2011 Bar Examinations in Labor Law - Part 1

LABOR LAW
Vicente S.E. Veloso

A. FUNDAMENTAL PRINCIPLES AND POLICIES
1. Constitutional Provisions
1.1. Art II, Secs. 9, 10, 11, 13, 14, 18, 20
Declaration of Principles and State Policies
Section 9. The State shall promote a just and dynamic social order that will ensure the
prosperity and independence of the nation and free the people from poverty through policies
that provide adequate social services, promote full employment, a rising standard of living,
and an improved quality of life for all.
Section 10. The State shall promote social justice in all phases of national
development.
Section 11. The State values the dignity of every human person and guarantees full
respect for human rights.
Section 13. The State recognizes the vital role of the youth in nation-building and
shall promote and protect their physical, moral, spiritual, intellectual, and social well-being.
It shall inculcate in the youth patriotism and nationalism, and encourage their involvement
in public and civic affairs.
Section 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.
Section 18. The State affirms labor as a primary social economic force. It shall protect
the rights of workers and promote their welfare.
Section 20. The State recognizes the indispensable role of the private sector,
encourages private enterprise, and provides incentives to needed investments.
1.2. Art III, Secs. 1, 4, 8
Bill of Rights
Section 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the government for
redress of grievances.
Syllabus for 2011 Bar Examinations in Labor Law 1
Section 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law shall not be
abridged.
1.3. Art. XIII, Secs. 1, 2, 3, 14
Section 1. The Congress shall give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce social, economic,
and political inequalities, and remove cultural inequities by equitably diffusing wealth and
political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of
property and its increments.
Section 2. The promotion of social justice shall include the commitment to create
economic opportunities based on freedom of initiative and self-reliance.
Social Justice and Human Rights
N.B.:
1. it is incorrect to say that self-organization is limited in purpose to CBA.
2. it is incorrect to say that ambulant, intermittent and itinerant workers, self-employed people, rural
workers and those without any definite employers [who may form labor organizations for their mutual
aid and protection] do not have the right to self-organization. They too are covered by the injunction
that It shall be unlawful for any person to restrain, coerce, discriminate against or unduly interfere with
(said) employees in their exercise of the right to self-organization. (at least on concerted activities)
------------
Self-organization is a fundamental right guaranteed by the Philippine Constitution and the Labor Code. Employees
have the right to form, join or assist labor organizations for the purpose of collective bargaining or for their mutual aid and
protection. The constitutional right to self-organization is better understood in the context of ILO Convention No. 87
(Freedom of Association and Protection of Right to Organize), to which the Philippines is a signatory. [UST Faculty Union v.
Bitonio, Jr., G.R. No. 131235, November 16, 1999, 318 SCRA 185, Panganiban, J.] Workers and employers, without
distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to job
organizations of their own choosing without previous authorization; [Standard Chartered Bank Employees Union (NUBE)
v. Confesor, G.R. No. 114974, June 16, 2004, 432 SCRA 308, 320-321] and that workers' organizations shall have the
right to draw up their constitution and rules and to elect their representatives in full freedom, free from any interference from
public authorities. [UST Faculty Union v. Bitonio, Jr., supra]
Labor
Section 3. The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment opportunities
for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining
and negotiations, and peaceful concerted activities, including the right to strike in accordance
with law. They shall be entitled to security of tenure, humane conditions of work, and a living
wage. They shall also participate in policy and decision-making processes affecting their
rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and
employers and the preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the
right of labor to its just share in the fruits of production and the right of enterprises to
reasonable returns to investments, and to expansion and growth.
Women
Section 14. The State shall protect working women by providing safe and healthful
working conditions, taking into account their maternal functions, and such facilities and
opportunities that will enhance their welfare and enable them to realize their full potential in
the service of the nation.
2. Civil Code
Contract of Labor
Article 1700. The relations between capital and labor are not merely contractual.
They are so impressed with public interest that labor contracts must yield to the common
good. Therefore, such contracts are subject to the special laws on labor unions, collective
bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and
similar subjects.
3. Labor Code
3.1. Article 3
Art. 3. Declaration of basic policy. The State shall afford protection to labor,
promote full employment, ensure equal work opportunities regardless of sex, race or creed
and regulate the relations between workers and employers. The State shall assure the rights
of workers to self-organization, collective bargaining, security of tenure, and just and humane
conditions of work.
3.2. Article 211
Art. 211. Declaration of Policy.
A. It is the policy of the State:
a. To promote and emphasize the primacy of free collective bargaining and
negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling
labor or industrial disputes;
b. To promote free trade unionism as an instrument for the enhancement of
democracy and the promotion of social justice and development;
c. To foster the free and voluntary organization of a strong and united labor
movement;
d. To promote the enlightenment of workers concerning their rights and
obligations as union members and as employees;
e. To provide an adequate administrative machinery for the expeditious
settlement of labor or industrial disputes;
f. To ensure a stable but dynamic and just industrial peace; and
g. a. To ensure the participation of workers in decision and policy-making
processes affecting their rights, duties and welfare.
B. To encourage a truly democratic method of regulating the relations between the employers
and employees by means of agreements freely entered into through collective bargaining, no court or
administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work
or other terms and conditions of employment, except as otherwise provided under this Code. (As
amended by Section 3, Republic Act No. 6715, March 21, 1989)
3.3. Article 212
Art. 212. Definitions.
a. "Commission" means the National Labor Relations Commission or any of its
divisions, as the case may be, as provided under this Code.
b. "Bureau" means the Bureau of Labor Relations and/or the Labor Relations
Divisions in the regional offices established under Presidential Decree No. 1, in the
Department of Labor.
c. "Board" means the National Conciliation and Mediation Board established
under Executive Order No. 126.
d. "Council" means the Tripartite Voluntary Arbitration Advisory Council
established under Executive Order No. 126, as amended.
e. "Employer" includes any person acting in the interest of an employer, directly
or indirectly. The term shall not include any labor organization or any of its officers or agents
except when acting as employer.
f. "Employee" includes any person in the employ of an employer. The term shall
not be limited to the employees of a particular employer, unless the Code so explicitly states.
It shall include any individual whose work has ceased as a result of or in connection with any
current labor dispute or because of any unfair labor practice if he has not obtained any other
substantially equivalent and regular employment.
g. "Labor organization" means any union or association of employees which
exists in whole or in part for the purpose of collective bargaining or of dealing with employers
concerning terms and conditions of employment.
h. "Legitimate labor organization" means any labor organization duly
registered with the Department of Labor and Employment, and includes any branch or local
thereof.
i. "Company union" means any labor organization whose formation, function or
administration has been assisted by any act defined as unfair labor practice by this Code.
j. "Bargaining representative" means a legitimate labor organization whether
or not employed by the employer.
k. "Unfair labor practice" means any unfair labor practice as expressly defined
by the Code.
l. "Labor dispute" includes any controversy or matter concerning terms and
conditions of employment or the association or representation of persons in negotiating,
fixing, maintaining, changing or arranging the terms and conditions of employment,
regardless of whether the disputants stand in the proximate relation of employer and
employee.
m. "Managerial employee" is one who is vested with the powers or prerogatives to
lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees. Supervisory employees are those who, in the interest
of the employer, effectively recommend such managerial actions if the exercise of such
authority is not merely routinary or clerical in nature but requires the use of independent
judgment. All employees not falling within any of the above definitions are considered rank-
and-file employees for purposes of this Book.
n. "Voluntary Arbitrator" means any person accredited by the Board as such or
any person named or designated in the Collective Bargaining Agreement by the parties to act as
their Voluntary Arbitrator, or one chosen with or without the assistance of the National
Conciliation and Mediation Board, pursuant to a selection procedure agreed upon in the
Collective Bargaining Agreement, or any official that may be authorized by the Secretary of
Labor and Employment to act as Voluntary Arbitrator upon the written request and agreement
of the parties to a labor dispute.
o. "Strike" means any temporary stoppage of work by the concerted action of
employees as a result of an industrial or labor dispute.
p. "Lockout" means any temporary refusal of an employer to furnish work as a
result of an industrial or labor dispute.
q. "Internal union dispute" includes all disputes or grievances arising from any
violation of or disagreement over any provision of the constitution and by laws of a union,
including any violation of the rights and conditions of union membership provided for in this
Code.
r. "Strike-breaker" means any person who obstructs, impedes, or interferes
with by force, violence, coercion, threats, or intimidation any peaceful picketing affecting
wages, hours or conditions of work or in the exercise of the right of self-organization or
collective bargaining.
s. "Strike area" means the establishment, warehouses, depots, plants or offices,
including the sites or premises used as runaway shops, of the employer struck against, as well
as the immediate vicinity actually used by picketing strikers in moving to and fro before all
points of entrance to and exit from said establishment. (As amended by Section 4, Republic
Act No. 6715, March 21, 1989)
d. Article 255
Art. 255. Exclusive bargaining representation and workers participation in
policy and decision-making. The labor organization designated or selected by the
majority of the employees in an appropriate collective bargaining unit shall be the exclusive
representative of the employees in such unit for the purpose of collective bargaining.
However, an individual employee or group of employees shall have the right at any time to
present grievances to their employer.
Principle of Co-Determination [2007 BAR Examinations]
B. RECRUITMENT AND PLACEMENT
1. Recruitment of Local and Migrant Workers
1.1. Recruitment and placement; defined
Art. 13. Definitions.--xxx xxx
(b) "Recruitment and placement" refers to any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring or procuring workers, and includes referrals,
contract services, promising or advertising for employment, locally or abroad, whether for
profit or not: Provided, That any person or entity which, in any manner, offers or promises
for a fee, employment to two or more persons shall be deemed engaged in recruitment and
placement.
1.2. Illegal Recruitment, Art. 38 (Local), Sec. 6, Migrant Workers Act,
RA 8042
Labor Code
Art. 38. Illegal recruitment.
a. Any recruitment activities, including the prohibited practices enumerated
under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority,
shall be deemed illegal and punishable under Article 39 of this Code. The Department of
Labor and Employment or any law enforcement officer may initiate complaints under this
Article.
b. Illegal recruitment when committed by a syndicate or in large scale shall be
considered an offense involving economic sabotage and shall be penalized in accordance with
Article 39 hereof.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of
three (3) or more persons conspiring and/or confederating with one another in carrying out
any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph
hereof. Illegal recruitment is deemed committed in large scale if committed against three (3)
or more persons individually or as a group.
c. The Secretary of Labor and Employment or his duly authorized representatives
shall have the power to cause the arrest and detention of such non-licensee or non-holder of
authority if after investigation it is determined that his activities constitute a danger to
national security and public order or will lead to further exploitation of job-seekers. The
Secretary shall order the search of the office or premises and seizure of documents,
paraphernalia, properties and other implements used in illegal recruitment activities and the
closure of companies, establishments and entities found to be engaged in the recruitment of
workers for overseas employment, without having been licensed or authorized to do so.
see: Sec. 6, RA 8042
1.2.1. License vs. Authority
xxx xxx xxx
(d) "License" means a document issued by the Department of Labor authorizing a
person or entity to operate a private employment agency.
xxx xxx xxx
(f) "Authority" means a document issued by the Department of Labor authorizing
a person or association to engage in recruitment and placement activities as a private
recruitment entity.
NOTES :
RECRUITMENT
AND PLACEMENT
Any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers,
And includes referrals, contract services, promising
or advertising for employment, locally or abroad,
whether for profit or not.
LICENSE Document issued by DOLE authorizing a
person/entity to operate a private fee-charging
agency [Art. 13(c) and (d), LC]
AUTHORITY Document authorizing a person/association to
engage in recruitment and placement activities as a
private recruitment entity, i.e., not for a fee. [Art.
13(f)]
It should be noted that the definition of recruitment and placement in Art. 13(b), does not make any of
the eleven (11) acts enumerated therein illegal per se. What makes it a case of illegal recruitment is when any of
said recruitment activities are undertaken by non-licensees or non-holders of authority. [Art. 38(a)] Such
that an employee, who introduces an applicant to owner-employer agency, committed an act of referral, a
recruitment activity. There is an illegal recruitment when one gives the impression of having the ability to send a
worker abroad. [People vs. Goce, 247 SCRA 780, 789 (1995)]
A non-licensee means a person, corporation or entity to which the labor secretary has not issued a valid
license or authority to engage in recruitment and placement; or whose license or authority has been suspended,
revoked, or cancelled by the POEA or the labor secretary. A licensee authorizes a person or an entity to operate a
private employment agency, while authority is given to those engaged in recruitment and placement activities.
[Rodolfo vs. People, G.R. No. 146964, August 10, 2006]
When a person or entity, in any manner, offers or promises for a fee employment to two or more persons,
that person or entity shall be deemed engaged in recruitment and placement. [People vs. Laogo, G.R. No.
176264, January 10, 2011, Villarama, J.]
1.2.2. Essential elements of illegal recruitment
Essential Elements of Illegal Recruitment
(1) Offender is:
(a) a non-licensee or a non-holder of authority; or
(b) a licensee or holder of authority;
(2) (a) Non-licensee/non-holder of authority commits any of the 24 infractions (11 in Art. 13(b), and 13
in Sec. 6, RA 8042)
(b) Licensee/holder of authority commits any of the 14 infractions under Sec. 6, RA 8042.
1.2.3. Simple illegal recruitment
* Illegal recruitment may be committed when a non-licensee or a non-holder of authority performs
any of the 11 acts of recruitment and placement under Art. 13(b) of the Labor Code. While Art. 34 makes
a distinction between:
(a) Prohibited practices when committed by a licensee or holder of authority; and
(b) Illegal recruitment when such prohibited practices were committed by a non-licensee or non-
holder of authority.
BUT,
RA 8042 removed this distinction and redefined illegal recruitment as follows:
(a) charging an amount greater than that specified;
(b) publishing false notice in relation to recruitment;
(c) giving away false information or any act of misrepresentation for securing a license/authority;
(d) inducing a worker to quit present work in place of another
UNLESS, to free the worker from oppressive terms and conditions;
(e) influencing any person/entity not to employ a worker who has not applied through the formers agency;
(f) recruiting workers in jobs that are harmful to public health or morality;
(g) obstructing inspection by the Secretary of Labor;
(h) failing to file reports as required by the Secretary;
(i) substituting or altering DOLE-approved employment contracts;
(j) becoming a Board member of a travel agency, directly or indirectly;
(k) withholding applicant workers travel documents for monetary considerations;
(l) failing to actually deploy a worker without a valid reason; and
(m) in case of non-deployment of worker without his fault, failing to reimburse expenses the latter incurred.
In sum,
E a non-licensee can be guilty of 24 illegal recruitment acts:
o 11 acts under Art. 13(b)
o 13 illegal recruitment acts under Sec. 6, RA 8042
E a licensee can be liable only for 13 illegal recruitment/prohibited acts (under Sec. 6, RA 8042), UNLESS he
conspires with a non-licensee in the commission of any of the illegal acts in Art. 13(b).
1.2.4. Illegal recruitment in large scale
Illegal recruitment is a matter of evidence. [People vs. Panis, 142 SCRA 664 (1986)]
Illegal recruitment becomes economic sabotage if:
LARGE SCALE SYNDICATE
3 or more victims 3 or more conspirators
If only 1 victim, the burden of proof is on the accuser. But if there are 2 or more victims, the
accused is disputably presumed to have committed illegal recruitment. [Sec. 6, RA 8042, cited in People
vs. Panis, supra]
1.2.5. Illegal recruitment as economic sabotage
SECTION 6. Definition. xxx xxx xxx
(m) Illegal recruitment when committed by a syndicate or in large scale shall be
considered an offense involving economic sabotage; and
1.2.6. Illegal Recruitment vs. Estafa
Art. 315. Swindling (estafa). Any person who shall defraud another by any of the
means mentioned hereinbelow shall be punished by:
xxx the fraud be committed by any of the following means:
1. With unfaithfulness or abuse of confidence, namely: xxx
xxx xxx
(b) By misappropriating or converting, to the prejudice of another, money, goods, or
any other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially guaranteed by a bond; or
by denying having received such money, goods, or other
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud: (a) By using fictitious name,
or falsely pretending to possess power, influence, qualifications, property, credit, agency,
business or imaginary transactions, or by means of other similar deceits.
xxx xxx xxx
* Any recruitment activities to be undertaken by non-licensee or non-holder of contracts shall be deemed
illegal and punishable under Art. 39 of the Labor Code. [People vs. Jamilosa, 512 SCRA 340 (2007)]
* Absence of money or any valuable consideration as payment for services of the recruiter still considers
the recruitment illegal under Art. 13(b) of the Labor Code as recruitment maybe for profit or not. [People vs.
Jamilosa, supra]
1.2.7. Liabilities
SECTION 10. Money claims.
The liability of the principal/employer and the recruitment/placement agency for any
and all claims under this section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall be a condition precedent for
its approval. The performance bond to be filed by the recruitment/placement agency, as
provided by law, shall be answerable for all money claims or damages that may be awarded
to the workers. If the recruitment/placement agency is a juridical being, the corporate
officers and directors and partners as the case may be, shall themselves be jointly and
solidarily liable with the corporation or partnership for the aforesaid claims and damages.
Such liabilities shall continue during the entire period or duration of the employment
contract and shall not be affected by any substitution, amendment or modification made
locally or in a foreign country of the said contract.
(a) local employment agency
(b) foreign employer
Theory of imputed knowledge
( The so-called theory of imputed knowledge, that is, knowledge of the agent is knowledge
of the principal. [New Life vs. CA, G.R. No. 94071 March 31, 1992] For the liability of the agent
to attach, this theory states that the agent knew of and consented to the extension of period of
employment. Otherwise, the liability of the recruitment agency shall expire from the termination
of the worker's original contract. [SUNACE INTERNATIONAL MANAGEMENT vs. NLRC,
G.R. No. 161757, January 25, 2006, Carpio Morales, J.]
1.2.8. Pre-termination of contract of migrant worker
NOTES:
Rules on Repatriation of Overseas Workers
(1) Without fault of the worker, his repatriation shall be borne by the local agency and/or principal over
the:
a. worker and his personal belongings;
b. remains of the deceased worker and his personal belongings [Sec. 15, par. 1, RA 8042]
(2) Repatriation due to the fault of migrant worker shall be borne by the migrant worker. [Sec. 15, par. 1,
RA 8042]
(3) Repatriation in cases of war, epidemic, disasters/calamities, or other similar events shall be borne
by OWWA, without prejudice to reimbursement by the principal or local agency. [Sec. 15, par.2, RA
8042]
(4) Repatriation of underage migrant worker shall be mandatory upon discovery, done by the
responsible officers of the foreign service where the underage migrant worker is found. [Sec. 16, RA
8042]
(5) Repatriation of seafarer
POEA Memo Circular No. 55-96 provides that a seaman can be repatriated without cause if the
vessel arrives at a convenient port within 3 months before the expiration of his contract, BUT only
upon payment of:
a. all his earned wages;
b. leave pay for the entire contract;
c. termination pay of 1 month basic salary, IF seaman has at least 10 months original
contract. [PCL Shipping Phils. vs. NLRC, G.R. No. 153031, December 14, 2006, Austria-
Martinez, J.]
1.3. Direct hiring
Art. 18. Ban on direct-hiring. No employer may hire a Filipino worker for overseas
employment except through the Boards and entities authorized by the Secretary of Labor.
Direct-hiring by members of the diplomatic corps, international organizations and such other
employers as may be allowed by the Secretary of Labor is exempted from this provision.
2. Regulation and Enforcement
Art. 16. Private recruitment. Except as provided in Chapter II of this Title, no
person or entity other than the public employment offices, shall engage in the recruitment
and placement of workers.
Art. 25. Private sector participation in the recruitment and placement of
workers. Pursuant to national development objectives and in order to harness and
maximize the use of private sector resources and initiative in the development and
implementation of a comprehensive employment program, the private employment sector
shall participate in the recruitment and placement of workers, locally and overseas, under
such guidelines, rules and regulations as may be issued by the Secretary of Labor.
Art. 26. Travel agencies prohibited to recruit. Travel agencies and sales agencies
of airline companies are prohibited from engaging in the business of recruitment and
placement of workers for overseas employment whether for profit or not.
Art. 27. Citizenship requirement. Only Filipino citizens or corporations,
partnerships or entities at least seventy-five percent (75%) of the authorized and voting
capital stock of which is owned and controlled by Filipino citizens shall be permitted to
participate in the recruitment and placement of workers, locally or overseas.
Art. 28. Capitalization. All applicants for authority to hire or renewal of license to
recruit are required to have such substantial capitalization as determined by the Secretary of
Labor.
Art. 29. Non-transferability of license or authority. No license or authority
shall be used directly or indirectly by any person other than the one in whose favor it was
issued or at any place other than that stated in the license or authority be transferred,
conveyed or assigned to any other person or entity. Any transfer of business address,
appointment or designation of any agent or representative including the establishment of
additional offices anywhere shall be subject to the prior approval of the Department of Labor.
Art. 30. Registration fees. The Secretary of Labor shall promulgate a schedule of
fees for the registration of all applicants for license or authority.
Art. 31. Bonds. All applicants for license or authority shall post such cash and surety
bonds as determined by the Secretary of Labor to guarantee compliance with prescribed
recruitment procedures, rules and regulations, and terms and conditions of employment as
may be appropriate.
Art. 32. Fees to be paid by workers. Any person applying with a private fee-
charging employment agency for employment assistance shall not be charged any fee until he
has obtained employment through its efforts or has actually commenced employment. Such
fee shall be always covered with the appropriate receipt clearly showing the amount paid. The
Secretary of Labor shall promulgate a schedule of allowable fees.
Art. 33. Reports on employment status. Whenever the public interest requires,
the Secretary of Labor may direct all persons or entities within the coverage of this Title to
submit a report on the status of employment, including job vacancies, details of job
requisitions, separation from jobs, wages, other terms and conditions and other employment
data.
2.1. Remittance of foreign exchange earnings
Art. 22. Mandatory remittance of foreign exchange earnings. It shall be
mandatory for all Filipino workers abroad to remit a portion of their foreign exchange
earnings to their families, dependents, and/or beneficiaries in the country in accordance with
rules and regulations prescribed by the Secretary of Labor.
2.2. Prohibited activities
Art. 34. Prohibited practices. It shall be unlawful for any individual, entity,
licensee, or holder of authority:
(a) To charge or accept, directly or indirectly, any amount greater than that
specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a
worker pay any amount greater than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act
of misrepresentation for the purpose of securing a license or authority under this Code.
(d) To induce or attempt to induce a worker already employed to quit his
employment in order to offer him to another unless the transfer is designed to liberate the
worker from oppressive terms and conditions of employment;
(e) To influence or to attempt to influence any person or entity not to employ any
worker who has not applied for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs harmful to public
health or morality or to the dignity of the Republic of the Philippines;
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his
duly authorized representatives;
(h) To fail to file reports on the status of employment, placement vacancies,
remittance of foreign exchange earnings, separation from jobs, departures and such other
matters or information as may be required by the Secretary of Labor.
(i) To substitute or alter employment contracts approved and verified by the
Department of Labor from the time of actual signing thereof by the parties up to and
including the periods of expiration of the same without the approval of the Secretary of
Labor;
(j) To become an officer or member of the Board of any corporation engaged in
travel agency or to be engaged directly or indirectly in the management of a travel agency;
and
(k) To withhold or deny travel documents from applicant workers before departure
for monetary or financial considerations other than those authorized under this Code and its
implementing rules and regulations.
2.3. Regulatory and visitorial powers of the Labor Secretary
Art. 14. Employment promotion. The Secretary of Labor shall have the power and
authority:
(a) To organize and establish new employment offices in addition to the existing
employment offices under the Department of Labor as the need arises;
(b) To organize and establish a nationwide job clearance and information system to inform
applicants registering with a particular employment office of job opportunities in other parts
of the country as well as job opportunities abroad;
(c) To develop and organize a program that will facilitate occupational, industrial
and geographical mobility of labor and provide assistance in the relocation of workers from
one area to another; and
(d) To require any person, establishment, organization or institution to submit
such employment information as may be prescribed by the Secretary of Labor.
Art. 36. Regulatory power. The Secretary of Labor shall have the power to restrict
and regulate the recruitment and placement activities of all agencies within the coverage of
this Title and is hereby authorized to issue orders and promulgate rules and regulations to
carry out the objectives and implement the provisions of this Title.
Art. 37. Visitorial Power. The Secretary of Labor or his duly authorized
representatives may, at any time, inspect the premises, books of accounts and records of any
person or entity covered by this Title, require it to submit reports regularly on prescribed
forms, and act on violation of any provisions of this Title.
NOTES:
* The Supreme Court declared Art. 38, par. (c) unconstitutional and null and void, stating that only a
judge may issue warrants of search and arrest. [Hortencia Salazar vs. Tomas D. Achacoso and Ferdie
Marquez, G.R. No. 81510, March 14, 1990]
2.4. Penalties for illegal recruitment
Art. 35. Suspension and/or cancellation of license or authority. The Minister
of Labor shall have the power to suspend or cancel any license or authority to recruit
employees for overseas employment for violation of rules and regulations issued by the
Ministry of Labor, the Overseas Employment Development Board, or for violation of the
provisions of this and other applicable laws, General Orders and Letters of Instructions.
Art. 39. Penalties.
(a) The penalty of life imprisonment and a fine of One Hundred Thousand Pesos
(P1000,000.00) shall be imposed if illegal recruitment constitutes economic sabotage as
defined herein;
(b) Any licensee or holder of authority found violating or causing another to violate
any provision of this Title or its implementing rules and regulations shall, upon conviction
thereof, suffer the penalty of imprisonment of not less than two years nor more than five
years or a fine of not less than P10,000 nor more than P50,000, or both such imprisonment
and fine, at the discretion of the court;
(c) Any person who is neither a licensee nor a holder of authority under this Title
found violating any provision thereof or its implementing rules and regulations shall, upon
conviction thereof, suffer the penalty of imprisonment of not less than four years nor more
than eight years or a fine of not less than P20,000 nor more than P100,000 or both such
imprisonment and fine, at the discretion of the court;
(d) If the offender is a corporation, partnership, association or entity, the penalty
shall be imposed upon the officer or officers of the corporation, partnership, association or
entity responsible for violation; and if such officer is an alien, he shall, in addition to the
penalties herein prescribed, be deported without further proceedings;
(e) In every case, conviction shall cause and carry the automatic revocation of the
license or authority and all the permits and privileges granted to such person or entity under
this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas
Employment Development Board or the National Seamen Board, as the case may be, both of
which are authorized to use the same exclusively to promote their objectives.
a) Licensing of and Administrative Complaints against Recruitment Agencies
LOCAL RECRUITMENT AGENCY
Where to file: DOLE Regional Office
Who issues license: DOLE Regional Director
Who revokes/cancels license: DOLE Regional Director
BLE copy furnished of all Orders for Database
OVERSEAS RECRUITMENT AGENCY
Where to file: POEA Director of Licensing & Regulatory Office (LRO), which office is under the wing of the
Deputy Administrator for Adjudication and Employment Regulation.
Who issues license: POEA Director of LRO
Who revokes/cancels license: POEA Director of LRO
EXCEPT, in case of ILLEGAL RECRUITMENT:
1 Under the POEA Rules on Overseas Land-based Employment (2002), both the POEA Administrator and
DOLE Regional Director has the power to issue a CLOSURE ORDER against an erring overseas
recruitment and manning agency.
2 BUT, Under the new Omnibus Rules Implementing RA 10022 (amendment to RA 8042), it is the POEA
Administrator who has the authority to issue a CLOSURE ORDER upon preliminary finding of guilt
against an overseas recruitment agency. [Sec. 11]
HOWEVER,
Prior to the issuance of a CLOSURE ORDER, an investigation takes place whereby the POEA Administrator may
issue a preventive suspension upon the recommendation of the POEA Director of LRO. [Sec. 9, Omnibus Rules
implementing RA 10022]
Closure Order may be lifted upon filing a Motion before the POEA Director of LRO, which motion shall be
resolved by the POEA Administrator. [Sec. 18, Omnibus Rules Implementing RA 10022]
b) Criminal Complaints involving Migrant Workers
ILLEGAL RECRUITMENT AS ECONOMIC SABOTAGE
Categories:
1. Illegal recruitment in large scale if committed against three or more persons
individually or as a group.
