
wage order are:
a. Non-conformity with prescribed guidelines and/or
procedure;
b. Questions of law
c. Grave abuse of discretion
2. The filing of appeal does NOT stay the order, unless the person
appealing such order shall file with the Commission, an
undertaking with a SURETY for the payment to the employees
affected by the order of the corresponding increase, in the event
such order is affirmed. (Art. 123)
b. Wage distortion (HCES-L)
i. Prubankers Association v. Prudential Bank and Trust Company laid
down the 4 elements of wage distortion, to wit:
1. Hierarchy - An existing hierarchy of positions with corresponding
salary rates;
2. Change - A significant change in the salary rate of a lower pay
class without a concomitant increase in the salary rate of a higher
one;
3. Elimination - The elimination of the distinction between
the two levels; and
4. Same region - The existence of the distortion in the same region of
the country.
5. The increase in the prescribed wage rate must be by virtue of a
LAW or WAGE ORDER issued by any Regional Board. (Art. 124)
a. It does not cover voluntary and unilateral increases by the
employer (business judgment prerogative). Otherwise, he
will be discouraged from adjusting/increasing salary rates
for fear of demand by all employees of similar increase.
(Bankard Employees Union-Workers Alliance Trade
Unions v. National Labor Relations Commission, 2004)
ii. Correction of wage distortion
1. Organized establishment (Establishment with SEBA)
a. The employer and the union shall negotiate to correct the
distortion using the grievance procedure in the CBA.
b. Remains unresolved, decided through voluntary
arbitration.

ATTY. ANSELMO S. RODIEL IV 18

 2. Unorganized establishment (Without SEBA)
a. The employer and workers shall endeavor to correct the
distortion.
b. Any dispute shall be settled by the NCMB
c. Remains unresolved, refer to the appropriate branch of
NLRC (compulsory arbitration). (Art. 124)
3. The pendency of a dispute arising from wage distortion shall
NOT delay the applicability of the increase in the prescribed wage
rate pursuant to the law or Wage Order. (Art. 124)
7. EXAMPLES:
a. Q: Manila Yummy Restaurant (MYR) pays its receptionists PHP 500.00 a day.
The receptionists contested the amount because the present minimum wage in
the National Capital Region is PHP 645.00 for the non- agricultural sector. MYR
countered that it is paying the receptionists a total of PHP 700.00 which is more
than the required minimum wage. MYR explained that it provides the
receptionists food and beverage worth PHP 200.00 per day in addition to the
PHP 500.00 cash component of their wages. The food and beverage are given
during lunch time to ensure that the receptionists will entertain guests instead of
leaving their stations. Thus, the PHP 200.00 value of the food and beverage must
be added to the PHP 500.00 cash component of their wage. May MYR lawfully
add the value of the food and beverage as part of the wages of its
receptionists? Explain. (2024 Bar Examination)
i. A: No, MYR cannot lawfully add the value of the food and beverage as
part of the wages of its receptionists. Case law dictates that
―supplements‖ constitute extra remuneration or special privileges or
benefits given to or received by the laborers over and above their
ordinary earnings or wages. ―Facilities,‖ on the other hand, are items of
expense necessary for the laborer and his family’s existence and
subsistence so that by express provision of law, they form part of the
wage and when furnished by the employer are deductible therefrom,
since if they are not so furnished, the laborer would spend and pay for
them just the same. In short, the benefit or privilege given to the
employee which constitutes an extra remuneration above and over his
basic or ordinary earning or wage is supplement; and when said benefit
or privilege is part of the laborers' basic wages, it is a facility. The
distinction lies not so much in the kind of benefit or item (food, lodging,
bonus or sick leave) given, but in the purpose for which it is given. If a
benefit or privilege granted to the employee is clearly for the employer’s
convenience, it will not be considered as a facility but a supplement.
Here, the food and beverages worth PHP 200.00 were given to ensure that
the receptionists will entertain guests instead of leaving their stations. In

ATTY. ANSELMO S. RODIEL IV 19

 other words, they were given for the convenience of the employer. Thus,
they cannot be deducted from the wages of the receptionists, because
they must be considered as supplements and not facilities.
b. Q: Lexi Enterprises always made sure that the salary of its supervisory
employees is 70% higher than the wage of its rank-and-file workers. Later, the
management of Lexi Enterprises realized that its business is highly dependent on
rank-and-file workers because they spend more time in providing services to the
clients. Thus, Lexi Enterprises significantly increased the wages of its rank-and-
file workers such that they are only 10% behind the salary of the supervisory
employees. Consequently, the supervisory employees demanded an increase in
their salaries and alleged that Lexi Enterprises must correct the wage distortion.
May the supervisory employees validly demand an increase in their salaries?
Explain. (2024 Bar Examination)
i. A: No, the supervisory employees cannot validly demand an increase in
their salaries. Case law dictates that the following are the elements of
wage distortion: (1) An existing hierarchy of positions with
corresponding salary rates; (2) A significant change in the salary rate of a
lower pay class without a concomitant increase in the salary rate of a
higher one; (3) The elimination of the distinction between the two levels;
and (4) The existence of the distortion in the same region of the country.
Further, it dictates that the wage distortion must be caused by the
issuance of a wage order by the Regional Tripartite Wages and
Productivity Board, and not the management prerogative of the
employer. Here, the salaries of the rank-and-file workers were increased
because of the decision of Lexi Enterprises and not because of the
issuance of wage order. Thus, the supervisory employees cannot demand
an increase in their salaries, because there was no wage distortion.
c. Q: The Philippines celebrates “Ninoy Aquino Day” every August 21 of the year as
a special non-working holiday. Tyson Plastic Company (TPC) scheduled its
machine shutdown on August 21, 2024 and informed the workers that the
factory will be closed for maintenance. Later, the President of the Philippines
issued Proclamation No. 665 moving the observance of “Ninoy Aquino Day” from
August 21, 2024, Wednesday, to August 23, 2024, Friday, to promote domestic
tourism in the country. The TPC announced that the machine shutdown will
push through as scheduled and required the workers to report on August 23,
2024. Winslet is paid PHP 700.00 daily salary as a machine operator. Winslet
reported for work on August 23, 2024 and claimed holiday premium pay. The
TPC denied the claim and argued that Winslet already enjoyed the holiday on
August 21, 2024 when the factory was closed. How much is Winslet entitled to
for working on August 23, 2024? Explain. (2024 Bar Examination)
i. A: Winslet is entitled to P910.00 for working on August 23, 2024. Under

ATTY. ANSELMO S. RODIEL IV 20

 the Labor Code, work performed on any special holiday shall be paid an
additional compensation of at least thirty percent (30%) of the regular
wage of the employee. Here, the special non-working holiday was moved
to August 23, 2024. Since Winslet worked on the said date, she is entitled
to 130% of her daily wage. Thus, she must earn P910.00 on the said date.

C. Leaves

1. Labor Code
a. Service incentive leave (5 days every year - at least 1 year of service)
i. ART. 95. Right to service incentive leave. –
1. Every employee who has rendered at least 1 year of service shall
be entitled to a yearly service incentive leave of 5 days with pay.
2. This provision shall NOT apply to: (AVEE)
a. Already enjoying the benefit herein provided,
b. Vacation leave with pay of at least 5 days and
c. Establishments regularly employing less than 10
employees or
d. Exempted by the Secretary after considering the viability
or financial condition of such establishment.
ii. SIL is cumulative and convertible in cash
iii. Bus drivers and conductors, being required to be at specific places at
specific times, are not classified as field personnel. Hence, they are
entitled to holiday pay and service incentive leave. (Rodolfo Serrano vs.
Severino Santos Transit, 2010.) They cannot be considered as field
personnel. Bus drivers and conductors are required to be at specific places
at specific times. Thus, they are entitled to holiday pay and service
incentive leave.
iv. Taxi drivers under the boundary system are considered field personnel
or unsupervised employees since they are performing work away from
the principal office of the employer and they are not required to be at
specific places at specific times. Hence, they are not entitled to holiday
pay or service incentive leave. (R&E Transport, Inc., vs. Pedro Latag,
2004) Since the nature of the work of bus drivers and taxi drivers are
different, the benefits that each will receive, such as holiday pay and
service incentive leave, would be different.
2. Special laws
a. Parental leave for solo parents
i. Solo Parent
1. A solo parent refers to any individual who falls under any of the
following categories:
a. A parent who provides solo parental care and support of
the child or children due to:
i. Birth of a child or children as a consequence of
rape, even without a final conviction of the
offender; Provided, That the mother has the sole

ATTY. ANSELMO S. RODIEL IV 21

 parental custody, care and is the sole support of the
child or children: Provided, further, that the mother
under this category may still be considered a solo
parent under any of the categories in this section.
ii. Death of his/her spouse;
iii. Detention of his/her spouse for at least three (3)
months or service of sentence for a criminal
conviction;
iv. Physical or mental incapacity of his/her spouse as
certified by a public or private medical practitioner:
Provided. That the physical or mental incapacity of
the spouse prevents him/her from performing
his/her parental duty;
v. Legal separation or de facto separation from
his/her spouse for at least six (6) months and the
solo parent is entrusted with the solo parental care
and support of the child or children;
vi. Declaration of nullity or annulment of marriage as
decreed by a court recognized by law, or due to
divorce, subject to existing laws, and the solo
parent is entrusted with the solo parent is entrusted
with solo parental care and support of the child or
children; or
vii. Abandonment by the spouse for at least six (6)
months;
b. A spouse or any family member of an OFW, as defined in
item (e) of this Section, of an Overseas Filipino Worker
(OFW), or the guardian of the child or children of an OFW:
Provided, that the said OFW belongs to the low or semi-
skilled worker category, and is away from the Philippines
for an uninterrupted period of twelve (12) months:
Provided, further, that the OFW, his/her spouse, family
member or guardian of the child, or children of an OFW,
belongs to low or semi-skilled worker category, subject to
the assessment of the duly appointed or designated social
worker;
c. An unmarried mother or father who keeps and rears
his/her child or children;
d. Any legal guardian, adoptive or foster parent who solely
provides parental care and support to a child or children;
e. Any relative within the fourth (4th) civil degree of
consanguinity or affinity of the parent or legal guardian
whose death, or disappearance, absence or abandonment
of the child or children, for at least six (6) months, led to
the said relative assuming solo parental care and support
of the child or children: Provided, That in case of solo
grandparents who are senior citizens and who have the

ATTY. ANSELMO S. RODIEL IV 22

 sole parental care and support over their grandchild or
grandchildren who are unmarried, or unemployed, and
twenty-two (22) years old or below, or those twenty-two
(22) or over but who are unable to fully take care or protect
themselves from abuse, neglect, cruelty, exploitation or
discrimination because of physical or mental disability or
condition, Provided, further, That the child or children
entitled to be supported beyond the age of majority shall
be limited to those who are in school or in training for
some profession, trade or vocation, consistent with and as
provided in Article 194 of Executive Order No. 209 (E.O.
No. 209), or The Family Code of the Philippines; The solo
grandparents shall be entitled to the benefits of this Act in
addition to the benefits granted to them by Republic Act
No. 9994 (R.A. No. 9994) or the "Expanded Senior Citizens
Act of 2003"; or
f. A pregnant woman who provides sole parental care and
support for her unborn child or children.
ii. Benefits
1. in addition to leave privileges under existing laws, a forfeitable
and noncumulative parental leave of not more than seven (7)
working days with pay every year shall be granted to any solo
parent employee, regardless of employment status, who has
rendered service of at least six (6) months: Provided, That the
parental leave benefit may be availed of by the solo parent
employees in the government and the private sector.
iii. EXAMPLES:
1. Q: Spouses Felix and Sarah have three minor children. In 2022,
Felix was detained for committing a non-bailable offense. Sarah
looked for a job to support her children. On May 18, 2024, Jared
Corporation hired Sarah as a cashier. On August 18, 2024, Sarah
claimed that she is a solo parent and applied for parental leave
under Republic Act No. 11861 or the Expanded Solo Parents
Welfare Act. Is Sarah entitled to parental leave? Explain. (2024
Bar Examination)
a. A: No, Sarah is not entitled to parental leave. Under
Republic Act No. 11861, a solo parent refers to a parent
who provides sole parental care and support of the child
or children due to the detention of the spouse for at least
three (3) months or service of sentence for a criminal
conviction. Further, in addition to leave privileges under
existing laws, a forfeitable and noncumulative parental
leave of not more than seven (7) working days with pay
every year shall be granted to any solo parent employee,

ATTY. ANSELMO S. RODIEL IV 23

 regardless of employment status, who has rendered
service of at least six (6) months: Provided, That the
parental leave benefit may be availed of by the solo parent
employees in the government and the private sector. Here,
Sarah has only been an employee of Jared Corporation for
three (3) months. Thus, Sarah is not entitled to parental
leave.
b. Expanded maternity leave
i. All covered female workers in the government and the private sector,
including those in the informal economy, regardless of civil status or
legitimacy of her child, shall be granted 105 days maternity leave with full
pay and an option to extend for an additional 30 days without pay:
Provided, That in case the worker qualifies as a solo parent under the Solo
Parents’ Welfare Act, the worker shall be granted an additional 15 days
maternity leave with full pay.
1. For ―full pay,‖ this consists of: i) SSS maternity benefit computed
based on their average daily salary credit, and ii) salary
differential to be paid by the employer.
2. However, they shall NOT be entitled to the salary differential if
they are employed by ANY of the following EXEMPT
establishments: (DRMA)
a. Distressed establishments
b. Retail/service establishment and other enterprises
regularly employing not more than 10 workers
c. Micro-business enterprises + engaged in manufacturing of
products of commodities + whose total assets are not more
than P3M
d. Already providing similar benefits or more than the
benefits under the existing CBA/company practice or
policy.
3. For the ―additional 30 days leave without pay‖, due notice to the
employer in writing must be given at least 45 days before the end
of the female worker’s maternity leave.
a. However, no prior notice is necessary in the event of
MEDICAL EMERGENCY. Subsequent notice shall be
given to the employer.
ii. In cases of miscarriage or emergency termination of pregnancy, 60 days
of maternity leave with full pay shall be granted.
iii. For female national athletes, upon medical advice, she shall go on
maternity leave until cleared to return to training. She shall continue
receiving her allowance and be entitled to the same benefits while on
maternity leave prior to childbirth and up to six (6) months after.
iv. Enjoyment of maternity leave CANNOT BE DEFERRED, but should be
availed either before or after the actual period of delivery in a
CONTINUOUS and UNINTERRUPTED manner, not exceeding 105 days,
or 60 days, as the case may be.

ATTY. ANSELMO S. RODIEL IV 24

 v. For delivery, the leave can be credited as combinations of prenatal and
postnatal leave as long as it does not exceed 150 days and the compulsory
postnatal leave shall not be less than 60 days.
vi. Maternity leave shall be granted to female workers in EVERY instance of
pregnancy, miscarriage or emergency termination of pregnancy,
REGARDLESS OF FREQUENCY. (105 - Day Expanded Maternity Leave
Law)
c. Paternity leave
i. SECTION 2. Notwithstanding any law, rules and regulations to the
contrary, every married male employee in the private and public sectors
shall be entitled to a paternity leave of seven (7) days with full pay for the
first four (4) deliveries of the legitimate spouse with whom he is
cohabiting. The male employee applying for paternity leave shall notify
his employer of the pregnancy of his legitimate spouse and the expected
date of such delivery. For purposes of this Act, delivery shall include
childbirth or any miscarriage. (Paternity Leave Act of 1996)
ii. Any female worker entitled to maternity leave benefits as provided for
herein may, at her option, allocate up to seven (7) days of said benefits to
the child’s father, WHETHER or not the same is MARRIED to the female
worker: Provided, That in the death, absence, or incapacity of the former,
the benefit may be allocated to an alternate caregiver who may be a
relative within the fourth degree of consanguinity or the current partner
of the female worker sharing the same household, upon the election of the
mother taking into account the best interests of the child: Provided,
further, That written notice thereof is provided to the employers of the
female worker and alternate caregiver: Provided, furthermore, That this
benefit is OVER AND ABOVE that which is provided under Republic Act
No. 8187, or the "Paternity Leave Act of 1996":
iii. Provided, finally, That in the event the beneficiary female worker dies or
is permanently incapacitated, the balance of her maternity leave benefits
shall accrue to the father of the child or to a qualified caregiver as
provided above. (105 – Day Expanded Maternity Leave Law)
d. Gynecological leave - R.A. No. 9710, Sec 18; Department Order No. 112-11; CSC
Resolution No. 1000432, November 22, 2010
i. Gynecological disorders are disorders that would require surgical
procedures on female reproductive organs. This includes operations on
the female breast, such as mastectomy.
ii. SECTION 18. Special Leave Benefits for Women. — A woman employee
having rendered continuous aggregate employment service of at least six
(6) months for the last twelve (12) months shall be entitled to a special
leave benefit of two (2) months with full pay based on her gross monthly
compensation following surgery caused by gynecological disorders.
(Magna Carta for Women)
e. Battered woman leave
i. SECTION 43. Entitled to Leave. – Victims under this Act shall be entitled
to take a paid leave of absence up to ten (10) days in addition to other
paid leaves under the Labor Code and Civil Service Rules and

ATTY. ANSELMO S. RODIEL IV 25

Regulations, extendible when the necessity arises as specified in the
protection order. (Violence Against Women and Children Act

ATTY. ANSELMO S. RODIEL IV 26

SIL (Labor Solo Parents’ Maternity Gynecological
Code) Leave Leave Leave

5 days w/ full 7 days w/ full Every 2 months w/

pay every pay every delivery: 105 full pay -
year - year - Solo days w/ full following
rendered at Parent + pay + 30 days procedure for
least 1 year of rendered at w/o pay + 15 gynecological
service least six (6) days w/ full disorder +
months of pay if solo rendered at least
service parent 6 months the
last 12 months
Every
miscarriage:
60 days w/
full pay

Battered Paternity
woman leave Leave

10 days w/ Paternity
full pay + Leave Act - 7
extended by days w/ full
protection pay - married
order - victim male + first 4
of VAWC deliveries of
the legitimate
wife he is
cohabiting

EMLL-
allocate 7
days of ML -
father/altern
ate caregiver
+ even if not

ATTY. ANSELMO S. RODIEL IV 27

 married

Death/PI of
mother -
balance
accrue to the
father/altern
ate caregiver

D. Working conditions for special groups of employees

1. Apprentices and learners (Labor Code)

a. Apprentices
i. An apprentice is a worker who is undergoing training for an approved
apprenticeable occupation covered by a written apprenticeship
agreement with an individual employer. It involves 3 - 6 months of
training, deductibility of training cost. Compensation of not less than 75%
of the minimum wage, possibility apprenticeship without compensation
and there is no commitment to hire the apprentice. Meanwhile,
apprenticeship means practical training on the job + related theoretical
instruction
ii. Apprenticeable occupation means any trade/occupation requires MORE
THAN 3 MONTHS of practical training on the job + related theoretical
instruction
iii. Qualifications of Apprentice:
1. At least 15 years of age
2. Vocational Aptitude
3. Ability to Comprehend
4. Highly technical enterprise
5. Apprenticeable occupation Approved by DOLE. (Art. 59 and 60)
iv. Contents of Apprentice Agreements
1. The period of apprenticeship shall NOT EXCEED 6 MONTHS.
2. Apprenticeship agreements providing for wage rates BELOW
legal minimum wage, not below 75% of MW, may be entered into
only in accordance with APPRENTICESHIP PROGRAMS DULY
APPROVED by the Secretary. (Art. 61)
v. Necessity of PRIOR approval of the Secretary of the apprenticeship

ATTY. ANSELMO S. RODIEL IV 28

 program
1. In Nitto Enterprises v. NLRC, the Court cited Article 61 of the
Labor Code and held that an apprenticeship program should
FIRST BE APPROVED by the DOLE before an apprentice may be
hired. Otherwise, the person hired will be considered a
REGULAR EMPLOYEE.
2. In Century Canning v NLRC, the apprenticeship program was
submitted to the DOLE on the same day the apprenticeship
agreement was signed. Hence, Palad was considered as a regular
employee because she started working before the apprenticeship
program was ―duly approved by the Secretary.‖
vi. Investigation of Violation of Apprenticeship Agreement
1. Upon complaint of any interested person or upon its own
initiative, the appropriate agency of the Department of Labor and
Employment or its authorized representative shall investigate any
violation of an apprenticeship agreement pursuant to such rules
and regulations as may be prescribed by the Secretary of Labor
and Employment
vii. Appeal to the Secretary of Labor
1. The decision of the authorized agency of the Department of Labor
and Employment may be appealed by any aggrieved person to
the Secretary of Labor and Employment within five (5) days from
receipt of the decision. The decision of the Secretary of Labor and
Employment shall be final and executory.
viii. Exhaustion of Administrative Remedies
1. No person shall institute any action for the enforcement of any
apprenticeship agreement or damages for breach of any such
agreement, unless he has exhausted all available administrative
remedies.
ix. Deductibility of Training Costs
1. An additional deduction from taxable income of one-half (1/2) of
the value of labor training expenses incurred for developing the
productivity and efficiency of apprentices shall be granted to the
person or enterprise organizing an apprenticeship program:
Provided, That such program is duly recognized by the
Department of Labor and Employment: Provided, further, That
such deduction shall not exceed ten (10%) percent of direct labor
wage: and Provided, finally, That the person or enterprise who
wishes to avail himself or itself of this incentive should pay his
apprentices the minimum wage.
x. Apprentices without compensation

ATTY. ANSELMO S. RODIEL IV 29

 1. The Secretary of Labor and Employment may authorize the hiring
of apprentices without compensation whose training on the job is
required by the school or training program curriculum or as
requisite for graduation or board examination.
b. Learners
i. Learners are persons hired as trainees in semi-skilled and other industrial
occupations which are non-apprenticeable and which may be learned
through practical training on the job in a relatively short period of time
which shall not exceed three (3) months.
ii. Limited instance when learners may be employed
1. Non-Availability - No experienced workers are available,
2. Necessity - the employment of learners is necessary to prevent
curtailment of employment opportunities, and
3. No Unfair competition - the employment does not create unfair
competition in terms of labor costs or impair or lower working
standards.
iii. Learnership agreement
1. Commitment to employ - A commitment to employ the learners if
they so desire, as regular employees upon completion of the
learnership.
2. 2 months terminate no fault - All learners who have been allowed
or suffered to work during the first two (2) months shall be
deemed regular employees if training is terminated by the
employer before the end of the stipulated period through no fault
of the learners. (Art. 75)

Apprentice Learner

Highly technical industry Semi-skilled or other industrial

occupations

More than 3 months but must not Not more than 3 months
exceed 6 months

The law is silent Non-availability; Necessity; No unfair

competition

No commitment to hire Commitment to employ as regular

employee

ATTY. ANSELMO S. RODIEL IV 30

 At least 15; Aptitude; Comprehend The law is silent.

iv. The Dual Training System Act: R.A. No. 7686, R.A. No. 10869 or the
Jobstart Philippines Act
1. JobStart Trainee
a. A JobStart trainee shall no longer be required to undergo
a probationary period at the end of the internship phase
should the trainee be hired in the same establishment upon
completion of the program.
2. Three (3) Phases
a. JobStart Life Skills Training - 10 days with one life skill
taught each day;
b. JobStart Technical Training - Up to 3 months and is
optional.
c. JobStart Internship - Up to 3 months or 600 hours.
2. Persons with disabilities
a. R.A. No. 7277 as amended by R.A. No. 9442, R.A. No. 10070 and R.A. No. 10524
i. Who is a PWD?
1. Disabled persons are those suffering from restriction to perform
an activity in the manner normal for human being, as a result of a
mental, physical or sensory impairment.
2. (Restriction + perform act normal for human + result of
impairment)
ii. Equal opportunity (Magna Carta for Disabled Persons)
1. Sec. 5. Equal Opportunity for Employment.
a. No disabled person shall be denied access to opportunities
for suitable employment.
b. A qualified disabled employee shall be subject to the same
terms and conditions of employment and the same
compensation, privileges, benefits, fringe benefits,
incentives or allowances as a qualified able bodied person.
c. The fact that the employees were qualified disabled
persons necessarily removes the employment contracts
from the ambit of Article 80 (Employment Agreement for
Handicapped Workers). Since the Magna Carta accords
them the rights of qualified able-bodied persons, they are
thus covered by Article 280 (Regular and Casual
Employment). (Bernardo v. NLRC, 1999)

E. Working Conditions for special groups of employees - Labor Code, IRR, R.A. No. 10151,
R.A. No. 7877, R.A. No. 9710, R.A. No. 7192, Social Security Act, R.A. No. 11210, R.A. No.
8187, R.A. No. 10028 and implementing rules

1. Gender
a. Bona Fide Occupational Qualification (BFOQ)

ATTY. ANSELMO S. RODIEL IV 31

 i. What is a bona fide occupational qualification (BFOQ)? (RU)
1. To justify a bona fide occupational qualification, the employer
must prove two factors: (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. (Capin-Cadiz
v. Brent Hospital and Colleges, Inc., 2016)
a. Hence, in Duncan Association v Glaxo Wellcome, the
prohibition from marrying an employee of a competitor
company was held valid, because Glaxo has the right to
guard its trade secrets. In short, it is reasonably related to
the operation of the job
b. In Star Paper v Simbol, the prohibition to marry a co-
employee was held invalid because reasonable business
necessity is absent. The company failed to show how
marrying a co-employee can be detrimental to the job.
c. In Capin-Cadiz v Brent Hospital, the suspension of Cadiz
for being pregnant out of wedlock until she marries her
boyfriend was held invalid because it is not reasonably
related to the essential operation of her job as a Human
Resource Officer.
d. In Yrasuegui v PAL, the dismissal of the flight steward for
being overweight was held valid because physical fitness
is reasonably related to the essential operation of her job.
The cabin crew must maintain agility at all times in order
to inspire confidence in their ability to care for passengers
when something goes wrong.
b. Discrimination
i. It shall be unlawful for any employer to discriminate against any woman
employee with respect to the terms and conditions of employment solely
on account of SEX.
ii. The following are acts of discrimination:
1. Lesser compensation - to a female employee against a male
employee, for work of equal value
2. Favor in promotion/training/scholarship - towards male
employees over female employees solely on account of sex. (Art.
133)
iii. Criminal liability - Art. 288-289
1. Institution of criminal action shall NOT BAR the employee from
filing an entirely SEPARATE AND DISTINCT action for money
claims.
2. The actions shall proceed INDEPENDENTLY of each other. (Art.
133)
c. Stipulation against marriage
i. It shall be unlawful for employer: (Marriage)

