ARELLANO LAW

ACADEMIC SOCIETY
2019 BAR NOTES

LABOR
LAW
Subject Head: Advisers:
Tapoc, Enn Arr Angeles Atty. Jean Joan Polido
Atty. Michael Allan Vito

Members:
Diaz, Nathaniel Nolasco
Mendoza, John Maxwel

The Arellano Law Academic Society releases its bar notes to supplement ALAS Adviser: Atty. Roberto Lock
the readings of its member barristers. They are not intended to replace Chair for ALAS Bar Operations: Daniella Namoca
the reading materials being released by any law school. The contents of
Vice- Chair for Academics: Kai Teh
these notes are in accordance with the preference of our member
barristers. Vice- Chair for Non-Academics: Deniel Morillo
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GENERAL PROVISIONS Naluis and CA, G.R. No. 160123, June 17,
2015, BERSAMIN)
1. Do the government employees have the right
to organize and join concerted actions Alternative Answer:
without incurring administrative liability?
When there is doubt between the evidence
No. The right of the government employees to submitted by the employer and that submitted
deal and negotiate with their respective by the employee, the scales of justice must be
employers is not quite as extensive as that of tilted in favor of the employee. This is consistent
private employees. Excluded from negotiation with the rule that an employer’s cause could
are the “terms and conditions of only succeed on the strength of its own
employment…that are fixed by law.” The right to evidence and not on the weakness of the
engage in concerted activities, including the employee’s evidence. (Misamis Oriental II
right to strike, must be exercised in accordance Electric Service Cooperative vs Virgilio
with law. (Arizala vs CA, G.R. Nos. 43633-34, Cagalawan, G.R. No. 175170, September 5,
September 14, 1990, NARVASA) 2012, DEL CASTILLO)

Alternative Answer: 3. What is social justice?

No. The right to form and join associations and The Constitution provides that the State shall
unions is not absolute or unlimited. Thus, if a promote social justice in all phases of national
person accepts employment that falls under the development (Sec. 10, Art. II, 1987
civil service law and his employer performs Constitution). Social justice is neither
governmental functions, he may not resort to communism, nor despotism, nor atomism, nor
strike, because that is prohibited by law. Having anarchy, but the humanization of laws, and the
accepted the employment freely and being equalization of social and economic forces by
chargeable with knowledge of the fact that he the State so that justice in its rational and
has no right to resort to strike to enforce his objectively secular conception may at least be
demands against his employer, his only appropriated. (Calalang vs Williams, G.R. No.
recourse is either to respect and comply with 47800, December 2, 1940, LAUREL)
that condition or resign. (Confederation of
Unions in Government Corporations and Offices 4. May social justice as a guiding principle in
vs The Commissioner of Civil Service, et. al, labor law be so used by the courts in
G.R. No. L-22723, April 30, 1970, DIZON) sympathy with the working man if it collides
with the equal protection clause of the
2. How does the liberal construction in favor of Constitution.
labor applies when there is doubt between
the evidence submitted by the employer and Yes. The State is bound under the Constitution
that of the employee? to afford full protection to Labor; when
conflicting interests collide and they are to be
In the interpretation of contracts of employment, weighed on the scales of social justice, the law
doubts are generally resolved in favor of the should accord more sympathy and compassion
worker. The burden of proof to show that the to the less privileged working man. (Fuentes vs
employment contract had been validly NLRC, January 2, 1997, BELOSILLO)
terminated pertains to the employer. To
discharge its burden, the employer must rely on Alternative Answer:
the strength of its own evidence. Hence, any
doubt or vagueness in the provisions of the No. It should be borne in mind that social justice
contract of employment should have been ceases to be an effective instrument for the
interpreted and resolved in favor of the “equalization of the social and economic forces”
employee. (Centro Project Manpower Services by the State when it is used to shield
Corporation vs wrongdoing. (Jamer vs NLRC, September 5,
1997, HERMOSISIMA)

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Exceptions:
5. May the Congress pass a law allowing
contractualization in all areas needed in the 1. Direct hiring by members of the diplomatic
employer’s business? corps;
2. Direct hiring by members of international
Yes. Article 106 of the Labor Code provides that organizations; and
“The Secretary of Labor and Employment may, 3. Name hires or a worker who is able to
by appropriate regulations, restrict or prohibit secure contract for employment overseas
the contracting out of labor to protect the rights on his own without the assistance or
of workers established under the Code. In so participation of any agency. However, he
prohibiting or restricting, he may make should still undergo processing by the
appropriate distinctions between labor-only POEA.
contracting and job contracting as well as
differentiations within these types of contracting 8. What is the nature of liability of local
and determine who among the parties involved recruitment agency and foreign principal?
shall be considered the employer for purposes
of this Code, to prevent any violation or The liability of the principal/employer and the
circumvention of any provision of this Code.” recruitment/placement agency for any and all
claims under this section shall be joint and
several. This provision shall be incorporated in
PRE-EMPLOYMENT the contract for overseas employment and shall
be a condition precedent for its approval. Such
6. Was there an established employer- liabilities shall continue during the entire period
employee relationship between the agency or duration of the employment contract and shall
and the OFW if the latter was not able to not be affected by any substitution, amendment
leave the Philippines? or modification made locally or in a foreign
country of the said contract. (Section 10, RA
Yes. The Migrant Workers and Overseas 10022)
Filipinos Act of 1995, as amended, defines an
Overseas Filipino workers as “a person who is 9. What is the basis in computing an OFW’s
to be engaged, is engaged or has been compensation in case of pre-termination of
engaged in a remunerated activity in a state of contract?
which he or she is not a citizen or on board a
vessel navigating the foreign seas other than a The Migrant Workers Act provides that salaries
government ship used for military or non- for the unexpired portion of the employment
commercial purposes or on an installation contract shall be awarded to the overseas
located offshore or on the high seas; to be used Filipino worker, in cases of illegal dismissal. The
interchangeably with migrant worker." Hence, clause “or for three months for every year of the
an employer-employee relationship already unexpired term, whichever is less” was declared
existed if the agency already approved, unconstitutional. (Serrano vs Gallant Maritime
selected, and engaged the services of the OFW Services, Inc., G.R. No. 167614, March 24,
even if the latter was not able to leave the 2009, AUSTRIA- MARTINEZ)
Philippines.
10. Is a person entitled to relief if he signed an
7. Is direct hiring of migrant workers allowed? overseas employment contract, yet not
been deployed for no valid reason?
General Rule:
Yes. The Migrant Workers and Overseas
No. The Labor Code provides that No employer Filipinos Act of 1995, as amended, considers
may hire a Filipino worker for overseas “failure to actually deploy a contracted worker
employment except through the Boards and without valid reason as determined by the
entities authorized by the Department of Labor Department of Labor and Employment as one
and Employment. (Article 18, Labor Code) of the acts under illegal recruitment.

