2013 laborGN

LABOR LAW AND

SOCIAL LEGISLATION

2013

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The UST GOLDEN NOTES is the annual student-edited bar review material of the University of Santo Tomas, Faculty of Civil Law. Communications regarding the NOTES should be addressed to the Academics Committee of the Team: Bar-Ops.

ADDRESS:

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All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the Pontifical and Royal University of Santo Tomas, the Catholic University of the Philippines.

2013 Edition

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Printed in the Philippines, April 2013.

Academics Committee Team Bar-Ops

Faculty of Civil Law University of Santo Tomas España, Manila 1008 (02) 731-4027

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For being our guideposts in understanding the intricate

sphere of Labor Law and Social Legislation.

DISCLAIMER

THE RISK OF USE, MISUSE OR

NON-USE OF THIS BAR REVIEW MATERIAL

SHALL BE BORNE BY THE USER/

NON-USER.

LEGEND BFOQ BLR CB CBA CE DOLE Ee Er LA LC LLO LOA NCMB NLRC NSD OFW OT PCE POEA RAB RD RH RTWPB RW RWD SIL SLE ULP UT VA VR WD WRD - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Bona Fide Occupational Qualification Bureau of Labor Relations

Collective Bargaining

Collective Bargaining Agreement Certification Election

Department of Labor and Employment

Employee Employer Labor Arbiter Labor Code

Legitimate Labor Organization Leave of Absence

National Conciliation and Mediation Board

National Labor Relations Commission Night Shift Differential

Overseas Filipino Worker Overtime

Petition for Certification Election Philippine Overseas Employment Administration

Regional Arbitration Branch Regional Director

Regular Holiday

Regional Tripartite Wages and Productivity Boards

Regular Wage Regular Working Days Service Incentive Leave

Secretary of Labor and Employment Unfair Labor Practice

Undertime

Voluntary Arbitrator Voluntary Recognition Wage Distortion Weekly Rest Day

LABOR LAW Q: What is labor?

A: It is the exertion by human beings of physical or mental efforts, or both, towards the production of goods and services.

Q: What is labor Law?

A: The law that defines State policies on labor and employment and governs the rights and duties of the employer (Er) and employees (Ee) with respect to: 1. The terms and conditions of employment, and

2. Labor disputes arising from collective bargaining or other concerted activity respecting such terms and conditions.

Q: What matters may properly fall under the term “labor law”?

A: The term “labor law” covers the following:

1. Statutes passed by the State to promote the welfare of the workers and Ees and regulate their relations with their Ers.

2. Judicial decisions applying and interpreting the aforesaid statutes.

3. Rules and regulations issued by administrative agencies, within their legal competence, to implement labor statutes.

Q: What is the purpose of labor legislation? (2006 Bar Question)

A: The purpose of labor legislation is to afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relations between workers and Ers. The State shall assure the rights of workers to self-organization, collective bargaining (CB), security of tenure and just and humane conditions of work.

Q: What are the classifications of labor laws? A:

1. Labor Standards – That which sets out the minimum terms, conditions and benefits of employment that Ers must provide or comply with and to which Ees are entitled as a matter of legal right.

e.g. 13th month pay

2. Labor Relations – Defines and regulates the status, rights and duties, and the institutional mechanisms, that govern the individual and collective interactions of Ers, Ees or their representatives. It is concerned with the stabilization of relations of Ers and Ees and seeks to forestall and adjust the differences between them by the encouragement of CB and the settlement of labor disputes through conciliation, mediation and arbitration.

e.g. Collective Bargaining Negotiations

3. Social Legislation – All laws passed by the State to promote public welfare. It includes statutes

U S T intended to enhance the welfare of the people

even where there is no Er-Ee relationship. e.g. GSIS Law, SSS Law, Philhealth benefits, Agrarian Laws

Q: How do the provisions of the law on labor relations interrelate, if at all, with the provisions pertaining to labor standards? (2003 Bar Question) A: The law on Labor Relations provides for rights and procedures by which workers may obtain from their Er benefits which are over and above the minimum terms and conditions of employment set by labor standards law. Labor Standards law alone does not guarantee lasting industrial peace. It is assured through Labor Relations law which enables workers to obtain better benefits guaranteed by labor standards laws and by providing for a mechanism to settle disputes between the Er and his Ees.