ATTY. ANSELMO S. RODIEL IV 32

 1. To require as CONDITION/CONTINUATION of employment -
woman employee shall not get married
2. To STIPULATE RESIGNED - upon getting married, she is deemed
resigned
3. To DISMISS/DISCRIMINATE - woman employee merely by
reason of marriage. (Art. 134)
d. Prohibited acts
i. It shall be unlawful for any employer
1. To DENY/DISCHARGE a woman employee - for the purpose of
preventing her from enjoying the benefits of this Code
2. To DISCHARGE - woman on account of her pregnancy
3. To DISCHARGE/REFUSE ADMISSION - woman upon returning
for fear that she may again be pregnant. (Art. 137)
e. Facilities for women
i. The Secretary of Labor shall establish standards that will insure the safety
and health of women employees. In appropriate cases, he shall by
regulations, require employers to:
1. Provide seats proper for women and permit them to use such
seats when they are free from work and during working hours,
provided they can perform their duties in this position without
detriment to efficiency;
2. To establish separate toilet rooms and lavatories for men and
women and provide at least a dressing room for women;
3. To establish a nursery in a workplace for the benefit of the woman
employees therein; and
4. To determine appropriate minimum age and other standards for
retirement or termination in special occupations such as those of
flight attendants and the like. (Art. 130)
f. Women working in nightclubs, etc.
i. Any woman who is permitted to work or suffered to work, with or
without compensation, in any Night club, Cocktail lounge, Massage
clinic, Bar or Similar establishment, under the effective control or
supervision of the employer for a substantial period of time as
determined by the Secretary of Labor, shall be considered as an employee
of such establishment for purposes of labor and social legislation. (Art.
138)
1. Hence, no employer shall discriminate against such employees or
in any manner reduce the benefits they are now enjoying by
reason of the provisions of this Section.
2. Minors
a. R.A. No. 7610, as amended by R.A. No. 7658, R.A. No. 9231, Department
Circular No. 2 Series of 2017 (Guidelines on the Issuance of Work Permit for
Children Below 15 years of Age Engaged in Public Entertainment or
Information, as amended by Department Circular No. 2 Series of 2018)
i. Who is a working child?
1. Working child refers to any child engaged as follows:
a. When the child is below 18 years of age,

ATTY. ANSELMO S. RODIEL IV 33

 i. Not child labor - in work or economic activity that
is NOT child labor
b. When the child is below 15 years of age
i. Responsibility + Family - In work where he is
directly under the responsibility of his
parents/guardians and where only members of the
child’s family are employed; or
ii. Entertainment - In public entertainment or
information
ii. What is child labor?
1. Sec. 12-D. Prohibition Against Worst Forms of Child Labor. - No
child shall be engaged in the worst forms of child labor. The
phrase "worst forms of child labor" shall refer to any of the
following:
a. All forms of slavery, as defined under the "Anti-trafficking
in Persons Act of 2003", or practices similar to slavery such
as sale and trafficking of children, debt bondage and
serfdom and forced or compulsory labor, including
recruitment of children for use in armed conflict; or
b. The use, procuring, offering or exposing of a child for
prostitution, for the production of pornography or for
pornographic performances; or
c. The use, procuring or offering of a child for illegal or illicit
activities, including the production and trafficking of
dangerous drugs and volatile substances prohibited under
existing laws; or
d. Work which, by its nature or the circumstances in which it
is carried out, is hazardous or likely to be harmful to the
health, safety or morals of children, such that it:
i. Debases, degrades or demeans the intrinsic worth
and dignity of a child as a human being; or
ii. Exposes the child to physical, emotional or sexual
abuse, or is found to be highly stressful
psychologically or may prejudice morals; or
iii. Is performed underground, underwater or at
dangerous heights; or
iv. Involves the use of dangerous machinery,
equipment and tools such as power-driven or
explosive power-actuated tools; or
v. Exposes the child to physical danger such as, but
not limited to the dangerous feats of balancing,
physical strength or contortion, or which requires
the manual transport of heavy loads; or
vi. Is performed in an unhealthy environment
exposing the child to hazardous working
conditions, elements, substances, co-agents or
processes involving ionizing, radiation, fire,

ATTY. ANSELMO S. RODIEL IV 34

 flammable substances, noxious components and
the like, or to extreme temperatures, noise levels, or
vibrations; or
vii. Is performed under particularly difficult
conditions; or
viii. Exposes the child to biological agents such as
bacteria, fungi, viruses, protozoans, nematodes and
other parasites; or
ix. Involves the manufacture or handling of explosives
and other pyrotechnic products."
iii. For children at least 15 but below 18, there is no need for a work permit.
However, they cannot be engaged in child labor.
iv. Rules on employment of a child below 15 years of age
1. He cannot be employed except:
a. Responsibility + family - When he works directly under
the sole responsibility of his parents/guardian AND only
members of his family are employed
i. Provided, his employment neither endangers his
life/safety/ health/morals/normal development
ii. Provided, prescribed primary/secondary
education
b. Entertainment - When a child’s employment in public
entertainment of information is essential
i. Provided, the employment contract is concluded:
1. By the parents/guardian
2. With the express agreement of the child
3. Approval of DOLE
ii. Provided, further, that the following requisites are
strictly complied with:
1. The employer shall ensure the
protection/health/safety/ morals/normal
development of the child
2. The employer shall institute measures to
prevent the child’s exploitation or
discrimination taking into account the
system and level of remuneration, and the
duration and arrangement of working time;
and
3. The employer shall formulate and
implement, subject to the approval and
supervision of competent authorities, a
continuing program for training and skills
of the child. (RA 7610, as amended)
iii. In the above cases, the employer shall FIRST
secure, before engaging the child, a WORK
PERMIT from DOLE.

ATTY. ANSELMO S. RODIEL IV 35

 v. Exceptions to work permit for employment of children below 15 years of
age
1. Extra - Is a spot extra or is cast outright on the day of
filming/taping
2. Auditions - Will join auditions or VTR screenings
3. Audience - Is part of an audience in live television show, unless
the child’s participation is expected
4. Contestant audience - Is picked or chosen as a contestant from the
audience of a live television show
5. Contestant contest - Is a contestant of a signing, dance, or talent
contest for a TV show before being selected as a semi-finalist
6. Gift - Is a recipient of gift-giving activities in television
7. School - Is a participant in school-related performance such as a
play, skit, or recital
8. Sports - Is a participant in sports activities, training, workshops,
aimed at development the child’s talent or skills
vi. Hours of work for a working child
1. A child below 15 years of age may be allowed to work for not
more than 20 hours a week: Provided, That the work shall not be
more than 4 hours at any given day;
a. No child below 15 years of age shall be allowed to work
between eight o'clock in the evening and six o'clock in the
morning of the following day
2. A child fifteen 15 years of age but below 18 shall not be allowed to
work for more than 8 hours a day, and in no case beyond 40 hours
a week;
a. No child fifteen 15 years of age but below 18 shall be
allowed to work between ten o'clock in the evening and six
o'clock in the morning of the following day.
3. Night workers – R.A. No. 10150 (2011)
a. Definition
i. A night worker means any employed person whose work covers the
period from 10pm to 6am, provided the worker performs no less than 7
consecutive hours of work. This excludes those employed in agriculture,
stock raising, fishing, maritime transport and inland navigation, during a
period of not less than seven (7) consecutive hours, including the interval
from midnight to five o' clock in the morning. (Article 154, Labor Code)
b. What are his rights?
i. Mandatory facilities - suitable first-aid facilities; safe and healthful
working conditions; sleeping quarters; transportation from the work
premises to nearest point of residence
ii. Health assessment - they have the right to undergo health assessment
without charge.
iii. Compensation
iv. Night shift differential - They shall be given a night shift differential,
equivalent to 10% of his regular wage, for each hour of work between
10PM to 6AM.

ATTY. ANSELMO S. RODIEL IV 36

 v. Consultation of night work schedules
vi. Transfer - night workers who are certified as unfit for night work, due to
health reasons, shall be transferred, whenever practicable, to a similar job
to which they are fit to work. (Art. 157)
1. If such transfer to a similar job is not practicable, these workers
shall be granted the same benefits as other workers who are
unable to work, or to secure employment during such period.
(Art. 157)
vii. Social services
c. What are the alternative measures to night work for PREGNANT and NURSING
employees?
i. Ensure that an ALTERNATIVE to night work is AVAILABLE to women
workers who would be called upon to perform such work:
1. Before and after childbirth, for a period of at least 16 weeks,
which shall be divided between the time before and after
childbirth
2. For additional periods, in respect of which a medical certificate
states that additional periods are necessary for the health of the
mother/child
ii. During the periods referred:
1. Dismissal - She shall not be dismissed, except for just/authorized
causes NOT connected to pregnancy/childbirth/childcare
2. Benefits - She shall not lose her benefits, which may attach to her
regular night work position
iii. The pregnant woman or nursing mother may be allowed to work at night
only if a competent physician, other than the company physician, certifies
her fitness to render night work.
4. Kasambahays – R.A. No. 10361
a. Who is a kasambahay under jurisprudence?
i. A house helper shall refer to a person who renders services in and about
the employer’s home AND the services are usually necessary/ desirable
for the maintenance and enjoyment of the home, AND ministers
exclusively to the personal comfort and enjoyment of the employer’s
family. (Apex Mining v NLRC, 1991)
1. (render services home + maintenance and enjoyment home +
exclusively personal comfort and enjoyment family)
ii. Personal comfort and enjoyment of the family is the true criterion. Why?
1. Not every person who renders service in the home, which is
usually necessary or desirable for its maintenance and enjoyment,
is a house helper.
a. For example, a plumber/tubero renders such services but
he is not a househelper, because he does NOT minister

ATTY. ANSELMO S. RODIEL IV 37

 exclusively to the personal comfort and enjoyment of the
family.
b. In Apex Mining, the house helper or laundry woman
working in staff houses were not considered as
kasambahay because she does not minister exclusively to
the personal comfort and enjoyment of the family of the
employer. Instead, she is a regular employee of the
employer.
b. Who is a kasambahay in Kasambahay Law? (More of illustrations)
i. Domestic worker or kasambahay refers to any person engaged in
domestic work within an employment relationship such as househelp,
nursemaid, yaya, cook, gardener, laundry person, but shall EXCLUDE:
1. Occasional not occupational - Any person who performs domestic
work only occasionally or sporadically and NOT on an
occupational basis. (Labandera on the weekends)
2. Children foster care - Children who are under foster care
arrangement, and are provided access to education and given an
allowance incidental to education, i.e., baon, transportation,
school projects, and school activities (RA 10361)
3. Service - Service providers; and
4. Driver - Family drivers.(Even in the jurisprudential meaning,
drivers are not included because they do not maintain the home.
They maintain the vehicles)
c. Employment age of househelpers
i. It shall be unlawful to employ any person below fifteen (15) years of age
as a domestic worker.
1. Hence, if he is at least 15, he can be a house helper.
d. What are the benefits and rights of househelpers?
i. SSS/Philhealth/PAG-IBIG - a domestic worker who rendered at least 1
month of service shall be covered, and shall be entitled to all the benefits
provided by law
ii. 13th month pay - the domestic worker shall be entitled to 13th month
pay.
iii. Minimum wage
iv. Standard of treatment - free from abuse
v. Rescue and rehabilitation of abused domestic workers
vi. Board/Lodging/Medical attendance
vii. Guarantee of privacy
viii. Exercise his on religious beliefs and cultural practices
ix. Prohibition against disclosure of privileged information

ATTY. ANSELMO S. RODIEL IV 38

 1. All communication and information pertaining to the employer or
members of the household shall be treated as PRIVILEGED and
CONFIDENTIAL, and shall NOT be publicly disclosed by the
domestic worker during and after employment. It is
INADMISSIBLE EXCEPT:
a. Suit involves the employer or any member of the
household in a CRIME against
persons/property/liberty/security/chastity. (Sec. 10)
x. Access to outside communication
xi. Daily rest period - the domestic worker shall be entitled to an aggregate
daily rest period of 8 hours per day.
xii. Weekly rest period - at least 24 consecutive hours. Nothing in this
provision shall deprive the domestic worker and employer from
AGREEING to the following:
1. Offsetting a day of absence with a particular rest day
2. Waiving a particular rest day in return for an equivalent daily rate
of pay
3. Other similar arrangements. (Sec. 21)
xiii. Leave benefits
xiv. Assignment to non-household work - No domestic worker shall be
assigned to work in a commercial/industrial/agricultural enterprise at a
wage rate lower than that provided for agricultural or nonagricultural
worker. In such case, the domestic worker shall be paid the applicable
minimum wage rate, i.e., P537/day in NCR. (Sec. 22)
1. If a domestic worker is also performing work as a personal
assistant of a television talent, he shall be paid the same wages as
non-agricultural workers, i.e., P537/day in NCR.
xv. Right to education
xvi. Right to a copy of employment contract
xvii. Right to certificate of employment
xviii. Right to terminate employment
1. Neither the domestic worker nor the employer may terminate the
contract before the expiration of the term except for grounds
provided for in Sections 33 and 34 of this Act.
2. If the domestic worker is unjustly dismissed, the domestic worker
shall be paid the compensation already earned plus the equivalent
of fifteen (15) days work by way of indemnity.
3. If the domestic worker leaves without justifiable reason, any
unpaid salary due not exceeding the equivalent fifteen (15) days
work shall be forfeited. In addition, the employer may recover

ATTY. ANSELMO S. RODIEL IV 39

 from the domestic worker costs incurred related to the
deployment expenses, if any:
a. Provided, That the service has been terminated within six
(6) months from the domestic worker’s employment. (Sec.
32, Kasambahay Law)
xix. Domestic workers are NOT entitled to separation pay. They are only
entitled if provided in the contract.
e. Is it correct to say that under Philippine law a house helper has no right to
security of tenure?
i. No. A house helper can be dismissed only for just cause or when his
agreed period of employment ends. (2011 Bar Examinations)
f. Who must bear the cost of premiums for SSS/Philhealth/PAG-IBIG of the
householder?
i. They shall be shouldered by the employer. However, if the domestic
worker is receiving a wage of P5000 or more per month, the domestic
worker shall pay a PROPORTIONATE share in the premium payments,
as provided by law. (Sec. 30)
g. Minimum wage of Kasambahay
i. NCR - P5000
ii. Cities/First-class municipalities - P2500
iii. Other - P1800 to P3000
h. Rule on payment of wages
i. Payment of wages shall be made directly to the house helper, in cash, at
least once a month.
ii. The employer shall make NO deductions from the wages of the domestic
worker other than that which is mandated by law.
i. Deposits for Loss or Damage
i. It shall be unlawful for the employer or any other person to require a
domestic worker to make deposits from which deductions shall be made
for the reimbursement of loss or damage to tools, materials, furniture and
equipment in the household. (Sec. 14)
j. Prohibition against debt bondage
i. It shall be unlawful for the employer or any person acting on behalf of the
employer to place the domestic worker under debt bondage. (Sec. 15)
1. Further, this is a crime of trafficking in persons.
k. Allowable deductions on his wage
i. When there is a written consent of the domestic worker
ii. For SSS, Philhealth, or PAG-IBIG contributions
iii. Deduction for loss shall be made when the following conditions are met:
1. Clearly shown to be responsible
2. Opportunity to show cause why deduction should not be made

ATTY. ANSELMO S. RODIEL IV 40

 3. Fair and reasonable amount and shall not exceed the actual loss
4. Not exceed 20% of his wages in a month.
iv. Deduction for loans/debts -
1. Agreement may be made to deduct from the wages
2. Amount not exceeding 20% of his wages per month
3. This Section shall not apply to working children, i.e., domestic
workers who are at least 15 but below 18.
l. EXAMPLE:
i. Q: Virgie and Nina are neighbors. Virgie requested her house helper
Sandro to help Nina with the upkeep of her house for two days each
month. Sandro agreed and rendered general household work in Nina’s
house. Nina paid Sandro PHP 1,000.00 per day of work. Virgie learned
about this additional compensation. Thus, Virgie deducted from Sandro’s
monthly wage the amount corresponding to his wage for two days. Can
Virgie lawfully make deductions from Sandro’s monthly wage?
Explain. (2024 Bar Examination)
1. A: No, Virgie cannot lawfully make deductions from Sandro’s
monthly wage. Under RA No. 10361, the domestic worker and the
employer may mutually agree for the former to temporarily
perform a task that is outside the latter’s household for the benefit
of another household. However, any liability that will be incurred
by the domestic worker on account of such arrangement shall be
borne by the original employer. In addition, such work performed
outside the household shall entitle the domestic worker to an
additional payment of not less than the existing minimum wage
rate of a domestic worker. It shall be unlawful for the original
employer to charge any amount from the said household where
the service of the domestic worker was temporarily performed.
Here, Vergie requested Sandro, the house helper, to help Nina
with the upkeep of her house. Thus, Vergie cannot deduct from
Sandro’s monthly wage the amount that Nina paid him for his
services.
5. Home workers
a. Distinguish a homeworker from a house helper.
i. A homeworker is one who performs, in or about his home, any
processing of goods/materials, which have been furnished by an
employer and thereafter to be returned to the latter. (IRR of Labor Code)
ii. On the other hand, a house helper shall refer to a person who renders
services in and about the employer’s home AND the services are usually
necessary/desirable for the maintenance and enjoyment of the home,
AND ministers exclusively to the personal comfort and enjoyment of the

ATTY. ANSELMO S. RODIEL IV 41

 employer’s family. (Apex Mining v NLRC, 1991) (Process goods
furnished; Services in home)
b. What are the rights of a homeworker?
i. Self-organization
ii. Registration of homeworkers’ organization
iii. Payment of homework
c. Deduction for losses; allowed
i. No employer/contractor shall make any deduction from the earnings of
the materials which have been destroyed unless the following requisites
are me:
1. Clearly shown to be responsible
2. Reasonable opportunity to show cause
3. Fair and reasonable deduction and not exceed actual loss
4. Deduction not exceed 20% of homeworker’s earnings in a week
d. Prohibitions for homework
i. Explosives, fireworks, articles of like character
ii. Drugs and poisons
iii. Other articles, exposure to toxic

F. Sexual Harassment in the Work Environment, R.A. No. 7877; Safe Spaces Act, R.A. No.
11313, Article IV

1. Sexual Harassment Act (RA 7877)

a. SECTION 4. Work, Education or Training -Related, Sexual Harassment Defined.
i. Work, education or training-related sexual harassment is committed by
an employer, employee, manager, supervisor, agent of the employer,
teacher, instructor, professor, coach, trainor, or any other person who,
having authority, influence or moral ascendancy over another in a work
or training or education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of whether the
demand, request or requirement for submission is accepted by the object
of said Act.
ii. In a work-related or employment environment, sexual harassment is
committed when:
1. The sexual favor is made as a condition in the hiring or in the
employment, re-employment or continued employment of said
individual, or in granting said individual favorable compensation,
terms of conditions, promotions, or privileges; or the refusal to
grant the sexual favor results in limiting, segregating or
classifying the employee which in any way would discriminate,
deprive or diminish employment opportunities or otherwise
adversely affect said employee;

ATTY. ANSELMO S. RODIEL IV 42

 2. The above acts would impair the employee's rights or privileges
under existing labor laws; or
3. The above acts would result in an intimidating, hostile, or
offensive environment for the employee.
iii. In an education or training environment, sexual harassment is
committed:
1. Against one who is under the care, custody or supervision of the
offender;
2. Against one whose education, training, apprenticeship or
tutorship is entrusted to the offender;
3. When the sexual favor is made a condition to the giving of a
passing grade, or the granting of honors and scholarships, or the
payment of a stipend, allowance or other benefits, privileges, or
consideration; or
4. When the sexual advances result in an intimidating, hostile or
offensive environment for the student, trainee or apprentice.
a. ―Sexual favor‖ need not be articulated in a categorical oral
or written statement. It can be implied/discerned from the
acts of the offender. (Domingo v Rayala)
b. Further, it need not even be sexual favors. As long as the
act resulted in IHO environment for the employee, there is
sexual harassment.
b. SECTION 4. Duty of the Employer or Head of Office in a Work-related,
Education or Training Environment.
i. It shall be the duty of the employer or the head to prevent or deter the
commission of acts of sexual harassment and to provide the procedures
for the resolution, settlement or prosecution of acts of sexual harassment.
Towards this end, the employer or head of office shall:
1. Promulgate appropriate rules and regulations in consultation with
and joint1y approved by the employees or students or trainees,
through their duly designated representatives, prescribing the
procedure for the investigation of sexual harassment cases and the
administrative sanctions therefor.
a. Administrative sanctions shall not be a bar to prosecution
in the proper courts for unlawful acts of sexual
harassment.
b. The said rules and regulations issued pursuant to this
subsection (a) shall include, among others, guidelines on
proper decorum in the workplace and educational or
training institutions.

ATTY. ANSELMO S. RODIEL IV 43

 2. Create a committee on decorum and investigation (CODI) of cases
on sexual harassment. The committee shall conduct meetings, as
the case may be, with officers and employees, teachers,
instructors, professors, coaches, trainors, and students or trainees
to increase understanding and prevent incidents of sexual
harassment. It shall also conduct the investigation of alleged cases
constituting sexual harassment.
a. In the case of a work-related environment, the committee
shall be composed of at least one (1) representative each
from the management, the union, if any, the employees
from the supervisory rank, and from the rank and file
employees.
b. In the case of the educational or training institution, the
committee shall be composed of at least one (1)
representative from the administration, the trainors,
instructors, professors or coaches and students or trainees,
as the case may be.
c. The employer or head of office, educational or training
institution shall disseminate or post a copy of this Act for
the information of all concerned.
c. SECTION 5. Liability of the Employer, Head of Office, Educational or Training
Institution.
i. The employer or head of office, educational or training institution shall be
solidarily liable for damages arising from the acts of sexual harassment
committed in the employment, education or training environment if the
employer or head of office, educational or training institution is informed
of such acts by the offended party and no immediate action is taken.
d. SECTION 7. The prescriptive period for sexual harassment is three (3) years.
e. The words ―demand, request, or requirement‖ need not be articulated in a
categorical oral or written statement. It may be discerned, with equal certitude,
from the acts of the offender. Holding and squeezing shoulders, and running his
fingers across her neck and tickling her ear constitute as ―demand, request, or
requirement.‖ (Domingo v Rayala, 2008)
i. Incidentally, focusing on women was the victims entrenches some level
of heteronormativity. It is blind to the possibility that, whatever moral
positions are taken by those who are dominant, in reality intimate
relationships can also happen between men. To restate, sexual
harassment can happen to anyone and everyone. Our society has often
depicted women as being the weaker sex, and the only victims of sexual
harassment. It is high time that this notion is corrected. (Toliongco vs.
Court of Appeals2020)

ATTY. ANSELMO S. RODIEL IV 44

2. Safe Spaces Act (RA 11313)
a. Sec. 16. Gender-based sexual harassment in the workplace includes:
i. An act or series of acts involving any unwelcome sexual advances,
requests or demand for sexual favors or any act of sexual nature, whether
done verbally, physically or through the use of technology such as text
messaging or electronic mail or through any other forms of information
and communication systems, that has or could have a detrimental effect
on the conditions of an individual’s employment or education, job
performance or opportunities
ii. A conduct of sexual nature and other conduct-based on sex affecting the
dignity of a person, which is unwelcome, unreasonable, and offensive to
the recipient, whether done verbally, physically or through the use of
technology such as text messaging or electronic mail or through any other
forms of information and communication systems;
iii. A conduct that is unwelcome and pervasive and creates an intimidating,
hostile or humiliating environment for the recipient:
b. The crime of gender-based sexual harassment may also be committed: (PESTS)
i. between Peers
ii. by the Employee to the employer,
iii. by the Student to the teacher,
iv. by the Trainee to the trainer,
v. by the Subordinate to the superior officer (Peers or Superior can violate
the Act)
c. Sec. 17. Duties of Employers.
i. Employers or other persons of authority, influence or moral ascendancy
in a workplace shall have the duty to prevent, deter, or punish the
performance of acts of gender-based sexual harassment in the workplace.
Towards this end, the employer or person of authority, influence or moral
ascendancy shall:
1. Disseminate or post in a conspicuous place a copy of this Act to
all persons in the workplace;
2. Provide measures to prevent gender-based sexual harassment in
the workplace, such as the conduct of anti-sexual harassment
seminars;
3. Create an independent internal mechanism or a committee on
decorum and investigation to investigate and address complaints
of gender-based sexual harassment which shall;
a. Adequately represent the management, the employees
from the supervisory rank, the rank-and-file employees,
and the union, if any;

ATTY. ANSELMO S. RODIEL IV 45

 b. Designate a woman as its head and not less than half of its
members should be women;
c. Be composed of members who should be impartial and not
connected or related to the alleged perpetrator;
d. Investigate and decide on the complaints within ten days
or less upon receipt thereof;
e. Observe due process;
f. Protect the complainant from retaliation; and
g. Guarantee confidentiality to the greatest extent possible
4. Provide and disseminate, in consultation with all persons in the
workplace, a code of conduct or workplace policy which shall;
a. Expressly reiterate the prohibition on gender-based sexual
harassment;
b. Describe the procedures of the internal mechanism created
under Section 17(c) of this Act; and
c. Set administrative penalties.
d. Sec. 19. Liability of Employers.
i. In addition to liabilities for committing acts of gender-based sexual
harassment, employers may also be held responsible for:
1. Non-implementation of their duties under Section 17 of this Act,
as provided in the penal provisions: or
2. Not taking action on reported acts of gender-based sexual
harassment committed in the workplace.
a. Any person who violates subsection (a) of this section,
shall upon conviction, be penalized with a fine of not less
than Five thousand pesos (P5,000.00) nor more than Ten
thousand pesos (P10,000.00).
b. Any person who violates subsection (b) of this section,
shall upon conviction, be penalized with a fine of not less
than Ten thousand pesos (P10,000.00) nor more than
Fifteen thousand pesos (P 15,000.00).
e. The prescriptive period for gender-based sexual harassment in the
workplace/educational institution is five (5) years.
f. EXAMPLE:
i. Q: Due to Bitoy’s repeated unwanted sexual advances towards his co-
worker Diego, Diego went to the Personnel Manager to report Bitoy’s
behavior. The Personnel Manager started a disciplinary action case
against Bitoy. In his written explanation, Bitoy denied the allegation of
sexual advances. He also pointed out that sexual harassment only
pertains to a superior-subordinate relationship, where the perpetrator is
the superior and the victim is the subordinate. Since Diego is not his

ATTY. ANSELMO S. RODIEL IV 46

 subordinate, as they are co-workers with the same rank, Bitoy cannot be
subject to disciplinary action. Is Bitoy’s contention correct? Explain
briefly. (2022 Bar Examination)
1. A: No, Bitoy’s contention is wrong. Under the Safe Spaces Act, the
crime of gender-based sexual harassment in the workplace
include san act or series of acts involving any unwelcome sexual
advances, requests or demand for sexual favors or any act of
sexual nature, whether done verbally, physically or through the
use of technology, that has or could have a detrimental effect on
the conditions of an individual’s employment, job performance or
opportunities. Further, the crime of gender-based sexual
harassment may also be committed between peers and those
committed to a superior officer by a subordinate, or to a teacher
by a student, or to a trainer by a trainee. Here, Bitoy’s contention
that sexual harassment only pertains to a superior-subordinate
relationship is incorrect. As provided under the Safe Spaces Act,
sexual harassment can also be committed between peers or co-
workers.