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11. What is the theory of imputed knowledge? conditions of employment. (Section 6, RA

10022)
The theory of imputed knowledge states that
the knowledge of the agent to the principal is 14. Does due process in termination of
also a knowledge of the principal, but not the employment apply to overseas workers?
other way around. The knowledge of the
principal-foreign employer could not, therefore, Yes. The provisions of the Constitution as well
be imputed to its agent. (Sunace vs NLRC, as the Labor Code which afford protection to
G.R. No. 161757, January 25, 2006, CARPIO- labor apply to Filipino employees whether
MORALES) working within the Philippines or abroad. The
employer should strictly comply with the twin
12. If A, who works in a licensed overseas requirements of notice and hearing without
recruitment agency, is actively engaged in regard to the nature and situs of employment
recruitment and finds out that the agency or the nationality of the employer. (PCL
failed to register his name with the POEA, Shipping Philippines, Inc. vs NLRC, G.R. No.
can he be criminally liable for illegal 153031, December 14, 2008, AUSTRIA-
recruitment? MARTINEZ)

No. The obligation to register its personnel with 15. Phil, a resident alien, sought employment in
the POEA belongs to the officers of the agency. the Philippines. The employer, noticing that
A mere employee of the agency cannot be Phil was a foreigner, demanded that he first
expected to know the legal requirements for its secure an employment permit from the
operation. (People vs Chowdury, G.R. Nos. DOLE. Is the employer correct?
129577-80, February 15, 2000, PUNO)
No. Permanent resident foreign nationals,
Law Acts Who can probationary or temporary resident visa
Punishable be holders, are exempt from securing an Alien
punished Employment Permit (AEP). (DOLE Department
Labor Art. 13 (b) Non- Order No. 97-09, Series of 2009) However,
Code Art. 34 licensee they are obliged to secure an Alien
(applicable Employment Registration Certificate (AERC).
to local (DOLE Department Order No. 75-06, Series of
workers) 2006)
RA 8042 Art. 13 (b) Non-
as Labor Code licensee
amended Enumerated Licensee/ LABOR STANDARDS
by RA prohibited non-
10022 acts in Sec. licensee 16. Percival was a mechanic of Pacific Airlines.
(applicable 6 He enjoyed a meal break of one hour.
to Migrant However, during meal breaks, he was
Workers) required to be on stand-by for emergency
work. During emergencies, he was made to
13. Can employer A be criminally liable if it forego his meals or to hurry up eating. He
compelled worker X to sign a contract to demanded payment of overtime for work
work with employer B? done during his meal periods. Is Percival
correct?
Yes. It is unlawful for any individual, entity,
licensee, or holder of authority to induce or Yes. During the meal hour, the employee was
attempt to induce a worker already employed not on a complete rest, but was actually on a
to quit his employment in order to offer him to work hour, since during the meal hour, the
another, unless the transfer is designed to laborers had to be on ready call. Here during
liberate the worker from oppressive terms and the so-called meal period, the mechanics were
required to stand by for emergency work; that

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if they happened not to be available when shifts and are expected to be available at
called, they were reprimanded by the leadman. various odd hours, their ready availability is a
(Pan American World Airways System vs Pan necessary matter in the operations of a small
American Employees Association, G.R. No. L- hotel.
16275, February 23, 1961, REYES)
Granting that meals and lodging were provided
17. Is the waiver of right to claim overtime pay and indeed constituted facilities, such facilities
contrary to law? could not be deducted without the employer
complying first with certain legal requirements:
General Rule: First, proof must be shown that such facilities
are customarily furnished by the trade. Second,
Yes. Overtime compensation cannot be the provision of deductible facilities must be
waived, whether expressly or impliedly. This voluntarily accepted in writing by the employee.
right is intended for the benefit of the laborers Finally, facilities must be charged at fair and
and employees and any stipulation in the reasonable value. Without satisfying these
contract that the laborer shall work beyond requirements, the employer simply cannot
eight hours without additional compensation deduct the value from the employee’s wages.
for the extra hours is contrary to law and null (Mabeza vs NLRC, G.R. No. 118506, April 18,
and void. 1997, KAPUNAN)