Q: Is there any distinction between Labor Legislation and Social Legislation? Explain.

A: Labor Legislation is sometimes distinguished from social legislation by the former referring to labor statutes, like Labor Relations Law and Labor Standards, and the latter to Social Security Laws. Labor legislation focuses on the rights of the worker in the workplace.

Social Legislation are those laws that provide

particular kinds of protection or benefits to society or segments thereof in furtherance of social justice. Note: All Labor laws are social legislations, but not all social

legislations are labor laws.

Q: What are the sources of labor laws? A:

1. Labor Code (LC) and other related special legislation [including their respective Implementing Rules and Regulations (IRR)] 2. Contracts

3. Collective Bargaining Agreement (CBA) 4. Company practice

5. Company policies

Q: How does the CBA operate as a source of law? A: The CBA is the norm of conduct between Er and Ees and compliance therewith is mandated by the express policy of the law [DOLE Philippines, Inc.,

vs. Pawis ng Makabayang Obrero (PAMAO-NFL), G.R. No. 146650, (2003) in citing E. Razon, Inc. vs.

Secretary of Labor and Employment, G.R. No. 85867, (1993)].

Q: What are the requisites before past practices would be considered as a source of labor law? A: There must be:

1. Voluntarily institution by Er without any legal compulsion

2. A passage of time- should have been done over a

long period of time, and must be shown to have been consistent and deliberate [American Wire

and Cable Daily Rated Employees Union vs. American Wire and Cable Co., Inc., G.R. No. 155059, (2005)].

Note: No passage of time is required for a company policy

to become a source of labor law.

Q: What is a contract of labor?

A: It is a consensual, nominate, principal, and commutative contract whereby one person, called the Er, compensates another, called the laborer, worker or Ee, for the latter’s service. It is relationship impressed with public interest in keeping with our constitutional policy of social justice.

Q: What are the essential characteristics of a contract of labor?

A:

1. Er freely enters into a contract with the Ee; 2. Er can select who his Ee will be;

3. Er can dismiss the Ee; the Ee in turn can quit his job;

4. Er must give remuneration; and

5. Er can control and supervise the conduct of the Ee.

FUNDAMENTAL PRINCIPLES AND POLICIES CONSTITUTIONAL PROVISIONS

Q: What are the constitutional mandates on Labor Law?

A:

1. Sec. 3, Art. XIII – 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. 2. Sec. 9, Art. II – 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.

3. Sec. 10, Art II - The State shall promote social justice in all phases of national development. 4. Sec. 11, Art II - The State values the dignity of

every human person and guarantees full respect for human rights.

5. Sec. 13, Art. II - 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.

6. Sec. 14, Art. II - The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.

7. Sec. 18, Art. II – The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. 8. Sec. 20, Art. II – The State recognizes the

indispensable role of the private sector, encourages private enterprise and provide incentives to needed investments.

9. Sec. 1, Art. III - 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.

10. Sec. 4, Art. III - 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.

11. Sec. 8, Art. III – 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.

12. Sec. 10, Art. III – No law impairing the obligation of contracts shall be passed.

13. Sec. 16, Art. III – All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial or administrative bodies. 14. Sec. 18 (2), Art. III – No involuntary servitude in

any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

15. Sec. 1, Art. XIII - 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.

U S T To this end, the State shall regulate the

acquisition, ownership, use, and disposition of property and its increments.

16. Sec. 2, Art. XIII - The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

17. Sec. 13, Art. XIII – The State shall establish a special agency for disabled persons for their rehabilitation, self-development and self-reliance and their integration into the mainstream of society.

18. Sec. 14, Art. XIII – 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.

Q: What is the State policy on labor as found in the Constitution (Sec. 3, Art. XIII)?

A:

1. Afford full protection to labor 2. Promote full employment

3. Ensure equal work opportunities regardless of sex, race, or creed

4. Assure the rights of workers to self-organization, security of tenure, just and humane conditions of work, participate in policy and decision-making processes affecting their right and benefits 5. Regulate the relations between Ers and workers Q: What are the basic rights of workers guaranteed by the Constitution (Sec. 3, Art. XIII)?