VI. POST – EMPLOYMENT: KINDS OF EMPLOYMENT

A. Regular Employees

1. Written agreement to the contrary notwithstanding + Regardless of the oral agreement

of the parties
2. Necessary or desirable business
a. The employee has been engaged to perform activities usually necessary or
desirable to the usual business of the employer.
i. However, there may be a situation where an employee’s work is
necessary but is not always desirable. In this situation, there is NO
regular employment.
ii. Hence, case law dictates that the job must be necessary AND desirable.
3. Casual employee + 1 year
a. A casual employee who is allowed to work for at least 1 year, whether the same
is continuous or broken, with respect to the activity in which he was employed
and while the activity exists. (Art. 295) Only casual employees performing work
that is neither necessary nor desirable to the usual business and trade of the
employer are required to render at least one (1) year of service to attain regular
status. Employees who perform functions which are necessary and desirable to

ATTY. ANSELMO S. RODIEL IV 47

 the usual business and trade of the employer attain regular status from the time
of engagement. (Paragele vs. GMA Network, 2020)
4. After probationary period
a. An employee is allowed to work after the lapse of the probationary period. (Art.
296)
5. What are the primary standards in determining regular employment?
a. It is whether the job is ―usually necessary or desirable to the usual business.‖
i. This includes performance of peripheral jobs indirectly related to the
principal business of the employer (Romares v NLRC, 1998) Why?
Because the provision merely states ―usually necessary and desirable.‖ It
did not state ―directly related‖ to the business.
ii. In Romares, a worker in the maintenance department is considered as a
regular employee of a food company, because his job is ―usually
necessary and desirable to the business.‖ Further, a worker who paints
and cleans the company buildings performs work which is usually
necessary and desirable.
b. In case the job is not usually necessary or desirable, i.e., merely incidental, the
employee can be regular if he was allowed to work for at least 1 year. (Romares v
NLRC)
6. May a part-time employee become regular?
a. Yes. One’s regularity is not determined by the number of hours worked, but by
the nature and length of time one has been in that particular job. (Perpetual Help
v Faburada, 2001)
7. Rules as to security guard
a. He becomes a regular employee when:
ii. After probationary period
iii. Absence of probationary period
iv. Repeated hiring-firing-rehiring scheme for short periods, the aggregate
duration is at least 6 months. (DO 150-16)
b. Work pool or reserved status
i. He can be placed in a work pool or reserved status when:
1. Expired service agreement; Suspend security service; or Valid
relief from place; AND
2. NO WORK ASSIGNMENT AVAILABLE
ii. However, he CANNOT be placed in a work pool or reserved status in
ANY of the following instances:
1. Expiration + AVAILABLE principal
2. Constructive dismissal means
3. Retaliation litigating labor laws

ATTY. ANSELMO S. RODIEL IV 48

 iii. After 6 months in the work pool, the SSC/PSA cannot assign the security
guard, the latter may be SEPARATED from service and be entitled to
SEPARATION PAY.
iv. Assignment as a ―reliever‖ for less than 1-month does NOT interrupt the
6-month period. (DO No. 15-16)
8. Exception to ―usually necessary and desirable‖
a. Contractual
b. Project
c. Seasonal
d. Fixed-term
e. Probationary
i. Here, even though the job is ―usually necessary and desirable,‖ the
employee is still NOT regular.

B. Casual Employees

1. A casual employee is an employee who performs a job which is MERELY INCIDENTAL

to the business of the employer, and such job is for a DEFINITE PERIOD MADE
KNOWN to the employee at the time of engagement. (IRR of Labor Code)
2. To repeat, he becomes a regular employee if he rendered services for at least 1 year,
continuous or broken, for the activity which he is employed AND while the activity
exists. (Art. 295)

C. Project Employees

1. A project employment is one where the employment is FIXED for a SPECIFIC

PROJECT/undertaking, the completion or TERMINATION of which has been
DETERMINED at the time of engagement of the employee. (Art. 295)
a. Specific project + termination/duration determined at engagement
2. The principal test is whether the project employees were assigned to a SPECIFIC project,
AND the duration and scope of which is SPECIFIED at the time of engagement. (ALU-
TUCP v NLRC, 1994)
a. If the test is NOT complied with, the employee will usually be deemed regular.
Why? Because the job is usually necessary and desirable for the business.
3. What are non-project employees?
a. They are employees in the construction industry employed WITHOUT reference
to any particular construction project or phase of project. (DO No. 19-93)
i. Usually, they will be deemed regular, unless the job is merely incidental
to the business (casual), or there is probationary period (probationary).
(DO No. 19-93)
4. The repeated and successive rehiring of project employees do not qualify them as
regular employees. What is determinative is whether the employment has been fixed for
a specific project or undertaking, its completion has been determined at the time of the
engagement of the employee. (Leyte Geothermal Power v PNOC, 2011; Herma Shipyard
v Oliveros, 2017)
5. Are project employees entitled to separation pay?

ATTY. ANSELMO S. RODIEL IV 49

 a. No, because separation pay is only given to those who are DISMISSED. Here, the
employment is merely EXPIRED.
b. However, if the project employee is dismissed before the completion of the
project, he is entitled to separation pay.
6. What is the work pool principle?
a. Members of a work pool from which a construction company draws its project
employee:
i. If CONSIDERED EMPLOYEES of the construction company, WHILE IN
THE WORK POOL, shall be deemed as non-project employees or
employees for an indefinite period. Hence, they are regular, and the
completion of the project does NOT sever the employment relationship.
ii. If they are FREE TO LEAVE ANYTIME and offer their services to OTHER
EMPLOYERS, then they are merely project employees employed by the
construction company for a particular project. (Raycor AIrcontol v NLRC,
1996) They are similar to self-employed professionals/freelancers who do
not have employers.
7. The ―no work, no pay‖ principle applies during the interval between the end of the
project and the start of the new one.

D. Fixed Term Employees

1. It is a contract of employment for a different period that terminates by its own terms at
the end of such period. (Brent School v Zamora, 1990)
2. The requisites of a valid fixed-term employment are:
a. Knowingly + Voluntarily Agreed - The fixed period of employment was
KNOWINGLY and VOLUNTARILY AGREED upon by the parties without
force/duress/improper pressure/absence of vitiated consent; and
b. Bargained equal - The parties must have BARGAINED on EQUAL footing.
(Brent School v Zamora, 1990)
3. When will a fixed-term employee be considered as regular employee?
a. When he is allowed to work BEYOND the fixed-term employment without the
benefit of new employment. (Viernes v NLRC, 2003)
b. In Brent, we said that the decisive factor in a term employment contract was not
the activities that the employee is called upon to perform, but the day certain
agreed upon by the parties for the commencement and termination of their
employment relationship, a day certain being understood to be that which must
necessarily come, although it may not be known when, and that the
indispensability or desirability of the activity performed by the employee will
not preclude the parties from entering into an otherwise valid fixed term
employment agreement. However, in Fuji Network Television, Inc. v. Espiritu,
we clarified that the repeated engagement under contract of hire is indicative of
the necessity and desirability of the [employee's] work in respondent's business
and where the employee's contract has been continuously extended or renewed
for the same position, with the same duties, and remained in the employ without
any interruption, then such employee is a regular employee. In fact, in Samonte

ATTY. ANSELMO S. RODIEL IV 50

 v. La Salle Greenhills, Inc., we deemed the employees as having attained regular
employment status not only because of the repeated renewal of their
employment contracts and the necessity of the work they performed, but more
importantly, their employer wielded control over the means and method of their
work performance. (Site For Eyes v. Daming, 2021)
i. NOTE: In other words, where an employee’s contract had been
continuously extended or successively renewed to the same position,
with the same duties and remained in the employ without any
interruption, then such employee is a regular employee. The continuous
renewal is a scheme to prevent regularization. (Fuji v Espiritu, 2014,
Leonen)
4. No implied renewal upon expiration
a. Absent a mutually agreed upon contract, there is no renewal or extension of an
expired contract. Hence, if the employee continued to work after the contract, he
became a regular employee.
5. Security of tenure during the existence of contract
a. The existence of a contract does not mean there can be no illegal dismissal. Due
process (substantial and procedural) must still be observed in termination and
pre-termination of the contract. (Fuji v Espiritu, 2014, Leonen)
6. Contracts of employment for a fixed term are not unlawful unless it is apparent from the
circumstances that the periods have been imposed to circumvent the laws on security of
tenure. (Tuppil v. LBP Service Corp.. Lopez)
7. EXAMPLE
a. Q: On May 15, 2022, Marina International Shipping (MIS) hired Felipe as a bosun
on board its vessel for a period of nine months. On July 30, 2022, Felipe joined his
vessel of assignment. On October 31, 2022, he was repatriated due to medical
reasons and was immediately referred by MIS to its company-designated
physician for treatment and monitoring. On May 31, 2023, the company-
designated physician pronounced Felipe fit to resume sea duties. Is MIS
obligated to rehire Felipe? Explain briefly. (2023 Bar Examination)
i. A: No, MIS is not obligated to rehire Felipe. Case law dictates that
seamen, due to the unique nature of their employment, must be
considered as contractual employees. Further, the Labor Code does not
proscribe or prohibit an employment contract with a fixed period
provided the same is entered into by the parties, without any force,
duress or improper pressure being brought to bear upon the employee
and absent any other circumstance vitiating consent. Here, on May 15,
2022, Felipe was hired as a bosun by MIS for nine months. He was only
pronounced fit to resume sea duties on May 31, 2023. Thus, MIS is not
obligated to rehire Felipe, since the nine-month contract has already
elapsed.
b. Q: Sampaguita University (SU) hired Farah as Instructor I in the College of
Education on a contractual or part-time basis beginning the first semester of
school year 2015-2016. In 2018, SU appointed Farah as Instructor II. SU informed
her that she will attain regular status on the condition that she obtain a master’s
degree by May 31, 2022, otherwise, her employment will either be terminated or
considered as contractual or part-time. When Farah failed to secure the required

ATTY. ANSELMO S. RODIEL IV 51

 educational qualification within the allotted time, SU classified her as a part-time
faculty effective June 1, 2022. On April 30, 2023, SU notified Farah that they will
no longer be renewing or extending her contract as part-time faculty upon its
expiration. Farah thus filed a complaint for illegal dismissal. Will her complaint
prosper? Discuss your answer. (2023 Bar Examination)
i. A: No, her complaint will not prosper. Case law dictates that the
following are the requisites before a teaching personnel in a private
educational institution can secure a regular status: (1) he must be a full
time teacher; (2) he must have rendered three consecutive years of
service; (3) such service must be satisfactory before he can acquire
permanent status; and (4) he must acquire a postgraduate or master’s
degree. Here, Farah was not able to acquire a postgraduate or master’s
degree on or before May 31, 2022. As a result, she never acquired a
regular status with the university. Thus, she was not illegally dismissed,
because SU can choose not to extend or renew her contract as a part-time
faculty lecturer upon its expiration.

E. Seasonal Employees

1. A seasonal employment is one where the work to be performed is SEASONAL IN

NATURE and the employment is for the DURATION OF THE SEASON. (Art. 295)
a. seasonal in nature + employ duration season
2. To become a seasonal employee, the elements of ―seasonal in nature‖ and ―employed for
the duration of the season‖ must be present. Otherwise, he is deemed as a regular
employee. (Universal Robina v Acibo, 2014)
3. When can a seasonal employee become a regular employee?
a. When the seasonal employee is engaged in work which is seasonal in nature, and
he is employed for MORE THAN ONE SEASON. (Hacienda Fatima v National
Federation, 2003) Why? Because he is not merely employed for the duration of
the season. He is already employed for two seasons. Hence, he is regular.
i. Of course, this presupposes that the employment is usually necessary and
desirable to the usual business of the employer. (Abasolo v NLRC, 2000)
Otherwise, he may only be a casual employee.
4. Also, if he is employed for a period SHORTER than the duration of the season, he is
NOT a seasonal employee. Why? Because the employment for a shorter period
presupposes that he is not employed for the season.
5. Since the work is seasonal, what happens to their employment during off-season?
a. The nature of their relationship with the employer is such that during off-season,
they are temporarily laid off but during the season they are re-employed or when
their services are needed. They are not separated from the service but are merely
considered as a leave of absence without pay until reemployed. Hence, the
employment is not severed but merely SUSPENDED. (Gapayao v Fulo, 2013)
b. Hence, the no work, no pay principle applies.
6. EXAMPLE:

ATTY. ANSELMO S. RODIEL IV 52

 a. Define, explain or distinguish the following terms: (b) Seasonal and project
employees (2019 Bar Examination)
i. Seasonal employees are those who work during specified season only.
While project employees are those who have been engaged to work for a
fixed period for a specific project.

F. Probationary Employees

1. A probationary employment is one where the employee, upon his engagement, is made
to undergo a trial period during which the employer determines the fitness to qualify for
regular employment based on reasonable standards made known to him at the time of
engagement. (Robinsons v Ranchez, 2011)
2. What is the duration of the probationary period?
a. It shall not exceed 6 months from the date the employee started working.
b. 6 months means 180 days.(Mitsubishi Motors Phils. Corp. vs. Chrysler Phil.
Labor Union, 2004)
3. Exceptions to the 6-month period; Longer period (ACNLA)
a. Apprentice agreement stipulating a longer period (how)
b. Company policy
c. Nature of work (Buiser v Leogardo, 1984)
d. Act of Liberality to afford him a second chance + extension is agreed upon prior
to the expiration of the probationary period. (Mariwasa v Leogardo, 1989)
4. Grounds to validly terminate a probationary employee:
a. Just cause/Authorized cause/Fails to qualify as a regular employee in
accordance with reasonable standards made known by the employer to the
employee at the time of engagement. (Art. 269) 1. Within the limited legal six-
month probationary period, probationary employees are still entitled to security
of tenure.
b. A probationary employee may be terminated only on the above grounds. (Fuji v
Espiritu, 2014, Leonen)
5. Requisites to validly dismiss the employee based on just cause/ authorized cause:
a. Just cause/Authorized cause; and
b. Due process
6. Requisites to validly dismiss the employee based on failure to qualify in accordance with
reasonable standards:
a. Probationary - Communicate that he is being hired on probationary status at the
time of engagement
b. Standards Made Known Engagement - Reasonable standards must be made
known to him at the time of engagement
c. Evaluate performance - Evaluation of performance of the employee in related to
the communicated standards
d. Failure to comply Standards - Fails to comply with the reasonable standards
(Tamson’s Enterprise v CA, 2011)
e. Not continue working - He does not continue working after the expiration of the
probationary period.

ATTY. ANSELMO S. RODIEL IV 53

7. How can the probationary employee become a regular employee?
a. If the employer does not comply with the above requisites.
8. Probationary for private school teachers; When are they deemed PERMANENT
employees?
a. How can a private school teacher become a PROBATIONARY employee and
NOT a REGULAR employee?
i. Probationary - Communicate that he is being hired on probationary status
at the time of engagement
ii. Standards Made Known Engagement - Reasonable standards must be
made known to him at the time of engagement. (Art. 269; DLSAU v
Prepotente, 2016)
b. Possible period of Probationary employment for private school teachers
i. They may become a probationary employee for 3 consecutive years of
service.
1. 3 consecutive school years in elementary and secondary levels.
(Magis Young v Manalo, 2009)
2. 6 consecutive regular semesters of satisfactory service for tertiary
level.
3. 9 consecutive trimesters of satisfactory service for tertiary level
offering a trimester.
c. The legal requisites for a PROBATIONARY private school teacher to become a
PERMANENT employee: (PF3SEL)
i. The private school teacher must be hired as a probationary employee;
ii. Full-time teacher;
iii. 3 consecutive years of service; and
iv. Such service must have been satisfactory. (University of Sto. Tomas v.
NLRC)
v. Appropriate educational qualifications (bachelor’s degree)
vi. LET (Licensure Examination for Teacher) was passed.
d. QUESTION: AAA University hired Mr. BBB as an instructor in the College of
Business. He worked for the university for 2 years. He was dismissed by AAA
later on because he did not meet the reasonable standards of the AAA. Was he
validly dismissed?
i. No, there was illegal dismissal.
ii. For an employee to become probationary, the employer must
communicate to him that he is a probationary employee, and the
reasonable standards to qualify as a regular employee must be made
known to him at the time of engagement. If these requirements were not
communicated, he is deemed as a regular employee at the time of
engagement, and he can only be dismissed for just or authorized causes,
as provided by the Labor Code.
iii. Here, AAA hired Mr. BBB without communicating these requirements at
the time of engagement. Hence, he is deemed as a regular employee
already, and he cannot be dismissed for failure to meet AAA’s reasonable
standards.
9. Security of tenure of probationary employees

ATTY. ANSELMO S. RODIEL IV 54

 a. A probationary employee enjoys security of tenure, although it is not on the
same plane as that of a permanent employee. Other than being terminated for a
just or authorized cause, a probationary employee may also be dismissed due to
his or her failure to qualify in accordance with the standards of the employer
made known to him or her at the time of his or her engagement. Hence, the
services of a probationary employee may be terminated for any of the following:
(1) a just cause; (2) an authorized cause; and (3) when he or she fails to qualify as
a regular employee in accordance with the reasonable standards prescribed by
the employer. (Moral v. Momentum Properties Management Corporation, 2019)
If the probationary employee would be dismissed because he failed to qualify as
a regular employee in accordance with the reasonable standards prescribed by
the employer, the twin notice and hearing rule need not be accorded to the
employee.
10. Double probationary period is illegal. (Holiday Inn Manila vs. National Labor
Relations Commission, 1993)
11. EXAMPLES:
a. Q: Brent Therapy Clinic (BTC) engaged Franklin as a probationary physical
therapist for a period of five months. BTC informed Franklin that he must obtain
satisfactory grades in these criteria: (a) diagnosis of movement dysfunction; (b)
therapeutic exercise techniques; (c) stimulation and healing massage; and (d)
proper use of machines and equipment. After three months, BTC observed that
Franklin cannot meet the minimum criteria. Franklin was unfamiliar with
therapeutic exercise techniques and was unable to remember the use of therapy
machines. The following day, the owner of BTC left a note on Franklin’s desk
which reads: Hi Franklin. I tried to guide and train you in the past months but there
has been no improvement. The management is unhappy with your work performance.
Thus, your probationary employment is terminated one week from notice for failure to
meet the minimum standards for regularization. Aggrieved, Franklin questioned his
termination for lack of procedural due process. Is BTC required to comply with
the twin-notice rule before terminating Franklin’s employment? Explain. (2024
Bar Question)
i. A: No, BTC is not required to comply with the twin-notice rule before
terminating Frank’s employment. Under the Labor Code, probationary
employment shall not exceed six (6) months from the date the employee
started working, unless it is covered by an apprenticeship agreement
stipulating a longer period. The services of an employee who has been
engaged on a probationary basis may be terminated for a just cause or
when he fails to qualify as a regular employee in accordance with
reasonable standards made known by the employer to the employee at
the time of his engagement. An employee who is allowed to work after a
probationary period shall be considered a regular employee. Further, case
law dictates that the dismissal of the probationary employee for failure to
meet the reasonable standards does not require notice and hearing. Due
process of law was accorded to the employee if the reasonable standards
during the probationary period were made known to the employee at the
time of his engagement. Here, Frank’s employment, as a probationary
employee, was terminated because he was not able to meet the reasonable

ATTY. ANSELMO S. RODIEL IV 55

 standards made known to him at the time of his engagement. Thus, the
twin-notice rule is not required before he can be terminated from
employment.
b. Q: In 2019, as a response to a viral #UniversityDoBetter movement, a university
announced that it would create the position of independent gender auditor
answerable only to the universit’s Board of Regents. The #UniversityDoBetter
movement had arisen when a high school student started to post on social media
complaints alleging sexual improprieties by some professors. Others soon
followed with their own stories. Even traditional media outlets covered their
stories. True to its promise, the university engaged one of its former professors
with profound feminist views as gender auditor. The contract stipulated a
performance review after five months of the gender auditor’s being engaged. The
gender auditor’s performance was never the subject of any assessment by the
Board of Regents. For about two years, the gender auditor submitted several
candid findings on the behavior of some members of the university’s faculty and
administration. In January 2021, the gender auditor submitted a report that the
university’s management, including the Board of Regents, enabled and
facilitated a hostile environment not only for women but also for those whose
sexual orientation, gender identity, or gender expression were considered ―non
conforming,‖ i.e., members of the lesbian, gay, bisexual, transgender, queer,
intersex, asexual, and other gender and sexual minorities (LGBTQIA+)
community. This report leaked and stirred a controversy, causing the university
president to be dismissed from their post. In January 2022, after the president’s
dismissal, the gender auditor received a letter from the Board of Regents,
requiring the submission of a performance assessment to determine whether the
gender auditor can be considered as a regular employee. The gender auditor
seeks your advice because you passed the #BestBarEver2020_21 and were
recognized for exemplary performance. Is the gender auditor still a probationary
employee? Explain briefly. (2020-2021 Bar Examination)
i. A: No, the gender auditor is not a probationary employee. Under the
Labor Code, as amended, probationary employment shall not exceed six
(6) months from the date the employee started working, unless it is
covered by an apprenticeship agreement stipulating a longer period. The
services of an employee who has been engaged on a probationary basis
may be terminated for a just cause or when he fails to quality as a regular
employee in accordance with reasonable standards made known by the
employer to the employee at the time of his engagement. An employee
who is allowed to work after a probationary period shall be considered a
regular employee. Also, case law dictates that in all cases of probationary
employment, the employer shall make known to the employee the
standards under which he will qualify as a regular employee at the time
of his engagement. Where no standards are made known to the employee
at that time, he shall be deemed a regular employee. Here, the gender
auditor was not informed of the standards under which he will qualify as
a regular employee at the time of his engagement. Further, as of January
2022, the gender auditor was already employed for multiple years. Thus,

ATTY. ANSELMO S. RODIEL IV 56

 the gender auditor was already a regular employee, and not a
probationary employee.

VII. TERMINATION BY EMPLOYER

A. Just cause v. Authorized cause

1. Distinction between a dismissal just cause and a dismissal for authorized cause
a. The clear-cut distinction between a dismissal for just cause under Article 282 and
a dismissal for authorized cause under Article 283 is further reinforced by the
fact that in the first, payment of separation pay, as a rule, is not required, while in
the second, the law requires payment of separation pay. (Jaka Food Processing
Corporation vs. Pacot, et. al., 2005)

B. Just Causes

1. Serious Misconduct - Serious misconduct in connection with his work

2. Willful Disobedience - Willful disobedience of the lawful orders of the employer in
connection with his work
3. Neglect - Gross AND habitual neglect of duties
4. Fraud or Breach of trust – Fraud or Willful breach of the trust reposed in him by the
employer
5. Crime - Commission of crime against the employer or his immediate family members or
representatives
6. Other - Other analogous causes to the foregoing (Art. 297)
a. Serious misconduct; requisites (MSCU)
i. Misconduct
1. Misconduct is defined as the transgression of some established
and definite rule of action, willful in character, and with wrongful
intent. (DO 147-15)
ii. Grave and aggravated character (Serious)
iii. In Connection with his work
iv. Unfit to continue working for the employer. (DO No. 147-15)
1. The use of expletives (anak ng puta/putangina) as a casual
expression of surprise or exasperation is not serious misconduct
per se that warrants an employee's dismissal.
a. It is not serious nor does it render the employee unfit.
Hence, it is not a just cause for termination.
2. However, the refusal to acknowledge this mistake and the attempt
to cause further damage and distress to a minor student cannot be
mere errors of judgment. Petitioner's subsequent acts are willful,

ATTY. ANSELMO S. RODIEL IV 57

 which negate professionalism in his behavior. They contradict a
professor's responsibility of giving primacy to the students'
interests and respecting the institution in which he teaches.
(Adamson University Faculty and Employees Union v. Adamson
University, 2020, Leonen)
b. Insubordination/Willful disobedience; requisites (DWLCK)
i. Disobedience/insubordination
1. Disobedience or insubordination means the refusal to obey some
order of a superior. (DO NO. 147-15)
ii. Willful
iii. Lawful/reasonable order
iv. In Connection to his work
v. Made Known order to employee
1. Exception to made known: when the rule violated is fundamental
and universal, i.e., reckless driving
c. Gross and habitual neglect; requisites (NGH)
i. Neglect
ii. Gross
iii. Habitual
1. The neglect of duties must not only be gross, but also habitual.
(Cavite v Marquez, 2013; Robustan v CA, 2021, Leonen)
2. Gross negligence has been defined as the want or absence of even
slight care or diligence as to amount to a reckless disregard of the
safety of the person or property. (Robustan, Inc. v. Court of
Appeals, 2021, Leonen)
a. Gross - want of care - reckless disregard
3. Habitual negligence is repeated failure to perform one’s duties
over a period of time depending upon the circumstances. (DO
147-15)
a. Habitual - repeated fail
b. An unsatisfactory rating can be a just cause for dismissal
only if it amounts to gross and habitual neglect of duties.
Poor or unsatisfactory rating alone does not mean neglect.
(INC v Camporedondo, 2015)
iv. Fraud or willful breach of trust reposed; requisites (ABWCC)
1. Act/omission/concealment
2. Breach of legal duty/trust/confidence reposed
3. Willful
4. In Connection of employee’s work
5. Committed against the employer/representative. (DO 147-15)
v. Commission of crime; requisites

ATTY. ANSELMO S. RODIEL IV 58

 1. Act/omission punishable by law
2. Committed against any of the following: (EFR)
a. Employer
b. Immediate Family
c. Representatives
3. Conviction is NOT indispensable for this ground. (Starlite Plastic
v NLRC, 1989)
vi. Other analogous; requisites
1. Analogous causes must be voluntary/WILLFUL act or omission
of employees. (Nadura v Benguet Consolidated, 1962)
2. Further, no act or omission can be considered analogous unless
EXPRESSLY SPECIFIED in the company rules or policies. (DO
No. 147-15)
a. Golangco: Says no need to be expressly specified in the
company rules.
b. For example, theft of co-employee’s property is
―analogous‖ to serious misconduct. It does not have to be
written in the company rules or policies. (John Hancock
Life Insurance v Joanna Davis, 2008)
i. In the case, Davis was discovered by the NBI as the
person who stole the wallet of the corporate affairs
manager, during office hours.
ii. This showed the moral depravity of Davis, which
was deemed analogous to serious misconduct.
3. ―Gross efficiency‖ is analogous to gross and habitual neglect.
(Aliling v Feliciano, 2012)
a. In the case, an employee’s failure to meet sales or work
quotas falls under the concept of gross inefficiency, which
in turn is analogous to gross neglect of duty that is a just
cause for dismissal under Article 282 of the Code.
b. However, in order for the quota imposed to be considered
a valid productivity standard and thereby validate a
dismissal, management’s prerogative of fixing the quota
must be exercised in good faith for the advancement of its
interest.
4. The doctrine of incompatibility provides that where the employee
has done something incompatible to the faithful performance of
his duties, his employer has a just cause of terminating his
employment. (Manila Chauffers v Bachrach Motor, 1940)
vii. Abandonment; analogous to gross and habitual neglect; requisites
(FWIO)

ATTY. ANSELMO S. RODIEL IV 59

 1. Failed to report to work/absent without valid or justifiable reason
2. Clear intention to sever employment relationship manifested by
overt act, i.e., failure to report to work. (CRC v NRLC, 2009)
a. (Failed to report + without valid + Intent to sever +
manifested by overt act)
b. Mere absence or failure to report to work is insufficient.
There must be CLEAR PROOF that is has no valid reason
AND there is intention to sever. The second requisite is the
determining factor. (Aliten v U-Need Lumber, 2006)
c. The burden of proof that there was abandonment lies with
the employer.
d. Where the employee takes steps to protest his layoff, it
cannot be said that he has abandoned his work because a
charge of abandonment is totally inconsistent with the
immediate filing of a complaint for illegal dismissal, more
so when it includes a prayer for reinstatement. (Robustan,
Inc. v. Court of Appeals, 2021, Leonen)
e. Illustration of abandonment of work:
i. Arriola abandoned his employment with Pilipino
Star Ngayon, Inc. Assuming that Arriola started
writing for Imbestigador only on February 17, 2003,
he nonetheless failed to report for work at Pilipino
Star Ngayon, Inc. after November 15, 1999 and only
filed his illegal dismissal complaint on November
15, 2002. He took three years and one day to
remedy his dismissal. This shows his clear
intention to sever his employment with Pilipino
Star Ngayon, Inc. (Arriola v Pilipino Star, 2014,
Leonen)
viii. Loss of confidence; analogous to fraud/willful breach of trust;
1. Requisites (ALPS)
a. Act/omission/concealment
b. Loss - Justifies loss of trust and confidence
c. Position Confidence - Holding a position of trust and
confidence
d. Simulated - Loss of trust and confidence is not simulated/
subterfuge/must be genuine/not afterthought to justify
prior bad faith. (DO 147-15)
2. When is an employee considered to be holding a position of trust
and confidence?
a. Managerial