Exception: 19. Nelda worked as a chambermaid in Hotel

Barretto with a basic wage of PhP560.00 for
Department Order No. 21, Series of 2004, an 8-hour workday. On Good Friday, she
sanctions the waiver of overtime pay in worked for one (1) hour from 10:00 PM to
consideration of the benefits that the 11:00 PM. Her employer paid her Php70.00
employees will derive from the adoption of for the work done on Good Friday. She sued
compressed workweek scheme. (Bisig for non-payment of holiday pay and night
Manggagawa vs NLRC, G.R. No. 151309, shift differential pay for working on a Good
October 15, 2008, NACHURA) Friday. The hotel claimed that she was not
entitled to holiday pay and night shift
18. Nelda worked as a chambermaid in Hotel differential pay because hotel workers have
Neverland with a basic wage of PhP560.00 to work on holidays and may be assigned
for an 8-hour workday. Her employer paid to work at night. Applying labor standards
her only PhP480.00 for each 8-hour law, how much should Nelda be paid for
workday. She sued for underpayment of work done on Good Friday?
wages. Hotel Neverland denied the alleged
underpayment, arguing that based on long- Nelda must be paid Php217.00 for work done
standing unwritten tradition, food and on Good Friday. Any employee who is
lodging costs were partially shouldered by permitted or required to work on any regular
the employer and partially paid for by the holiday, not exceeding eight (8) hours, shall be
employee through salary deduction. paid at least two hundred per cent (200%) of
According to the employer, such valid his regular daily wage. (Sec. 4, Rule IV, Book
deduction caused the payment of Nelda's III, Omnibus Rules Implementing the Labor
wage to be below the prescribed minimum. Code) Moreover, an employee shall be paid
Does the hotel have valid legal grounds to night shift differential of no less than ten per
deduct food and lodging costs from Nelda's cent (10%) of his regular wage for each hour of
basic salary? work performed between ten o’clock in the
evening and six o’clock in the morning. (Sec. 2,
No. The food and lodging, or the electricity and Rule II, Book III, Omnibus Rules Implementing
water consumed by the petitioner were not the Labor Code). Applying the following
facilities but supplements. A benefit or privilege provisions:
granted to an employee for the convenience of
the employer is not a facility. Considering that
hotel workers are required to work different

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Nelda’s hourly basic wage is Php560 (daily No. Article 1708 of the Civil Code used the
wage for every 8hrs) divided by 8hrs = word "wages" and not "salary" in relation to
Php70.00. "laborer" when it declared what are to be
exempted from attachment and execution. By
For holiday pay for 1-hour work done on Good contrast, the term “wages " indicates
Friday, Php70 multiplied by 200% = Php140.00 considerable pay for a lower and less
responsible character of employment, while
For the work done from 10:00pm to 11:00pm, "salary" is suggestive of a larger and more
Php70.00 multiplied by 10% = Php77.00. important service. (Gaa vs CA, G.R. No. L-
44169, December 3, 1985, PATAJO)
Php140.00 + Php77.00 = Php217.00
22. What is wage distortion?
20. Nico is a medical representative engaged in
the promotion of pharmaceutical products Wage distortion refers to a situation where an
and medical devices for Northern increase in the prescribed wage rates results in
Pharmaceuticals, Inc. He regularly visits the elimination or severe contraction of
physicians' clinics to inform them of the intentional quantitative differences in wage or
chemical composition and benefits of his salary rates between and among employee
employer's products. At the end of every groups in an establishment as to effectively
day, he receives a basic wage of PhP700.00 obliterate the distinctions embodied in such
plus a PhP150.00 "productivity allowance." wage structure based on skills, length of
For purposes of computing Nico's 13th service and other logical bases of
month pay, should the daily "productivity differentiation. (Article 124, Labor Code)
allowance" be included?
23. Can a union invoke wage distortion as a
No. The so-called commissions paid to or valid ground to go on strike?
received by medical representatives were
excluded from the term basic salary because No. The existence of wage distortion is not a
these were paid to the medical representatives valid ground for staging a strike. Article 124 of
and rank-and-file employees as productivity the Labor Code provides that “Where the
bonuses, which were generally tied to the application of any prescribed wage increase by
productivity, or capacity for revenue virtue of a law or Wage Order issued by any
production, of a corporation and such bonuses Regional Board results in distortions of the
closely resemble profit-sharing payments and wage structure within an establishment, the
had no clear direct or necessary relation to the employer and the union shall negotiate to
amount of work actually done by each correct the distortions. Any dispute arising from
individual employee. (Philippine Spring Water the wage distortions shall be resolved through
Resources Inc. vs CA, G.R. No. 205278, June the grievance procedure under their collective
11, 2014, MENDOZA) bargaining agreement and, if it remains
unresolved, through voluntary arbitration.”
21. Tarcisio was employed as operations
manager and received a monthly salary of 24. What procedural remedies are open to
₱25,000.00 through his payroll account with workers who seek correction of wage
DB Bank. He obtained a loan from Roberto distortion?
to purchase a car. Tarcisio failed to pay
Roberto when the loan fell due. Roberto Article 124 of the Labor Code provides for the
sued to collect, and moved to garnish procedural remedies of wage distortion
Tarcisio's payroll account. The latter disputes:
vigorously objected and argued that
salaries were exempt from garnishment. Is
Tarcisio correct?