2. Illegal recruitment by a syndicate - if carried out by a group of three or more persons
conspiring and/or confederating with one another.
When only one complainant filed individual complaints, there is no illegal recruitment in large scale
BUT the three conspiring recruiters can be held guilty of illegal recruitment by a syndicate. [People vs.
Hernandez, K. Reichl, and Y.G. de Reichl, G.R. Nos. 141221-36, March 7, 2002.]
Where illegal recruitment is proved but the elements of large scale or syndicate are absent, the
accused can be convicted only of simple illegal recruitment.
VENUE: The RTC of the province or city where the offense was committed or where the offended
party actually resides at the time of the commission of the offense.
C. LABOR_STANDARDS
1. Hours of Work
Labor Code
Art. 84. Hours worked. Hours worked shall include (a) all time during which an
employee is required to be on duty or to be at a prescribed workplace; and (b) all time during
which an employee is suffered or permitted to work.
Rest periods of short duration during working hours shall be counted as hours worked.
Omnibus Rules
Book III, Rule 1
Sec. 3. Hours worked.The following shall be considered as compensable hours
worked:
(a) All time during which an employee is required to be on duty or to be at the
employer's premises or to be at a prescribed workplace; and
(b) All time during which an employee is suffered or permitted to work.
Sec. 4. Principles in Determining Hours WorkedThe following general
principles shall govern in determining whether the time spent by an employee is considered
hours worked for purposes of this Rule:
(a) All hours are hours worked which the employee is required to give to his
employer, regardless of whether or not such hours are spent in productive labor or involve
physical or mental exertion;
(b) An employee need not leave the premises of the workplace in order that his rest
period shall not be counted, it being enough that he stops working, may rest completely and
may leave his workplace, to go elsewhere, whether within or outside the premises of his
workplace;
(c) If the work performed was necessary, or it benefited the employer, or the
employee could not abandon his work at the end of his normal working hours because he had
no replacement, all time spent for such work shall be considered as hours worked, if the work
was with the knowledge of his employer or immediate supervisor;
(d) The time during which an employee is inactive by reason of interruptions in his
work beyond his control shall be considered time either if the imminence of the resumption
of work requires the employee's presence at the place of work or if the interval is too brief to
be utilized effectively and gainfully in the employee's own interest.
Sec. 5.Waiting Time.
(a) 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.
(b) 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. An employee who is not required to leave word at his
home or with company officials where he may be reached is not working while on call.
Sec. 6. Lectures, Meetings, Training Programs.Attendance at lectures,
meetings, training programs, and other similar activities shall not be counted as working
time if all of the following conditions are met:
(a) attendance is outside of the employee's regular working hours;
(b) attendance is in fact voluntary; and
(c) the employee does not perform any productive work during
such attendance.
1.1. Coverage/Exclusions
Art. 82. Coverage.The provisions of this title shall apply to employees in all
establishments and undertakings whether for profit or not, but not to government employees,
managerial employees, field personnel, members of the family of the employer who are
dependent on him for support, domestic helpers, persons in the personal service of another,
and workers who are paid by results as determined by the Secretary of Labor in appropriate
regulations.
As used herein, managerial employees refers to those whose primary duty consists of
the management of the establishment in which they are employed or of a department or
subdivision thereof, and to other officers or members of the managerial staff.
Field personnel shall refer to non-agricultural employees who regularly perform their
duties away from the principal place of business or branch office of the employer and whose
actual hours of work in the field cannot be determined with reasonable certainty.
Omnibus Rules
Book III, Rule I
Section 2. Exemption.The provision of this Rule shall not apply to the following
persons if they apply to the following persons if they qualify for exemption under the
conditions set forth herein:
xxx xxx xxx
(b) Managerial employees, if they meet all of the following conditions, namely:
(1) Their primary duty consists of the management of the establishment in
which they are employed or of a department or sub-division thereof;
(2) They customarily and regularly direct the work of two or more
employees therein;
(3) They have the authority to hire or fire other employees of lower
rank; or their suggestions and recommendations as to the hiring and firing and as to
the promotion or any other change of status of other employees are given particular
weight.
(c) Officers or members of a managerial staff if they perform the following duties
and responsibilities:
(1) The primary duty consists of the performance of work directly
related to management policies of their employer;
(2) Customarily and regularly exercise discretion and independent
judgment;
(3) (i) Regularly and directly assist a proprietor or a managerial
employee whose primary duty consists of the management of the establishment in
which he is employed or subdivision thereof; or (ii) execute under general
supervision work along specialized or technical lines requiring special training,
experience, or knowledge; or (iii) execute under general supervision special
assignments and tasks; and
(4) Who do not devote more than 20 percent of their hours worked
in a work-week to activities which are not directly and closely related to the
performance of the work described in paragraphs (1), (2), and (3) above.
Who are covered
All employees in all establishments
Who are NOT covered
(1) Government employees
See: Civil Service Law
Magna Carta of Public Health Workers (R.A. 7305)
(2) Managerial employees
(a) managerial employees
(b) officers of the managerial staff
(c) members of the managerial staff
NOTES:
For purposes of the exemption, managerial employees are those whose primary duty consists of the
management of the establishment in which they are employed or of a department or subdivision. [Pearanda
vs. Baganga Plywood Corp., G.R. No. 159577, May 3, 2006]
A purported manager whose function is simply to carry out the companys orders, plans and policies is
not a managerial employee. If their functions, duties and responsibilities do not bear relation with the
management of the establishment, nor participate in the formulation of its policies, nor in the hiring and firing of
its employees, then they are NOT managerial employees. [NAWASA vs. NWSA Consolidated Unions, 11
SCRA 766 (1964)]
Managerial employee is not required to report at a fixed hour or to keep fixed hours of work. [International
Pharmaceuticals, Inc. Vs. NLRC, 287 SCRA 213 (1998)]
A Vice President/Plant Manager is a managerial employee, and therefore excluded from the coverage of
Title I, Book III, of the Labor Code. [John McLeod vs. NLRC, G.R. No. 146667, January 23, 2007]
Includes managerial staff
While not considered as managerial employees, officers and members of the managerial staff are
likewise exempted from the coverage of Article 82. Managerial staff are those with the following duties and
responsibilities:
(1) primary duty consists of the performance of work directly related to management policies of the
employer;
(2) customarily and regularly exercise discretion and independent judgment;
(3) (a) regularly and directly assist a proprietor/managerial employee, whose primary duty
consists of the management of the establishment; OR
(b) execute under general supervision work along specialized or technical lines requiring
special training, experience or knowledge; OR
(c) execute under general supervision special assignments and tasks;
(4) who do NOT devote more than 20% of their hours of work in a week to activities which are not
directly and closely related to management of the establishment. [Pearanda vs. Baganga
Plywood Corp., supra, citing Section 2(c), Rule I, Book III of the Omnibus Rules and
Regulations]
An employee tasked to supervise the engineering section of the plant, and whose work involved
overseeing the operation of the machines and the performance of the workers in said section, is considered part
of the managerial staff. His functions require the use of discretion and independent judgment to ensure the
proper functioning of the plant. The term FOREMAN implies that he was the representative of management over
the workers, and the operation of the department. [Pearanda vs. Baganga Plywood Corp., supra] Likewise,
an employee with powers of supervisor/manager is part of the managerial staff. [Quebec vs. NLRC, 301 SCRA
627 (1999)]
N.B.:
Managers and members of managerial staff are NOT entitled to:
a. Overtime pay [Art. 87; Salazar vs. NLRC, supra]
b. Service incentive leave pay [Art. 95(b]; Quebec vs. NLRC, supra]
c. Holiday pay (Art. 94)
(3) Field Personnel
In Union of Filipro Employees vs. Vivar, Jr., [(205 SCRA 200 (1992)], it was held that the phrase whose actual
hours of work in the field cannot be determined with reasonable certainty must be read in conjunction with the meaning of
field personnel in Rule IV, Book III of the Implementing Rules, whereby field personnel and other employees whose time
and performance is unsupervised by the employer. [Mercidar Fishing Corp. vs. NLRC, 297 SCRA 440 (1998)] The term
other employees should NOT be understood as a separate classification of employees who are not covered under Article
82 of the Labor Code, rather should be regarded as an amplification of the interpretation of the definition of field personnel
as those whose actual hours of work in the field cannot be determined with reasonable certainty. [Auto Bus Transport
vs. Bautista, 458 SCRA 578 (2005)]
N.B.:
Field Personnel are NOT entitled to the following benefits:
a. Overtime pay; [Union Filipro Employees vs. Vivar, Jr., supra, citing San Miguel Brewery vs. Democratic
Labor Organization, 8 SCRA 613 (1963)]
b. Service incentive leave pay [Sec. 1, Rule V, Implementing Rules; Auto Bus Transport vs. Bautista, 458
SCRA 578 (2005)]
c. 13
th
month pay [PD 851]
(4) Dependent Family Members
(5) Domestic Workers and Persons in the Personal Service of Another
The definition of domestic servant or househelper contemplates one who is employed in the employer's home
to minister exclusively to the personal comfort and enjoyment of the employer's family. [Apex Mining
Company vs. NLRC, 196 SCRA 251 (1991)]
Workers covered in this definition include:
(1) family drivers
(2) domestic servants
(3) laundrywomen
(4) yayas
(5) gardeners
(6) houseboys
(7) other similar househelps [Apex Mining Company vs. NLRC, supra at 254]
Househelp or laundrywomen working in staffhouses or a company, who attends to the needs of company
guests and other persons availing of said facilities should not be included in this definition. The mere fact that the
househelper or domestic servant is working within the premises of the employer and in relation to or in
VSEV: HOWEVER, a better reading of the foregoing should be
services rendered in the employer's HOME for the personal comfort of
the members of the household, not necessarily of the family.
connection with its business, as in its staffhouses, warrants the conclusion that such househelper or domestic
servant is and should be considered as a regular employee. [Apex Mining Company vs. NLRC, supra at 254-
255]
On the other hand, a personal driver of the owner of the company cannot claim regular employment with
the company itself absent proof of his employment relations therewith. [Ultra Villa Food Haus vs. Geniston,
309 SCRA 17 (1999) at 23]
N.B.:
Domestic servants are NOT entitled to the following benefits:
a. Overtime pay;
b. Holiday pay;
c. Premium pay for holiday and rest days
d. Service Incentive Leave pay. [Ultra Villa Food Haus vs. Geniston, supra at 24]
(6) Piece Workers
Piece workers are those workers paid by results. [Art. 82]
And while the mode of compensation is on piece-rate basis, they are considered as regular employees for
as long as the nature of the tasks they perform are necessary and desirable in the usual business of the
employer, and their employment is not dependent on specific projects or season. [Labor Congress vs. NLRC,
290 SCRA 509 (1998); in rel. Art. 280, LC; see also: Villuga vs. NLRC, 225 SCRA 537 (1993)] As such, they
are entitled to:
a. minimum wage
b. ECOLA
c. 13
th
month pay [Makati Haberdashery, Inc. vs. NLRC, 179 SCRA
448 (1989)]
They are NOT entitled to:
a. Overtime pay, if their output rates are in accordance with the
standards prescribed under Section 8, Rule VII, Book III; [Labor Congress vs.
NLRC, supra]
b. Service Incentive Leave pay; [Makati Haberdashery, supra]
1.2. Normal Hours of Work
Art. 83. Normal hours of work. The normal hours of work of any employee shall
not exceed eight (8) hours a day.
Health personnel in cities and municipalities with a population of at least one million
(1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall
hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time
for meals, except where the exigencies of the service require that such personnel work for six
(6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional
compensation of at least thirty percent (30%) of their regular wage for work on the sixth day.
For purposes of this Article, "health personnel" shall include resident physicians, nurses,
nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical
technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.
NOTES:
* Article 83 of the Labor Code provides that the normal hours of work shall NOT exceed 8 hours a day,
which period does not include meal break. [PAL vs. NLRC, 302 SCRA 582 (1999)]
What constitutes Hours Worked?
(Mnemonic) DWSP
- when on DUTY
- when at the WORKPLACE
- when SUFFERED to work
- when PERMITTED to work [PAL vs. NLRC, 302 SCRA 582 (1999)]
Purpose of the 8-Hour Labor Law:
to safeguard health
minimize unemployment as employer is forced to resort to more shiftings. [NAWASA vs. NWSA Consolidated Unions,
11 SCRA 766 (1964)]
* Services performed by an employee exceeding the normal 8-hour work period entitles him to extra
compensation. This extra compensation is not subject to estoppel or laches, and allows the employee to claim
such extra compensation for past overtime work so rendered. [Manila Terminal Co. vs. CIR, G.R. No. L-
4148, July 16, 1952]
BUT, shall only be applicable in industries not exempted by law to pay said additional compensation, such as
public utilities and government agencies and instrumentalities, performing governmental functions. [NAWASA
vs. NWSA Consolidated Unions, supra]
EXCEPT, when the company voluntarily agrees to pay its employees additional compensation for work
performed in excess of 8 hours. The obligation of the company is no longer by compulsion of law, but is based
on contracts. [NAWASA vs. NWSA, supra]
A provision for a 6-day work week or 48 hours/week entitles an employee working on the 6
th
day
additional compensation of at least 30% of his regular wage, [Art. 83, 2
nd
par., LC] BUT does not entail
payment to health personnel full weekly salary (7 days), with 2 days work-off considered as paid. A
Department Order to this effect is considered void for want of authority. [San Juan de Dios Hospital
Employees Association-AFW/MA vs. NLRC, 282 SCRA 316 (1997)]
1.2.1. Exceptions
(a) Health Personnel
Labor Code
ART. 83. Normal hours of work.xxx
Health personnel in cities and municipalities with a population of at least one million
(1,000,000) shall hold regular office hours for eight (8) hours a day, for five (5) days a week,
exclusive of time for meals, except where the exigencies of the service require such personnel
work for six (6) days or forty-eight (48) hours, in which case they shall be entitled to an
additional compensation of at least thirty percent (30%) of their regular wage for work on the
sixth day. For purposes of Article, health personnel shall include: resident physicians,
nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians,
paramedical technicians, psychologist, midwives, attendants and all other hospital or clinic
personnel.
Omnibus Rules
Rule I-A
SEC. 1. General statement on coverage.This Rule shall apply to:
(a) all hospitals and clinics, including those with a bed capacity of less than one
hundred (100) which are situated in cities or municipalities with a population of 1 million or
more; and
(b) all hospitals and clinics with a bed capacity of at least one hundred (100),
irrespective of the size of the population of the city or municipality where they may be
situated.
SEC. 4. Personnel covered by this Rule.This Rule applies to all persons
employed by any private or public hospital or clinic mentioned in Section 1 hereof, and shall
include, but not limited to, resident physicians, nurses, nutritionists, dieticians, pharmacists,
social workers, laboratory technicians, paramedical technicians, psychologists, midwives, and
attendants.
SEC. 5. Regular Working Hours.The regular working hours of any person
covered by this Rule shall not be more than eight (8) hours in any one day nor more than
forty hours in any one week.
xxx xxx xxx
SEC. 6. Regular Working Days.The regular working days of covered
employees shall not be more than five days in a workweek. The workweek may begin at any
hour and on any day, including Saturday or Sunday, designated by the employer.
Employers are not precluded from changing the time at which the workday or
workweek begins, provided that the change is not intended to evade the requirements of this
Rule.
While medical/health personnel are only required to perform work for five (5) days, this does not mean that work
performed for the week entitles them to a full weekly wage for 7 days. Full weekly wage only arises if work performed for
five (5) days amounted to 40 hours of work, consistent with the 8-hour workday. [San Juan de Dios Hospital Employees
Association-AFW/MA vs. NLRC, 282 SCRA 316 (1997)]
(b) Compressed Work Week
NOTES:
Parties are not prohibited from agreeing in a compressed workweek scheme, whereby regular workweek is
shortened but with longer work periods. For as long as employees voluntarily agree to work for more than 8 hours a day in
total in a week of which shall not exceed normal weekly hours of work. In fact, Department Order No. 21 sanctions this kind
of scheme, in consideration of the benefits that employees may derive therefrom, i.e.,:
(1) savings on costs of transportation, meals, and energy
(2) greater efficiency of employees
(3) lower rate of employee absenteeism
(4) longer weekends is beneficial for rest, leisure, and time for the family. [Bisig Manggagawa sa
Tryco, et al. vs. NLRC, G.R. No. 151309, October 15, 2008]
Conditions for Implementation (DO 21-90)
The ff. concurring conditions should be met:
(1) The employees voluntarily agree to work for more than 8 hours/day, the total in a week
should not exceed their normal weekly hours prior to adoption of compressed workweek (CWW)
scheme.
(2) There will NOT be any diminution in the weekly/monthly take-home pay and fringe benefits
of the employees.
(3) If an employee is permitted or required to work in excess of his normal weekly hours of
work prior to the adoption of the CWW scheme, all such excess hours shall be considered
overtime work, and compensated accordingly.
(4) Appropriate waivers with respect to overtime premium pay for work performed in
excess of 8 hours/day may be devised by the parties to the agreement.
(5) Effectivity and implementation of the new working time arrangement shall be by
agreement of the parties.
See: DOLE Advisory No. 02-04
DOLE Advisory No. 2, s.2009
1.3. Work interruption due to brownouts
Brownouts is not included in Hours worked
1.4. Meal Break
Art. 85. Meal Periods.Subject to such regulations as the Secretary of Labor may
prescribe, it shall be the duty of every employer to give his employees not less than sixty (60)
minutes time-off for their regular meals.
Omnibus Rules
Book III, Rule 1
Sec. 7. Meal and Rest Periods.Every employer shall give his employees, regardless of
sex, not less than one (1) hour time-off for regular meals, except in the following cases when a
meal period of not less than twenty (20) minutes may be given by the employer provided that
such shorter meal period is credited as compensable hours worked of the employee:
(a) Where the work is non-manual work in nature or does not involve strenuous
physical exertion;
(b) Where the establishment regularly operates not less than sixteen (16) hours a
day;
(c) In cases of actual or impending emergencies or there is urgent work to be
performed on machineries, equipment or installations to avoid serious loss which the
employer would otherwise suffer; and
(d) Where the work is necessary to prevent serious loss of perishable goods.
xxx xxx xxx
As a General Rule:
The 8-hour work period does not include the meal break. Nowhere in the law may it be inferred that employees
must take their meals within company premises. Employees are not prohibited from going out of the premises as long as
they return to their posts on time. [PAL v. NLRC, 302 SCRA 582 (1999)]
EXCEPT,
When employees are required to standby for emergency work during their 1-hour meal period and their
unavailability results in disciplinary action, their meal break should be considered as part of hours worked. [Pan-American
Airways, 1 SCRA 527 (1961)]
1.5. Idle time, waiting time, commuting time, travel time,
whether part of hours of work or not
There are special circumstances where employees, who although considered to be on forced leave during the
semestral break, such as full-time professors in a university, are still entitled to compensation. Professors and teachers,
during this period of time, are nevertheless burdened with correcting papers, evaluating students, meeting deadlines, and
submitting grading reports within a given period, such that the semestral break could not be used effectively for the teacher's
own purposes, and thus, should be considered as compensable hours worked. [University of Pangasinan Faculty
Union vs. University of Pangasinan, 127 SCRA 691, 699 (1984)]
On another note, the meaning and scope of the term workplace determine whether the time spent within work
premises is considered hours worked.
(a) A worker confined within the premises of a boat or a factory shop need not leave said premises in
order to enjoy his rest period, it being enough that he (1) cease to work, (2) may rest completely, and (3)
leave or may leave, at his will, the spot where he actually stays while working, or to go somewhere else. In
such cases, the period of rest shall not be counted as hours worked. [Luzon Stevedoring vs. Luzon Marine
Department Union, G.R. No. L-9265, April 29, 1957]
(b) A worker who continues to report for work at the employer's previous workplace may not be
compensated, if he is aware that the employer's workplace has been transferred to another area. [Aklan
Electric Cooperative vs. NLRC, 323 SCRA 258 (2000)]
(c) A worker who is required to assemble at a designated area at least 30 minutes prior to the start of their
scheduled working hours is not compensated when he is not subject to the absolute control of the employer
during this 30-minute assembly time. [Arica vs. NLRC, 170 SCRA 776 (1989)]
BUT,
A driver who is also required to pick up other employees at certain specified points on his way to the
workplace, and likewise drops them off on his way home is entitled to overtime compensation, since the
assigned task of fetching and delivering employees to the worksite is primarily for the benefit of the employer.
[Rada vs. NLRC, 205 SCRA 69 (1992)]
See: RA 10028, (approved on March 16, 2010)
1.6. Overtime work
Art. 87. Overtime Work.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 (25%) percent thereof. Work
performed beyond eight hours on a holiday or rest day shall be paid an additional
compensation equivalent to the rate for the first eight hours on a holiday or rest day plus at
least thirty (30%) percent thereof.
Overtime Work
Overtime work is actually the lengthening of hours developed to the interests of the employer and the requirements
of his enterprise. It follows that the wage or salary to be received must likewise be increased, and a special additional
amount must be added to serve either as encouragement or inducement.
Wage, on the other hand, is the remuneration or earnings, however designated, capable of being expressed in
terms of money, which is payable by an employer to an employee for work done.
Thus, for purposes of computing overtime compensation, regular wage includes all payments which the parties have
agreed shall be received during the work week. Extra, temporary and contingent compensation unrelated to work done or
service rendered should not be part of the computation. [PNB vs. PEMA, G.R. No. L-30279, July 30, 1982]
1.6.1 Undertime not offset by overtime
Art. 88. Undertime not Offset by Overtime.Undertime work on any particular day
shall not be offset by overtime work on any other day. Permission given to the employee to
go on leave on some other day of the week shall not exempt the employer from paying the
additional compensation required in this Chapter.
NOTE:
* If a worker should incur in undertime during his regular daily work, it should not be set off by his
overtime, for that would place the schedule of working hours dependent on the employee. [NAWASA vs.
NWSA Consolidated Unions, supra]
1.6.2 Waiver of overtime pay
* For instance, the generally observed workweek of 6 days is shortened to 5 days, but prolonging
the working hours from Monday-Friday without the employer being obliged to pay overtime premium
compensation for work performed in excess of 8 hours on weekdays, in exchange for the benefits that will
accrue to employees. [Bisig Manggagawa, supra]
1.7. Night Work
Art. 86. Night Shift Differential.Every employee shall be paid a night shift
differential of not less than ten percent (10%) of his regular wage for each hour of work
performed between ten oclock in the evening and six oclock in the morning.
* Night-shift work is more onerous and burdensome, and thus deserves more remuneration than their
day time counterparts. There is no dispute that ordinary and regular normal work is performed in the
daytime, and that night work is exceptional and is only justified in unavoidable circumstances necessary for
the business of the employer. [Shell Company vs. NLU, 81 Phil. 315 (1948)]
1.8. CBA provision vis--vis overtime work
Rule on Computation of Overtime Pay
VSEV: Just as undertime work cannot be offset by overtime work,
such undertime cannot be charged against the accrued leave of
the employee.
1. Basis for computation
Law Based on regular wage [Bisig ng Manggagawa sa PRC, supra]
CBA As provided therein [PNB vs. PEMA, supra]
If CBA is
silent,
Apply the law again [PNB vs. PEMA, supra]
2. Work Hour is 8:00 A.M. To 4:00 P.M.
OT has to be computed on a 24-hour work day schedule
3. The basis of OT claim is permitted to work, otherwise not demandable. [Manila Jockey, supra]
2. Wages
Wage - remuneration, regardless of how designated
- capable of being expressed in terms of money
- regardless of how fixed or ascertained
- payable for services rendered/to be rendered
- inclusive of facilities [fair and reasonable] exclusive of profit to Employer
2.1. No work no pay principle
* The general no work, no pay rule should prevail with respect to employees wages during the
suspension period, subject to existing CBA terms on leave credits and similar benefits of employees. The
suspension was due to environmental causes that can affect the health and safety of those within the vicinity of
Marcopper, particularly its employees. [National Mines and Allied Workers Union (NAMAWU) vs.
Marcopper Mining Corporation, G.R. No. 174641, November 11, 2008]
2.2. Coverage/Exclusions
The rule on wages applies to all workers
EXCEPT:
a) farm tenancy/leasehold;
b) domestic servants;
c) homeworkers engaged in needle work / cottage industry
Cash Wage is the regular wage used in computing night shift and
overtime work [the only premium standards in Chapter I, Title I, Book III of the
Labor Code] [limited only to night shift and OT (Arts. 86 & 90)
By cash wage, facilities provided by the employer shall not be included,
meaning only cash wage shall be used in computing OT and NSDP [unlike Art. 97
(f) where wage includes fair and reasonable value xxx of board and lodging, or
other facilities customarily furnished by the employer to the employee.
Longevity pay is not included in the computation of overtime pay [PNB vs.
PEMA, supra]. It is not part of regular wages, but a form of gratuity.
* Employees are entitled to be paid the minimum wage regardless whether they are regular or non-
regular employees, except for those employees enumerated in Section 3, Rule VII of the Omnibus Rules
implementing the Labor Code. [SLL International Cables Specialist, et al. vs. NLRC, et al., G.R. No.
172161, March 2, 2011, Mendoza, J.]
Cooperatives Still Exempted from Minimum Wage Law
* In view of the foregoing, we hold that cooperatives may still be exempted from the statutory minimum
wage. [Benguet Electric Cooperative v. Ferrer-Calleja, G.R. No. 79025, December 29, 1989]
2.3. Facilities vs supplements
The term facilities, says the Implementing Rule, shall include articles or services for the benefit of the
employee or his family but shall not include:
* tools of the trade or articles or service primarily for the benefit of the
employer; or
* necessary to the conduct of the employers business.
(Book III, Rule VII, Sec. 5)
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; [State Marine Corp. vs. Cebu Seamen's Association, Inc., 7 SCRA 294
(1963); (1988 Bar, XIIb)] 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 given, but in the purpose for which it is given. [SLL International
Cables Specialist, et al. vs. NLRC, et al., G.R. No. 172161, March 2, 2011, Mendoza, J.] So, if they are not so furnished,
the laborer would spend and pay for them just the same. [Atok-Big Wedge Assn. vs. Atok-Big Wedge Co., (97 Phil.
294)]
An employer cannot simply deduct from the employee's wages the value of the board and lodging
without satisfying the ff. requisites: (1) proof that such facilities are customarily furnished by the trade/business of the
employer; (2) voluntary acceptance in writing by the employees of the deductible facilities; and (3) proof of the fair and
reasonable value of the facilities charged. [S.I.P. Food House, supra; SLL International, supra]
CASE:
Although it is quite easy to comprehend board and lodging, it is not so with facilities. Thus, Sec. 5, Rule VII,
Book III, of the Rules Implementing the Labor Code gives meaning to the term as including articles or services for the benefit
of the employee or his family but excluding tools of the trade or articles or service primarily for the benefit of the employer or
necessary to the conduct of the employer's business. The Staff/Manager's allowance may fall under lodging but the
transportation and Bislig allowances are not embraced in facilities on the main consideration that they are granted as well
as the Staff/Manager's allowance for respondent PICOP's benefit and convenience, i.e., to insure that petitioners render
quality performance. In determining whether a privilege is a facility, the criterion is not so much its kind but its purpose.
[States Marine Corporation vs. Cebu Seamen's Association, Inc., No. L-12444, 28 February 1963, 7 SCRA 294]
That the assailed allowances were for the benefit and convenience of respondent company was supported by the
circumstance that they were not subjected to withholding tax. [Liduvino M. Millares, et al. vs. NLRC, et al., G.R. No.
122827, March 29, 1999, 2
nd
Division, Bellosillo, J.]
2.4. Wages vs. salaries
(f) Wage paid to any employee shall mean the remuneration or earnings,
however designated, capable of being expressed in terms of money, whether fixed or
ascertained on a time, task, piece, or commission basis, or other method of calculating the
same, which is payable by an employer to an employee under a written or unwritten contract
of employment for work done or to be done, or for services rendered or to be rendered and
includes the fair and reasonable value, as determined by the Secretary of Labor, of the board,
lodging, or other facilities customarily furnished by the employer to the employee. Fair and
reasonable value shall not include any profit to the employer or to any person affiliated with
the employer.
NOTES :
* Wages are defined as remuneration or earnings, however, designated, capable of being expressed in
terms of money, whether fixed or ascertained on a time, task, piece or commission basis, or other method of
calculating the same, which is payable by an employer to an employee under a written or unwritten contract of
employment for work done or to be done, or for service rendered or to be rendered. [Chavez v. NLRC, G.R.