ATTY. ANSELMO S. RODIEL IV 60

 b. Supervisory
c. Those who, in the normal and routine exercise of
functions, regularly handle significant amounts of money
or property of the employer. (DO No. 147-15; WU-P v
Reyes, 2014)
i. An example of a person holding trust and
confidence is a kasambahay and a bank teller.
ii. Robustan v CA, 2021, Leonen (3 grounds: Loss of
confidence, Gross and habitual neglect, and
Abandonment of Work)
3. Loss of confidence
a. It is INAPPLICABLE because respondent did not occupy a
position of confidence. Further, the act that justifies loss of
trust and confidence was not proven.
b. Respondent was the service engineer of the company,
tasked to resolve customer needs, concerns, and problems
for a particular medical/ hospital equipment. He was also
tasked to carry out various maintenance and construction
works.
4. Gross and habitual neglect
a. It is INAPPLICABLE. Even if respondent was negligent,
such negligence must be proven to be gross and habitual.
Neither the records nor the Petition establishes the
required wantonness and habituality of respondent’s
neglect that would merit his dismissal.
b. Petitioner refers to facts allegedly established in prior
proceedings and concludes that the simple fact of loss of
property amounted to gross negligence.
c. However, the records indicate that respondent was willing
to admit the consequences of the loss and even offered to
pay for the lost properties' value. This directly contradicts
the "conscious indifference to consequences"indicative of
gross and habitual neglect. Thus, there was no basis to
terminate respondent's employment for gross and habitual
neglect of duty.
5. Abandonment of work
a. It is INAPPLICABLE. Once the respondent was informed
that he was dismissed, he cannot be expected to report
back to work, even to turn over his work.
b. The records would indicate that respondent’s employment
had already been terminated by the time he supposedly

ATTY. ANSELMO S. RODIEL IV 61

 abandoned his work. Nothing in the records shows
respondent’s failure to report for work prior to his receipt
of the January 4, 2010 termination notice.
c. Further, where the employee takes steps to protest his
layoff, it cannot be said that he has abandoned his work
because a charge of abandonment is totally inconsistent
with the immediate filing of a complaint for illegal
dismissal, more so when it includes a prayer for
reinstatement.
7. EXAMPLE:
a. Q: Roman, an employee of Baltazar Company (BC), was reported to have fallen
asleep during work hours and that he smelled of marijuana. BC coordinated with
Bibo Health Clinic, a facility accredited by the Department of Health, to conduct
random drug testing on its employees. Roman tested positive during both the
screening and confirmatory tests. BC asked Roman to explain why he should not
be sanctioned and dismissed. Roman denied that he used drugs and claimed that
a colleague who bore a grudge merely framed him. Unsatisfied with his
explanation, BC sent Roman a notice of termination. Was the dismissal of Roman
valid? Explain briefly. (2023 Bar Examination)
i. A: Yes, his dismissal was valid. Under the Labor Code, as amended, an
employer may terminate an employment if there was serious misconduct
or willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work. Case law
dictates that the use of dangerous drugs must be considered as serious
misconduct, since, an employee cannot discharge his duties properly if he
is a drug user. Also, even if the employee was instigated to take drugs, he
has no right to be reinstated to his position. Instigation is only a defense
against criminal liability. It cannot be used as a shield against dismissal
from employment. Here, the screening and confirmatory tests showed
that Roman tested positive for drug use. Thus, he may be dismissed by
BC, despite his contention that his colleague framed him.
b. Q: Ulap Airlines (UA) hired Salve as a cabin crew in 2010. Due to her hard work
and spotless service record, she was eventually promoted to senior purser, a
position imbued with trust and confidence. In 2023, after a flight from Sydney to
Manila, management received a report that Salve and other cabin crew alighted
from the aircraft with two cups of instant noodles and a can of soda, which were
part of the in-flight provisions for passengers. The items were confiscated and
the cabin crew were required to explain why those items were in their
possession. In her written explanation, Salve claimed that the cups of instant
noodles were purchased with her own money and that it was another flight
attendant who admitted to taking the can of soda. After investigation, UA still

ATTY. ANSELMO S. RODIEL IV 62

 terminated her employment on the grounds of serious misconduct and loss of
trust and confidence. Was Salve validly dismissed? Discuss briefly. (2023 Bar
Examination)
i. A: No, Salve was not validly dismissed. Under the Labor Code, as
amended, an employer may terminate an employment if there was
serious misconduct or willful disobedience by the employee of the lawful
orders of his employer or representative in connection with his work.
Further, case law dictates that misconduct is a transgression of some
established and definite rule of action, a forbidden act, a dereliction of
duty, willful in character and implies wrongful intent and not mere error
of judgment. The misconduct, to be seriouswithin the meaning of the act,
must be of such a grave and aggravated character and not merely trivial
or unimportant. It must also be in connection with the work of the
employee. Meanwhile, loss of confidence applies only to cases involving
employees who occupy positions of trust and confidence, or those
situations where the employee is routinely charged with the care and
custody of the employer's money or property. Here, Salve occupied a
position of trust and confidence. As a flight attendant, she was routinely
charged with the care and custody of the items that UA sells to its
passengers. However, UA had no reason to lose its trust and confidence
in her. Salve bought the instant noodles using her own money, and
another flight attendant stole the can of soda. Further, she did not commit
any serious misconduct, since she did not steal anything from UA. Thus,
Salve was illegally dismissed from her job.
c. Q: University of San Lazaro (USL) hired Dolores to work as a credit and
collection officer in its accounting department. Based on its audit reports, USL
found several anomalous transactions within the accounting department,
resulting in a shortage of ₱2 million. Dolores went on leave during the audit, but
later tendered her resignation. After its investigation, USL terminated the
employment of Dolores and filed a criminal case against her. Dolores
subsequently filed a complaint for illegal dismissal against USL, which claimed
that Dolores had voluntarily resigned. Will the complaint of Dolores prosper?
Explain. (2023 Bar Examination)
i. A: Yes, her complaint will prosper. Under the Labor Code, as amended,
an employer may terminate an employment if there was serious
misconduct or willful disobedience by the employee of the lawful orders
of his employer or representative in connection with his work. Further,
case law dictates the required standard of procedural due process
accorded to employees who stand to be terminated from work due to just
cause, to wit: (a) A written notice served on the employee specifying the
ground or grounds for termination, and giving to said employee

ATTY. ANSELMO S. RODIEL IV 63

 reasonable opportunity within which to explain his side; (b) A hearing or
conference during which the employee concerned, with the assistance of
counsel if the employee so desires, is given opportunity to respond to the
charge, present his evidence, or rebut the evidence presented against him;
and (c) A written notice of termination served on the employee indicating
that upon due consideration of all the circumstances, grounds have been
established to justify his termination. If there was just cause to dismiss the
employee, but his right to procedural due process was transgressed,
petitioner's dismissal will still remain valid, but respondent shall become
liable for damages. Lastly, an employee loses a right to a job if he resigns
from the job and his resignation is accepted by the employer. Here,
Dolores did not lose her right to the job, since USL did not accept her
voluntary resignation. Further, USL failed to prove that Dolores
committed a serious misconduct, because USL was not able to show that
Dolores was connected to the anomalous transactions within the
accounting department. Lastly, the required standard of procedural due
process was not accorded to Dolores. Thus, the petition of Dolores will
prosper.
d. Q: Upon the owner’s instructions, the restaurant manager served a notice of
termination on a cashier who has been employed in that restaurant for more than
five years. Effective immediately, the notice was based on the alleged
insubordination of the cashier. The owner had ordered the termination
immediately after learning from the manager that the cashier was asking
whether the restaurant was remitting Social Security System contributions
deducted from employees’ salaries. Will an action for illegal dismissal filed by
the cashier prosper? Explain briefly. (2020-2021 Bar Examination)
i. A: Yes, the action will prosper. Case law dictates that insubordination or
willful disobedience requires the concurrence of the following requisites:
(1) the employee's assailed conduct must have been willful or intentional,
the willfulness being characterized by a "wrongful and perverse attitude";
and (2) the order violated must have been reasonable, lawful, made
known to the employee and must pertain to the duties which he had been
engaged to discharge. Further, for termination of employment based on
just causes, the following procedural requirements must be complied
with: (a) A written notice served on the employee specifying the ground
or grounds for termination, and giving to said employee reasonable
opportunity within which to explain his side; (b) A hearing or conference
during which the employee concerned, with the assistance of counsel if
the employee so desires, is given opportunity to respond to the charge,
present his evidence, or rebut the evidence presented against him; and (c)
A written notice of termination served on the employee indicating that

ATTY. ANSELMO S. RODIEL IV 64

 upon due consideration of all the circumstances, grounds have been
established to justify his termination. Here, asking whether the restaurant
was remitting Social Security System contributions deducted from
employees’ salaries was not unlawful. Thus, the cashier did not commit
any act of insubordination. Further, the cashier was terminated
effectively, without observing the cashier’s right to procedural due
process. Thus, the action for illegal dismissal will prosper.
e. Q: Define, explain or distinguish the following terms: (a) Just and authorized
causes (2019 Bar Examination)
i. Just causes refer to the grounds wherein the employer may terminate an
employment such as (1) serious misconduct or willful disobedience by
the employee of the lawful orders of his employer or representative in
connection with his work; (2) gross and habitual neglect by the employee
of his duties; (3) fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized representative;(4)
commission of a crime or offense by the employee against the person of
his employer or any immediate member of his family or his duly
authorized representatives; and (e) other causes analogous to the
foregoing. While authorized causes are the grounds wherein an employer
may terminate an employment due to (1) installation of labor-saving
devices; (2) redundancy; (3) retrenchment to prevent losses; or (4) the
closing or cessation of operation of the establishment or undertaking.

C. Preventive Suspension

1. Concept
2. A disciplinary measure that temporarily removes an employee from their duties while
an investigation into alleged misconduct is ongoing.
3. The employer may place the worker concerned under preventive suspension only if his
continued employment poses a serious and imminent threat to the life or property of the
employer or of his co-workers. No preventive suspension shall last longer than thirty
(30) days. The employer shall thereafter reinstate the worker in his former or in a
substantially equivalent position or the employer may extend the period of suspension
provided that during the period of extension, he pays the wages and other benefits due
to the worker. In such case, the worker shall not be bound to reimburse the amount paid
to him during the extension if the employer decides, after completion of the hearing, to
dismiss the worker. (DO No. 40-03)
4. Serious and imminent threat to life or property
a. 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. If such threat is absent, the employee cannot be

ATTY. ANSELMO S. RODIEL IV 65

 preventively suspended.
5. Payroll reinstatement
a. The employer has the option to reinstate the worker on the payroll. Thus, the
employer may extend the 30-day period of suspension provided that during the
period of extension, he pays the wages and other benefits due to the worker.
6. EXAMPLE:
a. Q: As Human Resources Manager of a five-star hotel, you were told in
confidence by several fearful employees in the housekeeping department that
Joy, the head of housekeeping, was a harsh disciplinarian who would pinch the
ears of her staff or rap their heads to drill instructions on the proper way to clean
and tidy up the hotel rooms. One day, the assistant housekeeper urgently called
you to the supply room of the hotel, where you found housekeeping staff Erika
and Patricia slumped on the floor with bloody faces. The assistant housekeeper
reported that she saw Joy beat up Erika and Patricia with a mop for allegedly
stealing complimentary toiletries for guests. Erika and Patricia were hospitalized
for a couple of days due to the injuries they sustained. (1) Can Joy be placed on
preventive suspension pending administrative investigation? If so, for what
maximum period? Explain briefly. (2) If Joy is placed on preventive suspension,
is she entitled to receive her wages and other benefits during the period? Explain
briefly.
i. A: Yes, Joy can be placed on preventive suspension for thirty (30) days
pending the administrative investigation. Case law dictates that an
employer may place the worker concerned under preventive suspension
if his continued employment poses a serious and imminent threat to the
life or property of the employer or of his co-workers. Through the
preventive suspension, an employer safeguards itself from further harm
or losses that may be further caused by the erring employee. Further, the
preventive suspension must not exceed thirty (30) days. Once the thirty
(30) day period expires, the employer is obliged to reinstate the employee
or to pay his wages. Here, Joy allegedly beat up Erika and Patricia with a
mop for allegedly stealing complimentary toiletries for guests. Erika and
Patricia were hospitalized for a couple of days due to the injuries they
sustained. Thus, Joy must be placed on preventive suspension for thirty
(30) days, since her presence in the workplace posed a serious and
imminent threat to the lives of Erika, Patricia, and the other co-workers.
ii. A: No, she is not entitled to receive her wages and other benefits during
the thirty (30) day period of preventive suspension. Case law dictates that
no preventive suspension shall last longer than thirty (30) days. The
employer shall thereafter reinstate the worker in his former or in a
substantially equivalent position or the employer may extend the period
of suspension provided that during the period of extension, he pays the

ATTY. ANSELMO S. RODIEL IV 66

 wages and other benefits due to the worker. Here, Joy is not entitled to
receive her wages and benefits during the thirty (30) day period of
preventive suspension. However, once the thirty (30) day period expires,
she must be reinstated by the employer to her position, or must be placed
in a substantially equivalent position, or must be paid her wages and
other benefits.

D. Constructive Dismissal vs. Demotions

1. Concept
a. Constructive dismissal is defined as quitting or cessation of work because
continued employment is rendered impossible, unreasonable or unlikely; when
there is a demotion in rank or a diminution of pay and other benefits. It exists if
an act of clear discrimination, insensibility, or disdain by an employer becomes
so unbearable on the part of the employee that it could foreclose any choice by
him or her except to forego his or her continued employment.
b. Demotion or diminution of pay can be considered constructive dismissal if the
same was done in bad faith. If the same was done in good faith, it shall be
considered as a valid exercise of management prerogative.
2. Test for constructive dismissal
a. The test to determine if there was constructive dismissal is whether an employee
is placed in a position where he or she is left with no choice but to terminate his
or her employment.
3. Prohibition of removal or demotion from work on account of absences under the
Witness Protection, Security and Benefit Act
a. In no case shall the Witness be removed from or demoted in work because or on
account of his absences due to his attendance before any judicial or quasi-judicial
body or investigating authority, including legislative investigation in aid of
legislation, in going thereto and in coming therefrom: Provided, That his
employer is notified through a certification issued by the Department within a
period of thirty (30) days the date when the witness last reported for work;
Provided,further, That in the case of prolonged transfer or permanent relocation,
the employer shall have the option to remove the Witness from employment
after securing clearance from the Department upon the recommendation of the
Department of Labor and Employment.
b. Any witness who failed to report for work because of Witness duty shall be paid
his equivalent salaries or wages corresponding to the number of days of absence
occasioned by the Program.
4. If dismissal is disproportionate, suspension can instead be imposed
a. We cannot but agree that the extreme penalty of dismissal was too harsh and
manifestly disproportionate to the infraction committed, which appears to have

ATTY. ANSELMO S. RODIEL IV 67

 been fully explained, and, in fact, to be not inexcusable under the circumstances.
Perhaps, individual petitioner should first have been given a mere warning, then
a reprimand or even a suspension, but certainly not outright dismissal from
employment. One must keep in mind that a worker’s employment is property in
the constitutional sense, and he cannot be deprived thereof without due process
and unless it was commensurate to his acts and degree of moral depravity.
(Coca-Cola Bottlers, Phils., Inc. vs. Kapisanan ng Malayang Manggagawa sa
Coca- Cola - FFW, February 28, 2005)
5. EXAMPLES:
a. Q: In 2012, Magbanua Hotel (MH) hired Josefa and assigned her to the food and
beverage department. For six consecutive years, Josefa worked five days a week.
However, in 2018, MH, suddenly and without explanation, reduced the regular
workdays of Josefa to two days per week, resulting in the reduction of her take-
home pay. Josefa thus filed a complaint for constructive dismissal. In belying her
claim, MH insisted that there could be no constructive dismissal because Josefa
still continued reporting for work even during the pendency of the case. Was
Josefa constructively dismissed? Decide with reasons. (2023 Bar Examination)
i. A: Yes, she was constructively dismissed. Case law dictates that
constructive dismissal is defined as quitting or cessation of work because
continued employment is rendered impossible, unreasonable or unlikely;
when there is a demotion in rank or a diminution of pay and other
benefits. It exists if an act of clear discrimination, insensibility, or disdain
by an employer becomes so unbearable on the part of the employee that it
could foreclose any choice by him or her except to forego his or her
continued employment. Here, Josefa’s number of workdays was reduced
from five to two per week. Because of this reduction, her take-home pay
was also reduced. Thus, she must be considered as constructively
dismissed, because the facts clearly show that her wages were diminished
by MH, her employer.
b. Q: Ms. T was caught in the act of stealing the company property of her employer.
When Ms. T admitted to the commission of the said act to her manager, the latter
advised her to just tender her resignation; otherwise, she would face an
investigation which would likely lead to the termination of her employment and
the filing of criminal charges in court. Acting on her manager’s advice, Ms. T
submitted a letter of resignation. Later on, Ms. T filed a case for constructive
dismissal against her employer. While Ms. T conceded that her manager spoke to
her in a calm and unforceful manner, she claimed that her resignation was not
completely voluntary because she was told that should she not resign, she could
be terminated from work for just cause and worse criminal charges could be file
against her. (a) What is the difference between resignation and constructive
dismissal? (b) Will Ms. T’s claim for constructive dismissal prosper? Explain.

ATTY. ANSELMO S. RODIEL IV 68

 (2019 Bar Examination)
i. A: Case law dictates that resignation is the voluntary act of an employee
who is in a situation where one believes that personal reasons cannot be
sacrificed in favor of the exigency of the service and has no other choice
but to disassociate oneself from employment. While constructive
dismissal is defined as quitting or cessation of work because continued
employment is rendered impossible, unreasonable or unlikely.
Meanwhile, constructive dismissal exists when there is a clear act of
discrimination, insensibility, or disdain by an employer becomes so
unbearable on the part of the employee that it could foreclose any choice
by him except to forego his continued employment.
ii. A: No, Ms. T’s claim for constructive dismissal is not proper. Case law
dictates that resignation is the voluntary act of an employee who is in a
situation where one believes that personal reasons cannot be sacrificed in
favor of the exigency of the service and has no other choice but to
disassociate oneself from employment. While constructive dismissal is
defined as quitting or cessation of work because continued employment
is rendered impossible, unreasonable or unlikely. Meanwhile,
constructive dismissal exists when there is a clear act of discrimination,
insensibility, or disdain by an employer becomes so unbearable on the
part of the employee that it could foreclose any choice by him except to
forego his continued employment. Here, Ms. T was not constructively
dismissed. She was offered to resign instead of undergoing investigation.
There was no clear act of discrimination, insensibility, or disdain by an
employer becomes so unbearable on the part of Ms. T that would amount
to her foregoing her continued employment.

E. Authorized Causes - Labor Code, Department Order No. 147-15

1. Retrenchment - (NSPG to show why; F to show who will be removed)

a. Reasonable necessary and likely to prevent business losses
b. If losses already incurred, not merely de minimis, but substantial, serious, actual,
and real, or If losses only expected, reasonably imminent (If merely to prevent
losses, the losses must be ―reasonably imminent‖ already.)
c. Proven by sufficient and convincing evidence, i.e., financial statements over a
period of time
d. Good faith for the advancement of interest of employer and not to defeat the
right to security of tenure, i.e., there is indeed sharp losses
e. Fair and reasonable criteria in ascertaining who would be dismissed and who
would be retained. (DO No. 147-15)
i. Various Leonen decisions invalidated the retrenchment due to lack of fair

ATTY. ANSELMO S. RODIEL IV 69

 and reasonable criteria.
1. Examples of this criteria are 1) status (i.e., whether part-time/full-
time or casual/regular etc.), 2) seniority, 3) efficiency, 4) physical
fitness, 5) age, 6) financial hardship for certain workers, and 7)
effectivity on the job.
a. This Court considered SENIORITY as a crucial facet of fair
and reasonable criterion for effecting retrenchment. Hence,
a retrenchment scheme without taking seniority into
account rendered the retrenchment invalid. (La
Consolacion College of Manila v. Pascua, 2018, Leonen)
i. In the case, there is no dispute about the
respondent's seniority and full-time status.
Meanwhile, the employee retained was hired
recently and was serving part-time. Hence, the
seniority of the respondent is the criteria used for
retrenching her instead of retaining her, i.e., that
she became the highest paid employee due to
seniority.
2. Jurisprudence requires that the necessity of retrenchment be
demonstrated by an independent audited financial statements.
Moreover, it is not enough that it presents its audited financial
statement for the year that retrenchment was undertaken for even
as it may be incurring losses for that year, its overall financial
status may already be improving. Thus, it must "also show that its
losses increased through a period of time and that the condition of
the company is not likely to improve in the near future." (La
Consolacion College of Manila v. Pascua, 2018, Leonen)
3. In Do No. 150-16 (security guards), the lack of service assignment
of the security guard for a continuous period of 6 months is
treated as a retrenchment.
4. There is no difference between retrenchment and partial
closure/cessation of business due to financial losses. Obviously,
there is a difference if it is not due to financial losses. (Sanoh
Fulton v Bernardo, 2013)
ii. Last in, first out rule; fair and reasonable criteria must take into account
SENIORITY
1. Under this rule, when there are two or more employees occupying
the same position, the LAST ONE employed shall be the FIRST
ONE to go. (Maya Farms v NLRC, 1994) This rule applies to
installation of labor-saving devices, redundancy, and
retrenchment. (DO 147-15)

ATTY. ANSELMO S. RODIEL IV 70

 2. Why? Because of the requisite of fair and reasonable criteria.
2. Redundancy - (SIGP to show why; F to show who will be removed)
a. Superfluous positions or services
b. In excess of what is reasonably demanded by the requirements of the enterprise
c. Good faith in abolishing positions
d. Adequate Proof of redundancy, such as new staffing pattern, feasibility
studies/proposal, on the viability of the newly created positions, job description,
and the approval by the management of the restructuring.
e. Fair and reasonable criteria in selecting the employees to be terminated (DO No.
147-15)
i. Redundancy may be the outcome of a number of factors, such as over
hiring of employees, decreased volume of business, or dropping a
particular product line or service previously undertaken by the
enterprise. (Coats Manila Bay v Ortega, 2009) Even reorganization of
departments may lead to redundancy.
ii. To establish good faith, there must be adequate proof that the services of
the employees are in excess of what is required of the company. (Acosta
v. Matiere SAS, 2019, Leonen)
iii. Further, a fair and reasonable criteria must be shown to determine what
positions should become redundant. (Acosta v. Matiere SAS, 2019,
Leonen)
1. In the case, respondents' only basis for declaring petitioner's
position redundant was that his function, which was to monitor
the delivery of supplies, became unnecessary upon completion of
the shipments. Hence, the Court declared the redundancy illegal.
3. Closure
a. Decision to close or cease operation
b. Good faith decision
c. No other option but to close or cease. (DO 147-15)
i. If the establishment was closed and another corporation is organized,
continuing the business of the former, there is illegal dismissal, since the
decision was not made in good faith. (Labor answer)
ii. If asked in Mercantile law, state the requisites of piercing the corporate
veil on fraud cases.
4. Disease (Labor Code, Article 299) - (DPC6)
a. Suffering from disease
b. Continued employment is prohibited by law/prejudicial to his health and his co-
employees
c. Certification by competent public health authority
d. The disease is incurable for 6 months even with a proper treatment
i. Why 6 months? Because after 6 months, it is deemed a Termination of

ATTY. ANSELMO S. RODIEL IV 71

 employment already, and not merely a suspension of employment.
ii. If it is curable within 6 months, the employer shall not terminate him, but
ask him to take a leave. Upon restoration to normal health, he shall be
immediately reinstated. (IRR of Labor Code)
iii. HIV Positive, not a ground for dismissal
1. Termination on the ground of a positive HIV test result is not legal
under Philippine law. Sec. 49(a) RA 11166 makes it unlawful for
an employee to be terminated from work on the sole basis of their
HIV status. (Bison Mgt. Corp. v. AAA and Perito, Feb. 14, 2024
e. EXAMPLES:
i. Q: Zoe Enterprises hired Celine as a machine operator. In January 2024,
Celine was medically diagnosed with tuberculosis and declared “unfit to
continue working.” Zoe Enterprises dismissed Celine because of serious
illness and gave her separation pay of one month salary per year of
service which she used for herq hospitalization and medical expenses. In
April 2024, Celine was cleared of tuberculosis and was issued a medical
certificate that she is medically fit to work. Celine demanded
reinstatement from Zoe Enterprises but was refused. Aggrieved, Celine
filed a complaint for illegal dismissal. Zoe Enterprises countered that
Celine was validly dismissed because she was suffering from a
contagious disease. Is Zoe Enterprises liable for illegal dismissal?
Explain. (2024 Bar Examination)
1. A: Yes, Zoe Enterprises is liable for illegal dismissal. Case law
dictates that for a dismissal on the ground of disease to be
considered valid, two requisites must concur: (a) the employee
suffers from a disease which cannot be cured within six months
and his/her continued employment is prohibited by law or
prejudicial to his/her health or to the health of his/her co-
employees, and (b) a certification to that effect must be issued by a
competent public health authority. Here, Zoe Enterprises failed to
show that the illness of Celine cannot be cured within six (6)
months. In fact, in less than six (6) months, Celine was cleared of
tuberculosis and was issued a medical certificate that she is
medically fit to work. Further, the facts did not show that Zoe
Enterprises obtained a certification that was issued by a
competent public health authority regarding Celine’s illness.
Thus, Zoe Enterprises is liable for illegal dismissal.
ii. Q: Rajah Management (RM), the authorized local placement agency of
Sultan Group (SG), posted a job listing for project manager based in
Qatar. Silang applied for the position. After RM forwarded the
documents of Silang to SG for the processing of her work visa, SG sent a