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Organized Unorganized
Establishment Establishment The Kilusang Walang Takot may appeal to the
(With union) (Without union) National Wages and Productivity Commission
The employer and The employer and if it felt aggrieved by the Order. The Kilusan
the union shall the workers shall may also appeal on the grounds of non-
negotiate to endeavor to conformity with prescribed guidelines or
correct distortion. correct the procedures, questions of law, and grave abuse
distortion. of discretion. (Section 1, Rule IV, in relation to
Any dispute shall Any dispute shall Section 2 Rule V, NWPC Guidelines No. 01
be resolved be settled through Series of 2007, dated June 19, 2007)
through a the NCMB.
grievance 27. What are the conditions to be entitled to
procedure under maternity leave?
the CBA.
If it remains If it remains a. The employee shall have notified her
unresolved, it shall unresolved within employer of her pregnancy and the
be dealt with 10 days, it shall be probable date of her childbirth;
through voluntary referred to the b. The notice shall be transmitted to the SSS
arbitration. NLRC. in accordance with SSS rules and
The dispute will be The NLRC shall regulations;
resolved within 10 conduct c. The full payment shall be advanced by the
days from the time continuous employer within 30 days from the filling of
the dispute was hearings and the maternity leave application;
referred to decide the dispute d. Payment of daily maternity benefits shall be
voluntary within 20 days a bar to the recovery of sickness benefits
arbitration. from the time the provided by this Act for the same period for
same was which daily maternity benefits have been
referred. received;
e. The maternity benefits shall be paid only for
25. The Regional Tripartite Wages and the first 4 deliveries or miscarriages;
Productivity Board (RTWPB) for Region 3 f. The SSS shall immediately reimburse the
issued a wage order on November 2, 2017 employer of 100% of the amount of
fixing the minimum wages for all industries maternity benefits paid to the employee by
throughout Region 3. Is the wage order the employer upon proof of receipt and
subject to the approval of the National legality thereof; and
Wages and Productivity Commission g. If an employee member should give birth or
before it takes effect? suffer miscarriage without the required
contributions having been remitted by her
No. The NWPC’s function is to review the employer to the SSS, or without the latter
Wage Order issued by the RTPWB. (Sec. 4, having been previously notified the
Rule IV, NWPC Guidelines No. 1, Series of employer shall pay to the SSS damages
2007, dated June 19, 2007). equivalent to the benefits which said
employee member would otherwise have
been entitled to. (Section 14-A, RA No.
26. The law mandates that no petition for wage
8282)
increase shall be entertained within a
period of 12 months from the effectivity of
the wage order. Under what circumstances 28. Who are considered as solo parents?
may the Kilusang Walang Takot, a
federation of labor organizations that Any individual who falls under any of the
publicly and openly assails the wage order following categories are considered solo
as blatantly unjust, initiate the review of the parents:
wage increases under the wage order
without waiting for the end of the 12-month 1. A woman who gives birth as a result of rape
period? and other crimes against chastity even

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without a final conviction of the offender; responsibility of parenthood, shall terminate
Provided, That the mother keeps and his/her eligibility for these benefits. (Section
raises the child; 3(a), R.A. No. 8972)

2. Parent left solo or alone with the 29. What is the special leave benefits for
responsibility of parenthood due to: women granted by R.A. No. 9710?

a. Death of spouse; A woman employee having rendered

b. Detention or service of sentence of continuous aggregate employment service of
at least six (6) months for the last twelve (12)
spouse for a criminal conviction for at
months shall be entitled to a special leave
least 1 yr; benefit of two (2) months with full pay based
c. Physical and/or mental incapacity of on her gross monthly compensation following
spouse; surgery caused by gynecological disorders.
d. Legal separation or de facto (Section 18, R.A. No. 9710, The Magna Carta
separation from spouse for at least 1 of Women)
year as long as he/she is entrusted
with the custody of the children; 30. What are the prohibited acts against
e. Nullity or annulment of marriage as women under the Labor Code?
decreed by a court or by a church as
long as he/she is entrusted with the a. Denial of the benefits or to discharge her
custody of the children; for the purpose of preventing her from
f. Abandonment of spouse for at least 1 enjoying any of the benefits provided under
year; Labor Code;
b. Discharge on account of her pregnancy, or
3. Unmarried mother/father who has while on leave;
preferred to keep and rear his or her c. Discharge or refuse the admission of such
child/children instead of: woman employee upon returning to work
for fear that she may again be pregnant;
a. having others care for them or d. Require as condition of employment that
b. give them up to a welfare institution; she shall not get married she or to stipulate
that upon getting married she shall be
deemed resigned or separated, or to
4. Any other person who solely provides:
actually dismiss, discharge, discriminate or
otherwise prejudice her merely by reason
a. parental care and of her marriage;
b. support to a child or children; e. Denial of the benefits of employment or
other statutory benefits under our laws by
5. Any family member who assumes the reason of her sex, age, ethnic origin or
responsibility of head of family as a result benefits, or relations, either by affinity or
of the: consanguinity; and
f. Discrimination against any woman
a. death, employee with respect to term and
b. abandonment, condition of employment solely on account
c. disappearance or of her sex. (Article 137, of the Labor Code
d. prolonged absence of the parents or and its implementing rule)
solo parent.
31. What is sexual harassment as defined by
NOTE: R.A. No. 7877?

A change in the status or circumstance of the Work, education or training-related sexual

parent claiming benefits under this Act, such harassment is committed by an employer,
that he/she is no longer left alone with the employee, manager, supervisor, agent of the
employer, teacher, instructor, professor,

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coach, trainor, or any other person who, expiration of the contract for any of the
having authority, influence or moral following causes:
ascendancy over another in a work or training
or education environment, demands, requests a. Verbal or emotional abuse of the
or otherwise requires any sexual favor from Kasambahay by the employer or any
the other, regardless of whether the demand, member of the household;
request or requirement for submission is b. Inhuman treatment including physical
accepted by the object of said Act. (Section 3, abuse of the Kasambahay by the employer
R.A. No. 7877, Anti-Sexual Harassment Act of or any member of the household;
1995) c. Commission of a crime or offense against
the Kasambahay by the employer or any
32. What are the restriction on the hours of member of the household;
work of a working child? d. Violation by the employer of the terms and
conditions of the employment contract and
a. A child below 15 years of age may be other standards set forth in the law;
allowed to work for not more than twenty e. Any disease prejudicial to the health of the
(20) hours a week, provided that the work Kasambahay, the employer, or members of
shall not be more than four (4) hours at any the household; and
given day; f. Other causes analogous to the foregoing.
b. A child 15 years of age, but below 18, shall (Section 2, Rule VII, Implementing Rules
be allowed to work for more than eight (8) and Regulations of R.A. No. 10361)
hours a day, and in no case beyond 49
hours a week; and 35. Who are night workers?
c. No child below 15 years of age shall be
allowed to work between eight o’clock in Night Worker means any employed person
the evening and six o’clock in the morning whose work requires performance of a
of the following day and no child 15 years substantial number of hours of night work
of age but below 18 shall be allowed to which exceeds a specified limit. This limit shall
work between ten o’clock in the evening be fixed by the Secretary of Labor after
and six o’clock in the morning of the consulting the workers' representatives/labor
following day. (Section 3, R.A. No. 9231) organizations and employers. (Article 154,
R.A. No. 10151)
33. Who are excluded from the coverage of
Batas Kasambahay? 36. Distinguish apprenticeship from
learnership.
The following are not covered by the Batas
Kasambahay:
APPRENTICESHIP LEARNERSHIP
a. Service providers;
Duration
b. Family drivers;
Practical training for Practical training
c. Children under foster family arrangement;
3 to 6 months. for not more than
and
3 months.
d. Any other person who performs
occasionally or sporadically and not on an Applicability
occupational basis (Section 2, Rule I, Highly skilled jobs or Semi-skilled or in
Implementing Rules and Regulations of in highly technical industrial
R.A. No. 10361) industries. occupations.
Training Agreement
34. What are the grounds for termination of Governed by an Governed by a
employment by a kasambahay? apprenticeship learnership
agreement agreement
The Kasambahay may terminate the Qualifications
employment relationship at any time before the Apprentice should The law does not
be at least 14 years expressly mention
old;