A: The Right to: 1. Security of tenure 2. Living wage

3. Humane working conditions 4. Share in the fruits of production 5. Self-organization

6. Collective bargaining and negotiation

7. Engage in peaceful concerted activities, including the right to strike

8. Participate in policy and decision making processes

Q: What is the principle of non-oppression?

A: The principle mandates capital and labor not to act oppressively against each other or impair the interest

and convenience of the public. The protection to labor clause in the Constitution is not designed to oppress or destroy capital [Capili vs. NLRC, G.R. No.

117378, (1997)].

The law in protecting the rights of the Ees authorizes neither oppression nor self-destruction of the Er

[Pacific Mills Inc. vs. Alonzo, G.R. No. 78090, (1991)].

It should be made clear that when the law tilts the scale of justice in favor of labor, it is but a recognition of the inherent economic inequality between labor and management. The intent is to balance the scale of justice; to put the two parties on relatively equal positions. There may be cases where the circumstances warrant favoring labor over the interests of management but never should the scale be so tilted if the result is an injustice to the employer. Justitia nemini neganda est (Justice is to be denied to none) [Philippine Geothermal, Inc. vs. NLRC

and Edilberto M. Alvarez, G.R. No. 106370, (1994)].

NEW CIVIL CODE AND OTHER LAWS Q: What are other related laws to labor? A:

1. New Civil Code (NCC)

a. Art. 19 – Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. b. Art. 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.

c. Art. 1701 - Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public.

d. Art. 1702 - In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.

e. Art. 1703 - No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid. f. Art. 1704 - In collective bargaining, the

labor union or members of the board or committee signing the contract shall be liable for non-fulfillment thereof.

g. Art. 1705 - The laborer's wages shall be paid in legal currency.

h. Art. 1706 - Withholding of the wages, except for a debt due, shall not be made by the employer.

i. Art. 1707 - The laborer's wages shall be a

lien on the goods manufactured or the work done.

j. Art. 1708 - The laborer's wages shall not be

subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance.

k. Art. 1709 - The employer shall neither seize nor retain any tool or other articles belonging to the laborer.

l. Art. 1710 - Dismissal of laborers shall be

subject to the supervision of the Government, under special laws.

2. Revised Penal Code (RPC)

Art. 289 – Formation, maintenance and prohibition of combination of capital or labor through violence or threats. – Any person

who, for the purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lock-out of employees, shall employ violence or threats in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work, if the act shall not constitute a more serious offense in accordance with the provisions of the RPC.

3. Special Laws

a. E.O. 180 - Providing guidelines for the exercise of the Right to Organize of Government Employees, creating a Public Sector Labor-Management Council, and for other purposes

b. R.A. 8291 - Government Service Insurance Act of 1997

c. 13th Month Pay Law d. Retirement Pay Law e. SSS Law

f. Paternity Leave Act g. Anti – Child Labor Act h. Anti – Sexual Harassment Act

i. Magna Carta for Public Health Workers j. Solo Parents Welfare Act of 2000 k. National Health Insurance Act as

amended by R.A. 9241

l. Migrant Workers and Overseas Filipinos Act of 1995 as amended by RA 10022 m. PERA Act of 2008

n. Home Development Mutual Fund Law of 2009

o. The Magna Carta of Women

p. Comprehensive Agrarian Reform Law as amended by R.A. 9700

LABOR CODE Q: What is the aim of labor law? A: The aim of labor law is social justice. Q: What is social justice?

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

populi est suprema lex [Calalang vs. Williams, G.R. No. 47800, (1940)].

Q: What are the limitations in invoking the principle of social justice?

A:

1. Not to undermine property rights resulting in confiscation [Guido vs.Rural Progress Adm,

L-2089, (1949)]

2. May only protect the laborers who come to court

with clean hands [Phil.Long Distance Telephone

Co. vs. NLRC, G.R. 80609, (1988)]

3. Never result to an injustice or oppression of the Er [Phil.Geothermal Inc. vs. NLRC, G.R. No.

106370, (1994)]

Q: May social justice as a guiding principle in labor law be so used by the courts in sympathy with the working man if it collides with the Equal protection clause of the Constitution? (2003 Bar Question) A: Yes. The State is bound under the Constitution to afford full protection to Labor and when conflicting interests collide and they are to be weighed on the scales of social justice, the law should accord more

U S T sympathy and compassion to the less privileged

workingman [Fuentes v. NLRC, 266 SCRA 24, (1997)]. However it should be borne in mind that social justice ceases to be an effective instrument for the “equalization of the social and economic forces” by the State when it is used to shield wrongdoing

[Corazon Jamer v. NLRC, 278 SCRA 632 (1997)].