No. 146530, January 17, 2005]
* The distinction between salary and wage in Gaa was for the purpose of Article 1708 of the Civil Code
which mandates that, [t]he laborers wage shall not be subject to execution or attachment, except for debts
incurred for food, shelter, clothing and medical attendance. In labor law, however, the distinction appears to be
merely semantics. Paramount and Evangelista may have involved wage earners, but the petitioner in Espejo
was a General Manager with a monthly salary of P9,000.00 plus privileges. That wage and salary are
synonymous has been settled in Songco v. NLRC. [Equitable Banking Corp v. Ricardo Sapac, 490 SCRA
381 (2006)]
2.5. Wage distortion
* The concept of wage distortion assumes an existing grouping or classification of employees which
establishes distinctions among such employees on some relevant or legitimate basis. This classification is
reflected in a differing wage rate for each of the existing classes of employees. While Art. 124 provides for
Grievance Machinery which ends up in Voluntary Arbitration, (organized establishments) and NCMB
conciliations which eventually maybe referred to Compulsory Arbitration by Labor Arbiter, such are not the only
valid ways with which a wage distortion may be corrected. A CBA increase which re-establishes the wage gap,
or a unilateral grant by the employer which also restores said gap are valid wage distortion correction schemes.
[National Federation of Labor vs. NLRC, 234 SCRA 311, 322-323]
Four 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 [Bankard Employees Union-Workers
Alliance Trade Unions vs. NLRC, and Bankard, Inc., G.R. No. 140689, February 17, 2004, Third Division,
Carpio, Morales, J.]
2.6. CBA vis--vis Wage Orders CBA creditability
CASE:
P.I. Manufacturing, Incorporated vs.
P.I. Manufacturing Supervisors and Foreman Association and the National Labor Union,
G.R. No. 167217, February 4, 2008.
There is wage distortion based on the prevailing rates of the supervisors and foremen (before the increase in wages
based on the CBA). If RA 6640 would be implemented, the gaps existing between and among the wage rates of all the
employees of petitioner would have been substantially altered and reduced.
In the present case, only three (3) of the union members are receiving wages below P100.00, thus entitled to the
increase. To direct petitioner to grant an across-the-board increase to all of them would be harsh and unfair to the
employer.
However, due to the CBA provision, providing for increased monthly salaries of supervisors and foremen, such has
re-established and broadened the gap, and significantly doubled the P100.00 increase under RA 6640, which in effect
substantially complied with the wage increase under RA 6640. The union is estopped from claiming wage increase under
RA 6640 when it forged the CBA with petitioner after the law took effect.
xxx xxx xxx
xxx [W]age distortion means the disappearance or virtual disappearance of pay differentials between lower and
higher positions in an enterprise because of compliance with a wage order.
The apparent intention of the law is only to upgrade the salaries or wages of the employees specified therein.
(Manila Mandarin Employees Union v. NLRC, G.R. No. 108556, November 19, 1996, 264 SCRA 320)
2.7. Non-diminution of benefits
Art. 100. Prohibition against elimination or diminution of benefits. 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.
NOTES:
* Diminution of Benefits, defined. Diminution of benefits is the unilateral withdrawal by the
employer of benefits already enjoyed by the employees. [TSPIC Corporation vs. TSPIC Employees
Union (FFW), G.R. 163419, Feb. 13, 2008]
Diminution of Benefits; Negative Definition
Since under the CBA, overtime pay was not given to each employee consistently, deliberately and unconditionally,
but as compensation for additional services rendered, the employer's change of schedule which is not prohibited by
the CBA, resulting in lesser overtime work, does not constitute a diminution of benefits under Art. 100 of the Labor
Code [Manila Jockey Club Employees Labor Union-PTGWO vs. Manila Jockey Club, Inc., 517 SCRA 707,
712-713, March 7, 2007]
There is diminution of benefits when it is shown that:
(a) The grant or benefits is founded on a policy or has ripened into a practice over a long period;
(b) The practice is consistent and deliberate;
(c) The practice is not due to error in the construction or application of a doubtful or difficult question of law; and
(d) The discontinuance is done unilaterally by the employer.
Rationale for Art. 100
Employees are protected by law from unwarranted practices that diminish an employee's compensation
without his knowledge and consent [Pacific Banking Corporation vs. Clave, 128 SCRA 112]
2.8. Workers preference in case of bankruptcy
Art. 110. Worker preference in case of bankruptcy. In the event of
bankruptcy or liquidation of an employers business, his workers shall enjoy first preference
as regards their wages and other monetary claims, any provisions of law to the contrary
notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims
of the government and other creditors may be paid. (As amended by Section 1, Republic Act
No. 6715, March 21, 1989)
NOTES:
Worker Preference (in case of Bankruptcy)
* For unpaid wages and other monetary claims, even against gov't. claims. (See Folder of Jurisprudence)
* Cf. with PD 902-A, Secs. 5 & 6 on Rehabilitation. [Rubberworld Phils. vs. NLRC, April 14, 1999]
* Rehabilitation suspends automatically proceedings at NLRC.
* Receiver takes hold of assets for the benefit of creditors with possibility of continued operation.
* Liquidator takes hold of assets to dispose according to priorities. Operations stop. Both
receivership/liquidation personality of corp. continues [PVB v. NLRC, Oct. 26, 1999]
- Workers claims for unpaid wages and monetary benefits cannot be paid outside of a bankruptcy or judicial
liquidation proceedings against the employer. [Barayoga vs. Asset Privatization Trust, 473 SCRA 690]
2.9. Labor Code provisions for wage protection
Art. 112. Non-interference in disposal of wages. No employer shall
limit or otherwise interfere with the freedom of any employee to dispose of his wages. He
shall not in any manner force, compel, or oblige his employees to purchase merchandise,
commodities or other property from any other person, or otherwise make use of any store or
services of such employer or any other person.
Art. 114. Deposits for loss or damage. No employer shall require his
worker to make deposits from which deductions shall be made for the reimbursement of loss
of or damage to tools, materials, or equipment supplied by the employer, except when the
employer is engaged in such trades, occupations or business where the practice of making
deductions or requiring deposits is a recognized one, or is necessary or desirable as
determined by the Secretary of Labor and Employment in appropriate rules and regulations.
Art. 115. Limitations. No deduction from the deposits of an employee for the
actual amount of the loss or damage shall be made unless the employee has been heard
thereon, and his responsibility has been clearly shown.
Art. 116. Withholding of wages and kickbacks prohibited. It shall be
unlawful for any person, directly or indirectly, to withhold any amount from the wages of a
worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or
by any other means whatsoever without the workers consent.
Art. 117. Deduction to ensure employment. It shall be unlawful to make
any deduction from the wages of any employee for the benefit of the employer or his
representative or intermediary as consideration of a promise of employment or retention in
employment.
Art. 118. Retaliatory measures. It shall be unlawful for an employer to refuse to pay
or reduce the wages and benefits, discharge or in any manner discriminate against any
employee who has filed any complaint or instituted any proceeding under this Title or has
testified or is about to testify in such proceedings.
Art. 119. False reporting. It shall be unlawful for any person to make any statement,
report, or record filed or kept pursuant to the provisions of this Code knowing such
statement, report or record to be false in any material respect
CASE:
Special Steel Products, Inc. vs. Lutgardo Villareal, et al.,
G.R. No. 143304, July 8, 2004
Petitioner contends that as a guarantor, it could legally withhold respondent Villareals monetary benefits as a
preliminary remedy pursuant to Article 2071 of the Civil Code, as amended. As to respondent So, petitioner, citing Article
113 of the Labor Code, as amended, in relation to Article 1706 of the Civil Code, as amended, maintains that it could
withhold his monetary benefits being authorized by the memorandum he signed.
Article 116 of the Labor Code, as amended, provides:
ART. 116. Withholding of wages and kickbacks prohibited.It shall be unlawful for any person, directly or
indirectly, to withhold any amount from the wages (and benefits) of a worker or induce him to give up any part of his
wages by force, stealth, intimidation, threat or by any other means whatsoever without the workers consent.
The above provision is clear and needs no further elucidation. Indeed, petitioner has no legal authority to withhold
respondents 13
th
month pay and other benefits. What an employee has worked for, his employer must pay. Thus, an
employer cannot simply refuse to pay the wages or benefits of its employee because he has either defaulted in paying a
loan guaranteed by his employer; or violated their memorandum of agreement; or failed to render an accounting of his
employers property.
2.10. Allowable deductions without employees consent
Art. 113. Wage deduction. No employer, in his own behalf or in behalf of any
person, shall make any deduction from the wages of his employees, except:
a. In cases where the worker is insured with his consent by the employer, and the
deduction is to recompense the employer for the amount paid by him as premium on the
insurance;
b. For union dues, in cases where the right of the worker or his union to check-off
has been recognized by the employer or authorized in writing by the individual worker
concerned; and
c. In cases where the employer is authorized by law or regulations issued by the
Secretary of Labor and Employment.
NOTES:
Wage Deduction
Employer cannot deduct from wages
Except:
a) Insurance Premium
b) Union dues 241 [o]; 248 [e]
c) Authorized by law.
- Check-off authorized by Employer requires written authorization from employee.
2.11. Attorneys fees and union service fee in labor cases
Art. 111. Attorneys fees.
(a) In cases of unlawful withholding of wages, the culpable party may be assessed
attorneys fees equivalent to ten percent of the amount of wages recovered.
(b) It shall be unlawful for any person to demand or accept, in any judicial or
administrative proceedings for the recovery of wages, attorneys fees which exceed ten
percent of the amount of wages recovered.
NOTES:
Attorney's Fees
a) Extraordinary concept awarded by court;
- 10% against culpable party for unlawful w/holding of wages;
* Art. 111(a) is extraordinary attorney's fees. It does not require proof that the employer acted with
malice or bad faith in withholding the wage. Proof that lawful wages were not paid is enough [PAL Shipping
Phils., Inc., et al. vs. NLRC, et al. [G.R. 153031, Dec. 14, 2006]
b) Ordinary concept paid by client to a lawyer as reasonable compensation;
- 10% for lawyer in recovery of wages cases.
* The award of attorney's fees, though not prayed for, is sanctioned by law and must be upheld [Marivel
Trading, Inc. vs. NLRC, 525 SCRA 708, 733 (2007).
Rules:
(1) In actions for (1) recovery of wages or (2) where an employee was forced to litigate and thus incurred
expenses to protect his rights and interests, a maximum award of ten percent (10%) of the monetary award by
way of attorney's fees is legally and morally justifiable under Art. 111 of the Labor Code. Xxx
Forced to litigate recovery of wages basics of attorneys fees [Rutaquio vs. NLRC, (Oct. 19, 1999);
Marsaman Manning Agency vs. NRLC, (Aug. 25, 1999)
(2) No attorneys fees when complaint is represented by PAO Lambo vs. NLRC, G.R. No. 111042, Oct.
26, 1999, 317 SCRA 420.
(3) Non-Lawyers Not Entitled to Attorney's Fees
2.12. Criteria/Factors for Wage Setting
Art. 124. Standards/Criteria for minimum wage fixing. The regional minimum wages
to be established by the Regional Board shall be as nearly adequate as is economically
feasible to maintain the minimum standards of living necessary for the health, efficiency and
general well-being of the employees within the framework of the national economic and
social development program. In the determination of such regional minimum wages, the
Regional Board shall, among other relevant factors, consider the following:
(a) The demand for living wages;
(b) Wage adjustment vis--vis the consumer price index;
(c) The cost of living and changes or increases therein;
(d) The needs of workers and their families;
(e) The need to induce industries to invest in the countryside;
(f) Improvements in standards of living;
(g) The prevailing wage levels;
(h) Fair return of the capital invested and capacity to pay of employers
(i) Effects on employment generation and family income; and
(j) The equitable distribution of income and wealth along the imperatives of
economic and social development.
* Pendency of disputes shall not delay applicability of wage order.
Those paid by Result Distortion elimination or severe contraction of intentional wage
quantitative differences resulting in effectively obliteration of distinctions in wage structure based
on skills, length of service, other logical bases of differentiation.
- guaranteed wages
- standard for 8 hours work recognized learnership
(Apprenticeship adjusted)
3. Rest Day
Art. 91. Right to weekly rest day.
(a) It shall be the duty of every employer, whether operating for profit or not, to
provide each of his employees a rest period of not less than twenty-four (24) consecutive
hours after every six (6) consecutive normal work days.
(b) The employer shall determine and schedule the weekly rest day of his
employees subject to collective bargaining agreement and to such rules and regulations as the
Secretary of Labor and Employment may provide. However, the employer shall respect the
preference of employees as to their weekly rest day when such preference is based on
religious grounds.
3.1. Right to weekly rest day
NOTES:
Weekly Rest Periods
It shall be the employer's duty to give an employee rest period:
(a) Weekly rest period of not less than 24 hours after every 6 consecutive normal work days.
(b) Employer to fix schedule of rest day subject to:
1) CBA
2) Workers preference based on religious grounds,
respected
(c) Worked:
Regular Holiday + Rest day = 230%
[Arts. 93(a) & 94(b)]
Special day = 130% [Art. 94(c)]
Special day + Rest day = 150%
[Art. 93(c), where such refers to special day]
For work on Sundays and legal holidays, the employer must pay:
1. a Daily-Rate Employee (125% of daily wage):
a) regular remuneration, or 100% of his daily wage; and
b) an additional sum of at least 25% of the regular remuneration, which shall be regarded as the
premium pay
2. a Monthly-Paid Employee:
a) IF the remuneration is included in his salary, only the 25% premium pay can be claimed; and
b) IF not so included in the monthly salary,
(1) the first 100% of the 125%, which stands as the regular remuneration; and
(2) the 25% premium pay [De Leon vs. Pampanga Sugar Development Co., Inc., G.R. No.
L-26844, September 30, 1969, 29 SCRA 628]
N.B.:
The premium payments for Sundays, legal holidays, and rest days are based on the rule enunciated in De Leon.
3.2. Preference of the employee
Workers preference based on religious grounds, respected
3.3. When work on rest day authorized
Art. 92. When employer may require work on a rest day. The employer may
require his employees to work on any day:
(a) In case of actual or impending emergencies caused by serious accident, fire,
flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life
and property, or imminent danger to public safety;
(b) In cases of urgent work to be performed on the machinery, equipment, or
installation, to avoid serious loss which the employer would otherwise suffer;
(c) In the event of abnormal pressure of work due to special circumstances, where
the employer cannot ordinarily be expected to resort to other measures;
(d) To prevent loss or damage to perishable goods;
(e) Where the nature of the work requires continuous operations and the stoppage
of work may result in irreparable injury or loss to the employer; and
(f) Under other circumstances analogous or similar to the foregoing as determined
by the Secretary of Labor and Employment.
NOTES:
Grounds for compulsory rest day work (6 grounds)
(a) impending emergency (fortuitous event)
(b) urgent work on machinery, etc.
(c) abnormal pressure of work due to special circumstances
the employer cannot resort to other incomes
(d) prevent loss or damage to perishable goods
(e) nature of work requires continuous operations (irreparable loss)
(f) analogous circumstances as determined by SOLE
* [OT may be required when the country is at war/local or national emergency declared by
Congress/President (difference between rest day and OT)]
4. Holidays
NOTE:
Regular Holiday Pay
Holiday pay
a) regular daily wage
b) 200% if worker is required to work during holidays
Exception:
In retail/service establishments regularly employing less than ten (10) employees
IMPORTANT:
Legal holiday falling on a Sunday creates no legal obligation on the part of the employer to pay extra
pay.Wellington Investment and Manufacturing Corporation vs. Trajano, G.R. No. 114698, July 3, 1995.
Note: This ruling is no longer applicable in light of RA 9492, which moved holidays falling on a Sunday to the next
Monday.
Note also the ruling in Producers Bank vs. NLRC:
Apparently, the divisor of 314 is arrived at by subtracting all Sundays from the total number of
calendar days in a year, since Saturdays are considered paid rest days, as stated in the inter-office
memorandum. Thus, the use of 314 as a divisor leads to the inevitable conclusion that the ten
legal holidays are already included therein. [Producers Bank of the Philippines vs. NLRC, et
al., G.R. No. 100701, March 28, 2001, Third Division, Gonzaga-Reyes, J.]
The foregoing seems to follow Sec. 2, Rule IV, Book III of Implementing Rules that Employees who are uniformly
paid by the month irrespective of number of working days therein (but) with a salary not less than minimum wage (worked or
not) shall be presumed to be paid their holiday pay. But in IBAA Employees Union vs. Inciong, 132 SCRA 663, the
Supreme Court held that such rule is void. [In Villuga vs. NLRC, 225 SCRA 537 and Union of Filipro Employees vs.
Vivar, 205 SCRA 200, the Court held that this IBAA ruling is prospective in application following the Operative Fact
doctrine.
Closer to this case is the Chartered Bank Employees Association vs. Hon. Ople (G.R. L-44717, August 28, 1985) where the
Court held that if all nonworking days are paid the divisor is 365. Thus, if divisor is 251 [365 52 Sundays = 313 52 Sat.
= 261] 10 regular holidays is not paid otherwise 261 10 is 251. But if 261 is divisor, then regular holidays are considered
paid [251 + 10 R.H. = 261].
* This erroneous ruling in Producers Bank was followed, worsely, by SMC vs. Del Rosario (Dec. 13, 2005) where
the Court held that a monthly paid regular employee, is not entitled to holiday pay pursuant to Sec. 2, Rule IV, Book III of
the Omnibus Rules Implementing the Labor Code.
Holidays are:
Note changes made in RA 9492
4.1. Right to holiday pay
Art. 94. Right to Holiday Pay.
(a) Every worker shall be paid his regular daily wage during regular holidays,
except in retail and service establishments regularly employing less than ten (10) workers;
(b) The employer may require an employee to work on any holiday but such
employee shall be paid a compensation equivalent to twice his regular rate; and
(c) As used in this Article, holiday includes: New Year's Day, Maundy Thursday,
Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the
thirtieth of November, the twenty-fifth of December and the day designated by law for
holding a general election.
holiday pay is a statutory benefit demandable under the law. Since a worker is entitled to the enjoyment
of ten paid regular holidays, the fact that two holidays fall on the same date should not operate to reduce to nine the ten
holiday pay benefits a worker is entitled to receive. [Asian Transmission Corporation vs. Court of Appeals, G.R.
No. 144664, March 15, 2004]
4.1.1. In case of absences
on leave of absence with pay the day before with pay
on leave of absence without pay without pay
day before holiday is non-working day apply (a) & (b)
4.1.2. In case of temporary cessation of work
temporary periodic closure with pay
closure due to business reverses WITHOUT PAY
4.1.3. Of teachers, piece workers, seafarers, seasonal workers, etc.
On the issue of holiday pay, however, two (2) contradictory views exist in jurisprudence:
(1) In Labor Congress vs. NLRC, (290 SCRA 509) the Supreme Court held that piecerate workers are granted
holiday pay based on Section 8(b), Rule IV, Book III. The argument is that the Omnibus Rules implementing the Labor
Code exclude certain employees from receiving benefits such as night differential pay, holiday pay, service incentive leave
pay, and 13
th
month pay, i.e., field personnel and other employees whose time and performance is unsupervised by the
employer, including those who are engaged on task or contract basis, purely commission basis, or those who are paid a
fixed amount for performing work irrespective of time consumed in the performance thereof. BUT that piece-rate workers
do not fall under this group.
(2) In Makati Haberdashery, Inc. vs. NRLC, (179 SCRA 448) on the other hand, piece-rate workers are NOT
entitled to holiday pay, pursuant to Section 1(e), Rule IV, Book III.
AZUCENA:
Regular Holidays
1) IF Holiday is the employee's Regular Workday, and
unworked 100%
If worked:
1
st
8 hours 200% (the given hourly rate)
excess of 8 hours plus 30% of hourly rate
2) IF Holiday is employee's Rest Day, and
unworked 100%
If worked:
1
st
8 hours plus 30% of 200% (the given hourly rate)
excess of 8 hours plus 30% of hourly rate for the day
Special Day
1) IF unworked, no pay shall accrue unless otherwise provided in
a CBA, or established company practice to grant wages on this given day
2) IF worked:
1
st
8 hours plus 30% of the daily rate (100%)
excess of 8 hours plus 30% of hourly rate on that day
3) IF it falls on employee's Rest Day, and worked
1
st
8 hours plus 50% of the daily rate of 100%
excess of 8 hours plus 30% of hourly rate on that day
Special Working Holiday: The employee is entitled only to his basic
rate, if worked. No premium pay accrues on this day, but considered as ordinary
working day.
4.1.2. In case of temporary cessation of work
temporary periodic closure with pay
closure due to business reverses WITHOUT PAY
4.1.3. Of teachers, piece workers, seafarers, seasonal workers, etc.
On the issue of holiday pay, however, two (2) contradictory views exist in jurisprudence:
(1) In Labor Congress vs. NLRC, (290 SCRA 509) the Supreme Court held that piecerate workers are granted
holiday pay based on Section 8(b), Rule IV, Book III. The argument is that the Omnibus Rules implementing the Labor
Code exclude certain employees from receiving benefits such as night differential pay, holiday pay, service incentive leave
pay, and 13
th
month pay, i.e., field personnel and other employees whose time and performance is unsupervised by the
employer, including those who are engaged on task or contract basis, purely commission basis, or those who are paid a
fixed amount for performing work irrespective of time consumed in the performance thereof. BUT that piece-rate workers
do not fall under this group.
(2) In Makati Haberdashery, Inc. vs. NRLC, (179 SCRA 448) on the other hand, piece-rate workers are NOT
entitled to holiday pay, pursuant to Section 1(e), Rule IV, Book III.
* The Supreme Court in said case reasoned that since piece-rate workers are not entitled to service
incentive leave pay, because they fall under one of the exceptions in Section 1(d), Rule V, Book III of the
Implementing Rules, they being paid at a fixed amount for performing work irrespective of time
consumed, for this same reason, thus, they are not entitled to holiday pay as well.
HOWEVER,
In the case of Lambo vs. NLRC, [317 SCRA 421 (1999)] the Supreme Court recognized that there are
two categories of employees paid by results:
(1) those whose time and performance are supervised by the employer where an element of
control and supervision over the manner work is to be performed, especially if worker performs his work in the
company premises; and
(2) those whose time and performance are unsupervised the employer's control is over the
result of the work only.
a. Both classes of workers are paid per unit accomplished. Piece-rate payment is generally
practiced in garment factories where work is done in the company premises, while payment on pakyao and
takay basis is commonly observed in the agricultural industry, such as in sugar plantations where the work is
performed in bulk or in volumes difficult to quantify. [Lambo vs. NLRC, supra at 426]
Petitioners Lambo, et. al. belong to the first category, i.e., supervised employees. However, the
Court further held The awards for overtime pay, holiday pay and 13
th
month pay are in accordance with
our finding that petitioners are regular employees [ibid., at 431-433] forgetting that Art. 82 excluded workers
who are paid by results from the coverage of Title I, Book III of the Labor Code which includes overtime
work (Art. 87) and holiday pay (Art. 94).
In short, what the S.C. should have held is Lambo, et. al. are employees, their work being supervised
(control); but they are not entitled to overtime pay and holiday pay due to Art. 82, Labor Code.

4.2. Exclusions from coverage
Government employees, including those in chartered corporation.
Rental/Service establishments with less than 10 employees.
Those exempted from coverage of title (Domestic, etc.)
b) not applied against employers
(1) with less than 10 workers regardless of nature of business;
(2) may be exempted by DOLE Sec. on account of viability/financial condition.
c) Grant of leave benefits in excess of what is provided here shall NOT be subject of arbitration or any court
action.

VSEV:
Computation of 1 year includes holidays authorized
absences [Secs. 2 & 3, Rule V, Book III] I think even
those on AWOL as this subjects him to separate penalty.
* It is here where absence is considered served.
[Sunripe Coconut Products vs. NLU, 97 Phil. 691]
* Convertible to cash.
d) V/L (as SIL) are among those incomes intended as replacements for regular income that depend on days
worked. [Davao Integrated Port Stevedoring Services vs. Abarquez, 220 SCRA 197] The vacation leave
privilege was not intended to serve as additional salary, but as a non-monetary benefit. To give the employees
the option not to consume it with the aim of converting it into cash at the end of the year would defeat
the very purpose of the vacation leave. [PNCC Skyway, supra]
e) Grant of V/L and S/L is not a standard of law, but a prerogative of management. [Virginia Sugue vs.
Triumph Intl. Phils., Inc., G.R. No. 164804, Jan. 30, 2009]
5.2. Maternity Leave: RA 8282 (SSS Law)
5.2.1. Coverage
SEC. 14-A. Maternity Leave Benefit. A female member who has paid at least
three (3) monthly contributions in the twelve-month period immediately
preceding the semester of her childbirth or miscarriage shall be paid a daily
maternity benefit equivalent to one hundred percent (100%) of her average daily
salary credit for sixty (60) days or seventy-eight (78) days in case of caesarian
delivery, xxx xxx
VSEV: This rule is proof that SIL does not have to depend on
authorized absences for an employee to be entitled
thereto.
5.2.2. Conditions to entitlement
SEC. 14-A. Maternity Leave Benefit. xxx, subject to the following conditions:
(a) That the employee shall have notified her employer of her pregnancy and the
probable date of her childbirth, which notice shall be transmitted to the SSS in accordance
with the rules and regulations it may provide;
(b) The full payment shall be advanced by the employer within thirty (30) days from
the filing of the maternity leave application;
(c) That payment of daily maternity benefits shall be a bar to the recovery of sickness
benefits provided by this Act for the same period for which daily maternity benefits have been
received;
(d) That the maternity benefits provided under this section shall bepaid only for the
first four (4) deliveries or miscarriages;
(e) That the SSS shall immediately reimburse the employer of one hundred percent
(100%) of the amount of maternity benefits advanced to the employee by the employer upon
receipt of satisfactory proof of such payment and legality thereof; and
(f) That if an employee member should give birth or suffer miscarriage without the
required contributions having been remitted for her by her employer to the SSS, or without
the latter having been previously notified by the employer of the time of the pregnancy, the
employer shall pay to the SSS damages equivalent to the benefits which said employee
member would otherwise have been entitled to.
5.2.3. Availment
The maternity benefits provided under this section shall bepaid only for the first four (4) deliveries
or miscarriages;
5.3. Paternity Leave: RA 8187
RA 8187 grants paternity leave of 7 days with full pay to all married male employees in the private and public
sectors. Paternity leave is available only for the first four deliveries of the legitimate spouse with whom the husband is
cohabiting. The purpose of paternity leave is to enable the husband to lend support to his wife during the period of recovery
and/or in the nursing of the newly-born child.
5.3.1. Coverage
SECTION 2. xxx 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.
Paternity Leave Benefits
1. Married male employee in private or public sector
2. An employee at the time of delivery
3. Cohabiting with his spouse at the time of delivery (includes childbirth, miscarriage or abortion)
4. Has applied for paternity leave within a reasonable period from expected delivery
5. His wife gave birth or suffered a miscarriage. [Sec. 3, Revised Implementing Rules of RA 8187]
5.3.3. Availment
5.4. Parental Leave
Parental Leave (for Solo Parents)
RA 8972 grants a solo parent employee parental leave of not more than 7 working days every year.
5.4.1. Coverage
considered Solo Parent:
You are a parent left alone with the responsibility of parenthood because of the death of your
spouse.
You are a parent left alone with the responsibility of parenthood because of any physical and/or
mental incapacity of your spouse as certified by a public medical practitioner.
You are a parent left alone with the responsibility of parenthood because you have legally separated
from your spouse or because you have been separated for at least one year and your child is in your custody.
You are a parent left alone with the responsibility of parenthood because your marriage was annulled
by a court or a church decree, and your child is in your custody.
You are a parent left solo or alone with the responsibility of parenthood because your spouse
abandoned you for at least one year.
You are a parent left solo or alone with the responsibility of parenthood because your spouse is
detained or is serving sentence for a crime for at least one year.
You are an unmarried mom or dad who has preferred to keep and rear your child yourself, instead of
having others care for them or give them up to a welfare institution.
You solely provide parental care and support to a child or children.
You assume the responsibility of head of the family as a result of the death, abandonment,
disappearance or prolonged absence of the children's parents or solo parent.