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a. Possess any qualifications No, except those aliens with valid working
vocational for learners permit issued by the DOLE and are nationals
aptitude and of a country which grants the same or similar
capacity for rights to Filipino workers as certified by the
appropriate DFA.
tests; and 38. Are confidential employees allowed to join,
b. Possess the form or assist a labor organization?
ability to
comprehend and Article 245 of the Labor Code does not directly
follow oral and prohibit confidential employees from engaging
written in union activities. However, under the doctrine
instructions. of necessary implication, the disqualification of
Employer’s commitment managerial employees equally applies to
No commitment to With commitment confidential employees. The confidential-
hire the apprentice to hire the employee rule justifies exclusion of confidential
after training learners as employees because in the normal course of
regular employee their duties they become aware of
if he desires to be management policies relating to labor
employed after relations. (Susbuanon Rural Bank, Inc. vs
training Laguesma, G.R. No. 116194, February 2,
Effect of pre-termination 2000, QUISUMBING)
In case of pre- In case of pre- 39. What is Substitutionary Doctrine? Discuss
termination of the termination of the its effects.
agreement, the agreement, the
Substitutionary Doctrine holds that the
apprentice is not learner is
employees cannot revoke the validly executed
considered a regular considered a
collective bargaining contract by simply
employee. regular employee.
changing their bargaining agent. (Elisco-Elirol
Provided: It be
Labor Union vs Noriel, G.R. No. L-41955,
after 2 months of
December 29, 1977, TEEHANKEE)
training and the
The new SEBA is bound to respect the existing
dismissal is not
CBA but it can renegotiate for new terms and
due to the fault of
conditions thereof, however, the new SEBA is
the learner.
not bound by the personal undertakings (i.e.
Necessity of DOLE Approval
“no strike, no lockout” clause) of the deposed
Needs prior approval Does not need union.
by DOLE (Nitto prior approval but
Enterprises vs. subject to DOLE’s
40. What is the rule on the “equity of the
NLRC, GR 114337, inspection.
incumbent”?
September 29,
1995).
Under the Equity of the Incumbent rule, all
Exhaustion of Administrative existing federations and national unions which
Remedies meet the qualifications of a legitimate labor
Exhaustion is a pre- Exhaustion is not organization and none of the grounds for
condition for filing an required cancellation shall continue to maintain their
action existing affiliates regardless of the nature of the
industry and the location of the affiliates.
(Chapter I and II, Title II, Book II of the Labor (Article 249, Labor Code)
Code)
41. What are the four tests to determine the
constituency of an appropriate bargaining
LABOR RELATIONS
unit?
37. Do aliens have the right to join labor The four tests to determine appropriate
organizations? bargaining unit are:

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a. Community or mutuality of interest of Labor and Employment, G.R. No.
doctrine – characterized by similarity of 181531, July 31, 2009, CAPIO-
employment status, same duties and MORALES);
responsibilities and substantially similar e. Re-run election – conducted to break a tie
compensation and working conditions; between contending unions, including “no
b. Globe doctrine or will of the members union” and one of the unions. It shall
doctrine – the determining factor is the likewise refer to an election conducted after
desire of the employees themselves; a failure of election has been declared by
c. Collective bargaining history doctrine – the Election Officer and/or affirmed by the
this puts premium to the prior collective Mediator-Arbitrator. (Department Order
bargaining history and affinity of the No. 40-i-15, Series of 2015, September 7,
employees in determining the appropriate 2015)
bargaining unit ; and
d. Employment status doctrine.
43. Can the parties agree to the conduct of
42. What are the modes of determining the Sole consent election even during the pendency
and Exclusive Bargaining Agent (SEBA)? of certification election?

The modes for determining SEBA are: Yes, at any stage of the certification election
a. Request for SEBA Certification (formerly proceeding, the parties may decide to conduct
a consent election with or without the
“Voluntary Recognition”) – filed by the
supervision of the Med-Arbiter because
union desiring to be certified as SEBA, primacy and priority is given to consent election
without need to secure first the consent and being a voluntary mode of settling a labor
voluntary recognition of the employer. The dispute as enshrined in Section 3, Article XIII
DOLE Regional Director is duty-bound to of the 1987 Philippine Constitution.
extend such SEBA Certification simply on 44. What is the Double Majority Rule?
the basis of the requesting union’s
compliance with the requirements. Under the so called “double majority rule,” for
(Department Order No. 40-i-15, Series of there to be a valid certification election,
2015, September 7, 2015); majority of the bargaining unit (members) must
have voted AND the winning union must have
b. Certification election – the process of
garnered majority of the valid votes cast.
determining, through secret ballot, the sole (National Union of Workers in Hotels,
and exclusive bargaining agent of the Restaurants and Allied Industries-Manila
employees in an appropriate bargaining Pavilion Hotel Chapter vs Secretary of Labor
unit, for purposes of collective bargaining; and Employment, G.R. No. 181531, July 31,
c. Consent election – the election voluntarily 2009, CAPIO-MORALES)
agreed upon by the parties to determine 45. What are the requisites for the validity of
the issue of majority representation of all union dues and special assessments?
the workers in the appropriate collective
bargaining unit; In order for union dues, special assessments
d. Run-off election – refers to an election for the union’s incidental expenses, attorney’s
fees and representation expenses to be valid,
between labor unions receiving the two (2)
the following requisites must concur:
highest number of votes in a certification or a. Authorization by a written resolution of the
consent election with three (3) or more majority of all the members at a general
choices receiving the majority of the valid membership meeting duly called for the
votes cast; provided that the total number purpose;
of votes for all the contending unions is at b. Secretary’s record of the minutes of the
least fifty percent (50%) of the number of said meeting; and
votes cast (National Union of Workers in c. Individual written authorizations for check-
Hotels, Restaurants and Allied Industries- off duly signed by the employees
Manila Pavilion Hotel Chapter vs Secretary concerned. (Article 241, Labor Code)