Q: What agency exercises the “rule-making power” granted in the Labor Code?

A: The Department of Labor and Employment (DOLE) thru the Secretary of Labor and Employment (SLE) and other Government agencies charged with the administration and enforcement of the LC or any of its parts shall promulgate the necessary IRRs.

Note: Such rules and regulations shall become effective 15

days after announcement of their adoption in newspapers of general circulation.

Q: What are the limitations to the “rule-making power” given to the Secretary of Labor and Employment and other Government agencies? A: It must:

1. Be issued under the authority of law 2. Not be contrary to law and the Constitution Q: To whom shall all rights and benefits under the Labor Code apply?

A: GR: All rights and benefits granted to workers under the LC shall apply alike to all workers, whether agricultural or non-agricultural.

XPNs:

1. Government Ees

2. Ees of government corporations created by special or original charter

3. Foreign governments 4. International agencies

5. Corporate officers/ intra-corporate disputes which fall under P.D. 902-A and now fall under the jurisdiction of the regular courts pursuant to the Securities Regulation Code. 6. Local water district except where NLRC’s

jurisdiction is invoked.

7. As may otherwise be provided by the LC. Q: What is the test in determining whether a GOCC is subject to the provisions of the LC?

A: It is determined by the manner of their creation. Government corporations incorporated under the Corporation Code are covered by the LC while those

created by special (original) charter from Congress are subject to Civil Service rules.

Art. 3, Declaration of Basic Policy

Q: What is the policy of the State on labor as found in the LC?

A: It is the policy of the State to: 1. Afford full protection to labor 2. Promote full employment

3. Ensure equal work opportunities regardless of sex, race, or creed

4. Assure the rights of workers to self organization, security of tenure, just and humane conditions of work, participate in policy and decision-making processes affecting their right and benefits 5. Regulate the relations between Ers and workers.

Art. 4, Construction in favor of Labor Q: What is “Compassionate Justice”?

The social justice policy mandates a compassionate attitude toward the working class in its relation to management. In calling for protection to labor, the Constitution does not condone wrong doing by the Ee. However, it urges a moderation of the sanctions that maybe applied to him in the light of the many disadvantages that weigh heavily on him like an albatross on his neck.

It is disregarding rigid rules and giving due weight to all equities of the case [Gandara Mill Supply and

Milagros Sy vs. NLRC and Silvestre Germano, G.R. 126703, (1998)].

e.g. An Ee who was validly dismissed may still be given severance pay.

Q: What is the concept of liberal approach in interpreting the Labor Code and its IRR?

A: The LC and its IRR, being remedial in character must be accorded the broadest scope and most beneficial interpretation. It is only in this way that their purpose, which is to remedy evils of exploitation, manipulation and oppression, may be achieved. Strict adherence to the letter of labor law is not allowed; the spirit thereof prevails and must be given effect. Under Art. 4 of the LC, all doubts in the implementation and interpretation of the provisions thereof, including its IRR, are to be resolved in favor of labor.

A: No. The law also recognizes that management has rights which are also entitled to respect and enforcement in the interest of fair play [St. Luke’s

Medical Center Ees Ass’n vs. NLRC, G.R. No. 162053, (2007)].

Art. 166, Policy

Q: What is the policy of the State in relation to Employees’ Compensation and State Insurance Fund?

A: The State shall promote and develop a tax-exempt Ees’ compensation program whereby Ees and their dependents, in the event of work-connected disability or death, may promptly secure adequate income benefits and medical related benefits. [Art.

166, LC]

Q: What is the purpose of a Workmen’s Compensation Act?

A: The primary purpose of a Workmen’s Compensation Act is to provide compensation for disability or death resulting from occupational injuries or diseases, or accidental injury to, or death of Ees.