You are a victim of rape and/or other crimes against chastity, have given birth to a child as a result
and have decided to keep and raise your child.
Conditions for Availment
1. Solo parent has rendered at least 1 year of service (continuous or broken)
2. has notified employer of the availment within a reasonable time; and
3. has presented a Solo Parent Identification Card to the employer.
5.4.3. Availment
* Unused parental leave is not convertible to cash unless otherwise provided in CBA.
Sec. 8. Parental Leave. - In addition to leave privileges under existing laws, parental
leave of not more than seven (7) working days every year shall be granted to any solo parent
employee who has rendered service of at least one (1) year.
5.5. Leaves for victims of violence against women: RA 9262
5.5.1. Coverage
Leave available to an Employee (not only for women) who are victims of violence, either physical,
sexual or psychological.
A requirement to apply for the battered woman leave is a certification obtained from the Barangay Captain or
Kagawad or prosecutor or the clerk of court that an action based on R. A. 9262 has been filed and is pending.
The use of the ten-day leave is at the option of the employee.
It shall be used for the days that she need to attend to medical and legal concerns.
Leaves not availed of are non-cumulative and not convertible to cash. Indeed, the battered woman leave is useful
for victims of violence. Lastly, this law is only applicable in the Philippines.
5.5.3. Availment
Leave of up to ten days in addition to other paid leaves under the Labor Code, or other laws.
6. Service Charges
Art. 96. Service Charges. All service charges collected by hotels, restaurants
and similar establishments shall be distributed at the rate of eighty-five percent (85%) for all
covered employees and fifteen percent (15%) for management. The share of the employees
shall be equally distributed among them. In case the service charge is abolished, the share of
the covered employees shall be considered integrated in their wages.
6.1. Coverage
Article 96 and its implementing rule (Rule VI, Book III), apply only to establishments collecting service charges,
such as hotels, restaurants, lodging houses, night clubs, cocktail lounges, massage clinics, bars, casinos, and gambling
houses, and similar enterprises, including those entities operating primarily as private subsidiaries of the government. [Sec.
1, Rule VI, Book III]
6.2. Exclusion
NOTES:
* Tip, not normally part of salary, it being paid by customer [Ace Navigation Co., Inc. vs. Court of
Appeals, 338 SCRA 70]
6.3. Distribution
* All service charges collected by Hotels, restaurants and similar establishments shall be
distributed at the rate of:
85% - for all covered employees
15% - for management [Managerial employee under
Art. 212(M), as implied in Sec. 2, Rule VI, Bk, III]
Supervisors are considered as rank-and-file per Sec. 2, Rule VI, as they are not managerial in Art.
212(M)
In case the service charge is abolished, the share of the covered employee shall be considered
integrated in their wages
6.4. Integration
7. Thirteenth (13th) Month Pay and other bonuses
Concept:
* Benefit a 13
th
month pay for employees whose salary was not more than P1,000.
* Exemption, Sec. 2 those already paying equivalent.
* Implementing Rules dated December 22, 1975 provided for who are covered vs. whose who are not
covered, issued by then Sec. Blas Ople.
* August 13, 1986, President Corazon C. Aquino issued Memorandum Order 28
* Drilon guideline, issued on November 16, 1987
Basic Feature removed of ceiling (P1,000)
When payment is made --
a) before opening of regular school year;
b) on or before December 24
7.1. Coverage
AZUCENA:
TIPS are handled similarly as service charges.
If a restaurant or similar establishment does not collect service
charges, but has a practice or policy of monitoring and pooling the tips
given by customers, the pooled tips should be accounted for and
distributed in the same manner as the service charges. In many
restaurants, a waiter must drop in a tip box the tips he received;
otherwise, he commits tip pocketing, a serious offense of dishonesty
that may cost him his job.
(1) all rank and file employees
(2) regardless of their designation or employment status; and
(3) irrespective of the method by which their wages are paid, provided they have worked for at least 1
month during a calendar year, became covered employees. (1 mo. is qualifying requirement. Include regular
benefits only after one has qualified). 1 month here is not necessarily 30 worked days. I should be calendar
month, so that those who worked only for 20 days, for being daily paid employee, is entitled. Otherwise, the 1
year would be short of 48 days (if 6 working days) on short of 96 days (if 5 working days a year).
Who are covered --
a) Commission paid employees?
1) Purely commission NO
2) Guaranteed wage + commission YES
[PACIWU (TUCP) vs. NLRC, 247 SCRA 256, 260 (1995)]
b) Gov't. employees on part time
Private employment YES
c) Private school teachers YES, regardless of months taught - Provided taught at least 1 month
7.2. Exclusion/Exemptions from coverage
Managerial employees are not entitled to 13
th
month pay as per Memorandum Order No. 88, 13
th
month pay has
mandatory effect only on all rank and file employees [Serafin Quebec, Jr. vs. NLRC, et al., G.R. No. 123184,
January 22, 1999
7.3. Nature of 13th month pay
Notwithstanding therefore the absence of any contractual agreement, the payment of a thirteenth-month pay
being a statutory grant, compliance with the same is mandatory and is deemed incorporated in the CBA. [Philippine
Airlines, Inc. vs. NLRC and Airline Pilots Association of the Philippines, etc., G.R. No. 114280, July 26, 1996]
Food, etc., Not Substitute for 13
th
Month Pay
Where an employer pays less than 1/12 of the employee's basic salary, the employer shall pay the difference. [Framanlis
Farms, Inc. vs. Minister of Labor, G.R. Nos. 72616-17, March 8, 1989]
Proportionate 13
th
Month Pay
Thus, if he worked only from January up to September, his proportionate 13
th
month pay should be equivalent to 1/12 of the
total basic salary he earned during that period. [International School of Speech vs. NLRC and M.C. Mamuyac, G.R. No.
112658, March 18, 1995]
13
th
month pay is a Nonstrikeable Issue
Difference on how to compute the 13
th
month pay does not justify a strike; in other words, it is a nonstrikeable issue and a
strike held on that ground is an illegal strike.
7.4. Commissions vis--vis 13th month pay
If the commissions may properly be considered part of the basic salary, they should be included in computing
the 13
th
month pay. If the commissions are not integral part of the basic salary, then they should be excluded.
What commissions are part of the salary and what commissions are not, are illustrated respectively in the Philippine
Duplicators' and the Boie-Takeda's types of commission. That of Philippine Duplicators is wage or sales
percentage type which should be included in the 13
th
month pay computation, while that of Boie-Takeda is profit-
sharing or bonus type which may be excluded.
- vs -
the 13
th
month pay of the bus drivers and conductors who are paid a fixed or guaranteed minimum wage in case
their commissions be less than the statutory minimum, and commission only in case where the same is over and
above the statutory minimum, must be equivalent to one-twelfth (1/12) of their total earnings during the calendar
year. [Phil. Agricultural Commercial and Industrial Workers Union (PACIWU)-TUCP vs. NLRC and Vallacar Transit,
Inc., G.R. No. 107994, August 14, 1995)]
7.5. CBA vis--vis 13th month pay
But if the CBA did provide for a bonus in graduated amounts depending on the length of service of the employee,
the intention is clear that the bonus provided in the CBA was meant to be in addition to the legal requirement.
[Universal Corn Products vs. NLRC, G.R. No. 60337, August 21, 1987]
Ruling: The bonus under the CBA is an obligation by the contract between the management and workers while the
13
th
month pay is mandated by law.
Under the circumstances, the 7-day bonus is in addition to the legal requirement.
But as it is, the provision for the continued payment of a year-end bonus was incorporated in the CBA without any
qualification, from which the only logical conclusion that could be derived is that PAL intended to give the members
of ALPAP a year-end bonus in addition to its obligation to grant a thirteenth-month pay. [Philippine Airlines, Inc.
(PAL) vs. NLRC & Airline Pilots Association of the Philippines (ALPAP), etc., G.R. No. 114280, July 26, 1996]
Rules:
* Managerial employees are not entitled to 13
th
month pay as per Memorandum Order No. 88, 13
th
month pay
has mandatory effect only on all rank and file employees. [Serafin Quebec, Jr. vs. NLRC, et al., G.R. No.
123184, January 22, 1999]
* Piece rate workers are entitled to 13
th
month pay [Mark Roche International and/or Edmundo Dayot vs.
NLRC, et al., G.R. No. 123825, August 31, 1999].
* Christmas gift is not christmas bonus, milling bonus, amelioration bonus, year-end productivity bonus. It
cannot therefore be considered as equivalent of 13
th
month pay. [UST Faculty Union vs. NLRC, 190 SCRA 215,
Oct. 2, 1990]
13
th
month pay and other similar benefits is an exclusion from the gross income, provided it must
not be more than P30,000.00. The Secrtary of Finance, however, may increase the ceiling of P30,000.00,
upon recommendation of the Commissioner, after considering, among others, the effect or the same of the
inflation rate at the end of the taxable year. [Sec. 32(7), NIRC]
An employee who has been separated from service before the time for payment of the 13
th
month
pay is entitled to this monetary benefit 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 separation.
[Basay vs. Hacienda Consolacion, G.R. No. 175532, April 19, 2010, Del Castillo, J.]
8. Women Workers
8.1. Discrimination (Art. 135, LC)
Art. 135. Discrimination prohibited. It shall be unlawful for any employer to
discriminate against any woman employee with respect to terms and conditions of
employment solely on account of her sex.
The following are acts of discrimination:
(a) Payment of a lesser compensation, including wage, salary or other form of
remuneration and fringe benefits, to a female employees as against a male employee, for
work of equal value; and
(b) Favoring a male employee over a female employee with respect to promotion,
training opportunities, study and scholarship grants solely on account of their sexes.
Criminal liability for the willful commission of any unlawful act as provided in this
Article or any violation of the rules and regulations issued pursuant to Section 2 hereof shall
be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution
of any criminal action under this provision shall not bar the aggrieved employee from filing
an entirely separate and distinct action for money claims, which may include claims for
damages and other affirmative reliefs. The actions hereby authorized shall proceed
independently of each other. (As amended by Republic Act No. 6725, May 12, 1989)
b. Stipulation against marriage (Art. 136, LC)
Art. 136. Stipulation against marriage. It shall be unlawful for an employer to
require as a condition of employment or continuation of employment that a woman employee
shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman
employee shall be deemed resigned or separated, or to actually dismiss, discharge,
discriminate or otherwise prejudice a woman employee merely by reason of her marriage.
c. Prohibited Acts (Art. 137, LC)
Art. 137. Prohibited acts.
(a) It shall be unlawful for any employer:
(1) To deny any woman employee the benefits provided for in
this Chapter or to discharge any woman employed by him
for the purpose of preventing her from enjoying any of the
benefits provided under this Code.
(2) To discharge such woman on account of her pregnancy, or
while on leave or in confinement due to her pregnancy;
(3) To discharge or refuse the admission of such woman upon
returning to her work for fear that she may again be
pregnant.
d. Classification of certain women workers (Art. 138, LC)
e. Anti-Sexual Harassment Act (RA 7877)
1. Sexual harassment is an imposition of misplaced superiority which is enough to dampen an employee's
spirit in her capacity for advancement. It affects her sense of judgment, it changes her life. If for this alone, private
respondent should be adequately compensated [Phil. Aeolus, Infra]
The gravamen of the offense in sexual harassment is not the violation of the employee's sexually but the abuse
of power by the employer. Any employee, male or female, may rightfully cry foul provided the claim is well substantiated.
Strictly speaking, there is no time period within which he or she is expected to complain through the proper
channels. The time to do so may vary depending upon the needs, circumstances, and more importantly, the emotional
threshold of the employee [Philippine Aeolus Automotive United Corp., et al. vs. NLRC, et al., G.R. No. 124617, April
28, 2000, Second Division, Bellosillo, J.]
2. Persons who may be liable for sexual harassment
Any person who directs or induces another to commit any act of sexual harassment as defined in the
law, or who cooperates in the commission thereof by another without which it would not have been
committed, shall also be held liable under the law. [Section 3, Republic Act No. 7877]
3. Sexual Harassment in a Work-Related or Employment Environment
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, 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.
(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. [Section 3
(a), Republic Act No. 7877]
9. Minor Workers (RA 7678, RA 9231)
Sec. 2. Employment of Children - Children below fifteen (15) years of age shall not
be employed except:
1) When a child works directly under the sole responsibility of his/her parents or legal
guardian and where only members of his/her family are employed: Provided, however, That
his/her employment neither endangers his/her life, safety, health, and morals, nor impairs
his/her normal development: Provided, further, That the parent or legal guardian shall
provide the said child with the prescribed primary and/or secondary education; or
2) Where a child's employment or participation in public entertainment or information
through cinema, theater, radio, television or other forms of media is essential: Provided, That
the employment contract is concluded by the child's parents or legal guardian, with the
express agreement of the child concerned, if possible, and the approval of the Department of
Labor and Employment: Provided, further, That the following requirements in all instances
are strictly complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal
development of the child;
(b) 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
(c) The employer shall formulate and implement, subject to the approval and
supervision of competent authorities, a continuing program for training and skills acquisition
of the child.
In the above-exceptional cases where any such child may be employed, the employer
shall first secure, before engaging such child, a work permit from the Department of Labor
and Employment which shall ensure observance of the above requirements.
For purposes of this Article, the term "child" shall apply to all persons under eighteen
(18) years of age."
9.1. Regulation of working hours of a child
Sec. 2-A. Hours of Work of a Working Child. - Under the exceptions provided in
Section 12 of this Act, as amended:
(1) A child below fifteen (15) years of age may be allowed to work for not more than
twenty (20) hours a week: Provided, That the work shall not be more than four (4) hours at
any given day;
(2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work
for more than eight (8) hours a day, and in no case beyond forty (40) hours a week;
(3) No child below fifteen (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 and no child fifteen
(15) years of age but below eighteen (18) shall be allowed to work between ten o'clock in the
evening and six o'clock in the morning of the following day."
9.2. Employment of the child in public entertainment
Sec. 2. Employment of Children - Children below fifteen (15) years of age shall not
be employed except:
xxx xxx xxx
2) Where a child's employment or participation in public entertainment or information
through cinema, theater, radio, television or other forms of media is essential: Provided, That
the employment contract is concluded by the child's parents or legal guardian, with the
express agreement of the child concerned, if possible, and the approval of the Department of
Labor and Employment: Provided, further, That the following requirements in all instances
are strictly complied with:
(a) The employer shall ensure the protection, health, safety, morals and normal
development of the child;
(b) 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
(c) The employer shall formulate and implement, subject to the approval and
supervision of competent authorities, a continuing program for training and skills acquisition
of the child.
9.3. Prohibition of employing minors in certain undertakings and in certain
advertisements
Sec. 14. Prohibition on the Employment of Children in Certain
Advertisements. - No child shall be employed as a model in any advertisement directly or
indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts,
gambling or any form of violence or pornography.
10. Employment of Househelpers
Art. 141. Coverage. This Chapter shall apply to all persons rendering services in
households for compensation.
xxx xxx xxx
10.1. Definition
"Domestic or household service" shall mean service in the employers home which
is usually necessary or desirable for the maintenance and enjoyment thereof and includes
ministering to the personal comfort and convenience of the members of the employers
household, including services of family drivers.
10.2. Benefits accorded househelpers
Art. 143. Minimum wage.
(a) Househelpers shall be paid the following minimum wage rates:
(b) Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon,
Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong,
Muntinlupa, Navotas, Malabon, Paraaque, Las Pias, Pasig, Marikina, Valenzuela, Taguig
and Pateros in Metro Manila and in highly urbanized cities;
(c) Six hundred fifty pesos (P650.00) a month for those in other chartered cities
and first-class municipalities; and
(d) Five hundred fifty pesos (P550.00) a month for those in other municipalities.
Provided, That the employers shall review the employment contracts of their
househelpers every three (3) years with the end in view of improving the terms and
conditions thereof.
Provided, further, That those househelpers who are receiving at least One thousand
pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all
the benefits provided thereunder. (As amended by Republic Act No. 7655, August 19, 1993)
10.3. Termination
Art. 150. Service of termination notice. If the duration of the household service is
not determined either in stipulation or by the nature of the service, the employer or the
househelper may give notice to put an end to the relationship five (5) days before the
intended termination of the service.
10.4. Reliefs for unjust termination
Art. 149. Indemnity for unjust termination of services. If the period of
household service is fixed, neither the employer nor the househelper may terminate the
contract before the expiration of the term, except for a just cause. If the househelper is
unjustly dismissed, he or she shall be paid the compensation already earned plus that for
fifteen (15) days by way of indemnity.
If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid
salary due him or her not exceeding fifteen (15) days.
11. Employment of Homeworkers
Labor Code
ART. 153. Regulation of Industrial Homeworkers.The employment of
industrial homeworkers and field personnel shall be regulated by the Government through
appropriate regulations issued by the Secretary of Labor to ensure the general welfare and
protection of homeworkers and field personnel the industries employing them.
a. Definition
DO No. 5
Regulations on Employment of Homeworkers
SEC. 2. Definitions.
(a) Industrial Homework is a system of production under which work for an
employer or contractor is carried out by a homeworker at his/her home. Materials may or
may not be furnished by the employer or contractor.
It differs from regular factory production principally in that, it is a decentralized form
of production where there is ordinarily very little supervision or regulation of methods of
work.
(b) Industrial Homeworker means a worker who is engaged in industrial
homework.
b. Rights and benefits accorded homeworkers
SEC. 6. Payment for homework.Immediately upon receipt of the finished
goods or articles, the employer shall pay the homeworker or the contractor or subcontractor,
as the case may be, for the work performed less corresponding homeworkers share of SSS,
MEDICARE and ECC premium contributions which shall be remitted by the
contractor/subcontractor or employer to the SSS with the employers share. However, where
payment is made to a contractor or subcontractor, the homeworker shall likewise be paid
immediately after the goods or articles have been collected from the workers.
c. Conditions for deduction from homeworkers earnings
SEC. 8. Deductions.No employer, contractor, or subcontractor shall make
any deduction from the homeworkers earnings for the value of materials which have been
lost, destroyed, soiled or otherwise damaged unless the following conditions are met:
(a) the homeworker concerned is clearly shown to be responsible for the loss or
damage;
(b) the homeworker is given reasonable opportunity to show cause why deductions
should not be made;
(c) the amount of such deduction is fair and reasonable and shall not exceed the
actual loss or damage; and
(d) the deduction is made at such rate that the amount deducted does not exceed
20% of the homeworkers earnings in a week.
12. Apprentices and Learners
RA 7796
TESDA
SEC. 4. Definition of Terms.As used in this Act:
xxx xxx xxx
(j) Apprenticeship training within employment with compulsory related
theoretical instructions involving a contract between an apprentice and an employer an
established period assured by an apprenticeable occupation;
(k) Apprentice is a person undergoing for an approved apprenticeable
occupation during an established period assured by an apprenticeship agreement;
(l) Apprenticeship Agreement is a contract wherein a prospective employer
binds himself to train the apprentice who in turn accepts the terms of training for a
recognized apprenticeable occupation emphasizing the rights, duties and responsibilities of
each party;
(m) Apprenticeable Occupation is an occupation officially endorsed by a
tripartite body and approved for apprenticeship by the Authority;
(n) Learners refer to persons hired as trainees in semi-skilled and other
industrial occupation which are non-apprenticeable. Learnership programs must be
approved by the Authority [TESDA].
(p) Dual system/Training refers to a delivery system of quality technical and
vocational education which requires training to be carried out alternately in two venues: In
school and in the production plant. In-school training provides the trainee the theoretical
foundation, basic training, guidance and human formation, while in-plant training develops
his skills and proficiency in actual work conditions as it continue to inculcate personal
discipline and work values;
a) Apprentice A person undergoing an approved
apprenticeable occupation within a particular
period provided for in the apprenticeship
agreement. [Sec. 4(k), ibid.]
Apprenticeable Occupation an occupation officially endorsed by a tripartite
body and approved by the Authority. [Sec. 4(m),
ibid.]
Apprenticeship Agreement a contract wherein a prospective employer binds
himself to train the terms of training for a
recognized apprenticeable occupation
emphasizing the rights, duties and
responsibilities of each party. [Sec. 4(l), ibid.]
b) Trainee (w/ or w/o pay) a participant in a vocational, administrative, or
technical training program established for the
purpose of acquiring and developing job-related
skills. [Sec. 4(i), ibid.]
c) Learner a person hired as a trainee in semi-skilled and
other industrial occupation which are non-
apprenticeable. [Sec. 4(n), ibid.] BUT,
learnership program must be approved by the
Authority. [ibid.]
CASES:
The Labor Code defines an apprentice as a worker who is covered by a written apprenticeship agreement with an
employer. One of the objectives of Title II (Training and Employment of Special Workers) of the Labor Code is to establish
apprenticeship standards for the protection of apprentices. [Century Canning Corporation v. Court of Appeals, G.R.
No. 152894, August 17, 2007]
HOWEVER,
In order to be an apprentice, the apprenticeship program the worker agreed to undergo should first be approved by
the DOLE (now transferred to TESDA) before he can be hired as an apprentice. Otherwise, the person hired will be
considered a regular employee. [Century Canning Corporation v. Court of Appeals, supra]
BUT,
A prior approval obtained from DOLE (now transferred to TESDA) is a preliminary step towards its final approval.
Thus, pending final approval of the apprenticeship program upon a persons assumption of work does not instantaneously
give rise to employer-employee relationship. [Century Canning Corporation v. Court of Appeals, supra]
* Republic Act No. 7796, which created TESDA, has transferred the authority over apprenticeship of
the DOLE to the TESDA. RA 7796 emphasizes TESDAs approval of the apprenticeship program as a
pre-requisite for the hiring of apprentices. [Century Canning Corporation v. Court of Appeals, supra]
The requisite TESDA approval of the apprenticeship program prior to the hiring of apprentices was further
emphasized by the DOLE with the issuance of Department Order No. 68-04 on 18 August 2004 xxx, which provides the
guidelines in the implementation of the Apprenticeship and Employment Program of the government, [and which] specifically
states that no enterprise shall be allowed to hire apprentices unless its apprenticeship program is registered and approved
by TESDA. [Century Canning Corporation v. Court of Appeals, supra]
There is no valid apprenticeship if:
(1) the agreement submitted to TESDA was made long after the workers started undergoing
apprenticeship;
(2) the work performed by the apprentice was different from those allegedly approved by TESDA;
(3) the workers undergoing apprenticeship are already skilled workers; or
(4) the workers were required to continue undergoing apprenticeship beyond six months. [Atlanta
Industries, Inc., et al. vs. Sebolino, et al., G.R. No. 187320, January 26, 2011, Brion, J.]
* While the employer may argue that there is a need to train its employees through apprenticeship,
this phase should not be more than six months, and upon expiration of the agreement, the retention of the
employees for all intents and purposes, makes them regular employees. A second apprenticeship for a
second skill not mentioned in the apprenticeship agreement is a violation of the Labor Code. [Atlanta
Industries, supra]
12.1. Distinctions between Learnership and Apprenticeship
ART. 58. Definition of Terms. As used in this Title:
(a) An apprentice is a worker who is covered by a written apprenticeship
agreement with an individual employer or any of the entities recognized under this Chapter
[Ch.1, Title II]
ART. 73. Learners defined.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.
ART. 74. When learners may be hired.Learners may be employed when no
experienced worker, are available, the employment of learners is necessary to prevent
curtailment of employment opportunities, and the employment does not create unfair
competition in terms of labor costs or impair or lower working standards.
APPRENTICESHIP LEARNERSHIP
Period of training not to exceed six months [Art. 61, LC] Not to exceed three (3) months [Art.
75, LC]
Type of Work Highly technical work in an Industry
[Art. 60, LC]
Semi-skilled and other Industrial
work [Art. 73, LC]
Qualifications At least 14 years of age with
vocational aptitude and capacity, and
ability to comprehend and follow oral
and written instructions [Art. 59, LC]
When no experienced worker is
available in the industry [Art. 74, LC]
Salary Not less than 75% of applicable
minimum wage, [Art. 61, LC] EXCEPT
if training is required by the school or
training program, or requisite for
graduation or board examination. [Art.
72, LC]
Not less than 75% of applicable
minimum wage, [Art. 75, LC]
EXCEPT for learners in piecework,
where salary shall be paid in
according to the minimum wage
imposed. [Art. 76, LC]
13. Handicapped Workers (RA 7277)
Sec. 4. Definition of Terms. For purposes of this Act, these terms are defined as
follows:
(a) Disabled persons are those suffering from restriction or different abilities, as a
result of a mental, physical or sensory impairment, to perform an activity in the manner or
within the range considered normal for a human being;
13.1. Definition of handicapped workers
Sec. 4. Definition of Terms. For purposes of this Act, these terms are defined as
follows:
(d) Handicap refers to a disadvantage for a given individual, resulting from an
impairment or a disability, that limits or prevents the function or activity, that is considered
normal given the age and sex of the individual;
13.2. Rights of disabled workers
Sec. 5. Equal Opportunity for Employment. No disable person shall be denied
access to opportunities for suitable employment. 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.
Five percent (5%) of all casual emergency and contractual positions in the Departments
of Social Welfare and Development; Health; Education, Culture and Sports; and other
government agencies, offices or corporations engaged in social development shall be reserved
for disabled persons.
Sec. 6. Sheltered Employment If suitable employment for disabled persons
cannot be found through open employment as provided in the immediately preceding
Section, the State shall endeavor to provide it by means of sheltered employment. In the
placement of disabled persons in sheltered employment, it shall accord due regard to the
individual qualities, vocational goals and inclinations to ensure a good working atmosphere
and efficient production.
Sec. 7. Apprenticeship. Subject to the provisions of the Labor Code as amended,
disabled persons shall be eligible as apprentices or learners: Provided, That their handicap is
not as much as to effectively impede the performance of job operations in the particular
occupation for which they are hired; Provided, further, That after the lapse of the period of
apprenticeship, if found satisfactory in the job performance, they shall be eligible for
employment.
13.3. Prohibitions on discrimination against disable persons
Sec. 32. Discrimination on Employment. No entity, whether public or private,
shall discriminate against a qualified disabled person by reason of disability in regard to job
application procedures, the hiring, promotion, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment. The
following constitute acts of discrimination:
(a) Limiting, segregating or classifying a disabled job applicant in such a manner that
adversely affects his work opportunities;
(b) Using qualification standards, employment tests or other selection criteria that
screen out or tend to screen out a disabled person unless such standards, tests or other
selection criteria are shown to be job-related for the position in question and are consistent
with business necessity;
(c) Utilizing standards, criteria, or methods of administration that:
(1) have the effect of discrimination on the basis of disability; or
(2) perpetuate the discrimination of others who are subject to common
administrative control.
(d) Providing less compensation, such as salary, wage or other forms of remuneration
and fringe benefits, to a qualified disabled employee, by reason of his disability, than the
amount to which a non-disabled person performing the same work is entitled;
(e) Favoring a non-disabled employee over a qualified disabled employee with respect
to promotion, training opportunities, study and scholarship grants, solely on account of the
latter's disability;
(f) Re-assigning or transferring a disabled employee to a job or position he cannot
perform by reason of his disability;
(g) Dismissing or terminating the services of a disabled employee by reason of his
disability unless the employer can prove that he impairs the satisfactory performance of the
work involved to the prejudice of the business entity: Provided, however, That the employer
first sought to provide reasonable accommodations for disabled persons;
(h) Failing to select or administer in the most effective manner employment tests
which accurately reflect the skills, aptitude or other factor of the disabled applicant or
employee that such tests purports to measure, rather than the impaired sensory, manual or
speaking skills of such applicant or employee, if any; and
(i) Excluding disabled persons from membership in labor unions or similar
organizations.
13.4. Incentives for employers
Sec. 8. Incentives for Employers. (a) To encourage the active participation of
the private sector in promoting the welfare of disabled persons and to ensure gainful
employment for qualified disabled persons, adequate incentives shall be provided to private
entities which employ disabled persons.
NOTES;
* Where a disabled is qualified to do the work of an able-bodied, Art. 280 applies. In such case,
security of tenure is NOT subject to Art. 80(c) of the Labor Code where (c) the duration of employment
period should be agreed upon by the parties, NOR to Art. 80(b) thereof where her salary rate shall not be
less than 75% of the applicable legal minimum wage. She will be treated as if she is able-bodied
guaranteed by Arts. 280, 281, 282, 283, 286, 277(b), 279 of the Code. [Maritess Bernardo vs. NRLC,
July 12, 1999, and cited laws]
D. TERMINATION OF EMPLOYMENT
1. Employer-Employee Relationship
EMPLOYER
Art. 212(e), LC Includes any persons acting in the interest of an employer,
directly or indirectly.