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49. What is the Featherbedding Doctrine?
46. May the parties validly agree in the CBA to
reduce wages and benefits of employees? Featherbedding is an unfair labor practice
wherein the labor organization, its officers,
Yes, the parties may validly agree in the CBA agents or representatives caused or attempted
to reduce wages and benefits of employees to cause an employer to pay or deliver or agree
provided such reduction does not go below the to pay or deliver any money or other things of
minimum standards. value, in the nature of an exaction, for services
which are not performed or not to be
47. What are the mandatory provisions of performed, including the demand for a fee for
CBA? union negotiations. (Article 260(d), Labor
Code)
The mandatory provisions of the CBA are the
following: 50. What are the requisites for a valid strike and
a. Grievance Procedure – the internal lockout?
rules of procedure established in the CBA
which are intended to resolve all issues The requisites of a valid strike/lockout are the
arising from the implementation and following:
interpretation of their collective 1. It must be based on valid and factual
bargaining agreement; ground;
b. Voluntary arbitration – the mode of 2. A notice of strike/lockout must be filed
settling labor-management disputes in with the NCMB-DOLE;
which the parties select a competent, 3. A notice must be served to the NCMB-
trained and impartial third person who is DOLE at least twenty-four (24) hours prior
tasked to decide on the merits of the case to the taking of the strike/lockout vote by
and whose decision is final and secret balloting, informing said office of
executory; the decision to conduct a strike/lockout
c. No-Strike, No-Lockout clause – an vote, and the date, place, and time
expression of the firm commitment of the thereof;
union that it will not mount a strike during 4. A strike/lockout must be taken where a
the effectivity of the CBA, and the majority of the members of the
employer will not stage a lockout during union/members of the Board of Directors
the lifetime thereof; and of the corporation or association or of the
d. Labor Management Council (LMC) – partners in a partnership obtained by
the creation of which is mandated by the secret ballot in a meeting called for the
Labor Code to implement the purpose, must approve it;
constitutionally mandated right of the 5. A strike/lockout vote should be submitted
workers to participate in policy and to the NCMB-DOLE at least seven (7)
decision-making processes of the days before the intended date of the
establishment where they are employed strike/lockout;
insofar as said processes will directly 6. Except in cases of union busting, the
affect their rights, benefits and welfare. cooling-off period of 15 days, in case of
unfair labor practices of the
48. What is a Yellow Dog Contract? employer/labor organization, or 30 days,
in case of collective bargaining deadlock,
A yellow dog contract exacts from workers as should be fully observed;
a condition of employment that they shall not 7. The 7-day waiting period strike/lockout
join or belong to a labor organization or attempt ban reckoned after the submission of the
to organize one during their period of strike/lockout vote report to the NCMB-
employment or that they shall withdraw DOLE should also be fully observed in all
therefrom in case they are already members of
cases.
a labor organization. (Article 259(b), Labor
Code)

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Note: While the foregoing requisites are egress and ingress to and from company
procedural in nature, the same are mandatory premises.
and failure to comply with any of them would
render the strike/lockout illegal. ➢ The mere issuance of assumption or
certification order automatically carries with
it a return-to-work order, even if the
51. What are the requisites of a lawful directive to return to work is not expressly
picketing? stated therein.
The requisites of a lawful picketing are the
following: ➢ The length of time within which the return-
1. The picket should be peacefully carried to-work order was defied by the strikers is
out; not significant in determining their liability
2. There should be no act of violence, for the legal consequences thereof.
coercion or intimidation attendant thereto;
3. The ingress to or egress from the POST EMPLOYMENT
company premises should not be
obstructed; and 54. What are the factors in determining the
4. Public thoroughfares should not be existence of an employer-employee
impeded. relationship?

a. Selection and engagement of the

52. Some officers and rank-and-file members of
employee;
the union staged an illegal strike. Their
b. Payment of wages or salaries;
employer wants all the strikers dismissed.
c. Exercise of the power of dismissal; and
As the lawyer, what will you advise the
d. Exercise of the power of control the
employer?
employee’s conduct or the so called
I will advise the employer that not all the “control test”. (Felicilda vs Uy, G.R. No.
strikers can be dismissed. Only union officers 221241, September 14, 2016, PERLAS-
who knowingly participated in an illegal strike, BERNABE)
and workers, who are not union officers, who
committed illegal acts during a strike maybe 55. What is the two-tiered test of employment
declared to have lost their employment status. relationship?
(CCBPI Postmix Workers Union vs NLRC,
G.R. No. 114512, November 27, 1998, The two-tiered test of employment relationship
QUISUMBING) is composed of:
53. What is the effect of defiance of assumption 1. The putative employer’s power to control
or certification orders on employment of the employee with respect to the means
defiant workers? and methods by which the work is to be
accomplished (Control Test); and
Defiance of the return-to-work order of the 2. The underlying economic realities of the
Secretary of Labor after he has assumed
activity or relationship (broader economic
jurisdiction is a ground for loss of the
employment status of any striking officers or reality test). The proper standard of
member of the union. (Telefunken economic independence is whether the
Semiconductors Employees Union – FFW vs worker is dependent on the alleged
Court of Appeals, G.R. No. 143013-14, employer for his continued employment in
December 18, 2000, DE LEON, JR) that line of business. (Francisco vs
NLRC, G.R. No. 170087, August 31,
Notes: 2006, YNARES-SANTIAGO)
➢ This rule should not apply to the employees
who failed to return because of the Note: This test applies to cases where there
accompanying picket that blocked free are several parties alleged to be employers of
one individual.