Art. 211, Declaration of Policy

Q: What are the policy objectives of our Labor Relations law?

A: The state aims to promote:

1. Free CB and negotiations, including voluntary arbitration, mediation and conciliation as modes of settling labor or industrial disputes;

2. Free trade unionism;

3. Free and voluntary organization of a strong and united labor movement;

4. Enlightenment of workers concerning their rights and obligations as union members and as Ees;

5. Adequate administrative machinery for the expeditious settlement of labor or industrial disputes;

6. Stable but dynamic and just industrial peace; 7. Participation of workers in the decision-making processes affecting their rights, duties and welfare;

8. Truly democratic method of regulating the relations between the Ers and Ees by means of agreements freely entered into through CB, 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 the LC.

Art. 212, Definitions Q: Who is an employer?

A: Any person acting in the interest of an Er, directly or indirectly. The term does not include a labor organization or any of its officers and agents, except when acting as an Er. (Art. 212[e], LC)

An Er is defined as any person or entity that employs the services of others; one for whom work is done and who pays their wages of salaries; any person acting in the interest of an Er; refers to the enterprise where the labor organization operates or seeks to operate. (Sec.1[s], Rule I, Book V, IRR)

Note: The term “employer” is not restricted to business

owners alone because it includes any person as long as he acts in the interest of the Er.

Q: When is a labor organization deemed an employer?

A: When it is acting as such in relation to persons rendering services under hire, particularly in connection with its activities for profit or gain. Note: The mere fact that respondent is a labor union does

not mean that it cannot be considered an Er for persons who work for it. Much less should it be exempted from labor laws [Bautista vs. Inciong, G.R. No. L-52824, (1988)].

Q: Who is an employee? A: The term “employee” covers: 1. Any person in the employ of the Er

2. 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

3. One who has been dismissed from work but the legality of dismissal is being contested in a forum of appropriate jurisdiction. (D.O. No. 40-03) Note: The term shall not be limited to the Ees of a

particular Er unless the LC explicitly states.

Any Ee, whether employed for a definite period or not, shall, beginning on the first day of service, be considered an Ee for purposes of membership in any labor union. (Art.

277[c], LC)

U S T A: A labor dispute includes any controversy or matter

concerning:

1. Terms and conditions of employment, or 2. The association or representation of persons in

negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment

3. Regardless of whether the disputants stand in the proximate relation of Er and Ee. (Art. 212[l],

LC)

Q: What are the tests on whether a controversy is a labor dispute?

A:

1. As to nature – It depends on whether the dispute arises from Er-Ee relationship, although disputants need not be proximately Er or Ee of another.

2. As to subject matter – The test depends on whether it concerns terms or conditions of employment or association or representation of persons in negotiating, fixing, maintaining or changing terms or conditions of employment. Q: What are the kinds of labor disputes?

A:

1. Labor standard disputes

a. Compensation – E.g. Underpayment of minimum wage; stringent output quota; illegal pay deductions

b. Benefits – E.g. Non-payment of holiday pay, OT pay or other benefits

c. Working Conditions – E.g. Unrectified work hazards

2. Labor relations disputes

a. Organizational right disputes/ Unfair Labor

Practice (ULP) – E.g. Coercion, restraint or

interference in unionization efforts; reprisal or discrimination due to union activities; company unionism; ULP, strike or lockout; union members’ complaint against union officers

b. Representation disputes – E.g. Uncertainty as to which is the majority union; determination of appropriate CB unit; contests for recognition by different sets of officers in the same union c. Bargaining disputes – E.g. Refusal to bargain;

bargaining in bad faith; bargaining deadlock; economic strike or lockout

d. Contract administration or personnel policy

disputes – E.g. Non-compliance with CBA

provision (ULP if gross non-compliance with

economic provisions); disregard of grievance

machinery; non observance of unwarranted use of union security clause; illegal or unreasonable personnel management policies; violation of no-strike/no-lockout agreement e. Employment tenure disputes – E.g.

Non-regularization of Ees; non-absorption of labor-only contracting staff; illegal termination; non-issuance of employment contract

Q: Who are the parties to a labor dispute? A:

1. Primary parties are the Er, Ees and the union. 2. Secondary parties are the voluntary arbitrator,

agencies of DOLE, NLRC, SLE and the Office of the President.