Excludes labor organization or any of its officers or agents
Except,
when acting as an employer.
Art. 97(b) Includes any person acting directly or indirectly in the interest
of an employer in relation to an employee. [cf. Art. 106, LC]
Includes the government and all its branches, subdivision and
instrumentalities, all GOCCs, as well as non-profit private
institutions, or organizations.
Since a corporation is an artificial person, it is the officer
(manager) who is presumed to be 'the employer as he acts
in the interest of the employer. In dismissal cases, the officer
is solidarily liable with the corporation. [NYK International
Knitwear Corporation vs. NLRC, 397 SCRA 607]
EMPLOYEE
Art. 212(f) Includes any person in the employ of an employer.
Includes any individual whose work has ceased as a result or
in connection with any current labor dispute or because of any
ULP if he has not obtained any other substantially equivalent
and regular employment.
Art. 97(c) Includes any individual employed by an employer.
EER is basically a question of fact. [127 SCRA 454 (1984); Traders Royal Bank vs. NLRC,
321 SCRA 467 (1999); Mandaue Galleon Trade, Inc. vs. Andales, G.R. No. 159668, March 7,
2008; TAPE, Inc. vs. Servaa, G.R. No. 167648, January 28, 2008]
EXCEPT in,
(1) Article 106 - labor-only contracting [Filsystems vs. NLRC, 418 SCRA 404
(2003)];
(2) Article 138 - Massage/GRO;
(3) Article 155 - Homeworkers
1.1. Four-fold Test
Primary Tests : 4-Fold Rule
The elements to determine the existence of an employment relationship are:
(1) the selection and engagement of the employee;
(2) the payment of wages;
(3) the power of dismissal; and
(4) the power to control the employee's conduct.
[Pedro Chaves vs. NLRC, G.R. No. 146530, January 17, 2005; Sally Miguel vs. JCT Group, Inc., G.R. No.
157752, March 16, 2005; Philippine Global Communications, Inc. vs. de Vera, G.R. No. 157214, June 7,
2005; Dealco Farms vs. NLRC, G.R. No. 153192, January 30, 2009; Pacific Consultants International Asia
vs. Schonfeld, supra]
Selection/Hiring
Hiring has not presented so much question.
Payment of Wages
E A person paid by result is NOT an employee. [Continental Marble Corporation vs.
NLRC, 161 SCRA 151, 158]
E A bus driver paid on commission basis is an employee. Commission is part of wage as
defined in Art. 97(f), LC. [R. Transport vs. Ejandra, May 20, 2004]
BUT,
E A salesman who is paid 3% commission of his gross sales is not an employee, even if
commission is part of wage under Art. 97(f). Commission as a form of remuneration, may
be availed of by both an employee or non- employee. [Abante vs. La Madrid Bearing
Parts Corp., May 28, 2004]
E Likewise, one who receives 4% commission from proceeds solicited out of their principal-
agency relationship is NOT an employee. [Sevilla vs. Court of Appeals, 160 SCRA 171]
E An insurance agent who is paid on purely commission basis is NOT an employee.
[Grepalife vs. Judico, December 21, 1989]
BUT,
E An insurance agent who is paid with salary plus commission is an employee. [Grepalife
vs. Judico, December 21, 1989]
BUT,
E An insurance agent who does not have any license to work as an insurance agent is NOT
an employee. [Grepalife vs. NLRC, 150 SCRA 601, 608 (1987)]
STILL,
* absence of license should not be considered a legal obstacle as what applies here is the
Labor Code, and not the Insurance Code. [Grepalife vs. NLRC, 187 SCRA 694 (1990)]
Dismissal
E The allegation that a person was legally dismissed for abandonment admits of a fact that
said person was an employee. [R. Transport vs. Ejandra, supra] Likewise, an allegation
that the employee's position was found redundant to justify his dismissal, notwithstanding
the employer allegation of a valid job contracting. [Fulache, supra]
E On the other hand, direct application for employment to the principal upon the termination of
the service contract between the alleged employer and the principal, clearly shows that
employment relationship exists between the employees and the job contractor. [S.I.P.
Food House, et al. vs. Batolina, et al., G.R. No. 192473, October 11, 2010, Brion, J.]
Control
* Among the 4 principal tests used in the determination of an EER, the so- called control
test is commonly regarded as the most crucial and determinative indicator. Such element is
present where the person for whom the services are performed reserves the right to control
not only the end achieved, but also the manner and means to be used in reaching
that end. [Abante vs. La Madrid, supra]
BUT,
E Not every form of control that the hiring party reserves to himself over the conduct of the
party hire in relation to the services rendered maybe accorded the effect of establishing an
EER.
E Company rules designed to promote the result create no EER
E Only those rules that are intended to address both the result and the means used to
achieve it establish EER. [Insular Life Assurance vs. NLRC, 179 SCRA 459, 464-65
(1989), citing Mafinco Trading Corp. vs. Ople, 70 SCRA 139; Investment Planning Corp. vs.
SSS, 21 SCRA 924; Sara vs. NLRC, 166 SCRA 625, 630; Tongko vs. Manulife, 570
SCRA 503, 518, November 7, 2008, citing Insular Life Assurance Co., Ltd vs. NLRC, 431
SCRA 583, 604 (2004); Manila Electric Company vs. Benamira, G.R. No. 145271, July
14, 2005; Arsenio T. Mendiola vs. Court of Appeals, G.R. No. 159333, July 31,
2006]
E There are built-in elements of control specific to an insurance agency, which do not amount
to the elements of control that characterize an employment relationship governed by the
Labor Code. [Tongko vs. The Manufacturers Life Insurance Co. (Phils.), Inc., et al.,
G.R. No. 167622, January 25, 2011, Brion, J.] The concept of control in an insurance
agency must be understood outside the context of an employer-employee relationship,
since the kind of control wielded is only as to the desired results and according to Insurance
Code norms. [Tongko vs. The Manufacturers Life Insurance Co. (Phils.), Inc., G.R. No.
167622, June 29, 2010, Brion, J.]
NOTE:
* The Grepalife case wherein the agent brothers appointed as zone supervisor and district manager
were considered as employees of Grepalife, because of the presence of the element of control in their
contract of engagement, a fact which is not attendant in the Tongko case. The Insular Life case is neither in
point, since in the Tongko case no other contract was presented apart from the Agency Agreement
executed at the beginning of engagement, and was never superseded by any other agreement even when
the complainant became an area manager of Manulife. [Tongko, June 2010, supra]
COMMENT: I likewise disagree with the ponencia in Tongko.
Work performed and required of the alleged insurance agent as concurrent
branch/unit manager, which is beyond the provisions of the Agency Agreement he
previously executed with the insurance company give rise to work that establishes
employer-employee relationship.
In Justice Velasco's dissenting opinion, he opined thus: the mere fact that no
management contract (as in Insular Life case) was reduced into writing does not make
the duties and undertaking performed by a branch manager still within the sphere of
the 'Agency Agreement'.
Secondary Tests:
E SSS registration as employee. [Flores vs. Funeraria Nuestro, 160 SCRA 568; Bautista vs. Inciong,
158 SCRA 665; Corporal vs. NLRC, 341 SCRA 658 (2000)].
A company physician who billed professional fees every month, who never complained since 1981 that he
was not covered by SSS, who was subjected to 10% withholding tax not as employee but as professional fee,
whose relationship is terminable at will by either parties, and who was not subjected to control of company is
NOT an employee. [Phil. Global Communications, Inc. vs. Ricardo de Vera, G.R. No. 157214, June 7,
2005]
E Withholding Tax (W-2)
E Payment of ECC (State Insurance Fund) under Arts. 168, Labor Code, which is compulsory upon all
employers and their employees not over sixty (60) years of age [also, Art. 183(a), L.C.; in fact 183 (c) of L.C.
Requires the employer to pay the employee contribution].
E Pag-Ibig Fund
E Employment Contract
* Under the Omnibus Rules Implementing the Labor Code, one of the requirements for the
issuance of an employment permit is an employment contract. (Section 5, Rule XIV) [Pacific
Consultants International Asia, Inc. vs. Schonfeld, G.R. No. 166920, February 19, 2007]
Not Proof of EER
E ID cards, even with employee's name, if used on to obtain entrance. [Lopez vs. Bodega
City, 532 SCRA 56 (2007)]
E A solitary petty cash voucher.
E A public corporation's ownership of stocks in a private corporation does not create employer-employee
relationship between the public corporation and the employees of the private corporation. [Hugo, et al.
vs. Light Rail Transit Authority, G.R. No. 181866, March 18, 2010, Carpio Morales, J.]
CASES:
If the parties themselves practically agreed on every terms and conditions of the workers services in the
company, it negates the element of control in their relationship, and thereby negating the existence of EER.
[Philippine Global Communications, Inc. vs. de Vera, G.R. No. 157214, June 7, 2005, Garcia, J.]
Article 157 of the Labor Code clearly and unequivocally allows employers in non-hazardous
establishments to engage on retained basis the service of a dentist or physician. Nowhere does the law
provide that the physician or dentist so engaged thereby becomes a regular employee. The very phrase that
they may be engaged on retained basis, revolts against the idea that this engagement gives rise to an
employer-employee relationship. [Philippine Global Communications, Inc. vs. de Vera, G.R. No. 157214,
June 7, 2005, Garcia, J.]
It is a standard stipulation in security service agreements that the client may request the replacement of
the guards to it. Service-oriented enterprises [Manila Electric Company vs. Benamira, et al., G.R. No.
145271, July 14, 2005, Austria-Martinez, J.]
An employee occupies no office and generally is employed not by the action of the directors or
stockholders but by the managing officer of the corporation who also determines the compensation to be paid
to such employee. [Easycall Communications Phils., Inc. vs. King, G.R. No. 145901, December 15,
2005, Corona, J.]
Where a person who works for another performs his job more or less at his own pleasure, in the manner
he sees fit, not subject to definite hours or conditions of work, and is compensated according to the result of
his efforts and not the amount thereof, no employer-employee relationship exists. In our jurisdiction, the
benchmark of economic reality in analyzing possible employment relationships for purposes of applying the
Labor Code ought to be the economic dependence of the worker on his employer. [Wilhelmina S. Orozco
vs. The Honorable Court of Appeals, Philippine Daily Inquirer, and Leticia Jimenez Magsanoc, G.R.
No. 155207, August 13, 2008]
Under the boundary-hulog scheme incorporated in the Kasunduan, a dual juridical relationship was
created between petitioner and respondent: that of employer-employee and vendor-vendee. The Kasunduan
did not extinguish the employer-employee relationship of the parties extant before the execution of said deed.
[Villarama, Jr. vs. Court of Appeals, G.R. No. 165881, April 19, 2006, Callejo, Sr., J.]
An owner-member of a cooperative can be its own employee. [Republic of the Philippines,
represented by Social Security System and Social Security Commission vs. Asiapro Cooperative, G.R. No.
172107, November 23, 2007]
Concept of Whole Economic Activity
* The determination of the relationship between employer and employee depends upon
the circumstances of the whole economic activity, such as: (1) the extent to which the services
performed are an integral part of the employers business; (2) the extent of the workers
investment in equipment and facilities; (3) the nature and degree of control exercised by the
employer; (4) the workers opportunity for profit and loss; (5) the amount of initiative, skill,
judgment or foresight required for the success of the claimed independent enterprise; (6) the
permanency and duration of the relationship between the worker and the employer; and (7)
the degree of dependency of the worker upon the employer for his continued employment in
that line of business. (Angelina Francisco v. NLRC, G..R No. 170087, August 31, 2006)
* The presumption is that when the work is done is an integral part of the regular
business of the employer and when the worker, relative to the employer, does not furnish an
independent business or professional service, such work is a regular employment of such
employee and not an independent contractor. The Court will peruse beyond any such
agreement to examine the facts that typify the parties actual relationship. (ABS-CBN
Broadcasting Corporation v. Nazareno, G.R. No. 164156, September 26, 2006)
Doctrine of Apparent Authority
* In general, a hospital is not liable for the negligence of an independent contractor-
physician. There is, however, an exception to this principle. The hospital may be liable if the
physician is the ostensible agent of the hospital. This exception is also known as the
doctrine of apparent authority. [Rogelio P. Nograles v. Capitol Medical Center, G.R. No.
142625, December 19, 2006; Professional Services, Inc. vs. CA, G.R. Nos. 126297,
126467, and 127590, February 2, 2010, Corona, J.]
* The doctrine of apparent authority is a species of the doctrine of estoppel. Estoppel
rests on the rule: Whenever a party has, by his own declaration, act, or omission, intentionally
and deliberately led another to believe a particular thing true, and to act upon such belief, he
cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify
it. [Rogelio P. Nograles v. Capitol Medical Center, supra]
1.2. Probationary Employment
Art. 281. Probationary employment. 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.
Definition
PROBATIONARY
EMPLOYEE
Refers to one who, for a given period of time, is being observed
and evaluated to determine whether he is qualified for permanent
employment. [Woodridge School vs. Pe Benito, 570 SCRA
164, October 29, 2008]
PROBATIONARY
EMPLOYMENT
A phase in employment where the employer is afforded the
opportunity to observe the fitness of a probationary employee while
at work, and to ascertain whether he will become an efficient and
productive employee. [Magis Young Achievers' Learning
Center vs. Manalo, G.R. No. 178835, February 13, 2009;
Philippine Daily Inquirer, Inc. vs. Magtibay, Jr., G.R. No.
164532, July 27, 2007]
Rules
Period of Probation
While there is no statutory cap on the minimum term of probation, the law sets a maximum trial
period during which the employer may test the fitness and efficiency of the employee. [Magis Young
Achievers' vs. Manalo, supra]
The computation of probationary period is made on a calendar date basis to be reckoned from the
date of appointment, NOT on a 30-days per month basis as provided for in Art. 13, Civil Code. [Alcira
vs. NLRC, 431 SCRA 508 (June 9, 2004) citing CALS Poultry Supply vs. Roco, 385 SCRA 479, 488
(2002)]
BUT,
An employer, under exceptional circumstances, can extend a probationary period of employment, such
as when the same is established by company policy, or when it is required by the nature of the work,
provided such extension was agreed upon by the parties, and exercised before the expiration of the
original period of probation. [San Miguel Corporation vs. Caroline C. Del Rosario, 477 SCRA 604
(December 13, 2005), citing Buiser vs. Leogardo, 216 Phil. 144, 150 (1984)] In fact, length of time is
immaterial in determining the correlative rights of both parties in dealing with each other during
probationary period. [Philippine Daily Inquirer vs. Magtibay, Jr., supra]
It is important that the contract of probationary employment specify the period or term of its
effectivity. The failure to stipulate its precise duration could lead to the inference that the contract is binding
for the full three-year probationary period. [Magis Young Achievers' vs. Manalo, supra]
Nature of Probation
The provision on employment on probationary status under the Labor Code is a primary example of
the fine balancing of interests between labor and management. Employment on probationary status
affords management the chance to fully scrutinize the true worth of hired personnel before the full
force of the security of tenure guarantee comes into play. Management is given the opportunity to
reject during the probationary period hirees who fail to meet its own adopted but reasonable
standards. [Mercado vs. AMA Computer College, supra]
The employee knows from the very start that he will be under close observation and his performance
of his assigned duties and functions would be under continuous scrutiny by his superiors. [Philippine
Daily Inquirer vs. Magtibay, Jr., supra] Standards under which a probationary employee will qualify
as a regular employee shall be made known to him at the time of engagement. Otherwise, he
shall be deemed a regular employee. [Clarion Printing House, Inc. vs. NLRC, 461 SCRA 272, 298-
95 (2005)]
Evaluation is made before expiration of the probationary period. [Alcira vs. NLRC, supra] In
the absence of any evaluation, one cannot conclude that the employee failed to meet the standards for
probationary employment. [Dusit Hotel Nikko vs. Gatbonton, 489 SCRA 671, 677 (2006)] And when
he is allowed to work after a probationary period, he shall be considered regular. [Art. 281, LC cited in
Philippine National Bank vs. Cabansag, 460 SCRA 514 (2005)]
A probationary employee enjoys security of tenure while on probation. He can be dismissed
only for a just cause OR when he fails to qualify for regular employment. [Athenna International Manpower
Services, Inc. vs. Villanos, 456 SCRA 355 (2004)]
BUT,
A probationary employee does not enjoy a permanent status. Probationary employees enjoy
temporary employment status. This means that they are terminable anytime. The employer
could well decide if he no longer needed the probationary's service or his performance fell short
of expectations. [Espina vs. CA, 519 SCRA 327, 350 (2007); Jennifer Fabello Pasamba vs.
NLRC, G.R. No. 168421, June 8, 2007]
HOWEVER,
In the case of PAL vs. Pascua, regularization is NOT a management prerogative. The employer
cannot just put its employees in part-time regularization instead of full-time regularization, especially if
only full-time regular employees are covered by CBA and entitled to its benefits. [PAL vs. Pascua,
G.R. No. 143258, August 15, 2003, Quisumbing, J.]
A regular employee cannot be subjected to a new probationary employment by a sister company of
the employer. [A' Prime Security Services, Inc. vs. NLRC, G.R. No. 107320, January 19, 2000]
1.3. Kinds of Employment
Art. 280. Regular and casual employment. The provisions of written agreement
to the contrary notwithstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has been engaged to perform
activities which are usually necessary or desirable in the usual business or trade of the
employer, except where the employment has been fixed for a specific project or undertaking
the completion or termination of which has been determined at the time of the engagement
of the employee or where the work or service to be performed is seasonal in nature and the
employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding
paragraph: Provided, That any employee who has rendered at least one year of service,
whether such service is continuous or broken, shall be considered a regular employee with
respect to the activity in which he is employed and his employment shall continue while such
activity exists.
NOTES:
3 Categories of Employees under Art. 280
(1) regular employees or those whose work is necessary or desirable to the usual business of the
employer;
(2) project employees or those whose employment has been fixed for a specific project or undertaking,
the completion or termination of which has been determined at the time of the engagement of
the employee,
or where the work or services to be performed is seasonal in nature and the employment is for
the duration of the season; and
(3) casual employees or those who are neither regular nor project employees. [Rowell Industrial
Corporation vs. Court of Appeals, 517 SCRA 691, March 7, 2007, citing Pangilinan vs. General
Milling Corporation, G.R. No. 149329, 12 July 2004, 434 SCRA 159, 169; Pedy Caseres, et al. vs.
Universal Robina Sugar Milling Corp., et al., G.R. No. 159343, September 28, 2007; Glory
Philippines, Inc. vs. Buenaventura B. Vergara, G.R. No. 176627, August 24, 2007]
1.3.1. Regular employment
Regular Employment
Regular employees may be classified into: (1) regular employees by nature of work; and (2) regular
employees by years of service. [Rowell Industrial Corporation vs. CA, supra]
By years of service:
A casual employee who has rendered at least one (1) year of service, whether continuous
or broken is a regular employee. The status of regular employment under this category attaches
to the casual worker on the day immediately after the end of his first year of service as such
casual employee. [Kay Products, Inc. vs. Court of Appeals, 464 SCRA 544 (July 28, 2005)]
He shall be considered a regular employee with respect to the activity in which he is employed
and his employment shall continue while such activity exists. [Kasapian ng Malayang
Manggagawa sa Coca-Cola (Kasamma-CCO)-CFW Local 245 vs. Court of Appeals, 487
SCRA 487, 508 (2006)]
Article 281 of the Labor Code also considers a regular employee as one who is allowed to work after a
probationary period. [Pier 8 Arrastre & Stevedoring Services, Inc., et al. versus Jeff B. Boclot, G.R. No.
173849, September 28, 2007]
If the employee has been performing the job for at least a year, even if the performance is not
continuous and merely intermittent, the law deems repeated and continuing need for its performance as
sufficient evidence of the necessity if not indispensability of that activity to the business. [Thelma Dumpit-
Murillo versus Court of Appeals, et al., G.R. No. 164652, June 8, 2007] And the signing of a contract of
temporary employment at the time when the employee already attained or is about to attain regular
employment status under the CBA is an indication of an employer's illegal intent. [Philex Mining Corp. vs.
NLRC, 312 SCRA 119 (1999)]
Example:
(a) janitorial and messengerial services in an aquaculture business, only after
rendering 1 year of service. [SMC vs. Aballa, 461 SCRA 392 (June 28, 2005)]
Length of service provides a fair yardstick for determining when an employee initially hired on a
temporary basis becomes a permanent one, entitled to security and benefits of regularization.
[William Uy Construction Corp. vs. Trinidad, G.R. No. 183250, March 10, 2010, Abad, J.]
By nature of work
Employee performs work that is usually necessary and desirable in the usual business or trade of
the employer. [Caparoso vs. CA, 516 SCRA 30 (February 15, 2007)] The connection can be
determined by considering the nature of the work performed and its relation to the scheme of the
particular business or trade in its entirety. [Pier 8 Arrastre & Stevedoring Services, Inc., et al.
versus Jeff B. Boclot, G.R. No. 173849, September 28, 2007]
A continuing need for respondents' services is sufficient evidence of the necessity and
indispensability of their services to petitioner's business. [Glory Philippines, Inc. vs. Vergara,
G.R. No. 176627, August 24, 2007] Necessity or desirability is tied up to employer's usual
business. [Magsalin vs. NOWM, G.R. No. 148492, May 9, 2003]
What determines whether a certain employment is regular or otherwise is not the will or word of
the employer, but the business, taking into account all the circumstances, and in some cases the
length of time of its performance and its continued existence. [ABS-CBN Broadcasting
Corporation v. Nazareno, G.R. No. 164156, September 26, 2006]
Examples:
(a) production assistants of ABS-CBN [ABS-CBN Broadcasting Corp. vs. Nazareno,
503 SCRA 204, 229 (2006)]
(b) worker in the shrimp processing of the aquaculture business of SMC [SMC vs.
Aballa, supra]
(c) piece-rate workers when:
(1) their work as tailors was necessary or desirable in the usual business of
private respondent, which is engaged in the tailoring business;
(2) they worked throughout the year, their employment not being dependent
on a specific project or season; and
(3) they have worked for more than one year. [Avelino Lambo, et al. vs.
NLRC, G.R. No. 111042, October 26, 1999]
Issuance of a regular appointment is not necessary. [Efren Paguio vs. NRLC, G.R. No.
147816, May 9, 2003]
Article 280 should not be interpreted as a way as to deprive employers of the right and prerogative to
choose their own workers if they have sufficient basis to refuse an employee a regular status.
Management has rights which should also be protected. [Rowell Industrial Corporation vs. Court
of Appeals, 517 SCRA 691 (March 7, 2007)]
Where a disabled is qualified to do the work of an able-bodied, Art. 280 applies. In such case, security
of tenure is NOT subject to Art. 80(c) of the Labor Code where (c) the duration of employment period
should be agreed upon by the parties, NOR to Art. 80(b) thereof where her salary rate shall not
be less than 75% of the applicable legal minimum wage. She will be treated as if she is able-bodied
guaranteed by Arts. 280, 281, 282, 283, 286, 277(b), 279 of the Code. [Maritess Bernardo vs.
NRLC, July 12, 1999, and cited laws]
(a) Reasonable connection rule
The primary standard, therefore, of determining a regular employment is the reasonable connection
between the particular activity performed by the employee in relation to the usual business or trade of the
employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the
employer. The connection can be determined by considering the nature of the work performed and its relation
to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the
job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the
repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability
of that activity to the business. Hence, the employment is also considered regular, but only with respect to such
activity and while such activity exists. [De Leon vs. NLRC, G.R. No. 70705, August 21, 1989]
Employee performs work that is usually necessary and desirable in the usual business or trade of the
employer. [Caparoso vs. CA, 516 SCRA 30 (February 15, 2007)] The connection can be
determined by considering the nature of the work performed and its relation to the scheme of the
particular business or trade in its entirety. [Pier 8 Arrastre & Stevedoring Services, Inc., et al.
versus Jeff B. Boclot, G.R. No. 173849, September 28, 2007]
A continuing need for respondents' services is sufficient evidence of the necessity and
indispensability of their services to petitioner's business. [Glory Philippines, Inc. vs.
Vergara, G.R. No. 176627, August 24, 2007] Necessity or desirability is tied up to employer's
usual business. [Magsalin vs. NOWM, G.R. No. 148492, May 9, 2003]
What determines whether a certain employment is regular or otherwise is not the will or word of the
employer, but the business, taking into account all the circumstances, and in some cases the
length of time of its performance and its continued existence. [ABS-CBN Broadcasting Corporation
v. Nazareno, G.R. No. 164156, September 26, 2006]
1.3.2 Project employment
PROJECT refers to a job/undertaking within the regular or
usual business of the employer, but which is distinct and
separate and identifiable from the undertakings of the
company. Such job/undertaking begins and ends at
determined or determinable times. [Integrated
Contractors & Plumbing Works, Inc. vs. NLRC, 466
SCRA 265 (August 9, 2005); Dacuital, et al. vs. LM.
Camus Engineering Corporation, et al., G.R. No. 176748,
September 1, 2010, Nachura, J.]
(a) Indicators of project employment
Principal Test for Project Employment
(a) Whether one is assigned to carry out a specific project or undertaking, the duration and scope of which
are specified at the time of engagement for a project.
(b) Duration of work to be performed must be defined in the employment contract, and
(c) Terms and conditions of employment must be made clear to the employee at the time of hiring.
[Abesco Construction and Development Corp. vs. Alberto Ramirez, April 10, 2006; Dacuital, et
al., supra; Leyte Geothermal Power Progressive Employees Union-ALU-TUCP vs. PNOC-EDC,
G.R. No. 170351, March 30, 2011, Nachura, J.]
Points to consider in Project Employment
(1) Employees drawn from a work pool are not necessarily employees by reason of that
fact alone for members of a work pool can either be project or regular employees.
[Abesco, supra, citing Raycor Aircontrol Systems, Inc. vs. NLRC, 330 Phil. 306 (1996);
ALU-TUCP vs. NLRC, 234 SCRA 678 (1994)]
(2) Manual services or those for special skills like those of carpenters or masons, are, as
a rule, unschooled. But this fact alone is not a valid reason for bestowing special treatment
on them or for invalidating a contract of employment. [Villa vs. NLRC, 284 SCRA 105,
(1998)]
(3) Employees who are hired for carrying out a separate job, distinct from the other
undertakings of the company, the scope and duration of which has been determined and
made known to the employees at the time of the employment, are properly treated as
project employees. [Hanjin Heavy Industries and Construction Co., Ltd., Hak
Kon Kim and/or Jhunie Adahar versus Felicito Ibaez, et al., G.R. No. 170181,
June 26, 2008]
(4) The length of service of a project employee is not the controlling test of employment
tenure, but whether or not the employment has been fixed for a specific project or
undertaking the completion or termination of which has been determined at the time of the
engagement of the employee. [PNOC-Energy Development Corporation versus
NLRC, et al., G.R. No. 169353, April 13, 2007]
(5) A "day" as used herein, is understood to be that which must necessarily come, although
it may not be known exactly when. This means that where the final completion of a
project or phase thereof is in fact determinable and the expected completion is made
known to the employee. [Hanjin Heavy Industries and Construction Co. Ltd., Hak
Kon Kim and/or Jhunie Adajar vs. Felicito Ibaez, et al., G.R. No. 170181, June 26,
2008]
(6) The absence of a written contract does not by itself grant regular status to respondents,
but is evidence that respondents were informed of the duration and scope of their work
and their status as project employees. [Hanjin Heavy Industries and Construction
Co., Ltd., vs. Felicito Ibaez, et al., supra]
(7) When a project employee is dismissed, such dismissal must still comply with the
substantive and procedural requirements of due process. Employers who hire
project employees are mandated to state and prove the actual basis for the
employee's dismissal once its veracity is challenged. [Gregorio S. Saberola vs.