ATTY. ANSELMO S. RODIEL IV 72

 tourist visa notice instead of a work visa. Six months into her two-year
contract, Silang was repatriated by SG with instructions to apply anew for
deployment under a work visa. RM directed Silang to undergo a pre-
employment medical examination. When it was discovered that she has
uncontrolled diabetes, SG terminated her employment. Thus, Silang filed
a complaint for illegal dismissal against SG and RM. SG argued that the
disease of Silang was a valid cause for dismissal. Is the contention of SG
correct? Discuss. (2023 Bar Examination)
1. No, the contention of SG is incorrect. Case law dictates that for a
dismissal on the ground of disease to be considered valid, two
requisites must concur: (a) the employee suffers from a disease
which cannot be cured within six months and his/her continued
employment is prohibited by law or prejudicial to his/her health
or to the health of his/her co-employees, and (b) a certification to
that effect must be issued by a competent public health authority.
Here, the pre-employment medical examination must not be
considered as a certification issued by a competent public health
authority. Further, it was not shown that diabetes cannot be cured
within six months and that Silang’s continued employment was
prohibited by law or prejudicial to his health or the health of his
co-employees. Thus, the contention of SG is incorrect, since Silang
was illegally dismissed from his job.
5. Union Security Clause
a. GENERAL RULE ON COVERAGE OF UNION SECURITY CLAUSE:
i. All employees in the bargaining unit covered by a Union Shop Clause in
their CBA with management are subject to its terms. Thus, the employees
must become members of the sole and exclusive bargaining agent.
b. EXCEPTIONS:
i. employees who at the time the union shop agreement takes effect are
bona fide members of a religious organization which prohibits its
members from joining labor unions on religious grounds (Victoriano vs.
Elizalde Rope Workers case):
ii. employees already in the service and already members of a union other
than the majority union at the time the union shop agreement took effect
(Article 259 [e]. Labor Code)
1. NOTHING shall STOP the parties (to the CBA) from REQUIRING
MEMBERSHIP in the SEBA as CONDITION for employment,
except: (already/religious/freedom/outside CBU/expressly
excluded)
2. Those employees who are ALREADY employees of another union
at the time of signing of CBA

ATTY. ANSELMO S. RODIEL IV 73

 3. Those employees who are members of RELIGIOUS sects that
prohibit them from joining any labor organization. (Victoriano v.
Elizalde Rope Workers, 1974)
a. This reinforces the freedom of religion under the Bill of
Rights.
iii. During the FREEDOM period, the members of the SEBA can join another
union. (Slord Development v Noya, 2019)
iv. Confidential employees (Metrolab v Confesor, 1996) Supervisory
employees excluded from being members of the rank-and-file union and
vice versa.
v. Employees expressly excluded from the coverage of the clause
1. A union security clause is a valid kind of discrimination in favor
of unionism. (BPI v BPI Employees Union, 2010)
a. However, to validly dismiss an employee based on
violation of union security clause, employer should still
afford due process to the expelled unionists. Hence, in
Cariño v NLRC, the Court held that the company acts in
bad faith in dismissing a worker without giving him the
benefit of a hearing.
c. Valid Termination of Employment due to Union Security Clause
i. To validly terminate the employment of an employee through the
enforcement of the union security clause, the following requisites must
concur: (1) the union security clause is applicable; (2) the union is
requesting for the enforcement of the union security provision in the
CBA; and (3) there is sufficient evidence to support the decision of the
union to expel the employee from the union. (SLORD Devt. Corp. v.
Noya, 2019)
d. EXAMPLE:
i. Q: Cristina, a new-hire of Sterling Corporation (Sterling), was made to
join Sterling Corporation Employees Union (SCEU) in compliance with
the union shop provision in the collective bargaining agreement (CBA)
between SCEU and Sterling. At the request of SCEU, Sterling started
deducting union dues from Cristina’s salary and remitting the same to
SCEU pursuant to the CBA provisions. Cristina protested, claiming that
she has not authorized the deduction in writing. Is Cristina’s claim valid?
Explain briefly. (2022 Bar Examination)
1. A: No, Cristina’s claim is invalid. Under the Labor Code, as
amended, nothing in the Labor 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

ATTY. ANSELMO S. RODIEL IV 74

 the time of the signing of the collective bargaining agreement.
This stipulation, which is called as a union shop provision, is valid
under the law. Further, case law dictates that it is duty of the
employer to deduct union dues from the employee’s wages, when
so stipulated in a collective bargaining agreement. The system is
referred to as check off. No requirement of written authorization
from the employee is necessary. Here, the CBA entered into
between SCEU and Sterling Corporation provided for a union
shop provision. In effect, Cristina, a new-hire of Sterling, became a
member of SCEU from the time of employment. Since Cristina is a
union member, SCEU can demand Sterling to deduct and check
off the union dues from her wages without any written
authorization from her. Thus, Cristina’s claim is invalid.
6. Illegal Strike
i. In Toyota Phils. Corp Workers v NLRC, 2007, the Court ruled that there is
illegal strike when the union employed unlawful means in the pursuit of
its objective, such as the prohibited acts under Art. 279.
ii. Further, in Shell Oil Workers v Shell Company, 1971, under the Means
Employed Test, a strike which is legal at its inception may eventually be
declared illegal if illegal acts were committed during the strike.
iii. Categories of an illegal strike
1. when it is contrary to a specific prohibition of law, such as strike
by employees performing governmental functions; or
2. when it violates a specific requirement of law such as Article 263
of the Labor Code on the requisites of a valid strike; or
3. when it is declared for an unlawful purpose, such as inducing the
employer to commit an unfair labor practice against non-union
employees; or
4. when it employs unlawful means in the pursuit of its objective,
such as a widespread terrorism of nonstrikers [for example,
prohibited acts under Art. 264(e) of the Labor Code; or
5. when it is declared in violation of an existing injunction, [such as
injunction, prohibition, or order issued by the DOLE Secretary
and the NLRC under Art. 263 of the Labor Codel; or
6. when it is contrary to an existing agreement,such as a no-strike
clause or conclusive arbitration clause.(NUWHRAIN-Dusit Hotel
Nikko Chapter v. Secretary of Labor and Employment, G.R. No.
166295, November 11, 2008)
iv. What are the effects of an illegal strike?
v. The employer may be authorized to terminate the employment of:
1. Union officers who knowingly participated in the illegal strike or

ATTY. ANSELMO S. RODIEL IV 75

 in the commission of other illegal acts; and/or
2. Any worker who knowingly participated in the commission of
other illegal acts during the strike. (Art. 279(a) NCMB Primer on
Strikes, Pickets, and Lockouts)
a. Hence, workers who knowingly participated in a mere
illegal strike cannot be terminated from employment.
b. ―Knowingly participated‖ includes a situation where the
union officers and the members a) ALL agreed to commit
illegal acts as a policy, and b) there were widespread
illegal acts during the strike.
i. In any case, the members who participated must
still be identified to comply with the right to due
process.
ii. However, if there are illegal acts on both sides, i.e.,
from the employer and the union, the employer
cannot terminate the union officers/workers. If
they were terminated, the workers are entitled to
reinstatement with backwages.
vi. Consequences of illegal strike
1. Art. 279 of the Code presents a substantial distinction of the
consequences of an illegal strike between union officers and mere
members of the union. For union officers, knowingly participating
in an illegal strike is a valid ground for termination of their
employment. But for union members who participated in a strike,
their employment may be terminated only if they committed
prohibited and illegal acts during the strike and there is
substantial evidence or proof of their participation, i.e., that they
are clearly identified to have committed such prohibited and
illegal acts. (Bigg’s Inc., vs. Boncacas, March 6, 2019)
b. Quitclaim
i. An employee quitclaim is a document where an employee waives his /
her employment claims against the employer. The employee executes this
when the employer and employee agree to settle a dispute, or in order to
avoid potential disputes.
ii. Quitclaims are disfavored.
1. The law looks with disfavor on quitclaims and releases by
employees who have been inveigled or pressured into signing
them by unscrupulous employers seeking to evade their legal
responsibilities and frustrate just claims of employees.
2. Thus, if the consideration in the quitclaim is unconscionably low
and the employee was tricked into accepting it, the quitclaim

ATTY. ANSELMO S. RODIEL IV 76

 would be annulled. (Coats Manila Bay v. Ortega, 2009)
iii. In certain cases, however, the Supreme Court has given effect to
quitclaims executed by employees if the employer is able to prove the
following requisites, to wit:
1. the employee executes a deed of quitclaim voluntarily;
2. there is no fraud or deceit on the part of any of the parties;
3. the consideration of the quitclaim is credible and reasonable; and
4. the contract is not contrary to law, public order, public policy,
morals or good customs, or prejudicial to a third person with a
right recognized by law. (Goodrich Manufacturing Corporation D.
Ativo, ,2010)
c. EXAMPLES:
i. Q: EXO Corporation, Inc. (ECI) and its exclusive bargaining agent Kami
Labor Union (KLU) entered into a collective bargaining agreement
effective from December 15, 2019 to December 14, 2024. The agreement
prohibits KLU and its members from holding a strike and lockout. In May
2024, ECI and KLU negotiated the economic provisions of the agreement
but ended in a deadlock. KLU filed a notice of strike. After the
conciliation failed, KLU conducted a strike vote which obtained majority
support. KLU reported the strike vote to the Department of Labor and
Employment. KLU then went on strike after the mandatory cooling-off
period. ECI questioned the validity of the strike for being contrary to the
collective bargaining agreement. In contrast, KLU argued that it complied
with the strict requirements for staging a strike. Is the strike legal?
Explain. (2024 Bar Examination)
1. A: No, the strike is illegal. Case law dictates that if there is a no-
strike or no-lockout clause in the collective bargaining agreement,
a strike or a lockout cannot be conducted. However, this only
applies to strikes due to bargaining deadlocks, and not to strikes
due to unfair labor practice. Here, the collective bargaining
agreement prohibits KLU and its members from holding a strike
and lockout. Further, there was a bargaining deadlock in this case.
There was no unfair labor practice. Thus, the strike is illegal.
ii. Q: Discuss and differentiate between the procedural requirements in
termination of employment for (i) just and (ii) authorized causes. Explain
briefly. (2022 Bar Examination)
1. A: Case law dictates that, for termination of employment based on
just causes, the following procedural requirements must be
complied with: (a) A written notice served on the employee
specifying the ground or grounds for termination, and giving to
said employee reasonable opportunity within which to explain his

ATTY. ANSELMO S. RODIEL IV 77

 side; (b) A hearing or conference during which the employee
concerned, with the assistance of counsel if the employee so
desires, is given opportunity to respond to the charge, present his
evidence, or rebut the evidence presented against him; and (c) A
written notice of termination served on the employee indicating
that upon due consideration of all the circumstances, grounds
have been established to justify his termination. Meanwhile, for
termination of employment based on authorized causes, the
following procedural requirements must be complied with: (1)
service of a written notice to the employee at least 30 days before
effectivity of the termination, specifying the ground or grounds
for termination; (2) service of a written notice to the appropriate
Regional Office of the Department of Labor and Employment at
least 30 days before effectivity of the termination, specifying the
ground or grounds for termination; and (3) payment of separation
pay to the employee, unless the closure or cessation of business
was due to serious business losses or financial reverses.

VIII. TERMINATION BY EMPLOYEE

1. Termination by employee means resignation.

a. Resignation means the VOLUNTARY ACT of the employee who finds
himself in a situation where personal reasons cannot be sacrificed in
favor of the service, so much so that he has no other choice but to
dissociate from the employment. (Intertrod Marine v NLRC, 1991)
b. Requisites:
i. Overt act of relinquishment
ii. Intent to relinquish. (Mendoza v HMS Credit, 2011)
c. May a resignation be withdrawn?
i. Yes. It is withdrawable even if the employee called it irrevocable.
However, once the resignation is accepted, he no longer has a
right to the job. (Intertrod Marine v NLRC, 1991)
d. With notice to the employer
i. An employee may terminate the employment WITHOUT JUST
CAUSE
ii. by serving a WRITTEN NOTICE to the employer
iii. At least 1 month in advance. (Art. 300)
iv. Written acceptance by the employer of the resignation. (Shie Jie
Corp v NFL, 2005)

ATTY. ANSELMO S. RODIEL IV 78

 1. No notice was served - liable for damages. (Art. 300)
However, the resignation is still valid. (Serrano v NLRC,
2000)
2. The 1-month period can also be shortened. It is for the
benefit of the employer so he may insist on the full
observance of the period OR shorten it as he may deem
necessary, or waive it completely. (Hechanova v Matorre,
2013)
e. Without notice to the employer
i. An employee may put an end to the employment WITHOUT
SERVING the written notice on the employer for any of the
following JUST CAUSES:
1. Insult - Serious insult
2. Inhuman - Inhuman and unbearable treatment
3. Crime - Commission of crime against the employee or his
immediate family members
4. Other - Other analogous. (Art. 300)
f. These grounds are merely for the NECESSITY OF NOTICE. It does not
talk about the right to separation pay.
i. If the topic is separation pay, we need to check whether the
resignation amounted to constructive dismissal.
g. No separation pay upon resignation
i. As a general rule, the law does not require employers to pay
employees that have resigned any separation pay, unless there is
a contract that provides otherwise or there exists a company
practice of giving separation pay to resignees. We have ruled that
a company's practice of paying separation pay to resignees must
be proven to exist as this is an exception to the general rule that
employees who voluntarily resign are not entitled to separation
pay. (Italkarat 18, Inc. v. Gerasmio, September 28, 2020)

IX. RETIREMENT

Republic Act No. 7641, Implementing Rules; Labor Advisory on Retirement Pay, as amended
by Republic Act No. 8558; Republic Act No. 10757

1. Retirement is a result of a bilateral act of the parties, that after reaching a certain age, the
employee consents to sever his employment with the employer. (Brion v South PH
Union Mission, 1999)
2. Any employee in the private sector, upon reaching the retirement age, regardless of the
position/designation/status/manner of payment, shall be covered. (IRR of RA 7641)
Hence, this shall include:

ATTY. ANSELMO S. RODIEL IV 79

 a. Part-time employees (RA 7641)
b. Domestic helpers and employees in the personal service of another. (DO No. 20
of 1994)
3. Who are exempted from the coverage of labor Code on retirement?
a. Government employees, including GOCC
b. Employees of Retail, Service, and Agricultural establishments regularly not
employing more than 10 employees. (IRR of Labor Code; Art. 302)
4. In what situations will Art. 302 apply?
a. No - No CBA/applicable employment contract providing for retirement benefits
b. Less - CBA/applicable employment contract BUT benefits are LESS than those
provided in Art. 302.
5. When is an employee eligible for retirement under Art. 302?
a. Optional - Upon reaching at least 60 years old
b. Compulsory - Upon reaching 65 years old; AND
c. Served at least for 5 years in the same establishment
6. What is the amount of retirement benefits under Art. 302?
a. He is entitled to retirement pay equivalent to:
i. At least 1/2 month salary for EVERY YEAR of service
1. Fraction of at least 6 months is considered as 1 whole year
2. 1/2 month salary means:
a. 15 days +
b. 2.5 days (1/12 of 13th month) + 3. 5 days (SIL) = 22.5 days
7. Violation of this provision - unlawful - subject to penal provisions under Art. 288.
8. Nothing herein shall deprive the employee of benefits which he is entitled under existing
laws/company policies/practices. (Art. 302)
9. What if he was forced to retire by the employer?
a. That is tantamount to CONSTRUCTIVE dismissal, i.e., clear act of
discrimination/disdain/insensibility.
10. Retirement of underground miners
a. Under R.A. 8558, ―an underground mining employee upon reaching the age of
fifty (50) years or more, but not beyond sixty (60) years which is hereby declared
the compulsory retirement age for underground mine workers, who has served
at least five (5) years as underground mine worker, may retire and shall be
entitled to all the retirement benefits provided for in this Article.
11. Part time employees are entitled to retirement pay
a. Republic Act No. 7641 explicitly provides as within its coverage "all employees in
the private sector, regardless of their position, designation, or status, and
irrespective of the method by which their wages are paid" (De Lasalle Araneta
Univ. vs. Bernardo, Feb 3, 2017)

ATTY. ANSELMO S. RODIEL IV 80

X. LABOR RELATIONS

A. Right to Self-Organization

1. Right to self-organization under the Labor Code

a. Under Art. 257 of the Labor Code, it is the right of employees and workers to
form, join, or assist labor organizations, for the purpose of:
i. Collective bargaining through representatives of their own choosing; and
ii. To engage in lawful concerted activities for the same purpose or for their
mutual aid and protection.
1. Hence, workers, who cannot collectively bargain, can still join
labor organizations and engage in lawful concerted activities for
their mutual aid and protection. However, these workers cannot
collectively bargain or conduct a strike, since these actions are
prohibited by law. An example of workers who cannot
collectively bargain and conduct strikes is government employees.
b. Who may not exercise the right to self-organization
i. For purposes of collective bargaining
1. For private sector
a. As a rule, all persons in the private sector employed in
commercial, industrial, and agricultural establishments,
and religious, charitable, or educational institutions,
whether for profit or not, shall have the right to form, join,
or assist labor organizations for the purpose of collective
bargaining. (Art. 253)
b. The following are the exceptions:
i. Managerial employees
ii. Confidential employees
iii. Cooperative members who are also employees of
the cooperative (they would be bargaining against
themselves)
iv. Ambulant, intermittent, itinerant, self-employed
people, rural workers, and workers without
definite employers (Art. 253)
v. As a rule, alien employees do not have the right to
join, form, or assist labor organizations for the
purpose of collective bargaining.
2. For public sector
a. As a rule, the employees of the Government do not have
the right to collectively bargain.
i. As an exception, in GSIS Family Savings Bank v.
Villanueva, the Court stated that all the employees
of GOCCs established under the Corporation Code
cannot collectively bargain as to their salaries and
benefits provided under the Compensation and

ATTY. ANSELMO S. RODIEL IV 81

 Position Classification System. Thus, they can
collectively bargain for other benefits not
mentioned by the law. However, if the salaries and
benefits are already provided by law, they cannot
collectively bargain as to the same.
ii. With respect to the employees of GOCCs
established through a special charter, they cannot
collectively bargain at all.
b. International organization employees (immunity from
suit)
c. Foreign State employees (immunity from suit)
ii. For purposes of mutual aid and protection
1. Every worker can exercise their right to self-organization for
purposes of mutual aid and protection, i.e., managerial and
confidential employees, ambulant workers and workers in
government.
iii. Aliens cannot form labor organizations
1. All aliens, natural or juridical, as well as foreign organizations, are
strictly prohibited from engaging directly or indirectly in trade
union activities. (Art. 284)
2. However, aliens working in the country with valid working
permits issued by DOLE, may exercise the right to self-
organization and to join or assist labor organizations for purposes
of collective bargaining provided, that said aliens are nationals of
a country which grants the similar rights to Filipino workers. (Art.
284) Further, if the alien is a permanent resident of Philippines, he
can join, assist, or form labor organizations, without need of a
work permit.
iv. Managerial, Supervisory, and Rank-and-file, and Confidential
1. Managerial
a. Who are managerial employees
i. Those who are vested with powers to:
1. Management Policies - Lay down or execute
management policies, and/or
2. Employees – Hire, transfer, suspend, lay-
off, recall, discharge, assign, or discipline
employees. (Art. 219(m))
ii. ―Top managers‖ who establish operating policies
are managerial employees. Examples are CEO,
President, Corporate Secretary, Treasurer, CFO,
and COO.
iii. ―Middle managers‖ who direct the activities of
other managers, and to implement the company’s
policies are managerial employees. Examples are a
plant manager of an electronics firm, and head of
legal department in corporations. (United Pepsi-
Cola Supervisory Union v Laguesma, 1998)

ATTY. ANSELMO S. RODIEL IV 82

 b. Can managerial employees join unions?
i. No. Managerial employers cannot form, join, assist
labor organizations or unions. (Art. 255) The reason
is they cannot bargain against themselves.
2. Supervisory employees
a. Who are supervisory employees
i. Those who, in the interest of the employer,
1. Effectively recommend managerial actions
a. If the exercise of such authority is
NOT merely routinary or clerical;
and
b. Requires the use of independent
judgment.
ii. ―First-line managers‖ who direct the activities of
operating-employees only are supervisory
employees.
1. Examples are the foreman, the technical
supervisor in a research department, and
the clerical supervisor in a large office.
(United Pepsi-Cola Supervisory Union v
Laguesma, 1998)
b. Can supervisory employees join unions?
i. Yes. Supervisory employees can form, join, assist a
SEPARATE collective bargaining unit and/or
legitimate labor organization of their own.
ii. They are NOT eligible for membership in the
collective bargaining unit of the rank-and-file
employees.
iii. However, the rank-and-file union and the
supervisors’ union of the same establishment may
join the same NATIONAL UNION. (Art. 255)
3. Rank-and-file
a. Those who are not managerial or supervisory employees.
b. Rank-and-file employees can join, form, or assist labor
organizations for the purpose of collective bargaining.
4. Confidential employees; Doctrine of necessary implication
a. While Art. 255 of the Labor Code singles out managerial
employees as ineligible to join, assist or form any labor
organization, under the doctrine of necessary implication,
confidential employees are similarly disqualified. This
doctrine states that what is implied in a statute is as much
a part thereof as that which is expressed. (Metrolab v
Roldan-Confessor, 1996)
b. The union might not be assured of the confidential
employee’s loyalty due to the conflict of interest. (San
Miguel v Laguesma, 1997)

ATTY. ANSELMO S. RODIEL IV 83

 c. Confidential employees are those who by the nature of
their functions, assist or act in a confidential capacity to
persons who formulate, determine, or effectuate
management policies in the field of labor relations.
i. The secretary of the CEO, CFO, COO, HR head,
and Legal head CANNOT form a labor union
because they are confidential employees.
Meanwhile, the secretary of the head of marketing,
sales, and advertising CAN join a labor union
because the management policies are not in the
field of labor relations. Thus, they are not
confidential employees.
v. Commingling or mixture of membership
1. Commingling or mixture means the inclusion as union members
of employees outside the collective bargaining unit.
a. This happens when a supervisory employee joins the
union of rank-and-file employees.
2. Effect of commingling/mixture:
a. General rule:
i. The INCLUSION as union member of employees
OUTSIDE the bargaining unit shall NOT be a
ground for CANCELLATION of the
REGISTRATION of the union. Instead, said
employees are deemed AUTOMATICALLY
REMOVED from the list of the membership of said
union. (Art. 256)
b. Exception:
i. Unless the mingling was brought about by
misrepresentation, false statement, or fraud under
Art. 247. (Tagaytay Highlands v Tagaytay
Highlands Employees Union, 2003)
vi. Union members have the freedom to leave and join another union AT
ANY TIME.
1. As an exception, if there is a closed shop provision or union
security clause, the members of the SEBA cannot join another
union. Otherwise, they will be dismissed from the job.
a. As exception to the exception, during the freedom period,
the members of the SEBA can join another union despite
the closed shop provision union security clause.
b. Why? If the incumbent members of the SEBA would not be
allowed to join the minority union during the freedom
period, its right to question will always be ineffective for
lack of support.
2. EXAMPLES:
a. Q: Araro Federation applied for registration as a federation in the agricultural
sector. It has under its membership a mix of five rank-and-file unions and five
supervisory unions. One of the rank-and-file unions and one of the supervisory

ATTY. ANSELMO S. RODIEL IV 84

 unions both belong to the same establishment, Ani Corporation (AC). AC
opposed the application for registration citing the legal prohibition against the
commingling of rank-and-file and supervisory employees. Is the opposition of
AC meritorious? Explain briefly. (2023 Bar examination)
i. A: No, the opposition of AC is not meritorious. Under the Labor Code, as
amended, the rank and file union and the supervisors' union operating
within the same establishment may join the same federation or national
union. Here, the opposition of AC is not meritorious, since a rank-and-file
union and a supervisory union belonging in the same establishment, such
as AC, can join the same federation, such as Araro Federation.
b. Q: Sonic Build Corp. employed Leo and Dan in its cement factory and assigned
them the tasks of, among others, directing and supervising rank-and-file
employees. Leo and Dan are required to ensure that such employees obey
company rules and regulations, and recommend to the company’s Human
Resources Department any required disciplinary action against erring
employees. There is only one union representing rank and-file employees. May
Leo and Dan join the union? Explain briefly. (2022 Bar Examination)
i. No, Leon and Dan cannot join the union. Under the Labor Code, as
amended, supervisory employees shall not be eligible for membership in
the collective bargaining unit of the rank-and-file employees but may
join, assist or form separate collective bargaining units and/or legitimate
labor organizations of their own. Here, Leo and Dan were supervisory
employees, since they were tasked to direct and supervise rank-and-file
employees. Thus, they cannot join the union of the rank-and-file
employees. Instead, they must join, assist, or form a union for supervisory
employees in the same establishment.
c. Q: A nongovernmental organization operating in the Philippines which seeks to
promote equality and human dignity in the workplace has 40 rank-and-file
employees. Can the employees of this cause-oriented, nongovernmental
organization form a labor union? Explain briefly. (2020-2021 Bar Examination)
i. A: Yes, the employees can form a labor union. Under the Labor Code, as
amended, all persons employed in commercial, industrial, agricultural,
religious, charitable, educational institutions, or enterprises, whether
engaged for profit or not, shall have the right to self-organization and to
form, join or assist labor organizations for purposes of collective
bargaining. Here, the employees can form a labor union, since employees
who are working for a an institution that is not engaged for profit have
the right to form, join, or assist labor organizations for purposes of
collective bargaining.

B. Rights and Conditions of Membership

1. Admission and Discipline of Members

a. What are the rights and conditions of membership in a labor organization as to
fees, dues, assessments, and other contributions of union members?
i. No arbitrary or excessive initiation fees shall be required of the members
of a legitimate labor organization(Article 250[a], Labor Code)

ATTY. ANSELMO S. RODIEL IV 85

 ii. No arbitrary, excessive or oppressive fine and forfeiture be imposed;
(Article 250[a], Labor Code)
iii. No officer, agent or member of a labor organization shall collect any fees,
dues, or other contributions in its behalf or make any disbursement of its
money or funds unless he is duly authorized pursuant to its constitution
and by-laws;
iv. Every payment of fees, dues or other contributions by a member shall be
evidenced by a receipt signed by the officer or agent making the
collection and entered into the record of the organization to be kept and
maintained for the purpose; (Article 250[h], Labor Code)
v. No special assessment or other extraordinary fees may be levied upon the
members of a labor organization unless:
1. authorized by a written resolution of a majority of all the
members in a general membership meeting duly called for the
purpose;
2. the secretary of the organization shall record the
a. minutes of the meeting including/
b. list of all members present;
c. votes cast;
d. purpose of the special assessment or fees; and
e. recipient of such assessment or fees;
f. record shall be attested to by the president. (Art. 250[n],
Labor Code)
vi. Other than for mandatory activities under the Code, no special
assessments, attorney's fees, negotiation fees or any other extraordinary
fees may be checked off from any amount due to an employee without an
individual written authorization duly signed by the employee. The
authorization should specifically state the amount, purpose and
beneficiary of the deduction. (Article 250[o], Labor Code)
2. Major Policy Matter
a. What are the rights and conditions of membership in a labor organization as to
the question of major union policy?
i. To determine by secret ballot, after due deliberation, any question of
major policy affecting the entire membership of the organization; (Article
250[d], Labor Code)
ii. Unless the nature of the organization or force majeure renders such secret
ballot impractical, in which case, the board of directors of the
organization may make the decision on behalf of the general
membership. (Article 250[d], Labor Code)
3. Union Funds
a. All unions are authorized to COLLECT REASONABLE MEMBERSHIP FEES,
union dues, assessments, fines, and other contributions for:
i. Labor education and research
ii. Mutual death and hospitalization benefits
iii. Welfare fund
iv. Strike fund
v. Credit and cooperative undertakings. (Art. 292(a))

ATTY. ANSELMO S. RODIEL IV 86

 b. However, no ARBITRARY or excessive initiation fees/fines/forfeitures shall be
required/imposed of the members of the legitimate labor organizations. (Art.
250(a))
c. Further, no officer of a labor organization shall collect any fees/dues/ other
contributions or make any disbursement of its money UNLESS he is DULY
AUTHORIZED BY THE CONSTITUTION OR BY-LAWS. (Art. 250(g))
d. For monthly union dues:
i. No employer shall make any deduction from the wages of the employees,
except: b) for union dues, in cases where the right of the worker or the
union to check-off has been expressly recognized by the employer or
upon written authorization of the employee. (Art. 113(b))
1. Hence for checking off, the union must secure the written
authorization of the employee concerned. (Union dues -> check
off = written authority)
4. Payment of Attorney’s Fees arising from CBA negotiations
a. What is the rule on charging attorney's fees, negotiation fees or similar charges
arising from CBA?
i. No attorney's fees, negotiation fees or similar charges of any kind arising
from any collective bargaining agreement shall be imposed on any
individual member of the contracting union. (Article 228[b], Labor Code)
b. What is the effect of any contract, agreement or arrangement charging attorney's
fees arising from CBA?
i. Any contract, agreement or arrangement of any sort to the contrary shall
be null and void. (Article 228[b], Labor Code)
c. What are the exactions which are within the category of "similar charge"?
i. Article 222(b) prohibits attorney's fees, negotiations fees, and similar
charges arising out of the conclusion of a collective bargaining agreement
from being imposed on any individual union member. The collection of
the special assessment partly for the payment for services rendered by
union officers, consultants and others may not be in the category of
"attorney's fees or negotiations fees." But there is no question that it is an
exaction which falls within the category of a "similar charge," and,
therefore, within the coverage of the prohibition in the aforementioned
article.(Palacol v. Ferrer-Caleja, 1990)
d. Distinguish attorney's fees under Article 111 and Article 228(b) of the Labor
Code.
i. The attorney’s fees under Article 111 of the Labor Code are awarded in
favor of the employee, as indemnity for damages, if he wins in the labor
dispute. Meanwhile, the attorney’s fees under Article 228(b) of the Labor
Code is given to the lawyer of the union, as compensation, for his services
in the CBA negotiation.
ii. Further, the attorney’s fees under Article 111 of the Labor Code shall be
understood as the extraordinary concept of attorney’s fees, while the one
under Article 228(b) shall be understood as the ordinary concept of
attorney’s fees.