Q: What is an inter-union dispute?

A: Any conflict between and among legitimate labor unions involving representation questions for the purposes of CB or to any other conflict or dispute between legitimate labor unions.

Q: What is an intra-union dispute?

A: Any conflict between and among union members, grievances arising from any violation of the rights and conditions of membership, violation of or disagreement over any provision of the union’s constitution and by-laws, or disputes from chartering or affiliation of union.

Q: What are rights disputes?

A: They are claims for violations of a specific right arising from a contract, i.e. CBA or company policies. Q: What are interest disputes?

A: They involve questions on “what should be included in the CBA.” Strictly speaking, the parties may choose a voluntary arbitrator to decide on the terms and conditions of employment, but this is impracticable because it will be a value judgment of the arbitrators and not of the parties.

Q: What are “contract–negotiation disputes”? A: These are disputes as to the terms of the CBA.

Q: What are “contract–interpretation disputes”? A: These are disputes arising under an existing CBA, involving such matters as the interpretation and application of the contract, or alleged violation of its provisions.

Art. 255, Exclusive Bargaining Representation and Worker’s Participation in Policy and

Decision-Making

Q: Who shall be the bargaining representative of the employees for purposes of collective bargaining? A: The labor organization designated or selected by the majority of the Ees in an appropriate collective bargaining unit shall be the exclusive representative of the Ees in such unit for the purpose of CB. However, an individual Ee or group of Ees shall have the right at any time to present grievances to their Er.

(Art. 255, LC, as amended by Sec. 22 of R.A. No. 6715, 1989)

Q: What is the extent of the worker’s right to participate in policy and decision-making processes in a company?

A: Such right refers not only to formulation of corporate programs and policies but also to participation in grievance procedures and voluntary modes of settling disputes.

Q: Explain the extent of the workers’ right to participate in policy and decision-making process as provided under Art. XIII, Sec. 13 of the 1987 Constitution. Does it include membership in the Board of Directors of a corporation? (2008 Bar Question)

A: No. The Supreme Court recognized the right of the union to participate in policy formulation and decision-making process on matters affecting the union members’ rights, duties and welfare. However, such participation of the union in committees of the Er is not in the nature of a co-management control of the business. Impliedly, therefore, workers’ participatory right in policy and decision-making processes does not include the right to put a union member in a corporation’s Board of Directors. [Manila Electric Company vs. Quisumbing, G.R. No.

127598, (1999)].

Q: May the management be compelled to share with the union or its employees its prerogative of formulating a Code of Discipline?

A: Yes. The Code of Discipline involves security of tenure and loss of employment — a property right. It is time that management realizes that to attain effectiveness in its conduct rules, there should be candidness and openness by Management and participation by the union, representing its members. In fact, our Constitution has recognized the principle of shared responsibility between Ers and workers and has likewise recognized the right of workers to participate in policy and decision-making process affecting their rights [PAL vs. NLRC, G.R. No. 85985,

(1993)].

Q: What is the principle of codetermination? (2007 Bar Question)

A: It refers to the right of workers to participate in policy and decision-making process affecting their rights and benefits [PAL vs. NLRC, G.R. No. 85985

(1993); Art. XIII, Sec. 3, 1987 Constitution].

Q: May an employer solicit questions, suggestions and complaints from employees who are represented by a union?

A: No, unless:

1. The CB representative executes an agreement waiving the right to be present on any occasion when Ee grievances are being adjusted by the Er; and

2. Er acts strictly within the terms of his waiver agreement.

Q: The hotel union filed a Notice of Strike with the National Conciliation and Mediation Board (NCMB) due to an unfair labor practice against the Diamond Hotel who refused to bargain with it. The hotel advised the union that since it was not certified by the DOLE as the exclusive bargaining agent, it could not be recognized as such. The union sought to bargain for members only. May the Union bargain collectively?

A: No. Art. 255 of the LC declares that only the labor organization designated or selected by the majority of the Ees in an appropriate CB unit is the exclusive representative of the Ees in such unit for the purpose of CB. The union is admittedly not the exclusive representative of the majority of the Ees of the hotel, hence, it could not demand from the hotel the right to bargain collectively in their behalf [Manila

Diamond Hotel vs. Manila Diamond Hotel Ees Union, G.R. No. 158075, (2006)].