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56. What are the requisites for validity of fixed- 58. May individuals engage in legitimate job
term employment? contracting?
The requisites for validity of fixed-term Yes, as long they have Special Skills,
employment are: Expertise or Talents; they need not be
registered as independent contractors with
a. The fixed period of employment was DOLE, and they need not comply with the
knowingly and voluntarily agreed upon by substantial capital requirement.
the parties, without any force, duress or
improper pressure being brought to bear 59. What are the Just and Authorized Causes
upon the employee and absent any other for termination?
circumstances vitiating his consent; or
b. It satisfactorily appears that the employer Just Causes Authorized
and employee dealt with each other on Causes
more or less equal terms with no moral 1. Serious 1.Installation of
dominance whatever being exercised by misconduct or labor-saving
will disobedience devices;
the former on the latter. (Philips
by the employee
Semiconductors, Inc vs Fadriquela, G.R. of the lawful
No. 141717, April 14, 2004, CALLEJO, orders of his
SR.) employer or
representative in
57. What are the requisites of legitimate job connection with
contracting? his work;
2. Gross and 2.Redundancy;
A person is considered engaged in legitimate habitual neglect
job contracting or subcontracting if the by the employee
following conditions concur: of his duties;
1. The contractor carries on a distinct and 3. Fraud or wilful 3.Retrenchment;
independent business and partakes the breach by the
contract work on his account under his employee of the
own responsibility according to his own trust reposed in
manner and method, free from control him by his
and direction of his employer or principal employer or duly
in all matters connected with the authorized
performance of his work except as to the representative;
results thereof; 4. Commission of a 4.Closing or
2. The contractor has substantial capital or crime or offense cessation of
investment; and by the employee operation of the
3. The agreement between the principal and against the establishment or
person of his undertaking;
the contractor or subcontractor assures
employer or any
the contractual employees’ entitlement to immediate
all labor and occupational safety and member of his
health standards, free exercise of the family or his duly
right to self-organization, security of authorized
tenure, and social welfare benefits. representative;
(Petron Corporation vs Caberte, G.R. No. 5. Other causes 5.Disease.
182255, June 15, 2015, DEL CASTILLO) analogous to the
foregoing.

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60. If an employee is dismissed for just or 2. Where the closure of business is by
authorized cause but the requirement of compulsion of law and such closure is not
notice and hearing were not complied with, attributable to employer’s will.
should the dismissal be considered illegal?
62. Explain the twin requirements of due
No, when the dismissal is for just or authorized process.
cause but due process was not observed, the
dismissal should be upheld. However, the The twin requirements of due process are
employer should be held liable for non- notice and hearing. There is likewise a two-
compliance with the procedural requirements notice requirement rule, with the first notice
of due process in the form of damages. pertaining to specific causes or grounds for
(Agabon vs NLRC, G.R. No. 158693, termination and directive to submit a written
November 17, 2014, YNARES-SANTIAGO) explanation within a reasonable period and the
61. What are the rules on payment of second notice pertains to the notice of
separation pay when terminating an termination. As to the hearing requirement, the
employee due to authorized causes? Supreme Court ruled that a hearing or
conference is not mandatory, as long as the
employee is given “ample opportunity to be
Cause of Separation Pay
heard” i.e. any meaningful opportunity, verbal
Termination
or written, to answer the charges against him
Automation Equivalent to at least
or her and submit evidence in support of the
1 month pay or at
defense, whether in a hearing, conference, or
least 1 month for
some other fair, just and equitable way. (Perez
every year of service,
vs Philippine Telegraph and Telephone
whichever is higher
Company, G.R. No. 152048, April 07, 2009,
Redundancy Equivalent to at least
CORONA)
1 month pay or at
Note: A formal hearing or conference becomes
least 1 month for mandatory only when requested by the
every year of service,
employee in writing or substantial evidentiary
whichever is higher
disputes exist or a company rule or practice
Retrenchment Equivalent to 1 requires it, or when similar circumstances
month pay or at least justify it.
½ month pay for
every year of service,
63. What are the requisites of a valid quitclaim?
whichever is higher
Closure or Equivalent to at least The requisites of a valid quitclaim are the
Cessation*** 1 month pay or at following: (1) the employee executes a deed of
least 1 month for quitclaim voluntarily; (2) there is no fraud or
every year of service, deceit on the part of any of the parties; (3) the
whichever is higher consideration of the quitclaim is credible and
Disease Equivalent to 1 reasonable; and (4) the contract is not contrary
month pay or at least to law, public order, public policy, morals or
½ month pay for good customs, or prejudicial to a third person
every year of service, with a right recognized by law. (Doble, Jr. vs
whichever is higher ABB, Inc., G.R. No. 215627, June 5, 2017,
PERALTA)
Note: A fraction of at least six months shall be
considered one whole year. 64. What are the rules as regards reinstatement
***There is no obligation to pay separation pending appeal ordered by the Labor
pay: Arbiter?
1. When the closure of the business is due
to serious business loss; or The order of reinstatement, when issued by the
Labor Arbiter, is self-executory or immediately
executory; the employee ordered reinstated
need not file any motion for the issuance of writ