Ronald Suarez and Raymundo Lirasan, Jr., G.R. No. 151227, July 14, 2008]
1.3.3. Seasonal employment
[2010 Bar Exam Question]
In the case of Mercado, Sr. v. NLRC, the farm workers, after performing their designated task
in the farm or at the end of the season for which they were hired, their employment relationship with the
company is considered severed, and are free to look for work from other farms, are considered as
seasonal workers under Art. 280 of the Labor Code. [HIND SUGAR CO., INC. vs. HON. COURT
OF INDUSTRIAL RELATIONS, ET AL., G.R. No. L-13364 July 26, 1960, 108 Phil 1026]
And if the employer give preference to its former employees and laborers in hiring workers every
season, as in workers in a work pool, they should be considered as regular seasonal
workers insofar as the effect of temporary cessation of work is concerned. These workers,
however, do not receive salaries and are free to seek other employment during temporary breaks
in the business. [Integrated Contractors & Plumbing Works, Inc. vs. NLRC, August 9, 2005]
BUT,
In a case where the employer failed to prove that its farm workers worked only for the duration of
one particular season, but have been serving the employer for several years already, these farm
workers should be regarded as regular not seasonal employees. [Hacienda Fatima, et al.
vs. National Federation of Sugarcane Workers-Food and General Trade, G.R. No. 149440,
January 28, 2003]
1.3.4. Casual employment
Art. 280. Regular and casual employment. The provisions of written agreement
to the contrary notwithstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has been engaged to perform
activities which are usually necessary or desirable in the usual business or trade of the
employer, except where the employment has been fixed for a specific project or undertaking
the completion or termination of which has been determined at the time of the engagement
of the employee or where the work or service to be performed is seasonal in nature and the
employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding
paragraph: Provided, That any employee who has rendered at least one year of service,
whether such service is continuous or broken, shall be considered a regular employee with
respect to the activity in which he is employed and his employment shall continue while such
activity exists.
casual employees or those who are neither regular nor project employees. [Pangilinan vs.
General Milling Corporation, G.R. No. 149329, 12 July 2004, 434 SCRA 159, 169]
1.3.5. Fixed term employment
Fixed-Term Employment
Some workers perform tasks which are necessary or desirable without being hired as an employee
(such as an independent contractor) [Philippine Global Communications, Inc. vs. De Vera, supra]
In fact, Article 280 does not proscribe or prohibit an employment contract with a fixed period, [Rowell
Industrial Corp. vs. Court of Appeals, 517 SCRA 691 (March 7, 2007)] provided it is not intended
to circumvent the employee's security of tenure. [Labayog vs. M.Y. San Biscuits, Inc., 494 SCRA
486, 491 (2006); Caparoso vs. Court of Appeals, 516 SCRA 30 (2007)]
It is an accepted maritime industry practice that the employment of seafarers is for a fixed period
only. Seafarers cannot stay for a long and indefinite period of time at sea as limited access to shore activity
during their employment has been shown to adversely affect them. [Dante D. Dela Cruz vs. Maersk
Filipinas Crewing, Inc., et al., G.R. No. 172038, April 14, 2008]
(a) Requisites for validity
Guidelines for Fixed-Term Employment
(1) that the fixed period of employment was knowingly and voluntarily agreed upon by the
parties, without any force, duress or improper pressure being brought to bear upon the employee
and absent any other circumstances vitiating his consent; [E. Ganzon, Inc. vs. NLRC, et al.,
G.R. No. 123769, December 22, 1999]
(2) it satisfactorily appears that the employer and employee dealt with each other on more
or less equal terms with no moral dominance whatever being exercised by the former on the
latter. [Rowell Industrial Corporation vs. Court of Appeals, 517 SCRA 691 (March 7, 2007),
citing PNOC-EDC vs. NLRC, G.R. No. 97747, 31 March 1993, 220 SCRA 695, 699; Caparoso
vs. Court of Appeals, 516 SCRA 30 (February 15, 2007)]
(3) Stipulations, clauses, terms, and conditions should not be contrary to law, morals, good
customs, public order, or public policy. [Alberto P. Oxales vs. United Laboratories, Inc., G.R.
No. 152991, July 21, 2008]
1.4. Job contracting and Labor-only contracting
NOTE:
The presumption is that a contractor is a labor-only contractor unless such contractor overcomes the burden of
proving that it has substantial capital, investment, tools and the like. [7k Corporation v. NLRC, G.R. No. 148490,
November 22, 2006; Coca-Cola Bottlers Phils., Inc. vs. Alan M. Agito, et al., G.R. No. 179546, February 13, 2009]
1.4.1. When is there job contracting?
Art. 106. Contractor or subcontractor. Whenever an employer enters into a
contract with another person for the performance of the formers work, the employees of the
contractor and of the latters subcontractor, if any, shall be paid in accordance with the
provisions of this Code.
In the event that the contractor or subcontractor fails to pay the wages of his employees
in accordance with this Code, the employer shall be jointly and severally liable with his
contractor or subcontractor to such employees to the extent of the work performed under the
contract, in the same manner and extent that he is liable to employees directly employed by
him.
The Secretary of Labor and Employment may, by appropriate regulations, restrict or
prohibit the contracting-out of labor to protect the rights of workers established under this
Code. In so prohibiting or restricting, he may make appropriate distinctions between labor-
only contracting and job contracting as well as differentiations within these types of
contracting and determine who among the parties involved shall be considered the employer
for purposes of this Code, to prevent any violation or circumvention of any provision of this
Code.
There is "labor-only" contracting where the person supplying workers to an employer
does not have substantial capital or investment in the form of tools, equipment, machineries,
work premises, among others, and the workers recruited and placed by such person are
performing activities which are directly related to the principal business of such employer. In
such cases, the person or intermediary shall be considered merely as an agent of the
employer who shall be responsible to the workers in the same manner and extent as if the
latter were directly employed by him.
Permissible Job Contracting
Permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees
to put out or farm out with the contractor or subcontractor the performance or completion of a
specific job, work or service within a definite or predetermined period regardless of whether such
job, work or service is to be performed or completed within or outside the premises of the
principal. [Purefoods Corporation (now San Miguel Purefoods Company, Inc.) vs. NLRC
and Lolita Neri, G.R. No. 172241, November 20, 2008; Randy Almeda vs. Asahi Glass
Philippines, Inc., G.R. No. 177785, September 3, 2008]
In legitimate job contracting, the law creates an employer-employee relationship between the
employer and the contractors employees only for a limited purpose, i.e., to ensure that the
employees are paid their wages. The employer becomes jointly and severally liable with the job
contractor only for the payment of the employees wages whenever the contractor fails to pay the same.
[Coca-Cola Bottlers Phils., Inc. vs. Alan M. Agito, et al., G.R. No. 179546, February 13, 2009;
7k Corporation vs. NLRC, G.R. No. 148490, November 22, 2006]
Substantial capital or investment refers to capital stocks and subscribed capitalization in the case
of corporations, tools, equipments [sic], implements, machineries and work premises, actually and
directly used by the contractor or subcontractor in the performance or completion of the job, work
or service contracted out. [Manaya v. Alabang Country Club, Inc., G.R. No. 168988, June
19, 2007]
1.4.2. When is there labor-only contracting?
Art. 106. Contractor or subcontractor. Whenever an employer enters into a
contract with another person for the performance of the formers work, the employees of the
contractor and of the latters subcontractor, if any, shall be paid in accordance with the
provisions of this Code.
xxx xxx xxx
There is "labor-only" contracting where the person supplying workers to an employer
does not have substantial capital or investment in the form of tools, equipment,
machineries, work premises, among others, and the workers recruited and placed by such
person are performing activities which are directly related to the principal business of such
employer. In such cases, the person or intermediary shall be considered merely as an agent
of the employer who shall be responsible to the workers in the same manner and extent as if
the latter were directly employed by him.
Labor-only contracting is an arrangement wherein the contractor merely acts as an agent in
recruiting and supplying the principal employer with workers for the purpose of circumventing labor
law provisions setting down the rights of employees. It is not condoned by law. [Coca-Cola
Bottlers Phils., Inc. vs. Alan M. Agito, et al., G.R. No. 179546, February 13, 2009; Almeda
vs. Asahi Glass, supra] Where labor-only contracting exists, the Labor Code itself
establishes an employer-employee relationship between the employer and the employees of the
'labor-only' contractor in order to prevent a circumvention of labor laws. Here, the contractor is
considered merely an agent of the principal employer. [Aliviado, et al. vs. Procter & Gamble
Phils., Inc., G.R. No. 160506, March 9, 2010, Del Castillo, J.]
1.4.3. Conditions that must concur in
legitimate job contracting
The existence of an independent and permissible contractor relationship is generally established
by considering the following determinants: whether the contractor is carrying on an independent
business; the nature and extent of the work; the skill required; the term and duration of the
relationship; the right to assign the performance of a specified piece of work; the control and
supervision of the work to another; the employers power with respect to the hiring, firing and
payment of the contractors workers; the control of the premises; the duty to supply the
premises, tools, appliances, materials and labor; and the mode, manner and terms of payment.
[Jeromie D. Escasinas and Evan Rigor Singco vs. Shangri-Las Mactan Island Resort, G.R.
No. 172199, February 27, 2009; Purefoods Corporation (now San Miguel Purefoods
Company, Inc.) vs. NLRC and Lolita Neri, G.R. No. 172241, November 20, 2008; Lakas sa
Industriya ng Kapatirang Haligi ng Alyansang-Pinagbuklod ng Manggagawang Promo sa
Burlingame vs. Burlingame Corporation, G.R. No. 162833, June 15, 2007]
1.4.4. Effects of finding that there is labor-only contracting
Labor-only contracting would give rise to: (1) the creation of an employer-employee relationship
between the principal and the employees of the contractor or sub-contractor; and (2) the solidary
liability of the principal and the contractor to the employees in the event of any violation of the
Labor Code. [Coca-Cola Bottlers Phils., Inc. vs. Alan M. Agito, et al., supra]
2. Termination of Employment
DISMISSAL connotes permanent severance or complete separation of the
worker from the service on the initiative of the employer
regardless of the reasons therefor. [Industrial & Transport
Equipment, Inc. vs. Tomas Tugade, et al., G.R. No.
158539, January 15, 2009]
SUSPENSION is a disciplinary measure that is imposed for violation by the
employee of a reasonable rule of conduct prescribed by the
employer and made known to the employee. [Anonas
Construction and Industrial Supply Corporation vs.
NLRC, G.R. No. 164052, October 17, 2008]
2.1. Substantive Due Process
Labor Code
Art. 279. Security of tenure. In cases of regular employment, the employer
shall not terminate the services of an employee except for a just cause or when authorized by
this Title. An employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or their monetary equivalent computed from
the time his compensation was withheld from him up to the time of his actual reinstatement.
(As amended by Section 34, Republic Act No. 6715, March 21, 1989)
NOTES:
Security of tenure is a paramount right of every employee that is held sacred by the constitutional
guarantees as an act of social justice. The right of every employee to security of tenure is all the more secured by
the Labor Code by providing that the employer shall not terminate the services of an employee, except for a just
cause or when authorized by law. [Julito Sagales vs. Rustans Commercial Corporation, G.R. No. 166554,
November 27, 2008] However, in the case of private school teachers, their entitlement to security of tenure is
governed by the Manual of Regulations for Private Schools and not the Labor Code. [Aklan College Incorporated
vs. Rodolfo P. Guarino, G.R. No. 152949, August 14, 2007]
Transfer of Ownership; Simulated sale
In transfer of ownership, the sale or disposition must be motivated by good faith as a condition for
exemption from liability. A change of ownership done in bad faith, or used to defeat the rights of
labor, apart from making the successor-employer liable for the transgressions of its predecessor-
employer, the displaced employees shall be deemed absorbed. [Peafrancia Tours and Travel
Transport, Inc. vs. Joselito P. Sarmiento, et al., G.R. No. 178397, October 20, 2010,
Nachura, J.]
More, if there is a charge of simulated sale, transfer of ownership shall be deemed void, as if no
sale transpired, and no closure of business that will operate as cause for the dismissal of the
displaced employees. [Peafrancia Tours and Travel Transport, Inc. vs. Joselito P.
Sarmiento, et al., G.R. No. 178397, October 20, 2010, Nachura, J.]
2.1.1. Just Causes
Labor Code
Art. 282. Termination by employer. An employer may terminate an
employment for any of the following causes:
a. Serious misconduct or willful disobedience by the employee of the lawful orders
of his employer or representative in connection with his work;
b. Gross and habitual neglect by the employee of his duties;
c. Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
d. 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.
(a) Serious misconduct or willful disobedience
a. Serious misconduct or willful disobedience by the employee of the lawful orders
of his employer or representative in connection with his work;
xxx xxx xxx
SERIOUS
MISCONDUCT
An improper and wrong conduct;
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 in judgment.
For misconduct to be considered serious, it must be of
such grave and aggravated character and not merely
trivial or unimportant. [Austria vs. NLRC, August 16,
1999; Premiere Development Bank vs. Mantal,
485 SCRA 234, 239-40 (2006); Echeveria vs.
Venutek Medika, Inc., 516 SCRA 72 (2007); The
Peninsula Manila vs. Alipio, infra]

DISHONESTY A form of serious misconduct and fraud, or breach of
trust. [Lansangan vs. Amkor Technology
Philippines, Inc., G.R. No. 177026, January 30,
2009]
WILLFUL
DISOBEDIENCE
i. Requisites
Elements of Serious Misconduct
For serious misconduct be a just cause for dismissal:
(1) it must be serious;
(2) it must relate to the performance of the employees duties; and
(3) it must show that the employee has become unfit to continue working for the
employer. [Philippine Aeolus Automotive United Corp. vs. NLRC, G.R. No. 124617,
April 28, 2000; Premiere Development vs. Mantal, supra; Solid Development
Corporation Workers Association vs. Solid Development Corporation, G.R. No.
165995, August 14, 2007]
Insubordination, as a just cause for the dismissal of an employee, requires the concurrence of at
least two requisites: (1) the employee's assailed conduct must have been willful, that is,
characterized by a wrongful and perverse attitude; and 92) 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. [Grandteq Industrial Steel Products, Inc., et al. vs. Annaliza M.
Estrella, G.R. No. 192416, March 23, 2011, Nachura, J.]
Elements of Willful Disobedience
Disobedience to be a just cause for dismissal envisages the concurrence of at least two
requisites:
(a) the employees assailed conduct must have been willful or intentional, the willfulness being
characterized by a wrongful and perverse attitude; and
(b) the order violated must have been reasonable and lawful, made known to the employee, and must pertain
to the duties which he has been engaged to discharge. [Westin Philippine Plaza Hotel vs. NLRC, G.R. No.
121621, May 3, 1999, Quisumbing, J.; Cosmos Bottling Corporation vs. Nagrama, Jr., G.R. No. 164403,
March 4, 2008]
(b) Gross and habitual neglect of duties
xxx xxx xxx
(b) Gross and habitual neglect by the employee of his duties;
xxx xxx xxx
ABANDONMENT the deliberate and unjustified refusal of an employee to resume
his employment, without any intention of returning. It is a form
of neglect of duty. [Sugue vs. Triumph International (Phils.),
Inc., infra]
GROSS
NEGLIGENCE
The want or absence of even slight care or diligence amounting
to a reckless disregard of the safety of a person or property. In
evinces a thoughtless disregard of consequences without
exerting any effort to avoid them. [Metro Transit
Organization, Inc. vs. NLRC, October 17, 1996; Philippine
Aeolus United Corporation vs. NLRC, supra]
HABITUAL
NEGLECT
The repeated failure to perform ones duties for a period of time.
[Chua vs. NLRC, G.R. No. 146780, March 11, 2005 citing JEB
& Associates vs. NLRC, 254 SCRA 457 (1996)]
TARDINESS/
ABSENTEEISM
Habitual tardiness and absenteeism are forms of neglect of
duty. Lack of initiative, diligence, and discipline to come to work
on time everyday exhibit the employees deportment towards
work, which is inimical to the general productivity and business
of the employer. [R.B. Michael Press vs. Galit, G.R. No.
153510, February 13, 2008]
i. Requisites
Habitual Neglect
Under Article 282 of the Labor Code, gross and habitual neglect by the employee of his duties is a
sufficient and legal ground to terminate employment. Gross negligence connotes want of care in the
performance of one's duties. Habitual neglect implies repeated failure to perform one's duties for a period of
time, depending upon the circumstances. [Carlos V. Valenzuela vs. Caltex Philippines, Inc., G.R. Nos.
169965-66, December 15, 2010, Villarama, Jr., J.] In dismissing an employee for gross and habitual neglect
of duties, the employer must be able to identify what specific duties the employee violated and whether the
violations were gross and habitual. [Benjamin vs. Amellar Corporation, G.R. No. 183383, April 5, 2010,
Carpio Morales, J.]
An allegation of failure of an employee to conduct monthly physical inventory of the outlet's
merchandise is not gross neglect, if inventory preparation does not fall within the employee's tasks who is
merely tasked to assist the clerk. [Kulas Ideas & Creations, et al. vs. Alcoseba and Arao-Arao, G.R. No.
180123, February 18, 2010, Carpio Morales, J.]
Absenteeism
Even assuming that respondent's absenteeism constitutes willful disobedience, such offense does
not warrant respondent's dismissal. Not every case of insubordination or willful disobedience by an employee
reasonably deserves the penalty of dismissal. There must be a reasonable proportionality between the
offense and the penalty. [Philippine Long Distance Telephone Company vs. Joey B. Teves, G.R. No.
143511, November 15, 2010, Peralta, J.]
While management has the prerogative to discipline its employees and to impose appropriate
penalties on erring workers, pursuant to company rules and regulations, however, such management
prerogatives must be exercised in good faith for the advancement of the employer's interest and not for the
purpose of defeating or circumventing the rights of the employees under special laws and valid agreements.
Nevertheless, it may terminate an employee only for a just cause, his prerogative to dismiss must be
exercised without abuse of discretion. Its implementation should be tempered with compassion and
understanding. [Philippine Long Distance Telephone Company vs. Joey B. Teves, G.R. No. 143511,
November 15, 2010, Peralta, J.]
(c) Fraud or willful breach of trust (loss of trust and
confidence)
xxx xxx xxx
(c) Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
xxx xxx xxx
LOSS OF
CONFIDENCE
When the employer has reasonable ground to believe the
employee is responsible for the misconduct, and the nature of his
participation renders him unworthy of the trust and confidence
demanded by his position. [Caete, Jr. vs. NLRC, G.R. No.
130425, September 30, 1999; Tolentino vs. PLDT, G.R. No.
160404, June 8, 2005]
Applies only to an employee who holds a position of responsibility
or trust and confidence, or a person invested with confidence on
delicate matters. [Sanchez vs. NLRC, G.R. No. 124348, August
1999; Cruz vs. Coca-Cola Bottlers Phils., Inc., G.R. No
BREACH OF
TRUST
A willful violation of the trust.
A breach is willful if it is done intentionally, knowingly, and
purposely without justifiable excuse, as distinguished from an act
done carelessly, thoughtlessly, heedlessly, or inadvertently.
[Pastor Dionisio Austria vs. NLRC, G.R. No. 124382, August
16, 1999; PNCC vs. Mandagan, G.R. No. 160965, July 21,
2008]
BUT,
Loss of trust and confidence can be based on gross
negligence [School of the Holy Spirit of Quezon City vs.
Taguiam, G.R. No. 165565, July 14, 2008]
Rationale
The basic premise for dismissal on this ground is that the employee concerned holds a position of
trust. [Caeda vs. PAL, G.R. No. 152232, February 26, 2007] An employer cannot be compelled to
continue the employment of an employee who is guilty of acts inimical to the interest of the employer and
which justifies the loss of confidence in the employee. [Philippine Military Veterans Security and
Investigation Agency vs. CA, G.R. No. 139159, January 31, 2006; Divine Word College of San Jose
vs. Aurelio, G.R. No. 163706, March 29, 2007]
Loss of trust and confidence is premised on the fact that an employee concerned holds a position
where greater trust is placed by management and from whom greater fidelity to duty is correspondingly
expected. This includes managerial personnel entrusted with confidence on delicate matters, such as
custody, handling or care and protection of the employer's property. The betrayal of this trust is the essence
of the offense for which an employee is penalized. [Lima Land, Inc. vs. Cuevas, G.R. No. 169523, June
16, 2010, Peralta, J.]
In the absence of any malicious intent or fraud, an employee's negligence or carelessness is not a
justifiable ground for the employer's loss of trust and confidence, for the breach conceived of here should be
founded on a dishonest, deceitful or fraudulent act. [Lima Land, Inc. vs. Cuevas, supra]
i. Requisites
Guidelines for Dismissal
(1) There must be an actual breach; [Salas vs. Aboitiz One, Inc, G.R. NO. 178236,
June 27, 2008]
(2) The loss of confidence must not be simulated;
(3) It should not be used as a subterfuge for causes which are illegal,
improper, or unjustified;
(4) It may not be arbitrarily asserted in the face of overwhelming evidence to the
contrary
(5) It must be genuine, not a mere afterthought to justify earlier action taken in bad faith;
[Tolentino vs. PLDT, G.R. No. 160404, June 8, 2005; Weh Yueh Restaurant vs.
Jayona, G.R. No. 159448, December 16, 2005; Perez vs. PT&T, G.R. No. 152048,
April 7, 2009]
(6) The employee involved holds a position of trust and confidence [Molina vs. Pacific
Plans, Inc., G.R. No. 165476, March 10, 2006, 484 SCRA 498]
(7) proof beyond reasonable doubt need not be established to prove loss of trust and
confidence, as reasonable ground is enough. [P.J. Lhuillier, Inc. vs. NLRC, G.R. No.
158758, April 29, 2005; Norsk Hydro (Phils.), Inc. vs. Rosales, Jr., G.R. No. 162871,
January 31, 2007]
(8) must be grounded on facts clearly and convincingly established by the employer proving
the facts and incidents upon which the loss of confidence was based [Philippine Aeolus
Automotive United Corporation vs. NLRC, 311 SCRA 237, 247 (2000)] mere
uncorroborated assertions and accusations will not be sufficient; [Uniwide Sales
Warehouse Club vs. NLRC, G.R. No. 154503, February 29, 2008; Metro Eye
Security, Inc. vs. Salsona, G.R. No. 167637, September 28, 2007] and
(9) breach of trust and confidence as ground for dismissal must be related to the performance
of the duties of the employee such as would show unfitness to continue working for the
employer. [Blue Dairy Corp. vs. NLRC, G.R. No. 129843, September 14, 1999;
Rentokil (Initial) Philippines vs. Sanchez, G.R. No. 176219, December 23, 2008]
(d) Abandonment of employment; Elements that
must concur
Elements of Abandonment
1. failure to report for work or absence without valid or justifiable reason;
2. clear intention to sever the employer-employee relationship [Sugue vs. Triumph International (Phils.),
Inc., G.R. No. 164804, January 30, 2009; Fe La Rosa vs. Ambassador Hotel, G.R. No. 177059, March 13, 2009]
3. employer should have reported such fact to the nearest Regional Office of DOLE in accordance with
Rule XXIII, Section 7, Book V, DO 9-97 [R. Transport Corporation vs. Ejandra, G.R. No. 155264, May 6, 2005]
The operative act that will ultimately put an end to this relationship is the dismissal of the employee after complying
with the procedure prescribed by law. [Kams International, Inc. vs. NLRC, G.R. No. 128806, September 28, 1999;
Floren Hotel vs. NLRC, G.R. o. 155264, May 6, 2005]
Presumption: A complaint for illegal dismissal negates allegation of abandonment. [Big AA
Manufacturer vs. Antonio, G.R. No. 160854, March 3, 2006, 484 SCRA 33] Mere failure to
report for work is not enough to amount to abandonment of work. Abandonment is the deliberate
and unjustified refusal of an employee to resume his employment. [Exodus Intentional
Construction Corporation, et al. vs. Guillermo Biscocho, et al., G.R. No. 166109, February
23, 2011, Del Castillo, J.]
BUT,
If employer alleges that employee was never even dismissed, the presumption does not hold.
[Abad vs. Roselle Cinema, 485 SCRA 262, 272 (2006)]
BECAUSE,
Sometimes the complaint for illegal dismissal is only made as leverage to gain monetary
benefits. [Arc-Men Food Industries Corp. vs. NLRC, May 7, 1997]
THUS,
The rule is that an employee must positively prove first that he was indeed dismissed
before the burden of the employer under Article 277(b) applies.
(e) Termination of employment pursuant to a
Union Security Clause
Another cause for termination is dismissal from employment due to the enforcement of the union security
clause in the CBA. [Alabang Country Club, Inc., vs. NLRC, G.R. No. 170287, February 14, 2008]
Termination of employment by virtue of a union security clause embodied in a CBA is recognized
and accepted in our jurisdiction. This practice strengthens the union and prevents disunity in the
bargaining unit within the duration of the CBA. By preventing member disaffiliation with the threat of
expulsion from the union and the consequent termination of employment, the authorized bargaining
representative gains more numbers and strengthens its position as against other unions which may want
to claim majority representation. [Alabang Country Club, Inc., vs. NLRC, G.R. No. 170287, February
14, 2008] Dismissal of an employee by the company pursuant to a labor union's demand in accordance
with a union security agreement does not constitute unfair labor practice. [NUWHRAIN-Manila Pavilion
Hotel Chapter vs. NLRC, et al., G.R. No. 179402, September 30, 2008]
The rights of an employee to be informed of the charges against him and to reasonable
opportunity to present his side in a controversy with either the company or his own union are not wiped
away by a union security clause or a union shop clause in a collective bargaining agreement. An
employee is entitled to be protected not only from a company which disregards his rights but also from his
own union the leadership of which could yield to the temptation of swift and arbitrary expulsion from
membership and hence dismissal from his job. [General Milling Corporation vs. Casio, et al. and
Pino, et al., G.R. No. 149552, March 10, 2010, Leonardo-de Castro, J.]
(f) Totality of infractions doctrine
The totality of infractions or the number of violations committed during the period of employment
shall be considered in determining the penalty to be imposed upon an erring employee. The offenses
committed by petitioner should not be taken singly and separately. Fitness for continued employment
cannot be compartmentalized into tight little cubicles of aspects of character, conduct and ability separate
and independent of each other. While it may be true that petitioner was penalized for his previous
infractions, this does not and should not mean that his employment record would be wiped clean of his
infractions. After all, the record of an employee is a relevant consideration in determining the penalty that
should be meted out since an employee's past misconduct and present behavior must be taken together in
determining the proper imposable penalty. Despite the sanctions imposed upon petitioner, he continued to
commit misconduct and exhibit undesirable behavior on board. [Brendo D. Merin vs. National Labor
Relations Commission, et al., G.R. No. 171790, October 17, 2008]
2.1.2. Authorized Causes
Art. 283. Closure of establishment and reduction of personnel. The
employer may also terminate the employment of any employee due to the installation of
labor-saving devices, redundancy, retrenchment to prevent losses or the closing or
cessation of operation of the establishment or undertaking unless the closing is for the
purpose of circumventing the provisions of this Title, by serving a written notice on the
workers and the Ministry of Labor and Employment at least one (1) month before the
intended date thereof. In case of termination due to the installation of labor-saving devices
or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent
to at least his one (1) month pay or to at least one (1) month pay for every year of service,
whichever is higher. In case of retrenchment to prevent losses and in cases of closures or
cessation of operations of establishment or undertaking not due to serious business losses
or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least
one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least
six (6) months shall be considered one (1) whole year.
Definitions
INSTALLATION OF
LABOR-SAVING
DEVICE
Streamlining of personnel structure through the installation of
machineries and equipment, or introduction of new methods
for purposes of achieving maximum profitability of
employers business. [Agustilo vs. CA, G.R. No. 142875,
September 7, 2001]
REDUNDANCY Exists where the services of an employee are in excess of
what is reasonably demanded by the actual requirements of
the enterprise.
A position is redundant where it is superfluous, and
superfluity of a position/s may be the outcome of a number
of facts, such as over hiring of employees, decreased
volume of business, or dropping of a particular product line
or service activity previously manufactured or undertaken by
the enterprise. [Coats Manila Bay, Inc. vs. Ortega, G.R.
No. 172628, February 13, 2009]
RETRENCHMENT One of the ways of terminating employment to preserve the
viability of the business. [Eastridge Golf Club, Inc. vs.
Eastridge Golf Club, Inc., Labor Union-SUPER, G.R. No.