ATTY. ANSELMO S. RODIEL IV 87

 iii. Lastly, the attorney’s fees under Article 111 of the Labor Code are
allowed by law, while the attorney’s fees under Article 228(b) of the
Labor Code are prohibited by law.
5. Requisites of Check-Off; Payment of Special Assessment
a. Requisites of Check-Off
i. authorization by a written resolution of the majority of all the members at
the general membership meeting called for the purpose;
ii. secretary’s record of the minutes of the meeting; and
iii. individual written authorization for check off duly signed by the
employees concerned. (Gabriel vs. Secretary of Labor and Employment,
2000).
b. Payment of Special Assessment
i. No special assessment or other extraordinary fees may be levied upon the
members of a labor organization unless authorized by the WRITTEN
RESOLUTION of a majority of all the members in a general membership
meeting duly called for the purpose.
ii. The secretary shall RECORD:
1. the minutes of the meeting;
2. the list of all members present;
3. the votes cast;
4. the purpose of the special assessment or fees; and
5. The recipient of such assessment or fees.
6. It shall be attested by the president. (Art. 250(n))
c. Other than for mandatory activities, no special assessment, attorney’s fees,
negotiation fees, other extraordinary fees may be checked off from any amount
due to the employee without an INDIVIDUAL WRITTEN AUTHORIZATION
duly signed by the employee. (Art. 250(o))
i. Substantial compliance is NOT sufficient. (Palacol v Ferrer-Calleja, 1990)
d. For agency fees, i.e., those paid by non-members of the SEBA
i. There is NO NEED for written authorization by the employee, provided
1) he is a member of the bargaining unit, 2) he is not a member of the
SEBA, and 3) he accepted the benefits of the CBA. (Art. 259 (e)) Basis?
Unjust enrichment. (Holy Cross v Holy Cross KAMAPI, 1996)
1. Hence, the employee may for monthly union dues AND agency
fees.
e. Can the company continue to make deductions after the separation of the
employee from the union?
i. No. The check-off authorization, even if declared irrevocable, is good
only as long the employees remain members of the union. The moment
they separated from the union, there is reason for the company to
continue making the deduction. (Standard Chartered v Confesor, 2004)
f. If the company fails to check off, can it be held liable by the union for the
payment of the union dues?
i. No. The employer is not liable to pay the union dues as it is the liability of
the union member to pay the same.
ii. However, the company may commit ULP, if its purpose is to restrain the
right against self-organization.

ATTY. ANSELMO S. RODIEL IV 88

 6. Mandatory Activity
a. ―Mandatory activity‖ - this means a judicial process of settling labor disputes.
Hence, for the legal fees, the amount due can be checked off without written
authorization of the employee. (Radio Communication v Secretary of DOLE,
1989)
b. ―Mandatory activity‖ does not mean compulsory arbitration nor amicable
settlement. It means JUDICIAL dispute.
7. Union Information
a. The members shall be entitled to FULL AND DETAILED REPORTS from their
officers and representations of ALL FINANCIAL TRANSACTIONS. (Art. 250(b),
Labor Code)
b. The treasurer shall render to the organization and to its members a true and
correct ACCOUNT OF ALL MONEYS RECEIVED AND PAID BY HIM, since he
assumed office or since the last day on which he render such account. (Art.
250(l), Labor Code)
c. The books of accounts and other records of financial activities shall be OPEN TO
INSPECTION by any officer or member
d. It shall be the duty of the labor organization and its officers to INFORM its
members on the PROVISIONS OF THE CONSTITUTION AND BY-LAWS, CBA,
prevailing labor relations system, and all their rights and obligations under labor
laws. (Art. 250(p), Labor Code)

C. Union Chartering or Affiliation: Local and Parent Union Relations

1. What is an affiliate?
a. "Affiliate" refers to an independent union affiliated with a federation, national
union or a chartered local which was subsequently granted independent
registration but did not disaffiliate from its federation, reported to the Regional
Office and the Bureau in accordance with Rules. (D.O. No. 40-03)
i. As an example, ABC Corporation has two independent unions: XYZ
union for supervisory employees and JKL union for rank-and-file
employees. These unions are part of a national union in the Philippines.
Thus, XYZ union and JKL union can be considered as ―affiliates‖ of the
national union in the Philippines.
ii. As another example, JJJ union is a national union in the Philippines. It
created a union for rank-and-file employees in ABC Corporation. In this
case, the union for rank-and-file employees in ABC Corporation is an
―affiliate,‖ because it is a local charter or chartered local that was directly
created by JJJ Union.
2. Right to disaffiliate
a. The local union has the right to exercise the right to disaffiliate from its mother
union.
3. How is a local chapter created?
a. A duly registered federation or national union may directly create a local chapter
by issuing a charter certificate indicating the establishment of the local chapter.
(Article 241, Labor Code)
4. What is the effect of chartering and creation of a local chapter?

ATTY. ANSELMO S. RODIEL IV 89

 a. The chapter shall acquire legal personality only for purposes of filing a petition
for certification election from the date it was issued a charter certificate. (Article
241, Labor Code)

D. Bargaining Unit

1. A group of employees
2. Sharing mutual interest within an employer unit, comprised of:
a. All or less than all of the entire body of employees in the employer unit, or
b. any specific Occupation or
c. Geographical grouping within the employer unit. (DO No. 40-03)
i. ―Employer unit‖ means rank-and-file/supervisory.
3. What are the tests to determine the APPROPRIATE composition of a bargaining unit?
a. Community or Mutuality of Interest Doctrine
i. The employees sought to be represented must have community or
mutuality of interest in terms of employment and working conditions,
such as similar status/duties/responsibilities/compensation/working
condition/place of work. (San Miguel v Confesor, 1996)
b. Collective Bargaining History Doctrine
i. This doctrine puts a premium to prior collective bargaining history and
affinity of the employees; (San Miguel v Laguesma, 1994)
c. Employment Status Doctrine
i. An acceptable mode of determination is based on employment status of
the employees, like temporary/seasonal/probationary. (Sta. Lucia v
Secretary of Labor, 2009)
d. Globe Doctrine
i. Based on express will or desire of the employees.
1. After considering all of the above doctrines, the basic test of an
asserted bargaining unit's acceptability is whether or not it is
fundamentally the combination which will best assure to all
employees the exercise of their collective bargaining rights.
(International School v Quisumbing, 2000)
4. EXAMPLE:
a. Q: Athena Coffee Company (ACC) hired 300 coffee roasters under similar
employment terms and conditions. ACC assigned these employees to its three
roasting factories in Manila, Laguna, and Cavite. In August 2024, the AAC
Manila Workers Organization (AAC-MWO) filed a petition for certification
election to represent all coffee roasters including those in the unorganized
Laguna and Cavite factories. AAC opposed the petition and argued that the
three factories do not constitute an appropriate bargaining unit on account of
their different geographical locations. May the coffee roasters in the three
factories constitute an appropriate bargaining unit? Explain. (2024 Bar
Examination)
i. A: Yes, the coffee roasters in the three factories constitute an appropriate
bargaining unit. Case law dictates that the fundamental factors in
determining the appropriate collective bargaining unit are: 1) the will of
the employees (Globe Doctrine); 2) affinity and unity of the employees'

ATTY. ANSELMO S. RODIEL IV 90

 interest, such as substantial similarity of work and duties, or similarity or
compensation and working conditions (substantial Mutual Interests
Rule); 3) prior collective bargaining history; and (4) similarity of
employment status. Here, the coffee roasters in the three factories
constitute an appropriate bargaining unit, because (1) it was their will to
be part of one bargaining unit, (2) there was substantial similarity in their
work and duties, since all of them are coffee roasters, and (3) they have
similar employment terms and status. Thus, even if they work in different
factories of AAC, they constitute as one collective bargaining unit.

E. Bargaining Representative

1. Determination of representation status

a. A bargaining representative (SEBA) is the LEGITIMATE labor organization
selected by the MAJORITY of the employees in the appropriate COLLECTIVE
BARGAINING UNIT as their EXCLUSIVE REPRESENTATIVE for COLLECTIVE
BARGAINING. (Art. 267)
i. The exception is an employee shall have the right, at any time, to present
grievances to their employer. (Art. 267)
1. What is a grievance? It is any question by the employer or the
worker regarding the interpretation or application of the collective
bargaining agreement (CBA) or company personnel policies. (Art.
274)
2. Hence, the individual employee can present interpretation of
company personnel policies to the employer any time.
ii. A legitimate labor organization is a labor organization DULY
REGISTERED with the DOLE, including the branch or LOCAL thereof.
(Art. 219(h)) Hence, even a local charter of a national union is a legitimate
labor organization.
2. Jurisdictional preconditions in bargaining
a. Before the employer can be compelled to bargain, the union must be able to
prove that is possesses the status of majority representation by the employees'
representative in accordance with any of the means of selection and/or
designation provided for by the Labor Code; (2) proof of majority representation;
and (3) a demand to bargain under Article 251, paragraph (a), of the New Labor
Code. (Associated Labor Unions (ALU) vs. Ferrer –Calleja, 1989) Otherwise, the
employer cannot be compelled to bargain, and there would be no unfair labor
practice due to refusal to bargain.
3. Methods to determine the SEBA
a. Request for SEBA Certification (UOM)
i. Unorganized establishment, i.e., no SEBA
ii. Only one legitimate labor organization
iii. Majority of the employees in the collective bargaining unit signified their
support for the certification. (DO-40-1-15)
iv. File the request with the DOLE Regional Office that issued the certificate
of registration.

ATTY. ANSELMO S. RODIEL IV 91

 1. The request will be referred by the RO for certification election
when:
a. Unorganized establishment + only one LO + failure to
complete the requirements for SEBA certification, i.e.,
majority votes not acquired
b. Unorganized establishment + more than one LO
b. Certification election
i. This will be discussed below
c. Consent election; Requirements
i. Voluntarily agreed election by parties;
ii. With or without intervention of DOLE; and
iii. To determine the majority representation of all workers in the
appropriate collective bargaining unit. (Algire v De Mosa, 1994; DO No.
9)
iv. In the election of SEBA, what is the role of the employer?
1. The employer is a bystander.
2. In all cases, whether the petition for certification election is filed
by the employer or the LLO, the employer shall NOT be
considered a PARTY thereto; also, he shall NOT have the right to
OPPOSE the petition for certification election.
a. His participation in such proceedings shall be limited to:
i. Being notified or informed of petitions of such
nature; and
ii. Submitting the list of employees during the pre-
election conference should the Med-Arbiter act
favorable to the petition. (Art. 271)
iii. To add, when the employer is requested to bargain
collectively, an employer may file the petition for
election with the Bureau. (Art. 270)
3. What can the employer do in the meantime?
a. The employer cannot file a petition to nullify the election
proceedings, because he is a mere bystander.
b. However, he can file a petition to cancel the registration of
a representative LLO due to fraud/misrepresentation.
(Art. 247; In Re: Petition for Cancellation of the Union
Registration of Air Philippines Flight Attendants
Association, 2006) The certificate can be cancelled ONLY
on the grounds specified in Art. 247. (Art. 245) Under Art.
247, the following are the grounds for cancellation of union
registration: (a) Misrepresentation, false statement, or
fraud in connection with the adoption or ratification of the
constitution and by-laws or amendments thereto, the
minutes of ratification, and the list of members who took
part in the ratification; (b) Misrepresentation, false
statements or fraud in connection with the election of
officers, minutes of the election of officers, and the list of
voters; and (c) Voluntary dissolution by the members.

ATTY. ANSELMO S. RODIEL IV 92

 c. However, such petition shall NOT:
i. Suspend the proceedings for certificate election;
NOR 2. Prevent the filing of the petition for
certification election. (Art. 246)
v. Certification election
1. It refers to the process of determining through SECRET BALLOT,
the SEBA in an appropriate bargaining unit for purposes of
collective bargaining. (DO No. 40-03)
2. When is this mandatory?
a. For unorganized establishment
i. Legitimate labor organization
ii. In any establishment where there is NO SEBA, a
certification election shall AUTOMATICALLY be
conducted by the Med-Arbiter upon the FILING
OF PETITION by any LLO, including the national
union/federation. (Art. 269)
b. For organized establishments without CBA
i. Legitimate labor organization
ii. Where there is no CBA, the petition may be filed
ANYTIME except within 12 months of a previous
election (12-month bar rule; certification year rule).
(Azucena)
1. Why? Because the freedom period term
never commenced. There is no reckoning
period, i.e., expiration of the CBA.
iii. For organized establishments with CBA; requisites
1. Legitimate labor organization
2. The CBA, insofar as the
REPRESENTATION aspect is concerned,
shall be for a term of 5 years. Hence:
a. NO petition questioning the
majority status of the SEBA shall be
entertained; and
b. NO certification election shall be
conducted by the DOLE
i. Outside the 60-day period
(freedom)
ii. Immediately before the
expiration of the 5-year term
of the CBA. (Art. 265)
3. The petition must be verified
4. The petition is supported by the written
Consent of at least 25% of the employees in
the bargaining unit. (Art. 268; Trade Unions
v Laguesma, 1994)
iv. What if the CBA entered is for 10 years?

ATTY. ANSELMO S. RODIEL IV 93

 1. The terms and conditions in the CBA will be
effective for 10 years
2. However, as to the representation aspect, it
shall ONLY be for a term of 5 years. Hence,
the petition can be filed within 60-days
before the expiration of the 5-year term.
v. What are the grounds to DISMISS the petition for
certification election?
1. Absence of employment relationship
a. No employment relationship
between ALL the members of the
union and the establishment.
b. If only SOME are not members, they
shall only be REMOVED from the
list of the membership of said union.
(Art. 256)
2. Unregistered union
a. Because only legitimate labor
organizations can become SEBA.
3. No charter
a. Same reason.
4. Lack of Support
a. The 25% support of the employees
within the bargaining unit was not
obtained.
5. 12-month bar rule (certification year rule)
a. The petition cannot be filed within 1
year from valid election.
i. Whether a union or ―no
union‖ won in the elections.
ii. Ratio: Give the SEBA a
chance to negotiate before
another election is held; Give
the unions time to campaign
again.
6. Negotiation (negotiation year rule)
a. Once the SEBA commenced and
sustained negations with the
employer, the petition cannot be
filed.
7. Deadlock (deadlock bar rule)
a. What is a deadlock?
i. A deadlock arises when there
is an impasse, which
presupposes a reasonable
effort, in good faith, of
bargaining but it did not

ATTY. ANSELMO S. RODIEL IV 94

 conclude to a CBA.
(Tabangao Shell v Pilipinas
Shell, 2014) (Deadlock -
impasse + effort in good faith
to bargain + did not conclude
CBA)
b. Later, a strike/lockout may be done,
because a deadlock is a labor
dispute.
c. Once there exists a bargaining
deadlock, the petition cannot be
filed.
i. Hence, a petition for
certification election BEFORE
the freedom period can only
be filed if no negotiations
were ever commenced. Why?
Because the SEBA did not do
its job, so it may be replaced.
8. Existing CBA (contract bar rule)
a. The petition cannot be filed BEFORE
or AFTER the freedom period, i.e.,
the 60-day period before the
expiration of the 5-year term.
i. No petition questioning the
majority status of the SEBA
shall be entertained AND no
certification election shall be
conducted by the DOLE
OUTSIDE the 60-day
freedom period immediately
before the expiration of the 5-
year term of the CBA. (Art.
263)
ii. At the expiration of the
freedom period, the
employer shall continue to
recognize the majority status
of the incumbent SEBA,
where no petition for
certification election has been
filed. (Art. 268)
9. Non-appearance
10. Who can vote in the petition for certification
election?
a. All employees who are members of
the appropriate bargaining unit for

ATTY. ANSELMO S. RODIEL IV 95

 AT LEAST 3 MONTHS before the
filing of the petition are ELIGIBLE
TO VOTE; and
i. To compare, for voting in
certification election, the
employee must be a member
of the CBU for at least 3
months; for union election,
the employee shall be eligible
on the first day of service.
(Art. 291(c))
ii. All employees who have
been dismissed from work
but have contested the
legality of the dismissal. (DO
40-03)
11. 3 Important numbers for election
proceedings
a. Whether there is valid election?
(Single majority)
i. At least majority of
ii. All eligible voters in the
bargaining unit must cast
their votes
iii. Mere headcount. Do not
consider if the vote is invalid.
iv. To repeat, to become eligible,
the employee must be a
member of the bargaining
unit at least 3 months before
the filing of petition.
b. Whether there is a winner? (Double
majority)
i. At least majority of
ii. The valid votes cast - the
labor union receiving the
same shall be the SEBA
c. Consider if the vote is valid.
i. A blank ballot/unfilled
ballot/abstention is
considered as a VALID vote.
ii. A spoiled ballot, i.e.,
torn/defaced/markings/
writing to identify the voter,
is considered as an INVALID
vote.

ATTY. ANSELMO S. RODIEL IV 96

 d. Whether there must be run-off?
(Triple majority)
i. There is a valid election
ii. When an election provides
for 3 or more choices, i.e., 3
unions and ―no union.‖
iii. It results to no choice
received majority of the valid
votes cast
iv. Run-off shall be conducted
between the labor unions
receiving the 2 highest
number of votes, i.e., if there
is a tie, there may be 3
candidates in the run-off.
v. The total votes of ALL
contending unions shall be at
least 50% of the number of
votes cast. (Art. 268)
vi. Mere head count. Do not
consider if the vote is invalid.
e. When is there failure of election?
i. There is failure when LESS
than the majority of the
eligible members in the CBU
voted in the election.
f. Re-run election
i. This refers to an election
conducted after a FAILURE
of election has been declared
by the election officer. (DO
No. 40-1-15)
ii. This can be conducted within
6 months from such
declaration.
vi. What is the effect if ―No Union‖ wins the
certification election?
1. If majority of the workers do not wish to be
represented by any union, then their wishes
must be respected. The minority employees
can do nothing but wait for another suitable

ATTY. ANSELMO S. RODIEL IV 97

 occasion to petition for a certification
election and hope that the results will be
different. (Reyes v Trajano, 1992)
2. When is that suitable occasion? That is 1
year after the election. Under the 12-month
bar rule or the certification year rule, the
petition for certification election CANNOT
be filed within 1 year from a valid election.
vi. EXAMPLE:
1. Q: Two legitimate labor organizations (Union Jack and Union Jill)
are competing to become the first sole and exclusive bargaining
agent (SEBA) in Maharlika Company. The unions agree to a
consent election without involving the Bureau of Labor Relations
(BLR). Union Jack garners an overwhelming majority of the valid
votes cast during the consent election. Negotiation for a collective
bargaining agreement (CBA) commences, and while this is
ongoing, a third union, Union Jumble, files with the BLR a
petition for certification election seeking certification as the SEBA
in Maharlika Company. Union Jack opposes the petition, arguing
that no petition for certification election can be filed within one
year from the consent election, and during the CBA negotiation. Is
Union Jack correct? Explain briefly. (2022 Bar Examination)
a. A: Yes, Union Jack is correct. Case law dictates that, under
the ―certification year rule,‖ no certification election may
be conducted within one (1) year from the certification of
the result of a certification election or consent election.
Meanwhile, a consent election is an election voluntarily
agreed upon by the parties to determine the issue of
majority representation of all the workers in the
appropriate collective bargaining unit. Here, a consent
election was validly conducted since Union Jack and
Union Jill agreed to conduct the same. Thus, Union Jumble
cannot file a petition for certification election within one
(1) year from the consent election, and during the CBA
negotiation.

F. Collective Bargaining and Administration

1. Workers in the private sector have the right to collectively bargain. Wage laws, and
other labor laws merely state minimum requirements, and the employees are free to
establish terms and conditions of employment. (GSIS Family Bank v Sec. Villanueva,
2019, Leonen)

ATTY. ANSELMO S. RODIEL IV 98

2. Workers of the public sector have NO right to collectively bargain.
a. Employees of government corporations with original charters are subject to the
Civil Service Law. Hence, they cannot collectively bargain.
b. Employees of government corporations without original charters are covered by
the Labor Code.
c. However, they cannot negotiate the economic terms of employment, because the
Compensation and Position Classification System applies to all GOCCs,
chartered or non-chartered. Hence, they must course their petitions for changes
in the terms of employment through the Congress, NOT through collective
bargaining. (GSIS Family Bank v Sec. Villanueva, 2019)
3. What is the procedure to be observed in collective bargaining?
a. Written notice with a statement of its proposals and Reply
i. When a party desires to negotiate an agreement, it shal serve a written
notice upon the other party with a statement of its proposals. The other
party shall make a reply thereto not later than ten (10) calendar days from
receipt of such notice;
b. Differences arise on such notice and reply
i. Should differences arise on the basis of such notice and reply, either party
may request for a conference which shal begin not later than ten (10)
calendar days from the date of request.
c. NCMB's intervention if dispute is not settled
i. If the dispute is not settled, the Board shall intervene upon request of
either or both parties or at its own initiative and immediately call the
parties to conciliation meetings.The Board shall have the power to issue
subpoenas requiring the attendance of the parties to such meetings. It
shall be the duty of the parties to participate fully and promptly in the
conciliation meetings the Board may call;
d. Prohibition during conciliation proceedings
i. During the conciliation proceedings in the Board,the parties are
prohibited from doing any act which may disrupt or impede the early
settlement of the disputes; and
e. Efforts to settle disputes amicably and encourage voluntary arbitration
i. The Board shall exert all efforts to settle disputes amicably and encourage
the parties to submit their case to a voluntary arbitrator. (Article 261,
Labor Code)
4. What is Automatic Renewal Clause/Evergreen Clause Hold-over?
a. It shall be the duty of both parties to keep the status quo and to continue in full
force and effect the terms and conditions of the existing agreement during the 60-
day period and/or until a new agreement is reached by the parties. (Article 263,
Labor Code)
i. The Exclusive Bargaining Status Cannot go Beyond Five Years
1. In the event however, that the parties, by mutual agreement, enter
into a renegotiated contract with a term of three (3) years or one
which does not coincide with the said five-year term and said
agreement is ratified by majority of the members in the bargaining
unit, the subject contract is valid and legal and therefore, binds the
contracting parties. The same will however not adversely affect

ATTY. ANSELMO S. RODIEL IV 99

 the right of another union to challenge the majority status of the
incumbent bargaining agent within sixty (60) days before the
lapse of the original five (5) year term of the CBA. (FVC Labor
Union-Philippine Transport and General Workers Organization
vs. Sama-Samang Nagkakaisang Manggagawa Sa FVC-Solidarity
Of Independent and General Labor Organizations, G.R. No.
176249, November 27, 2009)
ii. Substitutionary Doctrine
1. Stated otherwise, the "substitutionary" doctrine only provides that
the employees cannot revoke the validly executed collective
bargaining contract with their employer by the simple expedient
of 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., v. BCI Employees and Workers Union-PAFLU, G.R. No. L-
24711, April 30, 1968)
5. EXAMPLES:
a. Q: On May 31, 2024, the collective bargaining agreement between Gretel
Corporation, Inc. (GCI) and Gretel Labor Union (GLU) expired. After several
negotiations, GCI and GLU signed a new collective bargaining agreement on
August 31, 2024, which obliged the company to pay a wage increase in favor of
the employees. GLU then demanded salary differentials starting June 1, 2024.
However, GCI argued that the provisions of the new collective bargaining
agreement as to the wage increase shall be prospective in application beginning
August 31, 2024. When shall the salary increase be reckoned? Explain. (2024
Bar Examination)
i. A: The salary increase shall be reckoned from June 1, 2024. Under the
Labor Code, any Collective Bargaining Agreement that the parties may
enter into shall, insofar as the representation aspect is concerned, be for a
term of five (5) years. No petition questioning the majority status of the
incumbent bargaining agent shall be entertained and no certification
election shall be conducted by the Department of Labor and Employment
outside of the sixty-day period immediately before the date of expiry of
such five-year term of the Collective Bargaining Agreement. All other
provisions of the Collective Bargaining Agreement shall be renegotiated
not later than three (3) years after its execution. Any agreement on such
other provisions of the Collective Bargaining Agreement entered into
within six (6) months from the date of expiry of the term of such other
provisions as fixed in such Collective Bargaining Agreement, shall
retroact to the day immediately following such date. If any such
agreement is entered into beyond six months, the parties shall agree on
the duration of retroactivity thereof. Here, the new collective bargaining
agreement was entered into within six (6) months from the date of
expiration of the terms of the previous collective bargaining unit. Thus,

ATTY. ANSELMO S. RODIEL IV 100

 the wage increase shall retroact to June 1, 2024, or the day immediately
following the expiration of the previous collective bargaining agreement.