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 LABOR LAW
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of execution to enforce reinstatement. The of Detailman—TGWO vs Glaxo Welcome
employer is required to manifest within 10 days Philippines, Inc., G.R. No. 162992, September
from his receipt of the order of reinstatement 17, 2004, TINGA)
either: (1) to reinstate the employee to his
former position or to a substantially equivalent 67. What are the types of restrictive
position; or (2) to reinstate him in the payroll, covenants?
which means that the employee need not
report for work but only for the purpose of ➢ Non-compete Clause – when an
getting his wage. There is no way the employer employee is prevented from directly
can disregard the reinstatement order. Posting competing or working for a competitor of
of a bond by the employer shall not stay the
his former employer, or when the
execution of such reinstatement order. (Article
employee is prevented from setting up a
229, Labor Code; Pioneer Texturizing Corp vs
NLRC, G.R. No. 118651, Ocotber 16, 1197, competing business.
FRANCISCO)
➢ Non-solicitation clause – when a duty is
Note: If the reinstatement is ordered by the imposed on the employee not to
NLRC, Court of Appeals or the Supreme Court, approach his former employer’s
the employee reinstated should still file a customers or prospective customers, or
motion for issuance of writ of execution to when the employee is prevented from
enforce the reinstatement. taking customers/clients of his former
employer.
65. What is “strained relations” rule?
➢ Non-poaching clause – when the
It is when the employer can no longer thrust the
employee is prevented from enticing his
employee and vice versa, or there were
imputations of bad faith to each other, former employer’s staff away from the
reinstatement could not serve as a remedy. business, the aim is to prevent the
The employee must occupy a position where employee from taking key employees
he enjoys the trust and confidence of his with him to his new employment or
employer and that it is likely if the employee is business.
reinstated, an atmosphere of antipathy and
antagonism may be generated as to adversely
affect the efficiency and productivity of the JURISDICTION AND RELIEFS
employee concerned. (Globe-Mackay vs
NLRC, G.R. No. 82511, March 03, 1992, 68. Can the visitorial and enforcement power of
ROMERO) the DOLE Regional Director to order and
enforce compliance with labor standards
MANAGEMENT PREROGATIVE laws be exercised even when the individual
claim exceeds P5,000.00?
66. Is the stipulation in the employment
contract prohibiting an employee from Yes, the visitorial and enforcement power of
marrying another employee of a competitor the DOLE Regional Director to order and
enforce compliance with labor standards laws
company a valid exercise of management
can be exercised even when the individual
prerogative? claims exceed P5,000.00; the authority under
Yes, the employer does not impose an Article 128 of the Labor Code, as amended,
absolute prohibition against relationships may be exercised regardless of the monetary
between its employees and those of competitor value involved. However, under Article 129 of
companies. Its employees are free to cultivate the same code, the authority is only for claims
relationships with and marry persons of their not exceeding P5,000.00 per claimant.
own choosing. What the company merely
seeks to avoid is a conflict of interest between 69. May the NLRC or the courts take
the employee and the company that may arise jurisdictional cognizance over compromise
out of such relationships. (Duncan Association

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 LABOR LAW
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agreements/settlements involving labor 72. Prescription of actions.
matters?
Cause Prescription Period
No, any compromise agreement, including
Money Claims 3 years from the
those involving labor standards laws,
accrual of cause of
voluntarily agreed upon by the parties with the
action
assistance of the Bureau or the regional office
of the department of labor, shall be final and
XPN: Promissory
binding upon the parties. The NLRC or any
Estoppel
court shall not assume jurisdiction over issues
Illegal 4 years from the date
involved therein except in case of non-
Dismissal of the formal dismissal
compliance thereof or if there is prima facie
Unfair Labor 1 year from the accrual
evidence that the settlement was obtained
Practice of cause of action
through fraud, misrepresentation, or coercion.
(Article 233, Labor Code) Offenses 3 years from the date
under the of commission or
Labor Code discovery thereof
70. May a decision of the Labor Arbiter which
Simple Illegal 5 years
has become final and executory be novated
Recruitment
through a compromise agreement of the
Syndicated or 20 years
parties? Large-scale
Illegal
Yes, provided that the same is not Recruitment
unconscionable, and the agreement was
approved by the Labor Arbiter, the NLRC or the 73. What is Promissory Estoppel?
Court of Appeals, before whom the case is
“Promissory Estoppel” is a recognized
pending.
exception to the three-year prescriptive period
enunciated in Article 306 of the Labor Code.
Alternative answer:
Promissory estoppel may arise from the
Yes, provided that the new agreement is not
making of a promise, even though without
tainted with fraud, duress or undue influence.
consideration, if it was intended that the
promise should be relied upon, as in fact it was
71. What are the requisites on reduction of relied upon, and if a refusal to enforce it would
appeal bond? virtually sanction the existence of a promise on
The following are the requisites for the the part of one against whom estoppel is
reduction of appeal bond: claimed. The promise must be plain and
1. The motion should be filed within the 10- unambiguous and sufficiently specific so that
the court can understand the obligation
day reglementary period;
assumed and enforce the promise according to
2. The motion to reduce bond should be
its terms.
based meritorious grounds; and In order to make out a claim of promissory
3. The motion should be accompanied by a estoppel, a party bears the burden of
partial bond, the amount of which should establishing the following elements: (1) a
be reasonable in relation to the monetary promise was reasonably expected to induce
awards. (Mcburnie vs Ganzon, G.R. Nos. action or forbearance; (2) such promise did, in
178034, 178117, 186984-85, October 17, fact, induce such action or forbearance; and (3)
2013, REYES) the party suffered detriment as a result.
(Accessories Specialist, Inc. vs Alabanza, G.R.
Note: The reasonable amount is fixed at No. 168985, July 23, 2008, NACHURA)
10% of the monetary award exclusive of
damages and attorney’s fees.

ARELLANO LAW ACADEMIC SOCIETY | 2019 BAR NOTES