166760, August 22, 2008]
Termination of employment initiated by the employer through
no fault of the employees, and without prejudice to the latter,
resorted to by management during periods of business
recession, industrial depression, or seasonal fluctuations or
during lulls occasioned by lack of orders, shortage of
materials, conversion of the plant for a new production
program or the introduction of new methods or more efficient
machinery, or of automation. [Mobilia Products, Inc. vs.
Demecillo, G.R. No. 170669, February 4, 2009; AMA
Computer College vs. Garcia, infra]
It is a means of last resort, and justified only when all other
less drastic means have been tried and found insufficient.
[FASAP vs. PAL, infra]
CLOSURE Complete or partial cessation of the operations and/or
shutdown of the establishment of the employer. It is carried
out to either stave off the financial ruin or promote the
business interest of the employer. [Eastridge Golf Club,
Inc. vs. Eastridge Golf Club, Inc., Labor Union-SUPER,
G.R. No. 166760, August 22, 2008]
(a) Redundancy, Retrenchment and Closure
Redundancy exists where the services of an employee are in excess of what is reasonably
demanded by the actual requirements of the enterprise. A position is redundant if it is superfluous.
[Coca-Cola Bottlers Philippines, Inc. vs. Angel U. Del Villar, G.R. No. 163091, October 6, 2010,
Leonardo-de Castro, J.]
Two (2) Types of Closure:
(1) Due to business losses or reverses; and NOT due to losses [JAT General Services vs. NLRC,
G.R. No. 148340, January 26, 2004, Quisumbing, J.]
(2) Closure or cessation of business operations is allowed even if the business is not undergoing
economic losses. Just as no law forces anyone to go into business, no law can compel anybody to
continue in it. It would be stretching the intent and spirit of the law if we were to unjustly interfere with
the managements prerogative to close or cease its business operations, just because said business
operations are not suffering any loss or simply to provide the workers continued employment.
[Manatad vs. PT&T, supra; Espina vs. CA, G.R. No. 164582, March 28, 2007]
i. Procedural steps required
Art. 283. Closure of establishment and reduction of personnel. The employer
may also terminate the employment of any employee due to the installation of labor-saving
devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation
of the establishment or undertaking xxx, by serving a written notice on the
workers and the Ministry of Labor and Employment at least one (1) month before the
intended date thereof. In case of termination due to the installation of labor-saving devices
or redundancy, the worker affected thereby shall be entitled to a separation pay
equivalent to at least his one (1) month pay or to at least one (1) month pay for every
year of service, whichever is higher. In case of retrenchment to prevent losses and in cases
of closures or cessation of operations of establishment or undertaking not due to serious
business losses or financial reverses, the separation pay shall be equivalent to one (1)
month pay or at least one-half (1/2) month pay for every year of service, whichever
is higher. A fraction of at least six (6) months shall be considered one (1) whole year.
NOTES:
1-Month Notice Rule
E If an employee consented to his retrenchment or voluntarily applied for retrenchment, the required
previous notice to the DOLE is not necessary as the employee thereby acknowledged the existence of a valid
cause for termination of his employment. [Mobilia Products, Inc. vs. Demecillo, supra]
E Mere failure to comply with the notice requirement of labor laws on company closure does not
amount to a patently unlawful act. [Carag vs. NLRC, 520 SCRA 25 (2007)] A written notice that is short of
the 30 days prior to notice rule will constitute substantial compliance if the period not covered is
compensated even if unworked. [Kasapian ng Malayang Manggagawa sa Coca-Cola vs. CA, 487 SCRA
487, 510-11 (2006), citing Serrano vs. NLRC, 331 SCRA 331 (2000)]
E In fact, the 1-Month Notice Rule is NOT required when:
(1) retrenchment due to financial reverses was already known to the employees during
voluntary arbitration. [Revidad vs. NLRC, June 27, 1995]
(2) employee consented to the retrenchment [Ismael Santos vs. CA, July 5, 2001, citing
Wiltshire vs. NLRC (1991)]
(3) voluntary retrenchment [International Hardware, Inc. vs. NLRC, August 10, 1989]
(4) no notice due to consented termination rule applies not only to retrenchment, but also to
ILS, redundancy and closure. [DOLE Phils., Inc. vs. NLRC, September 13, 2001]
E There is no law or rule that requires an employer to furnish an employee to be retrenched copies of
documents on evaluating employees. The law only requires that the employer serve a written notice of the
retrenchment on the employee concerned and the DOLE at least one month before the intended date of
retrenchment. [Mendros, Jr. vs. Mitsubishi, supra]
E Where retrenchment undertaken by the employer is bona fide, the same will not be invalidated for its
failure to serve prior notice on the employees and the DOLE. The employer shall only be liable to pay
nominal damages at a reasonable rate of P50,000.00 for each employee. [Eastridge Golf Club, Inc., supra]
Payment of Separation Pay under Article 283
The amount of separation pay must be computed from the time the employee commenced
employment until the cessation of operations of the employers business. [JAT General Services
vs. NLRC, supra]
Computation of separation pay is:
Salary + Regular Allowances = Separation Pay
[Millares vs. NLRC, 305 SCRA 500-512 (1999)]
Under Sec. 10, Rule I, Book VI, Omnibus Rules, the computation of termination pay of an employee
under Art. 283 shall be based on his latest salary rate, unless the same was reduced by the
employer to defeat the intention of the Code, in which case, the basis of computation shall be the rate
before its deduction.
BUT,
Car and insurance benefits should not be included in the computation of separation pay as they are
benefits granted only during the course of employment. [Dr. Pedrito F. Reyes vs. CA, G.R. No.
154448, August 15, 2003, Ynares-Santiago, J.]
ii. Requirements for valid retrenchment/redundancy
Requisites for Valid Redundancy Program
(1) good faith on the part of the employer in abolishing the redundant position; and
fair and reasonable criteria in ascertaining what positions are to be declared redundant, and
accordingly abolished. [AMA Computer College vs. Garcia, G.R. No. 166703, April 14, 2008]
Requisites for Valid Retrenchment
(a) the retrenchment is necessary to prevent losses and such losses are proven;
(b) written notice to the employees and to DOLE at least one (1) month prior to the intended date of
retrenchment;
(c) payment of separation pay equivalent to one (1) month pay or at least one-half (1/2) month pay for
every year of service, whichever is higher. [AMA Computer College, Inc. vs. Garcia, supra;
Manatad vs. PT&T, G.R. No. 172363, March 7, 2008; TPI Philippines Cement Corp vs.
Cajucom VIII, 483 SCRA 494, 502-03 (2006)]
(d) the employer exercised its prerogative to retrench in good faith; and
(e) it uses fair and reasonable criteria ascertaining who would be retrenched or retained. [Mendros,
Jr. vs. Mitsubishi Motors Phils. Corporation (MMPC), G.R. No. 169780, February 16, 2009]
(f) the employer must first exhaust all other means to avoid further losses without retrenching its
employees. [FASAP vs. PAL, G.R. No. 178083, July 22, 2008]
Requisites for Valid Closure
(a) the closure/cessation of business is bona fide its purpose is to advance the
interest of the employer and not to defeat or circumvent the rights of employees under
the law or a valid agreement;
(b) a written notice was served on the employees and the DOLE at least one month before
the intended date of closure/cessation of business; and
(c) IN CASE OF CLOSURE NOT DUE TO FINANCIAL LOSSES, that the employees
affected have been give separation pay equivalent to month pay for every year of service or one
month pay, whichever is higher. [Eastridge Golf Club, Inc., supra]
iii. Criteria in selecting employees for dismissal
Redundancy
E The ground of redundancy does not require the exhibition of proof of losses or imminent
losses. [Coats Manila Bay, Inc. vs. Ortega, supra]
iv. Standards to be followed
E The wisdom or soundness of abolishing a position for being redundant is not subject to the
discretionary review of the labor arbiter and the NLRC, provided there is no violation of the law
and no showing that it was prompted by an arbitrary or malicious act [AMA Computer
College vs. Garcia, supra] because it is an exercise of business judgment on the part of the
employer. [Smart Communications, Inc. vs. Astorga, G.R. Nos. 148132, 151079, 151372,
January 28, 2008; Nelson A. Culili vs. Eastern Telecommunications Philippines, Inc., et
al., G.R. No. 165381, February 9, 2011, Leonardo-de Castro, J.]
Rule on Proof of Losses
E Adequate, credible and persuasive evidence of dire financial straits from drastic
business losses must be presented by the employer. [Filipinas (Pre-Fabricated Bldg.)
Systems Filsystems, Inc. vs. Gatlabayan, 487 SCRA 673 (2006)]
(1) Losses incurred must be substantial and not de minimis;
(2) Losses are actual or reasonably imminent;
(3) The retrenchment is reasonably necessary and is likely to be effective in preventing
the expected losses; and
(4) The alleged losses, if already incurred, or the expected imminent losses sought to be
forestalled, are proven by sufficient and convincing evidence. [AMA Computer College,
Inc. vs. Garcia, supra; Andrada vs. NLRC, G.R. No. 173231, December 28, 2007]
E Although when the law uses the phrase retrenchment to prevent losses, it simply means that the
employer may retrench before the losses anticipated are actually sustained or realized. [TPI
Philippines Cement Corp. vs. Cajucom VII, supra]
BUT,
If alleged losses are already realized, and the expected imminent losses sought to be forestalled,
the employer must prove by sufficient and convincing evidence that retrenchment is the most viable
solution. Any less exacting standard of proof would render too easy the abuse of this ground for
termination of services of employees, as scheming employers might be merely feigning business
losses or reverses to ease out employees. [FASAP vs. PAL, supra; Mendros, Jr. vs. Mitsubishi
Motors Phils. Corp., supra]
E Financial statements that will show the financial condition of the company are pieces of evidence that
may justify, among others, the enforcement of its retrenchment program. [Bernadeth Londonio, et
al. vs. Bio Research, Inc., et al.,G.R. No. 191459, January 17, 2011, Carpio Morales, J.]
Financial statements must be prepared and signed by independent auditors, otherwise, they may be
assailed as self-serving. [FASAP vs. PAL, supra]
(b) Disease or illness
Art. 284. Disease as ground for termination. An employer may terminate the
services of an employee who has been found to be suffering from any disease and whose
continued employment is prohibited by law or is prejudicial to his health as well as to the
health of his co-employees: Provided, That he is paid separation pay equivalent to at least one
(1) month salary or to one-half (1/2) month salary for every year of service, whichever is
greater, a fraction of at least six (6) months being considered as one (1) whole year.
i. Requisites
Requisites for Valid Dismissal under Art. 284
The employer must adduce:
(a) That the employee is suffering from a disease that is:
(1) prohibited by law;
(2) prejudicial to his health; or
(3) prejudicial to his co-employees
(b) A certification from a competent public authority that the disease of the employee is
incurable within a period of 6 months even with proper treatment. [Duterte vs. Kingswood
Trading Co., Inc., G.R. No. 160325, October 4, 2007]
(c) Payment of separation pay of one (1) month salary or one-half (1/2) month salary for every year of
service, whichever is higher, and a fraction of at least 6 months is considered as one (1) year.
[Crayons Processing, Inc. vs. Pula, G.R. No. 167727, July 30, 2007]
2.2. Procedural Due Process
Art. 277. Miscellaneous provisions.
xxx xxx xxx
(b) Subject to the constitutional right of workers to security of tenure and their
right to be protected against dismissal except for a just and authorized cause and without
prejudice to the requirement of notice under Article 283 of this Code, the employer shall
furnish the worker whose employment is sought to be terminated a written notice
containing a statement of the causes for termination and shall afford the latter
ample opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and regulations
promulgated pursuant to guidelines set by the Department of Labor and Employment. Any
decision taken by the employer shall be without prejudice to the right of the worker to contest
the validity or legality of his dismissal by filing a complaint with the regional branch of the
National Labor Relations Commission. The burden of proving that the termination was for a
valid or authorized cause shall rest on the employer. The Secretary of the Department of
Labor and Employment may suspend the effects of the termination pending resolution of the
dispute in the event of a prima facie finding by the appropriate official of the Department of
Labor and Employment before whom such dispute is pending that the termination may cause
a serious labor dispute or is in implementation of a mass lay-off. (As amended by Section 33,
Republic Act No. 6715, March 21, 1989)
2.2.1. Procedure to be observed in termination cases
The law mandates that the burden of proving the validity of the termination of employment rests
with the employer. Failure to discharge this evidentiary burden would necessarily mean that the dismissal
was not justified and, therefore, illegal. Unsubstantiated suspicions, accusations, and conclusions of
employers do not provide for legal justification for dismissing employees. [Century Canning
Corporation, et al. vs. Vicente Randy R. Ramil, G.R. No. 171630, August 8, 2010, Peralta, J.]
The employer is bound to furnish the employee concerned with two (2) written notices before
termination of employment can be legally effected. One is the notice apprising the employee of the
particular acts or omissions for which his dismissal is sought and this may loosely be considered as the
proper charge. The other is the notice informing the employee of the management's decision to sever his
employment. However, the decision must come only after the employee is given a reasonable period from
receipt of the first notice within which to answer the charge. The requirement of notice is not a mere
technicality but a requirement of due process to which every employee is entitled. [Erector Advertising
Sign Group, Inc. vs. NLRC, G.R. No. 167218, July 2, 2010, Peralta, J.]
This rule applies also to seafarers on board a vessel. However, under paragraph D, Section 17 of
the Revised Standard Employment Terms and Conditions Governing the Employment of Filipino Seafarers
on Board Ocean-Going Vessels, the Ship Master is excused from furnishing a seafarer with the
required notice of dismissal if doing so will prejudice the safety of the crew and the vessel, as in
cases of mutiny. BUT just the same, a complete report should be sent to the manning agency, supported
by substantial evidence of the findings. [NFD International Manning Agents vs. NLRC, G.R. No.
165389, October 17, 2008]
REMEMBER,
Article 277(b) recognizes the right to due process of all workers, without distinction as to the cause
of their termination, thus, none should be construed. [Suico vs. NLRC, G.R. Nos. 146762, 153584,
163793, January 30, 2007]
Under Article 264, union officers, while terminable for knowingly participating in an illegal strike
are, as in other termination cases, entitled to the due process protection under Art. 277(b) of the Labor
Code. Nothing in Art. 264 authorizes an immediate dismissal of a union officer for participating in an illegal
strike. The act of dismissal is not intended to happen ipso facto, but rather as an option that can be
exercised by the employer and after compliance with the notice requirements for terminating an employee.
[Stanford Marketing Corp. vs. Julian, G.R. No. 145496, February 24, 2004]
BUT,
In Biflex vs. Filflex Industrial, the Supreme Court held that dismissals under Article 264 can be
immediately resorted to, as an exercise of management prerogative. [Biflex vs. Filflex Industrial, G.R.
No. 155679, December 19, 2006]
2.2.2. Guiding Principles in connection with the hearing requirements in
dismissal cases
The essence of due process is an opportunity to be heard, or as applied to administrative
proceedings, an opportunity to explain one's side. A formal or trial type hearing is not at all times
and in all instances essential to due process, the requirements of which are satisfied where the
parties are afforded fair and reasonable opportunity to explain their side of the controversy.
Neither is it necessary that the witnesses be cross-examined by counsel for the adverse party.
[Philippine Long Distance Telephone Company vs. Eusebio M. Honrado, G.R.
No. 189366, December 8, 2010, Del Castillo, J.]
An employee is not deprived of procedural due process if he chose not to present his side at the
administrative hearing, and in fact avoided the investigation into the charges against him by filing
his illegal dismissal complaint ahead of the scheduled hearing, as he was given the opportunity to
be heard. [Technol Eight Philippines Corporation vs. NLRC, G.R. No. 187605, April 13,
2010, Brion, J.]
Reasonable opportunity under the Omnibus Rules means every kind of assistance that
management must accord to the employees to enable them to prepare adequately for their
defense. This should be construed as a period of at least five (5) calendar days from receipt of
the notice to give the employees an opportunity to study the accusation against them, consult a
union official or lawyer, gather data and evidence, and decide on the defenses they will raise
against the complaint. The notice should contain a detailed narration of the facts and
circumstances that will serve as basis for the charge against the employees. A general
description of the charge will not suffice. [Lima Land, Inc. vs. Cuevas, G.R. No. 169523, June
16, 2010, Peralta, J.]
BUT,
It is not enough for an employer to allege in the first written notice to the employee acts of non-
compliance without any specificity, as such allegation is too general and can encompass just
about any malfeasance. The employer must make a detailed narration of the facts and
circumstances that would serve as bases to terminate the employee which in turn will allow the
latter to explain his side and why he should not be dismissed. [Benjamin vs. Amellar
Corporation, G.R. No. 183383, April 5, 2010, Carpio Morales, J.]
ALSO,
The mere fact that the notices were sent to respondents after the filing of the labor complaint does
not, by itself, establish that the same was a mere afterthought. The surrounding circumstances of
this case adequately explain why the requirements of procedural due process were satisfied
only after the filing of the labor complaint. [New Puerto Commercial, et al. vs. Rodel
Lopez, et al., G.R. No. 169999, July 26, 2010, Del Castillo, J.]
(a) Agabon doctrine
Effect of Non-compliance with Due Process Requirement
Where the dismissal is for a just cause, the lack of procedural due process should not nullify the
dismissal, or render it illegal or ineffectual. The employer should, however, indemnify the employee for the
violation of his statutory rights, such as when the management did not follow or exhaust the grievance
procedure under the employment contract prior to dismissal. [DMA Shipping Philippines, Inc. vs.
Henry Cabillor, G.R. No. 155389, February 28, 2005; Philemploy Serices and Resources vs.
Rodriguez, 486 SCRA 302, 317 (2006)] The indemnity to be imposed should be stiffer to discourage the
abhorrent practice of dismiss now, pay later scheme, and should depend on the facts of each case,
taking into special consideration the gravity of the due process violation of the employer. [Agabon, vs.
NLRC, 442 SCRA 573, 616-17 (2004); LBC Domestic Franchise Co. vs. Florido, G.R. No. 162577,
August 17, 2007]
The indemnity shall be in the form of nominal damages, which the Supreme Court fixed at a rate
of P30,000.00 per employee. [Agabon vs. NLRC, supra]
BUT,
Where the dismissal is based on an authorized cause, the sanction should be stiff as the dismissal
process was initiated by the employers exercise of his management prerogative. Several factors are
taken into account:
(1) the authorized cause invoked, whether it was a retrenchment or a closure or cessation of
operation of the establishment due to serious business losses or financial reverses or otherwise;
(2) the number of employees to be awarded;
(3) the capacity of the employers to satisfy the awards, taken into account their prevailing financial
status as borne by the records; and
(4) whether there was a bona fide attempt to comply with the notice requirements as opposed to
giving no notice at all. [Talam vs. NLRC, G.R. No. 175040, April 6, 2010, Brion, J., citing Jaka Food
Processing]
STILL,
If the execution of a decision becomes impossible, unjust or too burdensome, modification of the
decision is necessary in order to harmonize the disposition with the prevailing circumstances. [Industrial
Timber Corporation vs. Ababon, 480 SCRA 171, 187 (2006)]
2.3. Reliefs for illegal dismissal
Art. 279. Security of tenure. In cases of regular employment, the employer shall not
terminate the services of an employee except for a just cause or when authorized by this Title.
An employee who is unjustly dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed from the time
his compensation was withheld from him up to the time of his actual reinstatement. (As
amended by Section 34, Republic Act No. 6715, March 21, 1989)
RIGHT TO REINSTATEMENT AND FULL BACKWAGES
* An illegally dismissed employee is entitled to twin reliefs: backwages and reinstatement. The
two reliefs provided are separate and distinct. [Macasero vs. Southern Industrial Gases
Philippines, G.R. No. 178524, January 30, 2009; Bahia Shipping Services, Inc. vs. Chua, G.R.
No. 162195, April 8, 2008] The relief granted under Art. 279 is inclusive of allowances, and his other
benefits or the monetary equivalent thereof to be computed from the time his compensation was
withheld from him up to the time of his actual reinstatement. [De Guzman vs. NLRC, G.R. No.
167701, December 12, 2007; Carlos vs. CA, G.R. No. 168096, August 28, 2007]
2.3.1. Reinstatement aspect
Reinstatement means restoration to a state or condition from which one had been removed or
separated. The person reinstated assumes the position he had occupied prior to his dismissal. It
presupposes that the previous position form which one had been removed still exists, or that there
is an unfilled position which is substantially equivalent or of similar nature as the one previously
occupied by the employee. [Pfizer, Inc., et al. vs. Geraldine Velasco, G.R. No. 177467, March
9, 2011, Leonardo-de Castro, J.]
(a) Immediately executory
* An order of reinstatement is immediately self-executory without the need for the issuance of a writ
of execution. [Pfizer, Inc., et al. vs. Geraldine Velasco, G.R. No. 177467, March 9, 2011, Leonardo-de
Castro, J.]
BUT,
* An alien seeking relief from an illegal dismissal is entitled to reinstatement and backwages only if
he has an employment permit before he may be allowed to resume his employment in the Philippines.
[WPP Marketing Communications, Inc. vs. Galera, G.R. Nos. 169207 and 169239, March 29, 2010,
Carpio, J.]
i. Actual reinstatement
* Actual reinstatement is restoration of an illegally dismissed employee the position s/he had
occupied prior to the illegal dismissal. In order that s/he may be actually reinstated to his former
position, said position from which one had been removed must still exist, or that there is an unfilled
position which is substantially equivalent or of similar nature as the one previously occupied by the
employee. [inferred from: Pfizer, Inc., supra]
ii. Payroll reinstatement
* In cases where the employer opted to choose payroll reinstatement in compliance with the
decision of the labor arbiter, the employee reinstated in the employer's payroll is equally entitled to
receive all the benefits given to a regular employee under the CBA. [Antonio A. Aboc vs.
Metropolitan Bank and Trust Company, G.R. Nos. 170542-43 & 176460, December 13, 2010,
Mendoza, J.]
* Even if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is obligatory on the
part of the employer to reinstate and pay the wages of the dismissed employee during the period
of appeal until reversal by the higher court or tribunal. The Labor Arbiter's order of reinstatement
is immediately executory and the employer has to either re-admit them to work under the same
terms and conditions prevailing prior to their dismissal, or to reinstate them in the payroll, and that
failing to exercise the options in the alternative, employer must pay the employee's salaries.
[Islriz Trading/Victor Hugo Lu vs. Efren Capada, et al., G.R. No. 168501, January 31, 2011,
Del Castillo, J.]
* After the Labor Arbiter's decision is reversed by a higher tribunal, the employee may be barred
from collecting the accrued wages, if it is shown that the delay in enforcing the reinstatement
pending appeal was without fault on the part of the employer, provided: (1) there must be an
actual delay; and (2) the delay must not be due to the employer's unjustified act or omission.
Otherwise, the employer may still be required to pay the salaries notwithstanding the reversal of
the Labor Arbiter's decision. [Islriz Trading/Victor Hugo Lu vs. Efren Capada, et al., G.R. No.
168501, January 31, 2011, Del Castillo, J.]
Refund Doctrine
If the decision of the labor arbiter is later reversed on appeal upon the finding that the ground for dismissal is valid,
then the employer has the right to require the dismissed employee on payroll reinstatement to refund the salaries s/he
received while the case was pending appeal, or it can be deducted from the accrued benefits that the dismissed employee
was entitled to receive from his/her employer under existing laws, collective bargaining agreement provisions, and company
practices. However, if the employee was reinstated to work during the pendency of the appeal, then the employee is
entitled to the compensation received for actual services rendered without need of refund. [Marilou S. Genuino versus
NLRC and Citibank, N.A., et al. versus NLRC, G.R. No. 142732-33, December 4, 2007]
BUT,
Prior to Genuino v. NLRC, there had been no known similar case containing a dispositive portion where the
employee was required to refund the salaries received on payroll reinstatement. In fact, in a catena of cases, the Court did
not order the refund of salaries garnished or received by payroll-reinstated employees despite a subsequent reversal of the
reinstatement order. [Garcia v. Philippine Airlines, Inc., G.R. No. 164856, January 20, 2009, Carpio Morales, J.]
The Labor Arbiter's order of reinstatement is immediately executory and the employer has to either re-admit them to
work under the same terms and conditions prevailing prior to their dismissal, or to reinstate them in the payroll, and that
failing to exercise the options in the alternative, employer must pay the employee's salaries. [Garcia v. Philippine Airlines,
Inc., supra]
After the labor arbiter's decision is reversed by a higher tribunal, the employee may be barred from collecting the
accrued wages, if it is shown that the delay in enforcing the reinstatement pending appeal was without fault on the part of
the employer that is: (1) there must be actual delay; (2) the delay must not be due to the employer's unjustified act or
omission otherwise, the employer may still be required to pay the salaries notwithstanding the reversal of the Labor
Arbiter's decision. [Garcia v. Philippine Airlines, Inc., supra]
2.3.2 Separation pay in lieu of Reinstatement
(a) Strained Relation rule
Where reinstatement is not feasible, expedient or practical, as where reinstatement would only exacerbate the
tension and strained relations between the parties, or where the relationship between the employer and employee has been
unduly strained by reason of their irreconcilable differences, particularly where the illegally dismissed employee held a
managerial or key position in the company, it would be more prudent to order payment of separation pay instead of
reinstatement. [Johnson & Johnson (Phils.), Inc., et al. vs. Johnson Office & Sales Union-Federation of Free
Workers (FFW), et al., G.R. No. 172799, July 6, 2007]
BUT,
The principle of strained relations cannot be applied indiscriminately. Otherwise, reinstatement can never
be possible simply because some hostility is invariably engendered between the parties as a result of litigation. That is
human nature. [Gabriel vs. Bilon, G.R. No. 146989, February 7, 2007] Strained Relations, to warrant separation pay in
lieu of reinstatement, must be demonstrated as a matter of fact [Tower Industrial Sales vs. Court of Appeals, G.R. No.
165727, April 19, 2006]
(b) Other Instances where Separation pay is awarded
* if reinstatement is no longer feasible
Payment of separation pay as a substitute for reinstatement is allowed only under exceptional circumstances, viz.:
(1) when reasons exist which are not attributable to the fault or are beyond the control of the employer, such as when
employer closes business; (2) when he illegally dismissed employee has contracted a disease and his reinstatement will
endanger the safety of his co-employees; or (3) where a strained relationship exists between the employer and the
dismissed employee. [Composite Enterprises, Inc. vs. Caparoso, G.R. No. 159919, August 8, 2007]
* as financial assistance (in cases of valid dismissal)
Although by way of exception, the grant of separation pay or some other financial assistance may be allowed to an
employee dismissed for just causes on the basis of equity as a measure of social justice only in those instances where the
employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. The
policy of social justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged.
[Tirazona vs. Philippine EDS Techno-Service Inc. (PET Inc.), G.R. No. 169712, January 20, 2009; Yrasuegui vs.
PAL, G.R. No. 168081, October 17, 2008]
(c) Computation
* Separation pay in lieu of reinstatement is computed up to the finality of (the) decision [Phil.
Military Veterans Security & Investigation Agency vs. Court of Appeals, G.R. No. 139159, January
31, 2006]
2.3.3. Backwages
(a) Components of the amount of backwages
E An unjustly dismissed employee is entitled to full backwages, inclusive of allowances, and to his other
benefits or their monetary equivalent, computed from the time his compensation was withheld from him up to
the time of his actual reinstatement. [Siemens Philippines, Inc. vs. Domingo, G.R. No. 150488, July 28,
2008] As a rule, backwages shall be computed from the time of illegal dismissal up to the finality of the
decision. [Philippine Journalists, Inc. vs. Mosqueda, G.R. No. 141430, May 7, 2004]
HOWEVER,
E If the dismissal was due to cessation of business operations, backwages is not to be computed
beyond the closure of operations, as it is confiscatory. [Retuya vs. Dumarpa, G.R. No. 148848, August 5,
2003] Likewise, an employer cannot be compelled to continuously pay an employee who can no longer
perform the tasks for which he was hired. Otherwise, it would be the height of injustice to still require the
employer to pay the employee full backwages from the time of his termination until finality of the decision.