G. Unfair Labor Practice

1. Nature
a. Unfair Labor Practice
i. Constitution - Violate the constitutional right of workers to self-
organization
ii. Interests - Inimical to the interests of labor and management
1. Include the right to bargain collectively
2. Otherwise deal with each other in an atmosphere of freedom and
mutual respect
iii. Industrial peace - Disrupt industrial peace
iv. Healthy Relations - Hinder the promotion of healthy and stable labor
management relations. (Art. 258)
b. NOT all illegal acts or unfair treatments are unfair labor practices. It only
becomes ULP once the right to self-organization has been violated. (Great Pacific
Life Employees Union v Great Pacific Life Assurance Corporation)
c. The person who alleges the ULP, i.e., the employee, has the burden of proving it
with substantial evidence. (UST Faculty Union v UST)
2. Aspect
a. Unfair labor practice
i. Violation of civil rights
ii. Criminal offense against the State. (Art. 258)
3. Jurisdiction
a. The civil aspect of ALL cases involving ULP shall be under the jurisdiction of the
Labor Arbiter, subject to the exercise by the President OR Secretary of Labor of
the powers vested in them by Articles 263 and 264.
b. Recovery of civil liability in the administrative proceedings (Labor Arbiter) bar
recovery under Civil Code. (Art. 258)
4. Condition sine qua non for institution of criminal action
a. No criminal prosecution may be instituted
i. Without a final judgment
ii. Finding ULP was committed
iii. In the administrative proceeding
1. During the pendency of the administrative proceedings
a. The running of prescription of the criminal offense, i.e., 1
year, is interrupted
b. But the finding of ULP in the administrative proceedings
i. Not be binding in the criminal case
ii. Nor be considered as evidence of guilt
iii. But merely as proof of compliance with requirements. (Art. 258
5. Definition

ATTY. ANSELMO S. RODIEL IV 101

 a. Unfair labor practice refers to acts that violate the workers’ right to organize. The
prohibited acts are related to the workers’ right to self-organization and to the
observance of a Collective Bargaining Agreement. Without that element, the acts,
no matter how unfair, are not unfair labor practices. (Philcom Employees Union
vs. Philippine Global Communications, 2006)
6. ULP based on totality of circumstances
a. In determining whether an act of unfair labor practice was committed, the
totality of the circumstances must be considered. If the unfair treatment does not
relate to or affect the workers' right to self-organize, it cannot be deemed unfair
labor practice. A dismissal of a union officer is not necessarily discriminatory,
especially when that officer committed an act of misconduct. In fact, union
officers are held to higher standards. While an act or decision of an employer
may be unfair, certainly not every unfair act or decision constitutes unfair labor
practice (ULP) as defined and enumerated under Art. 248 (258) of the Labor
Code. (Adamson University Faculty Union v. Adamson University, 2020)
7. ULP of employers
a. It shall be unlawful for an employer to commit any of the following unfair labor
practice:
i. To interfere with, restrain or coerce employees in the exercise of their
right to self-organization;
ii. To require as a condition of employment that a person or an employee
shall not join a labor organization or shall withdraw from one to which he
belongs;
iii. To contract out services or functions being performed by union members
when such will interfere with, restrain or coerce employees in the exercise
of their rights to self-organization;
iv. To initiate, dominate, assist or otherwise interfere with the formation or
administration of any labor organization, including the giving of financial
or other support to it or its organizers or supporters;
v. To discriminate in regard to wages, hours of work and other terms and
conditions of employment in order to encourage or discourage
membership in any labor organization. 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. Employees of
an appropriate bargaining unit who are not members of the recognized
collective bargaining agent may be assessed a reasonable fee equivalent
to the dues and other fees paid by members of the recognized collective
bargaining agent, if such non-union members accept the benefits under
the collective bargaining agreement: Provided, that the individual
authorization required under Article 242, paragraph (o) of this Code shall
not apply to the non-members of the recognized collective bargaining
agent;
vi. To dismiss, discharge or otherwise prejudice or discriminate against an
employee for having given or being about to give testimony under this
Code;

ATTY. ANSELMO S. RODIEL IV 102

 vii. To violate the duty to bargain collectively as prescribed by this Code;
viii. To pay negotiation or attorney’s fees to the union or its officers or agents
as part of the settlement of any issue in collective bargaining or any other
dispute; or
ix. To violate a collective bargaining agreement.
1. The provisions of the preceding paragraph notwithstanding, only
the officers and agents of corporations, associations or
partnerships who have actually participated in, authorized or
ratified unfair labor practices shall be held criminally liable. (Art.
248, Labor Code)
8. ULP of labor organizations
a. It shall be unfair labor practice for a labor organization, its officers, agents or
representatives:
i. To restrain or coerce employees in the exercise of their right to self-
organization. However, a labor organization shall have the right to
prescribe its own rules with respect to the acquisition or retention of
membership;
ii. To cause or attempt to cause an employer to discriminate against an
employee, including discrimination against an employee with respect to
whom membership in such organization has been denied or to terminate
an employee on any ground other than the usual terms and conditions
under which membership or continuation of membership is made
available to other members;
iii. To violate the duty, or refuse to bargain collectively with the employer,
provided it is the representative of the employees;
iv. To cause or attempt to cause an employer to pay or deliver or agree to
pay or deliver any money or other things of value, in the nature of an
exaction, for services which are not performed or not to be performed,
including the demand for fee for union negotiations;
v. To ask for or accept negotiation or attorney’s fees from employers as part
of the settlement of any issue in collective bargaining or any other
dispute; or
vi. To violate a collective bargaining agreement.
1. The provisions of the preceding paragraph notwithstanding, only
the officers, members of governing boards, representatives or
agents or members of labor associations or organizations who
have actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable. (Art. 249, Labor Code)
9. Gross Violations of Collective Bargaining Agreement is ULP
a. Gross violations of Collective Bargaining Agreement under Article 261 means
flagrant and/or malicious refusal to comply with the economic provisions of
such agreement. Such gross violations do not fall within the jurisdiction of the
Voluntary Arbitrator or panel of Voluntary Arbitrators because they are
considered as unfair labor practice (ULP) under Article 248 thus, cognizable by
the Labor Arbiter and the NLRC. (Isalama Machine Works Corporation vs.
National Labor Relations Commission, 1995)
10. EXAMPLE:

ATTY. ANSELMO S. RODIEL IV 103

 a. Q: In 2023, Star Maxima Corporation (SMC) and Astra Labor Union (ALU)
executed a collective bargaining agreement covering the rank-and-file employees
effective for five years. In 2024, Troy called for the removal of Andres as union
president and obtained majority support of ALU members through signature
campaign. Thereafter, Troy assumed the position of union president, changed
the name of ALU to Stella Labor Organization (SLO), adopted new by-laws, and
appointed other union officers. Andres informed SMC that ALU remained the
exclusive bargaining agent. On the other hand, Troy demanded recognition of
SLO and its new leadership to administer the collective bargaining agreement
and to receive the union dues. Eventually, SMC turned over the collected union
dues to the SLO treasurer. Aggrieved, Andres filed a complaint for unfair labor
practice against SMC alleging gross violation of the collective bargaining
agreement. Is SMC guilty of unfair labor practice? Explain. (2024 Bar
Examination)
i. A: No, SMC was not guilty of unfair labor practice. Under the Labor
Code, gross violations of Collective Bargaining Agreement shall mean
flagrant and/or malicious refusal to comply with the economic
provisions of such agreement. Further, there is unfair labor practice when
there is a gross violation of the Collective Bargaining Agreement. Here,
the recognition of SLO as the exclusive bargaining agent, and the
turnover of union dues to SLO involved the political provisions of the
Collective Bargaining Agreement. The economic provisions of the
Collective Bargaining Agreement were not involved. Thus, SMC is not
guilty of unfair labor practice.

H. Peaceful Concerted Activities – Labor Code, R.A. No. 6727

1. By labor organization
a. Strike
i. ―Strike‖ is defined as:
1. Any temporary stoppage of work
b. By the concerted action of the employees
c. As a result of an industrial or labor dispute. (Art. 219(o))
i. Can a mass leave be considered a strike?
1. Yes. A ―mass leave‖ happens when there is SIMULTANEOUS
availment by a LARGE number of employees of authorized
LEAVE BENEFITS. In such case, there is a temporary stoppage of
work by concerted action. (Naranjo v Biomedical Healthcare,
2012)
2. Valid strikes as distinguished from illegal strikes
a. 7 factors determining the legality of a strike (Azucena)
i. Is there a strike in the first place?
1. If there is no temporary stoppage of work, it is not a strike.
a. Hence, any employee can perform a protest during lunch
breaks or after-office hours, because that is not a strike.

ATTY. ANSELMO S. RODIEL IV 104

b. Is there a labor dispute?
i. A labor dispute is any controversy:
1. terms/conditions of employment or
2. the association/representation of persons NFMCA the terms and
conditions of employment. (Art. 219(l)
c. What is the purpose of the strike?
i. It must be due to bargaining deadlock and/or ULP only. The first one is
called as economic or voluntary strike, while the second one is called ULP
or involuntary strike.
ii. Under the Good Faith Strike Doctrine, a strike may be considered legal
where the union believed in good faith that the company committed ULP,
although it was subsequently found that there is no ULP. (Bacus v Ople,
1984)
1. There must be a RATIONAL BASIS for the belief that a ULP was
committed.
2. No labor union may strike involving inter-union and intra-union
disputes. (Art. 287(b)) Why? Because such disputes did not arise
from bargaining deadlock or ULP.
3. Non-gross violations of the CBA are non-strikeable issues. Hence,
a strike conducted due to such violations is illegal.
a. As an example, conflicting construction in the terms of the
CBA is not strikeable because it is not a flagrant/
malicious violation. Instead, the grievance machinery must
be resorted to.
b. However, a flagrant violation of a union security clause
(non-economic provision) constitutes a ULP because it
restrains the exercise of the right to self organization.
d. Is the employee prohibited by law to strike?
i. Government employees are not allowed to strike because they cannot
collectively bargain. The terms and conditions of their employment are
determined by law.
ii. Managerial/Confidential employees are not allowed to strike since they
cannot join unions.
iii. For bargaining deadlock, only the SEBA can declare a strike.
iv. For ULP, any legitimate labor organization can declare a strike.
1. In either case, a labor organization that is not legitimate, i.e., not
registered with DOLE, cannot declare a strike.
e. Are the requirements of the law complied with? (Art. 278)
i. Who: In case of a bargaining deadlock, only the SEBA can file the notice
to strike. In case of a ULP, any LLO can.
1. Refusal to recognize the LLO as the SEBA is a ULP (violation of
duty to bargain). Hence, such LLO can file the notice to strike.
2. File notice: A notice to strike must filed by the SEBA/LLO with
the DOLE
3. Cooling-off period:
a. For bargaining deadlock, It must be filed at least 30 days
before the intended date of strike.

ATTY. ANSELMO S. RODIEL IV 105

 b. For ULP, it must be filed at least 15 days.
c. For union busting, the 15-day cooling-off period shall not
apply
i. There is union busting in case of a) dismissal of
union officers duly elected, and b) the existence of
the union is threatened.
ii. During the cooling-off period, efforts must be
exerted at mediation and conciliation to effect a
voluntary settlement.
4. Strike vote:
a. A decision to declare a strike must be approved by a
MAJORITY of the TOTAL UNION MEMBERSHIP in the
bargaining unit concerned
i. Obtained by secret ballot
ii. In meetings or referenda called for the purpose
1. NOTE: the non-members in the bargaining
unit shall not vote.
5. File strike vote report:
a. In every case, the union or the employer shall furnish the
Secretary the results of the voting.
6. 7-day strike ban:
a. At least 7 days before the intended strike, subject to the
cooling-off period herein provided.
i. Even if the cooling-off period does not apply in
case of union busting, the LLO must still comply
with the filing of the strike vote report AND the 7-
day strike ban.
1. Why? Because the strike vote report is
needed to ensure that majority of the
members actually want to strike. Further,
the purpose of the 7-day strike ban is to
give the DOLE an opportunity to verify the
majority votes were obtained. (Phimco
Industries v Phimco Industries Labor
Association, 2010)
2. Further, it is a reasonable and valid
restriction on the right to strike because it is
a valid exercise of police power. (NSFW v
Ovejera, 1982)
ii. The strike voting and filing of the strike vote report
can be done within the cooling-off period.
1. However, the 7-day requirement shall be
counted from the day following the
expiration of the cooling-off period. (NSFW
vs. Ovejera, 1982)
2. Hence, the computation is always 30 days +
7 days.

ATTY. ANSELMO S. RODIEL IV 106

 a. Ratio: Again, the purpose is to
provide DOLE enough time to verify
the ballots.
7. Is there an assumption of jurisdiction by the NLRC, Secretary, or
President?
a. As a rule, NO temporary or permanent injunction or
restraining order in any case involving or growing out of
labor disputes shall be issued by any court or other entity,
except:
i. Article 225 (discussed later) and
ii. Article 279 (prohibited activities) of this Code. (Art.
266)
iii. To add, Art. 278, on assumption of jurisdiction of
the Secretary, is another exception.
b. Two (2) requisites:
i. Labor dispute - There exists a labor dispute causing
or likely to cause a strike/lockout
ii. Indispensable - In an industry indispensable to the
national interest (President determines)
1. The Secretary may assume jurisdiction over
the dispute and decide it; OR
2. The Secretary may certify the same to the
NLRC for compulsory arbitration
c. Effects:
i. Enjoin - Automatically enjoining the intended
1. strike/lockout
ii. If already taken place,
1. Return-to-work - All employees SHALL
immediately return-to-work (mandatory)
2. Resume operations - Employer SHALL
immediately resume operations; and
3. Readmit same terms - Employer SHALL
readmit all workers under the SAME
TERMS AND CONDITIONS prevailing
before the strike/lockout. (Art. 278(g))
iii. Consolidation - When the Secretary assumes
jurisdiction, ALL labor disputes which are
relevant/incidental to the certified case shall be
CONSOLIDATED/SUBSUMED/ABSORBED by
the certified case. The other proceedings shall give
way to the assumption of jurisdiction.
1. Hence, the Secretary can resolve issues
submitted to it and issues in the absorbed
pending labor cases. (International
Pharmaceuticals v Secretary of Labor, 1992)
iv. An employee who refuses to return-to-work
despite the assumption of jurisdiction can be

ATTY. ANSELMO S. RODIEL IV 107

 dismissed from the job. Why? Because it is
tantamount to abandonment of employment, i.e., 1)
failure to return to work without valid reason, and
2) intent to sever employment as clearly manifested
by the refusal to comply with the return-to-work
order. Further, criminal prosecution can be
instituted against him. (Art. 284) Lastly, the
Secretary may cite him in contempt.
v. The mere issuance of an assumption order
automatically carries with it a return-to-work
order, even if the directive to return to work is not
expressly stated in the order. (Telefunken v CA,
2000)
vi. A payroll reinstatement is not allowed. Why?
Because the provision states that the workers shall
be readmitted under the same terms and conditions
prevailing before the strike/lockout. A payroll
reinstatement is not the same as actual
reinstatement.
vii. In any case, before or at any stage of the
compulsory arbitration process, the parties may opt
to submit their dispute to voluntary arbitration.
(Art. 278(h)
1. As exception to the exception, the dispute
cannot be withdrawn if it is already
pending with the Supreme Court.
8. Were the means and methods of undertaking the strike valid?
a. The Doctrine of Means and Purposes provides that a strike
is legal when the lawful means concur with lawful
purpose.
i. Lawful purpose means the strike is for the purpose
of ULP (ULP strike) or collective bargaining
(economic strike) ONLY.
b. Lawful means provides that the strike must be pursued
within the bounds of the law:
i. No person engaged in picketing shall commit
violence/coercion/intimidation
ii. Nor can he obstruct the free ingress to or egress
from the employer’s premises
iii. Nor can he obstruct the public thoroughfares, i.e.,
highway (Art. 279(e)
1. In Toyota Phils. Corp Workers v NLRC,
2007, the Court ruled that there is illegal
strike when the union employed unlawful
means in the pursuit of its objective, such as
the prohibited acts under Art. 279.

ATTY. ANSELMO S. RODIEL IV 108

 2. Further, in Shell Oil Workers v Shell
Company, 1971, under the Means
Employed Test, a strike which is legal at its
inception may eventually be declared illegal
if illegal acts were committed during the
strike.
iv. A slowdown strike is one staged without the
workers quitting their work but by merely
slackening or by reducing their normal work
output. It is illegal because a valid strike requires
temporary stoppage of work.
v. A wildcat strike is one declared and staged without
filing the required notice of strike and without the
majority approval of the recognized bargaining
agent. Hence, it is illegal.
vi. A sit-down strike is a strike where the workers stop
working but do not leave their place of work. It is
illegal because it deprives the employer of his
property.
vii. A sympathy/sympathetic strike is a strike
conducted by employees who have no demands or
grievances of their own, but they strike to aid
others. It may happen within one establishment or
different establishments. It is illegal because there
is no labor dispute.
9. Is there an agreement between the parties not to strike?
a. The parties can agree on a no-strike no-lockout clause.
i. However, this clause applies ONLY to economic
strikes and NOT to ULP strikes. (Master Iron Labor
Union v NLRC, 1993)
ii. What are the effects of an illegal strike?
1. The employer may be authorized to
terminate the employment of:
a. Union officers who knowingly
participated in the illegal strike or in
the commission of other illegal acts;
and/or
b. Any worker who knowingly participated in the
commission of other illegal acts during the strike. (Art.
279(a) NCMB Primer on Strikes, Pickets, and Lockouts)
i. Hence, workers who knowingly participated in a
mere illegal strike cannot be terminated from
employment.
ii. ―Knowingly participated‖ includes a situation
where the union officers and the members a) ALL
agreed to commit illegal acts as a policy, and b)

ATTY. ANSELMO S. RODIEL IV 109

 there were widespread illegal acts during the
strike.
1. In any case, the members who participated
must still be identified to comply with the
right to due process.
2. However, if there are illegal acts on both
sides, i.e., from the employer and the union,
the employer cannot terminate the union
officers/workers. If they were terminated,
the workers are entitled to reinstatement
with backwages.
iii. Is an employee who participates in a lawful strike
deemed to have abandoned his job?
1. No. An employee who goes on strike is not
deemed to have abandoned his
employment but is merely exercising his
right to self-organization precisely to
protect his rights as an employee and/or to
obtain better working conditions.
iv. What is the effect of the hiring of replacements
during a lawful strike?
1. The mere participation of a worker in a
LAWFUL strike shall NOT constitute as a
ground for TERMINATION of
employment, even if a REPLACEMENT has
been hired during such strike.
a. What then is the status of the
employment of the replacements? It
depends on the agreement with the
employer. In the absence thereof,
they cannot be removed from the job
once the workers who struck return.
Why? That is not a just cause.
v. Are the strikers entitled to payment of wages
during the period of a lawful strike?
1. No, under the ―no work, no pay principle.‖
2. Exceptions:
a. When the employer illegally locked
the premises which compelled them
to strike
b. When the employer is guilty of the
worst forms of ULP
c. When the employer committed
discrimination in the rehiring of
strikers, such as refusing to readmit
those against whom there were
pending criminal cases

ATTY. ANSELMO S. RODIEL IV 110

 i. In these three instances, the
employer must pay their
wages from the time the
workers strike. Why?
Because the strike was
involuntary.
d. When the strikers abandoned the
lawful strike and applied to return
to work, the employer refused to
reinstate them.
i. In this case, the employer
must pay their wages from
the time of refusal to
reinstate. Why? Because the
strike was voluntary.
vi. Can an economic strike turn into a ULP strike?
1. Yes. It became a ULP strike when, in the
course of the economic strike, the right to
self-organization of the union members was
violated.
a. As example, during a lawful
economic strike, the employer
terminated all the union members
who joined the strike.
vii. What is a strike area?
1. It includes: (a) the establishment of the
employer struck against including run-
away shops, factories or warehouses and
other premises where members of the
bargaining unit carry out the operations
and business of the employer, and (b) the
area immediately before points of entrance
and exit of establishment struck against.
a. Hence, the strike can be conducted
in the premises of the run-away
shop.
10. Can an injunction prevent a valid strike?
a. As a rule, no because a valid strike is protected by law.
b. The exceptions are:
i. Threat - When illegal acts are threatened and will
be committed during the strike.
1. Basis? Art. 225(discussed later) and Art.
279(prohibited activities);
ii. Assumption of jurisdiction - In case of assumption
of jurisdiction of the Secretary over labor disputes
in industries indispensable to national interest.
11. Penalties for violation of the provisions on strikes/lockouts

ATTY. ANSELMO S. RODIEL IV 111

 a. Any person violating any of the provisions of Article 264
of the Labor Code (performing any of the above prohibited
activities) shall be punished by a fine of not exceeding
P500.00 and/or imprisonment for not less than one (1) day
nor more than six (6) months. (Art. 284)
b. Picket
i. ―Picketing‖ means the right of workers during
strikes consisting of:
1. The marching to and from before the
premises of an establishment involved in a
labor dispute,
2. Generally accompanied by the carrying and
display of signs, placards or banners with
statements relating to the dispute.
ii. ―Picketing‖ can be done with or without temporary
stoppage of work.
1. Hence, it can be committed without a strike.
iii. The requisites of lawful picketing are:
1. It was peacefully carried out
2. No act of violence/coercion/intimidation
3. Ingress/egress of company premises is/are
not obstructed
4. Public thoroughfares were not impeded.
(Art. 279(e))
iv. Effects of unlawful picketing
1. The strike, if any, is illegal; and/or
2. Criminal prosecution for the person who
knowingly participated in the illegal acts.
v. Can a third person file an injunction against the
picketers/strikers?
1. Yes. The basis is not the Labor Code but the
Civil Code, i.e., Law on Property.
2. By employer
c. Lockout
i. ―Lockout‖ is defined as:
1. The temporary refusal of an employer
2. To furnish work
3. As a result of an industrial or labor dispute.
(Art. 219(p))
ii. Requisites of a valid lockout:
1. The same as strikers, with modifications
such as:1. Strike Vote - the lockout must be
approved by a majority vote of the
members of the Board of
Directors/partners, obtained by secret
ballot, in a meeting duly called for the
purpose.

ATTY. ANSELMO S. RODIEL IV 112

 iii. Prohibited activities by employer during picketing:
1. PEACEFUL PICKETING - No person shall
obstruct/impede/ interfere with, by
force/violence/coercion/threats/intimidati
on, any PEACEFUL picketing by employees
during any labor controversy or in the
exercise of the right to self-organization, or
collective bargaining. (Art. 280)
2. STRIKE BREAKER - No employer shall use
or employ any strike breaker, nor shall any
person be employed as a strike-breaker.
iv. What are the effects of an illegal lockout?
1. Any worker whose employment has been
terminated as a consequence of an unlawful
lockout shall be entitled to reinstatement
with full backwages
f. EXAMPLES:
i. Q: Lazara Corporation (LC) and Lazara Employees Union (LEU) forged a
collective bargaining agreement (CBA). During the freedom period, a
certification election was conducted where LEU lost to Samahan ng
Manggagawa sa Lazara (SML), a rival union in the same establishment.
SML then sent a letter to LC demanding for renegotiation of the existing
CBA. LC refused to renegotiate the CBA claiming its validity for two
more years. SML filed a notice of strike against LC on the ground of
Unfair Labor Practice for the alleged refusal of the latter to comply with
its duty to bargain collectively. Is the notice of strike meritorious? Explain
briefly. (2023 Bar Examination)
1. A: No, the notice of strike was not meritorious. Case law dictates
that a strike or lockout notice shall be filed with the National
Conciliation and Mediation Board (NCMB) at least 15 days before
the intended date of the strike or lockout if the issues raised are
unfair labor practices, or at least 30 days before the intended date
thereof if the issue involves bargaining deadlock. Further, the
―substitutionary doctrine‖ provides that the employees cannot
revoke the validly executed collective bargaining contract with
their employer by the simple expedient of changing their
bargaining agent. Thus, the employer will not be liable for unfair
labor practice, in case it refuses to bargain collectively during the
subsistence of the validly executed collective bargaining
agreement. Here, the Collective Bargaining Agreement (CBA) was
still valid for two (2) more years. Despite the election of SML as
the new collective bargaining agent of the employees, LC did not
have a duty to re-negotiate the terms of the CBA. Thus, the notice
of strike was not meritorious, since LC did not commit any unfair
labor practice.
ii. Q: Adarna Manufacturing Company (AMC) and Adarna Employees
Union (AEU) entered into collective bargaining negotiations but reached

ATTY. ANSELMO S. RODIEL IV 113

 an impasse. AEU then filed a notice of strike before the National
Conciliation and Mediation Board, which immediately conducted
conciliation meetings to avert the strike. Fifteen days after the filing of the
notice, and despite the conciliation proceedings, AEU staged a strike with
the participation of 50% of its members. Is the strike legal? Briefly explain.
1. A: No, the strike was illegal. Case law dictates that a strike, to
enjoy the protection of law, must observe certain procedural
requisites. First, a notice of strike, with the required contents, that
must be filed with the DOLE, specifically the Regional Branch of
the NCMB. Second, a cooling-off period of thirty (30) days must
be observed between the filing of notice and the actual execution
of the strike, in case of bargaining deadlock, or fifteen (15) days, in
case of unfair labor practice. However, the cooling-off period need
not be observed if there was union busting where the union's
existence is threatened. Third, before a strike is actually
commenced, a strike vote should be taken by secret balloting, with
a 24-hour prior notice to NCMB. The decision to declare a strike
requires the secret-ballot approval of majority of the total union
membership in the bargaining unit concerned. Fourth, the result
of the strike vote should be reported to the NCMB at least seven
(7) days before the intended strike or lockout, subject to the
cooling-off period. Here, there was a bargaining deadlock
between AMC and AEU. However, the cooling-off period of 30
days between the filing of notice of strike and the actual execution
of strike was not observed. Further, a strike vote was not
conducted by the union. Lastly, since there was no strike vote, the
result of the same was not reported to the NCMB at least 7 days
before the intended strike. Thus, the strike was illegal.
iii. Q: Define, explain or distinguish the following terms: (c) Strikes and
lockouts (2019 Bar Examination)
1. A: Strike means any temporary stoppage of work by the concerted
action of the employees as a result of an industrial or labor
dispute. While lockout means temporary refusal of an employer to
furnish work as a result of and industrial or labor dispute.