[Victory Liner, Inc. vs. Race, G.R. No. 164820, December 8, 2008]
AND,
E An employee who was dismissed on the ground of AWOL due to incarceration, is entitled to
reinstatement, and under the principle of no work, no pay, his full backwages shall only commence from the
time he is refused work after acquittal. [Standard Electric Manufacturing Corporation vs. Standard
Electric Employees Union-NAFLU-KMU, G.R. No. 166111, August 25, 2005]
E The computation of backwages should be based on the salary the employee was receiving at the time
of his dismissal. [Palmeria, Sr. vs. NLRC, 247 SCRA 57, 63 (1995)] Annual general increases in basic salary
are NOT included in the computation of full backwages as they are neither allowance nor benefit. Allowances
and benefits are granted to the employee apart from, and in addition to, the wage or salary. [Equitable
Banking Corp. vs. Sadac, 490 SCRA 380, 409 (2006); Davao Free Worker Front vs. CIR, 67 SCRA 418;
Capital Garments Corp. vs. Ople, 117 SCRA 473; Durabuilt Recapping Plant & Company vs. NLRC,
152 SCRA 328]
Yardsticks in the computation of the final amount of liability in Illegal Dismissal Cases
(1) Employees who have been re-employed without loss of seniority rights shall be paid backwages
but only up to actual reinstatement;
(2) Employees who have been re-employed as new hires shall be restored their seniority and other
preferential rights. However, their backwages shall be computed only to date of actual re-hiring;
(3) Employees who have reached compulsory age of retirement shall receive backwages up to their
retirement only. The same is true as regards the heirs of those who have passed away;
(4) Employees who have not been re-employed, plus those who have executed quitclaims and
received separation pay or financial assistance, shall be reinstated without loss of seniority rights,
and paid full backwages, after deduction of whatever amounts already received; and
(5) Employees who had obtained substantially equivalent or even more lucrative employment
elsewhere in 1998 or thereafter are deemed to have severed their employment with their previous
employer, and shall be entitled to full backwages from the date of their retrenchment only up to the
date they found gainful employment elsewhere. [Flight Attendants and Stewards Association
of the Philippines (FASAP) v. Philippine Airlines, Inc., G.R. No. 178083, October 2, 2009,
Ynares-Santiago, J.]
2.3.4. Constructive dismissal
Art. 286. When employment not deemed terminated. The bona-fide suspension
of the operation of a business or undertaking for a period not exceeding six (6) months, or the
fulfillment by the employee of a military or civic duty shall not terminate employment. In all
such cases, the employer shall reinstate the employee to his former position without loss of
seniority rights if he indicates his desire to resume his work not later than one (1) month
from the resumption of operations of his employer or from his relief from the military or civic
duty.
NOTES:
CONSTRUCTIVE
DISMISSAL
Termination by reason of a bonafide suspension of operation
of a business or undertaking that exceeds six months.
Otherwise stated, if the employee was forced to remain
without work or assignment for a period exceeding six
months, then he is in effect constructively dismissed.
INVERSELY,
A bona fide suspension of the employers operation of a business or undertaking for a period not
exceeding six (6) months does not amount to termination of employment, but only a temporary
displacement of employees. The paramount consideration should be the dire exigency of the business
of the employer that compels it to put some of its employees temporarily out of work. [Pido vs. NLRC,
G.R. No. 169812, February 23, 2007]
BUT,
If the operation of the business is resumed within six months, it shall be the duty of the employer to
reinstate his employees to their former positions without loss of seniority rights. [Lagonoy Bus Co., Inc.
vs. CA, G.R. No. 165598, August 14, 2007]
PROVIDED,
That the employee should indicate his desire to resume his work not later than one (1) month from
resumption of operation/undertaking; or relief from military or civic duty. [Eagle Star Security Services,
Inc. vs. Bonifacio L. Mirando, G.R. No. 179512, July 30, 2009]
E Constructive dismissal occurs when there is cessation of work because continued employment is
rendered impossible, unreasonable, or unlikely as when there is a demotion in rank or diminution in
pay or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the
employee leaving the latter with no other option but to quit. [The University of the Immaculate
Conception, et al. vs. NLRC, et al., G.R. No. 181146, January 26, 2011, Carpio, J.]
E A complaint for constructive dismissal filed prior to the employee's resumption of work has no basis,
and must be dismissed for want of cause of action. [The University of the Immaculate
Conception, et al. vs. NLRC, et al., G.R. No. 181146, January 26, 2011, Carpio, J.]
When Off-detailing becomes Constructive Dismissal
Temporary off-detail or floating status is the period of time when security guards are in between
assignments or when they are made to wait after being relieved from a previous post until they are transferred
to a new one. It takes place when the security agency's clients decide not to renew their contracts with
the agency, resulting in a situation where the available posts under its existing contracts are less than the
number of guards in its roster. It also happens in instances where contracts for security services stipulate
that the client may request the agency for the replacement of the guards assigned to it even for want of
cause. [Bebina G. Salvaloza vs. NLRC, et al., G.R. No. 182086, November 24, 2010, Nachura, J.]
HOWEVER,
* An employee who was placed on temporary off-detail on the ground of poor performance and
inefficiency, allegations of which were never made known to him, and instead was given to various
assignments amounts to constructive dismissal. Assignment to different posts despite repeated errors
and poor performance is considered condonation, which the employer cannot invoke to justify placing
the employee on temporary off-detail. [Bebina G. Salvaloza vs. NLRC, et al., G.R. No. 182086,
November 24, 2010, Nachura, J.]
2.3.5. Preventive Suspension
* Preventive suspension is imposed on an employee under investigation if he poses a serious threat
to the life and property of the employer and of his co-workers. [Gatbonton vs. NLRC, G.R. No. 146779,
January 23, 2006, 479 SCRA 416] The rule on preventive suspension is found in Secs. 8 and 9, Rule
XXIII, DO 19, June 21, 1997.
* As a general rule, the employee is not entitled to wages during the period of a valid preventive
suspension. However, if preventive suspension is found to be without basis, the employer is required to
pay the illegally suspended employee his backwages for the period of his suspension. [Maricalum
Mining vs. Decorion, infra]
REMEMBER that
* Preventive suspension pending investigation is not a penalty.
It is a measure intended to enable the disciplining authority to investigate charges against
respondent by preventing the latter from intimidating or in any way influencing witnesses against him. [Mandapat
vs. Add Force Personnel Services, Inc., G.R. No. 180285, July 6, 2010, Perez, J.]
If the investigation is not finished and a decision is not rendered within that period, the suspension
will be lifted and the respondent will automatically be reinstated. [The Board of Trustees of the Government
Service Insurance System, et al. vs. Albert M. Velasco, et al., G.R. No. 170463, February 2, 2011, Carpio, J.]
* Preventive suspension lasts only for a period of 30 days, and beyond this period, such suspension may
amount to constructive dismissal. [Maricalum Mining Corp. vs. Decorion, 487 SCRA 182 (2006)]
HOWEVER,
There are cases where a violation of the 30-day suspension period may entail payment of
indemnity of P1,000.00 [JRS Business Corp. vs. NLRC, G.R. No. 108891, July 17, 1995] or P3,000.00 [Pepsi-
Cola Distributors vs. NLRC, G.R. No. 106831, May 6, 1997]
While another view is that the period exceeding 30 days shall be compensable, [Carlos V.
Valenzuela vs. Caltex Philippines, Inc., G.R. Nos. 169965-66, December 15, 2010, Villarama, Jr., J.] thus, the
extension will not give rise to constructive dismissal. The preventive suspension beyond 30 days shall be upheld
provided the employee's wages and benefits are paid in the interim. [Genesis Transport Service, Inc. vs.
Unyon ng Malayang Manggagawa ng Genesis Transport, G.R. No. 182114, April 5, 2010, Carpio Morales, J.]
* An employee who was preventively suspended pending an investigation is treated like an employee on
approved vacation leave without pay. The period of preventive suspension shall effectively interrupt the
continuity of his government service. [The Board of Trustees of the Government Service Insurance
System, et al. vs. Albert M. Velasco, et al., G.R. No. 170463, February 2, 2011, Carpio, J.]
* Imposition of preventive suspension does not amount to termination of employment. Preventive
suspension is justified where the employee's continued employment poses a serious and imminent threat
to life or property or of the employee's co-workers, and does not amount to illegal dismissal. [Jose P.
Artificio vs. NLRC, et al., G.R. No. 172988, July 26, 2010, Perez, J.]
2.3.6. Quitclaims
Quitclaims executed by employees are given effect when:
(1) the employee voluntarily executes the quitclaim;
(2) no fraud or deceit on the part of the parties;
(3) the consideration is credible and reasonable; and
(4) contract in not contrary to law, morals, public policy or good customs. [Goodrich Manufacturing
Corporation vs. Ativo, et al, G.R. No. 188002, February 1, 2010, Villarama, J.]
Consideration received in a quitclaim is credible and reasonable if the amount is not grossly inadequate vis-a-vis
what the employee should receive in full. [Goodrich Manufacturing Corporation vs. Ativo, et al, G.R. No. 188002,
February 1, 2010, Villarama, J.]
[2010 Bar Question]
2.3.7. Termination of employment by employee
Art. 285. Termination by employee.
(a) An employee may terminate without just cause the employee-employer
relationship by serving a written notice on the employer at least one (1) month in advance.
The employer upon whom no such notice was served may hold the employee liable for
damages.
(b) An employee may put an end to the relationship without serving any notice on
the employer for any of the following just causes:
1. Serious insult by the employer or his representative on the honor and person of
the employee;
2. Inhuman and unbearable treatment accorded the employee by the employer or
his representative;
3. Commission of a crime or offense by the employer or his representative against
the person of the employee or any of the immediate members of his family; and
4. Other causes analogous to any of the foregoing.
3. Retirement Pay Law
Art. 287. Retirement. Any employee may be retired upon reaching the retirement
age established in the collective bargaining agreement or other applicable employment
contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits
as he may have earned under existing laws and any collective bargaining agreement and
other agreements: Provided, however, That an employees retirement benefits under any
collective bargaining and other agreements shall not be less than those provided therein.
In the absence of a retirement plan or agreement providing for retirement benefits of
employees in the establishment, an employee upon reaching the age of sixty (60) years or
more, but not beyond sixty-five (65) years which is hereby declared the compulsory
retirement age, who has served at least five (5) years in the said establishment, may retire and
shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every
year of service, a fraction of at least six (6) months being considered as one whole year.
Unless the parties provide for broader inclusions, the term one-half (1/2) month
salary shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash
equivalent of not more than five (5) days of service incentive leaves.
Retail, service and agricultural establishments or operations employing not more than
ten (10) employees or workers are exempted from the coverage of this provision.
Violation of this provision is hereby declared unlawful and subject to the penal
provisions under Article 288 of this Code.
* Retirement is the result of a bilateral act of the parties, a voluntary agreement between the employer
and the employee whereby the latter, after reaching a certain age, agrees to sever his or her employment with
the former. RA 7641 pegs the age for compulsory retirement at 65 years, while the minimum age for optional
retirement is set at 60 years. An employer is, however, free to impose a retirement age earlier than the
foregoing mandates. [Lourdes A. Cercado vs. Uniprom, Inc., G.R. No. 188154, October 13, 2010,
Nachura, J.]
Retirement (as amended by RA 7641, Dec. 9. 1992)
a) Retire under existing CBA; in absence thereof
b) Retire under law -
a. rendered at least 5 yrs. Service, and
b. age 60 yrs. old optional
c. age 65 yrs. old compulsory

c) Benefits
1. for those paid on boundary basis of computation is average daily income [R & E Transport, Inc.] mo./yr. of
service, a fraction of 6 mos. = 1 yr.
2. unless more beneficially agreed upon by the parties -1/2 month shall mean/include:
a) 15 days/year
b) 1/12 of 13
th
mo. pay
c) Cash equivalent of not more than 5 days SIL
E A retirement plan giving the employer the option to retire its employees below the ages provided
by law must be assented to and accepted by the latter, without which, the exercise of such option
will amount to deprivation of property without due process of law. [Lourdes A. Cercado vs.
Uniprom, Inc., supra]
E Implied knowledge of the existence of the retirement plan does not amount to voluntary
acceptance of all the provisions set forth therein. The law demands more than a passive
acquiescence on the part of the employees, considering that an employer's early retirement age
option involves a concession of the former's constitutional right to security of tenure. [Lourdes A.
Cercado vs. Uniprom, Inc., supra]
E It must be explicit, voluntary, free, and uncompelled.
E While an employer may unilaterally retire an employee earlier than the legally permissible ages
under the Labor Code, this prerogative must be exercised pursuant to a mutually instituted early
retirement plan. Otherwise stated, only the implementation and execution of the option may be
unilateral, but certainly not the adoption and institution of the retirement plan containing such
option. Without the voluntary and explicit assent of at least the majority of its employees, the
option to unilaterally retire an employee is not valid. [Lourdes A. Cercado vs. Uniprom, Inc.,
G.R. No. 188154, October 13, 2010, Nachura, J.]
* An employee's claim under the Early Retirement Program of a corporation is mooted when he avails of
the optional retirement under Article 287 of the Labor Code, and accepted the benefits. Acceptance of said
benefits means that the employee opted to retire under Article 287. [Korean Air Co., Ltd vs. Yuson, G.R.
No. 170369, June 16, 2010, Carpio, J.]
3.1. Coverage
* RA 7641 or the Retirement Pay Law shall apply to all employees in the private sector, regardless
of their position, designation or status and irrespective of the method by which their wages are
paid. They shall include part-time employees, employees of service and other job contractors
and domestic helpers or persons in the personal service of another. [Labor Advisory on
Retirement Pay Law, October 24, 1996]
Compulsory retirement age
The retirement age is primarily determined by the existing agreement or employment contract. Absent an
agreement, retirement age shall be fixed by law at the age of 65 years, while the minimum age for optional retirement is set
at 60 years. Article 287 of the Labor Code applies only to a situation where (1) there is no CBA or other applicable
employment contract providing for retirement benefits; or there is a CBA or other applicable employment contract providing
for retirement benefits, but it is below the requirement set by law. The rationale is to prevent the absurd situation where an
employee is denied retirement benefits through the nefarious scheme of employers to deprive employees of the benefits due
them under existing labor laws. [Amelia R. Obusan vs. Philippine National Bank, G.R. No. 181178, July 26, 2010,
Nachura, J.]
However, the company retirement plans must not only comply with the standards set by existing labor laws, but they
should also be accepted by the employees to be commensurate to their faithful service to the employer within the requisite
period. Due process only requires that notice of the employer's decision to retire an employee be given to the employee.
[Amelia R. Obusan vs. Philippine National Bank, G.R. No. 181178, July 26, 2010, Nachura, J.]
Unlike in the case of Jaculbe, the retirement plan of PNB was solely and exclusively funded by PNB, and no
financial burden is imposed on the employees for their retirement benefits. [Amelia R. Obusan vs. Philippine National
Bank, G.R. No. 181178, July 26, 2010, Nachura, J.]
Retirement pay, on the other hand, presupposes that the employee entitled to it has reached the compulsory
retirement age or has rendered the required number of years as provided for in the collective bargaining agreement (CBA),
the employment contract or company policy, or in the absence thereof, in Republic Act No. 7641 or the Retirement Law.
[Motorola Philippines, Inc. vs. Ambrosio, G.R. No. 173279, March 30, 2009]
The receipt of retirement benefits does not bar the retiree from receiving separation pay. Separation pay is a
statutory right designed to provide the employee with the wherewithal during the period that he/she is looking for another
employment. On the other hand, retirement benefits are intended to help the employee enjoy the remaining years of his life,
lessening the burden of worrying about his financial support, and are a form of reward for his loyalty and service to the
employer. [Santos vs. Servier Philippines, Inc., G.R. No. 166377, November 28, 2008]
EXCEPT,
When the Retirement Plan of the employer bars the employee from claiming additional benefits on top of that
provided for in the Plan. [Santos vs. Servier Philippines, Inc., supra]
The Retirement Pay Law only applies in a situation where:
(1) there is no collective bargaining agreement or other applicable employment contract; or
(2) there is a CBA or other applicable employment contract, but it is below the requirements set for by law. [Oxales vs.
United Laboratories, G.R. No. 152991, July 21, 2008]
There are two (2) essential requisites in order that R.A. 7641 may be given retroactive effect:
(1) the claimant for retirement benefits was still in the employ of the employer at the time the statute took effect; and
(2) the claimant had complied with the requirements for eligibility for such retirement benefits under the statute. [Universal
Robina Sugar Milling Corporation (URSUMCO) vs. Caballeda, G.R. No. 156644, July 28, 2008]
An employer is free to impose a retirement age less than 65 for as long as it has the employees consent. [Alpha
C. Jaculbe vs. Silliman University, G.R. No. 156934, March 16, 2007]
An employee who has rendered at least 20 years of service may retire under RA 1616, and receive a retirement
gratuity of 1 month salary for every year of service. MC No. 26-96, on the other hand, provides for the computation of the
separation benefit applicable to permanent officials who are not qualified to retire under any existing law and those who are
qualified to retire. Those who are not qualified, as long as they served for more than a year, may avail of the gratuity
corresponding to their length of service. As for those employees who are qualified to retire, they may only receive a
separation pay equivalent to the difference between the incentive package and the retirement benefit under any existing law.
[Metropolitan Waterworks and Sewerage System vs. Gabriel Advincula, et al., G.R. No. 179217, February 2, 2011,
Carpio, J.]
When PNB was privatized, its personality as a government-owned corporation ceased, and all the employees
therein are deemed retired. The separated employees are entitled to all the benefits accruing to them, after PNB cleared
them of any accountability, absent PNB's findings of pending administrative case against them. [Ang vs. Philippine
National Bank, G.R. No. 178762, June 16, 2010, Abad, J.]
BUT,
Employees who were offered appointments and absorbed by the private concessionaires after privatization are
never separated from service by virtue of the reorganization pursuant to RA 8041. [Metropolitan Waterworks and
Sewerage System vs. Advincula, et al., G.R. No. 179217, February 2, 2011, Carpio, J.]
COMMENT: In both cases, some employees were absorbed by the company after privatization took effect. However,
these two cases treated the subsequent appointment of the employees concerned differently, in that, one considered the
absorbed employees as retired from government service and entitled to retirement benefits, whereas the other treated the
absorbed employees as never separated, their service uninterrupted.
3.2. Exclusions from Coverage
The law does not cover employees of retail, service and agricultural establishments or operations employing not
more than (10) employees or workers and employees of the National Government and its political subdivisions, including
Government-owned and/or controlled corporations, if they are covered by the Civil Service Law and its regulations. [Labor
Advisory on Retirement Pay Law, supra; Sec. 2, Rules Implementing the New Retirement Law]
3.3. Components of retirement pay
Rules Implementing the
New Retirement Law
SEC. 5. Retirement Benefits.
5.1. In the absence of an applicable agreement or retirement plan, an employee who
retires pursuant to the Act shall be entitled to retirement pay equivalent to at least one-half
(1/2) month salary for every year of service, a fraction of at least six (6) months being
considered as one whole year.
5.2. Components of One-half (1/2) Month Salary.For the purpose of determining
the minimum retirement pay due an employee under this Rule, the term one-half month
salary shall include all the following:
(a) Fifteen (15) days salary of the employee based on his latest salary rate. As used
herein, the term salary includes all remunerations paid by an employer to his employees for
services rendered during normal working days and hours, whether such payments are fixed
or ascertained on a time, task, piece or commission basis, or other method of calculating the
same, and includes the fair and reasonable value, as determined by the Secretary of Labor
and Employment, of food, lodging or other facilities customarily furnished by the employer to
his employees. The term does not include cost of living allowances, profit-sharing payments
and other monetary benefits which are not considered as part of or integrated into the regular
salary of the employees;
(b) The cash equivalent of not more than five (5) days of service incentive leave;
(c) One twelfth of the 13
th
month pay due the employee;
(d) All other benefits that the employer and employee may agree upon that should
be included in the compensation of the employees retirement pay.
5.3. One-half month salary of employees who are paid by results.For covered
workers who are paid by results and do not have a fixed monthly rate, the basis for
determination of the salary for fifteen days shall be their average daily salary (ADS), subject
to the provisions of Rule VII-A, Book III of the Rules Implementing the Labor code on the
payment of wages of workers whoa re paid by results. The ADS is the average salary for the
last twelve (12) months reckoned from the date of their retirement, divided by the number of
actual working days in that particular period.
* Republic Act No. 7641 amended Article 287 of the Labor Code by providing for retirement pay to
qualified private sector employees in the absence of any retirement plan in the establishment. Even a
bus conductor paid on commission basis falls within the coverage of RA 7641 if no retirement scheme
was adopted in the establishment he is working. Thus, his retirement pay should include the cash
equivalent of the 5-day service incentive leave and 1/12 of the 13
th
month pay. [Rodolfo J. Serrano vs.
Severino Santos Transit, et al., G.R. No. 187698, August 9, 2010, Carpio Morales, J.]
Rules on Retirement vs. Separation Pay
under Art. 283
1. If there is no prohibition in the CBA/retirement plan against double recovery of both the retirement pay and
separation pay under the law - the employee can get both. [Aquino vs. NLRC, 206 SCRA 118 (1992)]
2. Otherwise, the employee can only get either. [Carlos F. Solomon, et al. vs. Associate of International
Shipping Lines, Inc., G.R. No. 156317, April 26, 2005; Ma. Isabel T. Santos vs. Servier Phils., Inc., G.R. No.
166377, November 28, 2008]
3.4. Retirement pay under RA 7641 vis--vis
retirement benefits under SSS and GSIS laws
Labor Code
Art. 287. Retirement. Any employee may be retired upon reaching the retirement
age established in the collective bargaining agreement or other applicable employment
contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits
as he may have earned under existing laws and any collective bargaining agreement and
other agreements: Provided, however, That an employees retirement benefits under any
collective bargaining and other agreements shall not be less than those provided therein.
In the absence of a retirement plan or agreement providing for retirement benefits of
employees in the establishment, an employee upon reaching the age of sixty (60) years or
more, but not beyond sixty-five (65) years which is hereby declared the compulsory
retirement age, who has served at least five (5) years in the said establishment, may retire and
shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every
year of service, a fraction of at least six (6) months being considered as one whole year.
Unless the parties provide for broader inclusions, the term one-half (1/2) month
salary shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash
equivalent of not more than five (5) days of service incentive leaves.
Retail, service and agricultural establishments or operations employing not more than
ten (10) employees or workers are exempted from the coverage of this provision.
Violation of this provision is hereby declared unlawful and subject to the penal
provisions under Article 288 of this Code.
SSS Law
SEC. 12-B. Retirement Benefits.
(a) A member who has paid at least one hundred twenty (120) monthly contributions
prior to the semester of retirement; and who (1) has reached the age of sixty (60) years and is
already separated from employment or has ceased to be self-employed (2) has reached the
age of sixty (65) years, shall be entitled for as long as he lives to the monthly pension:
Provided, That he shall have the option to receive his first eighteen (18) monthly pensions
in lump sum discounted at the preferential rate of interest to be determined by the SSS.
(b) A covered member who is sixty (60) years old at retirement and who does not
qualify for pension benefits under paragraph (a) above, shall be entitled to a lump sum
benefit equal to the total contributions paid by him and on his behalf: Provided, That he is
separated from employment and is not continuing payment of contributions to the SSS on his
own.
(c) The monthly pension shall be suspended upon the re-employment or
resumption of self-employment of a retired employee who is less than sixty-five (65) years
old. He shall again be subject to Section Eighteen and his employer to Section Nineteen of
this Act.
(d) Upon the death of the retired member, his primary beneficiaries as of the date
of his retirement shall be entitled to receive the monthly pension: Provided, That if he has
no primary beneficiaries and he dies within sixty (60) months from the start of his monthly
pension, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the
total monthly pensions corresponding to the balance of the five-year-guaranteed period,
excluding the dependents pension.
(e) The monthly pension of a member who retires after reaching sixty (60) shall be
the higher of either: (1) the monthly pension computed at the earliest time he could have
retired had he been separated from employment or ceased to be self-employed plus all
adjustments thereto; or (2) the monthly pension computed at the time when he actually
retires.
GSIS Law
SEC. 13. Retirement Benefits.
(a) Retirement benefits shall be:
(1) the lump sum payment as defined in this Act payable at the time of
retirement plus an old-age pension benefit equal to the basic monthly pension payable
monthly for life, starting upon expiration of the five-year (5) guaranteed period covered by
the lump sum; or
(2) cash payment equivalent to eighteen (18) months of his basic monthly
pension plus monthly pension for life payable immediately with no five-year (5) guarantee.
(b) Unless the service is extended by appropriate authorities, retirement shall be
compulsory for an employee at sixty-five (65) years of age with at least fifteen (15) years of
service: Provided, That if he has less than fifteen (15) years of service, he may be allowed to
continue in the service in accordance with existing civil service rules and regulations.
SEC. 13-A. Conditions for Entitlement.A member who retires from the service shall
be entitled to the retirement benefits enumerated in paragraph (a) of Section 13 hereof:
Provided, That:
(1) he has rendered at least fifteen (15) years of service;
(2) he is at least sixty (60) years of age at the time of retirement; and
(3) he is not receiving a monthly pension benefit from permanent total disability.
* The provision as of the date of his retirement which qualifies the term primary beneficiaries was
nullified by the Supreme Court for violating the due process and equal protection clauses of the
Constitution. [Dycaico vs. SSS, G.R. No. 161357, November 30, 2005]
CASE:
Government Service Insurance System vs. Fernando P. De Leon,
G.R. No. 186560, November 17, 2010, Nachura, J.
The inflexible rule in our jurisdiction is that social legislation must be liberally construed in favor of the beneficiaries.
Retirement laws should be liberally construed in favor of the retiree, because their objective is to provide for the retiree's
sustenance and even comfort when he no longer has the capability to earn a livelihood. All doubts must be resolved in favor
of the retiree to achieve their humanitarian purpose.
Retirement benefits are a form of reward for an employee's loyalty and service to the employer, and are intended to
help the employee enjoy the remaining years of his life, lessening the burden of having to worry about his financial support
or upkeep. A pension partakes of the nature of retained wages of the retiree for a dual purpose: (1) to entice competent
people to enter the government service; and (2) to permit them to retire from service with relative security, not only for those
who have retained their vigor, but more so for those who have been incapacitated by illness or accident.
A retiree, after receiving retirement benefits under one law, but later on was discovered not qualified thereunder is
not all throughout disqualified to receive retirement benefits under any other existing retirement law. This does not amount
to double retirement nor does it amount to conversion of retirement mode.
The conversion under the law is one that is voluntary choice made by the retiree. On the other hand, in a case
where retiree was later on discovered to be disqualified to receive retirement benefits under one law, his receipt of
retirement benefits based on another retirement law is not conversion, because it is not a voluntary choice of the retiree, but
a consequence of his disqualification.
In this case, retired prosecutors of the National Prosecution Service, pursuant to RA 10071, is not entitled to receive In this case, retired prosecutors of the National Prosecution Service, pursuant to RA 10071, is not entitled to receive
the benefits granted to all those who retired prior to the effectivity thereof. the benefits granted to all those who retired prior to the effectivity thereof.
Rules On Double Recovery
1) If CBA/Retirement Plan prohibits double recovery of separation pay and retirement benefit then grant only one
benefit, whichever is greater.
2) If CBA/Retirement Plan contains no prohibition, grant both. [Aquino vs. NLRC, 206 SCRA 118, 122-123
(1992)]
3) Same is true with retirement plan vs. CBA. [Aquino, supra, citing BLTB Co. vs. CA, 71 SCRA 470; see also
Salomon vs. Association of International Shipping Lines, Inc., 457 SCRA 254, 262 (2005)]
4) If CBA does not require payment of retirement pay in addition to retrenchment pay, then no double recovery.
* Retirement under the CBA is subject to judicial review and nullification. A CBA, as a labor contract, is not merely
contractual in nature but impressed with public interest. It can be nullified for being contrary to law, public morals, or public
policy. [Cainta Catholic School vs. Cainta Catholic School Employees Union, 489 SCRA 468, 485 (2006)]
* Retirement laws are liberally construed in favor of the persons intended to be benefited.
HOWEVER,
* When the employers retirement plan precludes employees, whose services were terminated for cause, from
availing retirement benefits, such cannot be granted for lack of consensual and statutory basis for the grant of retirement
benefits. [Divina S. Lopez vs. National Steel Corporation, G.R. No. 149674, Feb. 16, 2004 (423 SCRA 109)]
Voucher records indicates the amounts disbursed
Clearance is a certification clearing an employee of any accountability. [Tiu vs. Pasaol, April 30,
2003, Quisumbing, J.]

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