XI. JURISDICTION AND RELIEFS

Republic Act No. 10396, Department Order No. 151-16

A. NLRC; Labor Arbiters

1. Labor Arbiters
a. Exclusive and original jurisdiction of the Labor Arbiter
i. ULP - Unfair labor practice
ii. Termination - Termination dispute

ATTY. ANSELMO S. RODIEL IV 114

 iii. Strike - Violation of Art. 279 (prohibited activities) and questions
involving legality of strikes/lockouts
iv. Damages employment - Claims for actual, moral, exemplary and other
forms of damages arising from the employer-employee relations
v. Reinstatement + terms employment - If accompanied with a claim for
reinstatement, those cases that workers may file involving wages, rates of
pay, hours of work and other terms and conditions of employment;
vi. Other employment + exceed P5000 + regardless reinstatement -Except
claims for Employees Compensation, Social Security, Medicare and
maternity benefits, all other claims arising from employer-employee
relations, including those of persons in domestic or household service,
involving an amount exceeding five thousand pesos (P5,000.00),
regardless of whether accompanied with a claim for reinstatement. (Art.
224)
vii. OFW - Monetary claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino
workers for overseas deployment including damage, and death and
disability benefits. (RA 8042, as amended)
viii. Contested cases - Art. 128(b), i.e., Except in cases where the employer
contests the findings of the labor employment and enforcement officer
and raises issues supported by documentary proofs which were not
considered in the course of inspection. (Brokenshire Memorial Hospital,
Inc. v. Minister of Labor and Employment, 1990)
ix. Enforce compromise non-compliance - Enforcement of compromise
agreements when there is non-compliance or prima facie evidence that it
was obtained through fraud/coercion in Art. 233
x. Wage distortion - Wage distortion dispute in unorganized establishments
not voluntarily settled by the parties with the NCMB (RA 6727)
b. Unfair labor practice
i. The civil aspect of all cases involving ULP shall be under the jurisdiction
of the LA. The criminal aspect shall be under the jurisdiction of the MTC.
1. To remember, no criminal action for ULP shall be instituted
without a finding of ULP in the administrative case. (Art. 258)
ii. Recovery of damages in the administrative proceedings (LA) shall BAR
recovery of damages under the Civil Code. (Art. 258)
iii. If gross violation of CBA, it is LA. If not ―gross,‖ it is the grievance
machinery, and later a voluntary arbitrator.
c. Termination disputes
i. Labor Arbiter v Grievance machinery
1. When the dispute is still the interpretation/implementation/
enforcement of CBA provisions/company personnel policies -
Grievance machinery then voluntary arbitration
a. However, failure of the employer to raise that the
grievance machinery is the proper body confers
jurisdiction to the Labor Arbiter. (Atlas Farms v NLRC,
2002)

ATTY. ANSELMO S. RODIEL IV 115

 b. But when there is actual termination already - Labor
Arbiter
2. Labor law v Commercial law
a. Despite being an employee, the RTC has jurisdiction
because it is an intra-corporate dispute (Discussed below)
d. Strike/Lockout
e. Damages arising from employment relations
i. This is enacted to compare with RD (Art. 129). For the claim for damages,
LA has jurisdiction, not RD.
ii. For the monetary claims arising from employer-employee relations, RD
may have the jurisdiction. (Art. 129)
f. Reinstatement + involving terms and conditions of employment
i. This is enacted to compare with RD. If there is a claim for reinstatement,
LA has jurisdiction, not RD.
g. Other civil cases + employer-employee relationship + exceed P5,000 + regardless
if there is a prayer for reinstatement or not
i. This is enacted to compare with RD. If the aggregate monetary claims
exceed P5,000, LA has jurisdiction, not RD.
h. OFW
i. What are the requisites for a foreign law to govern an OFW employment
contract? (Choice of law)
1. It is expressly stipulated that the specific foreign law shall govern
2. The foreign law must be proven before the courts pursuant to
Philippine rules on evidence
3. The foreign law is not contrary to LMGPP of the Philippines 4.
The overseas employment contract must be processed through the
POEA. (IPAMS v De Vera, 2016)
ii. How do we relate this to Saudia v Rebesencio, 2015, Leonen and Manila
Hotel v NLRC, 2000? (Forum non conveniens)
1. Saudia/Manila Hotel determine if the Philippines can exercise
jurisdiction over the labor dispute, i.e., forum non conveniens
(Civil law)
2. IPAMS determines how can a foreign law govern an overseas
employment contract in Philippine courts, i.e., choice of law of the
parties (Civil law)
a. Hence, there can be a scenario where the governing law for
the dispute is USA law but the Philippines is the proper
forum to hear the case.
iii. Application (Manila Hotel v NLRC, 2000)
1. The employment contract. — Respondent Santos was hired
directly by the Palace Hotel, a foreign employer, through
correspondence sent to the Sultanate of Oman, where respondent
Santos was then employed. He was hired without the intervention
of the POEA or any authorized recruitment agency of the
government.

ATTY. ANSELMO S. RODIEL IV 116

 a. If he was hired with the intervention of POEA, the
Philippines will assume jurisdiction, as shown in Saudia v
Rebesencio, 2015, Leonen.
i. It is convenient, since the contract was executed in
the Philippines
ii. The Philippines can make an intelligent decision
since lex loci contractus governs the contract, i.e.,
Philippine law
iii. The Philippines has the power to enforce the
decision through the recruitment agency.
b. Under the rule of forum non conveniens, a Philippine
court or agency may assume jurisdiction over the case if it
chooses to do so provided that: (CIE)
i. Philippine court is one to which the parties may
Conveniently resort to;
ii. Philippine court is in a position to make an
Intelligent decision as to the law and the facts; and
iii. Philippine court has or is likely to have power to
Enforce its decision conditions are unavailing in the
case at bar.
c. Not Convenient. — We fail to see how the NLRC is a
convenient forum given that all the incidents of the case —
from the time of recruitment, to employment to dismissal
occurred outside the Philippines. The inconvenience is
compounded by the fact that the proper defendants, the
Palace Hotel and MHICL are not nationals of the
Philippines. Neither are they "doing business in the
Philippines." Likewise, the main witnesses, Mr. Shmidt
and Mr. Henk are non-residents of the Philippines.
d. No power to determine applicable law. — Neither can an
intelligent decision be made as to the law governing the
employment contract as such was perfected in foreign soil.
This calls to for the application of the principle of lex loci
contractus (the law of the place where the contract was
made).38
e. No power to determine the facts. — Neither can the NLRC
determine the facts surrounding the alleged illegal
dismissal as all acts complained of took place in Beijing,
People's Republic of China. The NLRC was not in a
position to determine whether the Tiannamen Square
incident truly adversely affected operations of the Palace
Hotel as to justify respondent Santos' retrenchment.
f. PRINCIPLE OF EFFECTIVENESS, no power to execute
decision. — Even assuming that a proper decision could be
reached by the NLRC, such would not have any binding
effect against the employer, the Palace Hotel. The Palace
Hotel is a corporation incorporated under the laws of

ATTY. ANSELMO S. RODIEL IV 117

 China and was not even served with summons.
Jurisdiction over its person was not acquired.
i. NOTE: The doctrine is ―forum non conveniens.‖
Obviously, ―convenience‖ should be one of the
elements of the doctrine.
ii. NOTE: The doctrine is ―choice of law.‖ Hence, the
parties must have ―chosen/stipulated‖ the foreign
law as one of the elements.
i. Contested cases
i. This is connected to RD (Art. 128). If the findings of the labor officers are
contested by the employer and it raised issues supported by documentary
proofs that were not considered in the course of inspection, the RD
cannot issue the writ of execution. Instead, the issue shall be litigated
with the Labor Arbiter.
j. Enforce compromise non-compliance
k. Wage distortion
i. For the wage order, the petition must be filed with the RTWPB,
appealable to NPWC
ii. For the wage distortion itself:
1. In case of organized establishment - grievance machinery and
voluntary arbitration
2. In case of unorganized establishment - NCMB and Labor Arbiter
l. What are the exceptions to the original and exclusive jurisdiction of the LA?
i. Assumption of jurisdiction - Assumption of jurisdiction by the Secretary
of Labor in case of labor disputes that would likely cause strikes/lockouts
in industries indispensable to national interest. (Art. 278(g))
ii. Voluntary arbitration - When upon agreement of the parties, the
voluntary arbitrator shall hear and decide ALL OTHER LABOR
DISPUTES including ULP and bargaining deadlocks. (Art. 275)
iii. Employment Incidental; Without reference to Labor Code - Not every
controversy or money claim by an employee against the employer or
vice-versa is within the exclusive jurisdiction of the labor arbiter. Actions
between employees and employer where the employer-employee
relationship is merely incidental and the main cause of action precedes
from a different source of obligation is within the exclusive jurisdiction of
the regular court. (Halagueña v PAL, 2009) Thus, where the principal
relief sought is to be resolved not by reference to the Labor Code or other
labor relations statute or a collective bargaining agreement but by the
general civil law, the jurisdiction over the dispute belongs to the regular
courts of justice and not to the labor arbiter and the NLRC. (Halagueña v
PAL, 2009) In the case, petitioners alleged that their CBA with PAL is
unlawful and unconstitutional because it allegedly discriminates against
female flight attendants. Hence, the case is under the jurisdiction of
regular courts, not the LA.
iv. Intra-corporate disputes
1. Relationship test
a. Between corporation and public;

ATTY. ANSELMO S. RODIEL IV 118

 b. Between corporation and stockholders/members/officers
3. Between corporation and State, for franchises/licenses 4.
Among stockholders themselves
2. Nature of controversy test
a. The dispute pertains to the rights and obligations of the
parties under the Corporation Code/internal/intra-
corporate regulatory rules of the corporation. (Cacho v
Balagtas, 2018)
3. The corporate officers are the president/secretary/treasurer/such
other officers as may be provided in the BYLAWS. Hence, a
position must be expressly mentioned in the by-laws to be
considered a corporate officer. Thus, an office created pursuant to
a ―by-law enabling provision‖ is not a corporate office. (Matling
Industrial v Ceros, 2010)
a. As a result, the labor dispute shall be heard by the LA.
4. Who has jurisdiction over dismissal of directors/corporate
officers?
a. It is an intra-corporate dispute which is cognizable by the
RTC, not the LA.
b. A corporate’s officer dismissal is always a corporate act.
(Locsin v Nissan Lease Philippines, 2010)
2. NLRC
a. Exclusive and original
i. Certified cases to the NLRC for compulsory jurisdiction by the Secretary
of Labor, i.e., for labor disputes causing strikers/lockouts in industries
indispensable to national interest
ii. Contempt cases committed before the NLRC
iii. Injunction cases under Art. 225(e) and Art. 278 (Prohibited activities
during strikers/lockouts
b. Appellate
i. Cases decided by the Labor Arbiters under Art. 229, RA 8042, and on
wage distortions in unorganized establishment
1. For Art. 229, the ground can be grave abuse of discretion, question
of law, or serious errors in the findings of fact.
2. Further, in case the judgment involves a monetary award, an
appeal by the employer may be perfected only upon the posting
of a bond in the amount EQUIVALENT to the monetary award in
the judgment appealed from.
ii. Denial of a claim of a 3rd party where property was levied by the sheriff
of Labor Arbiter. (Yupangco Cotton v Mendoza, 2005)
iii. Cases decided by the Regional Offices of the DOLE in the exercise of
adjudicatory functions under Art. 129 over monetary claims not exceed
P5000
c. What is the effect of reversal of the Labor Arbiter’s order of reinstatement?
i. The reinstated employee has NO DUTY TO RETURN the salary he
received, during the period of reinstatement. Otherwise, the situation

ATTY. ANSELMO S. RODIEL IV 119

 would run counter to the immediately executory nature of an order of
reinstatement. (Wenphil v Abing,2014)
d. What is the remedy from an adverse decision of the NLRC?
i. The remedy from an adverse decision of the NLRC is a petition for
certiorari under Rule 65 with the CA.
1. Hence, the decision of the NLRC is non-appealable.
2. The period to file a Motion for Reconsideration is 10 days.
3. The period to file the petition for certiorari is still 60 days.
ii. To compare, the decision of the voluntary arbitrator is appealable. A
petition for review under Rule 43 shall be filed with the CA
iii. Jurisdiction of the Labor Arbiter as distinguished from the Regional
Director
1. Discussed below in Regional Director’s jurisdiction
iv. Requirements to perfect appeal to National Labor Relations Commission
(Bond is also required for appeal to the RD in Art. 128, not Art. 129)
1. 10 calendar days
a. The appeal must be filed within 10 CALENDAR days from
receipt of the decision. (Art. 229)
b. It is not working days. Hence, if the last day falls on a
Sunday, the losing party cannot file the appeal on the next
day. (Vir-Jen Shipping v NLRC, 1982)
2. Grounds
a. The grounds relied upon are ANY of the following:
i. Fraud - Decision is secured through Fraud,
coercion, graft, or corruption
ii. Abuse - Prima facie evidence of Abuse of discretion
iii. Law - Purely question of law
iv. Fact - Serious errors in the findings of fact + if not
corrected, would cause grave or irreparable
damage. (Art. 229)
3. Monetary award; Employer post BOND
a. In case the appellant is the employer and the judgment
involves a monetary award, the employer must post a
BOND in the amount equivalent to the MONETARY
AWARD in the judgment. (Art. 229) It can be cash, surety,
or property bond.
4. Verified
a. It must be verified
5. Memorandum
a. It shall be in the form of a memorandum of appeal
6. 3 copies
a. 3 copies of the memorandum (2011 NLRC Rules of
Procedure)
7. The employer may file a MOTION TO REDUCE THE BOND,
provided:
a. Meritorious - Meritorious grounds

ATTY. ANSELMO S. RODIEL IV 120

 b. Bond Reasonable 10% - Accompanied by posting of a
BOND in a reasonable amount, i.e., 10% of the monetary
award
i. This bond shall be provisionally deemed as the
reasonable amount.
ii. The foregoing shall not unduly hinder the NLRC’s
exercise of its discretion, since it is only provisional.
Hence, the NLRC retains its authority and duty to
resolve the motion and determine the final amount
of bond.
8. After posting the bond in the required percentage, i.e., 10%, the
period to perfect an appeal is deemed suspended.
a. If the NLRC orders that the appellant must pay an amount
greater than 10%, he shall be given 10 days AFTER notice
of the NLRC order to perfect the appeal by posting the
required appeal bond. (McBurnie v Ganzon, 2013)
b. Obviously, if the NLRC deems 10% as the reasonable
amount, the appeal is deemed perfected at the time of the
order of the NLRC.
v. Reinstatement and/or execution pending appeal
1. The decision of the Labor Arbiter REINSTATING the dismissed
employee,
2. Insofar as the REINSTATEMENT ASPECT is concerned
3. Shall be IMMEDIATELY executory pending appeal
a. The employee shall be ADMITTED BACK to work, in the
same terms and conditions prevailing before the dismissal;
OR
b. Be reinstated in the PAYROLL.
i. The posting of bond by the employer shall NOT
STAY the execution of the reinstatement aspect.
(Art. 229)
4. What about the decision of the NLRC/CA granting
reinstatement?
a. It is not immediately executory. Art. 229 only applies to
the decision of the Labor Arbiter.
5. What is the extent of the immediately executory decision?
a. Only the reinstatement aspect is immediately executory.
The monetary awards, such as backwages, are not.
6. What is the remedy of the dismissed employee in case the
employer refuses to reinstate him?
a. If the employer refuses to reinstate the dismissed
employee, the Labor Arbiter shall:
i. Immediately issue a writ of execution, even
pending appeal,
ii. Directing the employer to immediately reinstate
him, and

ATTY. ANSELMO S. RODIEL IV 121

 iii. To pay the accrued salaries as a consequence of
such reinstatement. (2011 NLRC Rules of
Procedure)
7. Are the salaries earned by the reinstated employee, during the
period of reinstatement, recoverable in case the employer
ultimately wins the suit before the NLRC/CA/SC?
a. No. The reinstated employee has NO DUTY TO RETURN
the salary he received, during the period of reinstatement.
Otherwise, the situation would run counter to the
immediately executory nature of an order of reinstatement.
(Wenphil v Abing, 2014)
b. The "refund doctrine" easily demonstrates how a favorable
decision by the Labor Arbiter could harm, more than help,
a dismissed employee. The employee, to make both ends
meet, would necessarily have to use up the salaries
received during the pendency of the appeal, only to end
up having to refund the sum in case of a final unfavorable
decision. It is mirage of a stop-gap leading the employee to
a risky cliff of insolvency. (Garcia v PAL)
8. Lastly, Art. 229 is an order of reinstatement which is immediately
executory, pending appeal, while Art. 294 is an order of
reinstatement pursuant to a final and executory judgment.
Further, Art. 229 does not require an issuance of a writ of
execution, while Art. 294 requires the same.

B. 2011 NLRC Rules of Procedure, as amended, Rule VI

1. Concept
a. The 2011 NLRC Rules of Procedure are a set of rules governing arbitration
proceedings before the Labor Arbiters and the Commission. The rules include
definitions of terms, procedures for filing complaints, and rules for the filing of
pleadings through registered mail or courier authorized by the Commission.
b. Effects of certified labor disputes under 2011 NLRC Rules of Procedure
c. The effects are the following:
i. Upon certification, the intended or impending strike or lockout is
automatically enjoined, notwithstanding the filing of any motion for
reconsideration of the certification order nor the non-resolution of any
such motion which may have been duly submitted to the Office of the
Secretary of Labor and Employment. If a work stoppage has already
taken place at the time of the certification, all striking or locked out
employees shall immediately return to work and the employer shall
immediately resume operations and readmit all workers under the same
terms and conditions prevailing before the strike or lockout.
ii. All cases between the same parties, except where the certification order
specifies, otherwise the issues submitted for arbitration which are already
filed or may be filed, and are relevant to or are proper incidents of the
certified case, shall be considered subsumed or absorbed by the certified

ATTY. ANSELMO S. RODIEL IV 122

 case, and shall be decided by the appropriate Division of the
Commission.
1. The parties to a certified case, under pain of contempt shall inform
their counsels and the Division concerned of all cases pending
with the Regional Arbitration Branches and the Voluntary
Arbitrators relative or incident to the certified case before it.
2. Whenever a certified labor dispute involves a business entity with
several workplaces located in different regions, the Division
having territorial jurisdiction over the principal office of the
company shall acquire jurisdiction to decide such labor dispute;
unless the certification order provides otherwise.
2. Effects of defiance of certification order under the 2011 NLRC Rules of Procedure
a. Non-compliance with the certification order of the Secretary of Labor and
Employment shall be considered as an illegal act committed in the course of the
strike or lockout,and shall authorize the Commission to enforce the same under
pain of immediate disciplinary action, including dismissal or loss of employment
status or payment by the locking-out employer of backwages, damages and /or
other affirmative relief, even criminal prosecution against the liable parties. The
Commission may also seek the assistance of law enforcement agencies to ensure
compliance and enforcement of its orders and resolutions.
3. Technical Rules are Not Binding
a. It is a basic rule in evidence that each party must prove his affirmative allegation.
While technical rules are not strictly followed in the NLRC, this does not mean
that the rules on proving allegations are entirely dispensed with. Bare allegations
are not enough; these must be supported by substantial evidence at the very
least. (Protective Maximum Sec. Agency vs. Fuentes, 2015)
4. Injunction
a. No injunction rule;
i. General Rule
1. No temporary or permanent injunction or restraining order in any
case involving or growing out of labor disputes shall be issued by
any court or other entity. (Article 266,Labor Code)
ii. What are the exceptions to the injunction rule?
1. Except as otherwise provided in Articles 225 [218] and 279 [264] of
this Code. (Article 266, Labor Code)

C. Bureau of Labor Relations

1. Original and exclusive jurisdiction

a. Intra-union conflicts or ―internal union disputes‖
i. Any conflict between and among union members,
1. including grievances arising from any violation of the rights and
conditions of membership, violation of or disagreement over any
provision of the union’s constitution and by-laws, or disputes
arising from chartering or affiliation of union. (DO No. 40-03, Rule
I, Sec. 1(bb))
2. Inter-union conflicts or “representation disputes”

ATTY. ANSELMO S. RODIEL IV 123

 a. Any conflict between and among legitimate labor unions
i. involving representation questions for purposes of collective bargaining
or to any other conflict or dispute between legitimate labor unions. (DO
No. 40-03, Rule I, Sec. 1(x))
3. Other related labor relations dispute (DO No. 40-03)
a. Cancellation or registration of unions and worker’s associations (Art. 245)
i. This petition can be filed by any interested person, such as the employer.
Hence, it is ―other‖ labor relations dispute.
b. The registration of unions shall also be filed with the Bureau. (Art. 242)
c. The Mediator-Arbiter is an officer of the BLR authorized to hear and decide
representation cases, inter/intra-union disputes and other related labor relations
disputes, except cancellation of union registration cases.
i. Decisions of the Mediator-Arbiter (Labor Relations Division) can be
appealed to the BLR Director within 10 days from receipt of notice. (Art.
243)

D. Inter/Intra Union Disputes and Other related Labor Relations Disputes

1. Distinguish inter-union disputes from intra-union disputes.

a. "Inter-Union Dispute" refers to any conflict between and among legitimate labor
unions involving representation questions for purposes of collective bargaining
or to any other conflict or dispute between legitimate labor unions while "Intra-
Union Dispute" refers to any conflict between and among union members,
including grievances arising from any violation of the rights and conditions of
membership, violation of or disagreement over any provision of the union's
constitution and by-laws, or disputes arising from chartering or affiliation of
union. (D.O. No. 40-03)
2. Voluntary Arbitration, Tripartite Voluntary Arbitration Advisory Council
a. Voluntary Arbitration
i. Voluntary arbitration refers to the mode of settling labor-management
disputes by which the parties select a competent, trained and impartial
third person who shall decide on the merits of the case and whose
decision is final and executory. (NCMB Revised Procedural Guidelines in
the Conduct of Voluntary Arbitration Proceedings, Section 1 [d], Rule II
[Oct. 15, 2004]) The voluntary arbitration is presided by the voluntary
arbitrator.
b. Compulsory Arbitration
i. It is the process of settlement of labor disputes by a government agency
which has the authority to investigate and to make an award which is
binding on all the parties, and as a mode of arbitration where the parties
are compelled to accept the resolution of their dispute through arbitration
by a third party.‖ (Ludo & Luym Corp., vs. Saornido, , 2003) The
compulsory arbitration is presided by the Labor Arbiter.
c. Jurisdiction
i. Grievance in organized establishments. (Art. 274)

ATTY. ANSELMO S. RODIEL IV 124

 1. To recall, grievance is a complaint arising from the interpretation
or implementation of the CBA/company
rules/regulations/personnel policies/established
practices/productivity incentive. (Art. 274) Violations of the CBA
not gross in character is also a grievance.
2. If the issue is not settled with the grievance machinery, the
grievance will be resolved by the Voluntary Arbitrator.
ii. Any labor dispute, including ULP and bargaining deadlock, upon
Agreement of the parties. (Art. 275)
1. If no agreement, the Labor Arbiter, usually, has jurisdiction over
the subject matter.
iii. Wage distortion issues arising from the application of wage order in
organized establishments. (Art. 124)
1. If the issue is not settled with the grievance machinery.
2. Remedies
a. The decision of the voluntary arbitrator shall be appealable
to the CA, as provided under Rule 43. (Samahan ng mga
Manggagawa sa Hyatt v Magsalin, 2011)
b. The period to appeal the decision of the Voluntary
Arbitrator is 15 days. The 10-day period stated in Art. 276
should be understood as the period where the adverse
party may file a motion for reconsideration. Only after the
resolution of the motion for reconsideration may the
aggrieved party appeal to the CA under Rule 43. (Guagua
National Colleges v CA, 2018)

E. National Conciliation Mediation Board

1. Jurisdiction
a. ALL issues arising from labor and employment shall be subject to mandatory
conciliation-mediation
i. Exception: Any or both parties involved in the dispute may pre-terminate
the conciliation-mediation proceedings and require referral or
endorsement to the appropriate DOLE agency or office which has
jurisdiction over the dispute, or if both parties so agree, refer the
unresolved issues to voluntary arbitration. (Art. 228)
b. Wage distortion issues in UNORGANIZED establishments
i. Submit issue before the NCMB for conciliation after endeavors to correct
have failed;
ii. If not fruitful within 10 days, refer to the NLRC for arbitration to be
decided within 20 days from submission
iii. Nature of proceedings
1. Non-litigious, non- adversarial, less expensive, and expeditious.

ATTY. ANSELMO S. RODIEL IV 125

 2. Conciliation as distinguished from mediation
c. Preventive mediation
i. This refers to the potential labor dispute subject for conciliation and
mediation assistance
1. Sought by either or both parties; or
2. Upon initiative of the NCMB to avoid the occurrence or actual
labor dispute
a. It may be sought by a party at any time he chooses to do
so, and for any potential labor dispute
b. The NCMB usually initiates preventive mediation, during
the cooling-off period, after the filing of notice to
strike/lockout.
ii. Who may file a request for preventive mediation, notice of strike or
lockout?
1. The president or any authorized representative of a SEBA in cases
of bargaining deadlocks and ULPs
2. In the absence of a SEBA, the president or any authorized
representative of a LLO in cases of ULPs
3. The employer or any authorized representative in cases of
bargaining deadlocks and ULPs.
iii. Where to file?
1. A request for preventive mediation, or a notice to strike/lockout
shall be filed with the Regional Branch of NCMB having
jurisdiction over the workplace of the union members
a. For notice to strike/lockout, the cooling-off period, if any,
shall be observed.
iv. Initial action of the Conciliator-Mediator
1. He shall properly identify and validate the real issues raised in the
notice.
2. Further, he shall ascertain with the parties the specific acts of ULP
which were alleged to have been committed.
3. Lastly, he shall exert all efforts to enable the parties to settle the
dispute amicably.
v. Action on Strikeable Issues
1. Marathon conciliation conference/s to settle the dispute - During
cooling-off period
2. Advise the parties to use other voluntary modes of dispute
settlement.
3. Determination as to whether there is gross violation of CBA is
lodged in another forum, i.e., Labor Arbiter.
vi. Action on Non-Strikeable Issues
1. Conciliator-mediator shall earnestly convince the party concerned
to treat the notice of strike as preventive mediation or voluntarily
withdraw the notice without prejudice to further conciliation in
instances where the notice is anchored on ANY of the following
grounds:
a. Inter-union or intra-union dispute (not with the employer)

ATTY. ANSELMO S. RODIEL IV 126

 b. Issues already bought to voluntary or compulsory
arbitration
c. Mere violation of the CBA involving political provisions
(not economic; not ULP); or
d. Labor standard violations.
i. These are instances of NON-strikeable issues.
2. Conversion of Notice Strike/Lockout to Preventive Mediation
a. In converting a notice of strike/lockout to a preventive
mediation case, the following guidelines shall be observed:
i. Clearly determine whether the issue/s raised
is/are valid ground/s for Notice to Strike/Lockout
ii. If conversion is warranted, a written
recommendation from the Conciliator-Mediator
handling the case is required, after due
consultation with the Branch Director;
iii. The written recommendation must be formally
endorsed to the Branch Director for approval;
iv. The conversion shall be done before the cooling-off
period expires;
v. Parties concerned must be formally notified of the
action taken by the Regional Branch through a later
signed by the Conciliator-Mediator handling the
case and approved by the Branch Director;
vi. The notice shall be dropped from the dockets and
to be renumbered as a preventive mediation case;
and
vii. A conference shall be immediately set by the
concerned Conciliator-Mediator.
viii. In cases where unresolved grievances are raised,
the same shall be processed in accordance with
section 6 of this Rule. (2017 Revised NCMB Manual
for Conciliation and Preventive Mediation Cases)
3. When may a notice to strike/lockout be converted into a
preventive mediation case?
a. Non-strikeable issues - in case the subject of the strike is
non-strikeable, the NCMB can motu proprio convert the
notice into preventive mediation.
b. Voluntary - The party who filed the notice voluntarily asks
for conversion
c. Mutually agree - when both parties to a labor dispute
mutually agree to have it subjected to preventive

ATTY. ANSELMO S. RODIEL IV 127

 mediation proceeding. (NCMB Primer on Strikes,
Picketing, and Lockouts
4. SENA
a. The Single-Entry Approach (SENA) is a prescribed 30-day
Mandatory Conciliation- Mediation Services to be made
operational through the Single Entry Approach Desk
(SEAD) of NCMB/NLRC.
b. It shall be applicable to ALL cases falling under the
administrative and quasi-judicial functions of all DOLE
offices and attached agencies including the NLRC Except:
i. notices of strikes or lock-outs (mediated through
the NCMB)
ii. preventive mediation cases (mediated through the
NCMB)
iii. interpretation/implementation of CBA (mediated
through grievance machinery) (D.O. No. 107-10)

ATTY. ANSELMO S. RODIEL IV 128