U S T A: The person 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 Ees.

Q: Who is a supervisory employee?

A: The person who effectively recommends such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgement.

Q: Who are rank-and-file employees?

A: Those persons who are neither Managerial nor Supervisory Ees are considered rank-and file.

Art. 277, Miscellaneous Provisions Q: What is the right to security of tenure?

A: The right to security of tenure connotes that no worker shall be dismissed upon employment without cause and without due process.

Q: What is the worker’s right to notice and hearing prior to dismissal?

A: Art. 277 (b) of the LC provides that:

1. The Er shall furnish the Ee whose employment is sought to be terminated a written notice containing a statement of the causes for termination; and

2. Afford the Ee ample opportunity to be heard and to defend himself

Note: In connection with dismissals for authorized causes,

the Er must serve a written notice upon the worker and the DOLE at least 1 month before the intended date of termination. (Art. 283, LC)

Q: Why is notice and hearing necessary in cases of employee dismissal?

A: The twin requirement of notice and hearing constitutes essential elements of due process in cases of Ee dismissal. The requirement of notice is intended to inform the Ee concerned of the Er’s intent to dismiss and the reason for the proposed dismissal, upon the other hand, the requirement of hearing affords the Ee opportunity to answer his Er’s charges against him and accordingly to defend himself therefrom before dismissal is effected. Neither of these two requirements can be dispensed with without running afoul of the due process requirement of the 1987 Constitution [Century Textile

Mills, Inc., et al. v. NLRC, et al. G.R. No. 77859, May 25, 1988].

Q: May the employer be allowed to dismiss an employee and let him explain later? Why?

A: No. While the procedure laid down by the law for the dismissal of an Ee need not be observed to the letter of the law, at least it must be done in the natural sequence of notice, hearing and judgment. Dismissing the Ee and let him explain later is not in accord with the requirement of due process

[Batangas Laguna Tayabas Bus Co. v. NLRC, et al. G.R. No. 94429, May 29, 1992].

Q: Under what circumstances may the termination of employees be suspended by the SLE?

A: The SLE may suspend the effects of the termination in the event of a prima facie finding by the appropriate official of the DOLE before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off. (Art. 277(b), as amended by Sec. 33,

R.A 6715)

Q: Who has the burden of proving the existence of a valid or authorized cause of termination?

A: The Er has the burden of proof in proving that the termination was for a valid or authorized cause. The existence of a just or authorized cause for dismissal cannot be presumed. A contrary rule would contravene the constitutional policy of affording protection to the worker. (Art. 277, LC)

Q: Is a labor organization responsible for the preservation of industrial peace?

A: Yes. The Ministry shall help promote and gradually develop, with the agreement of labor organizations and Ers, labor-management cooperation programs at appropriate levels of the enterprise based on the shared responsibility and mutual respect in order to ensure industrial peace and improvement in productivity, working conditions and the quality of working life. [Art. 277(g), LC, incorporated by B.P Blg.

130]

Q: How about in establishments where no legitimate labor organization exists?

A: Labor management committees may be formed voluntarily by workers and Ers for the purpose of promoting industrial peace. [Art. 277(h), LC, as

RECRUITMENT AND PLACEMENT

RECRUITMENT OF LOCAL AND MIGRANT WORKERS Q: Who is a worker?

A: Any member of the labor force, whether employed or unemployed. (Art. 13 [a], LC)

Q: What is recruitment and placement? A:

1. Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers; and

2. Includes referrals, contact services, promising or advertising for employment, locally or abroad, whether for profit or not. (Art. 13 [b] ,LC)

Q: What are the essential elements in determining whether one is engaged in recruitment and placement?

A: It must be shown that:

1. The accused gave the complainant the distinct impression that she had the power or ability to send the complainant for work,

2. Such that the latter was convinced to part with his money in order to be so employed [People vs.

Goce, G.R. No. 113161, (1995)].

Q: Who is deemed engaged in recruitment and placement?

A: Any person or entity which, in any manner, offers or promises for a fee employment to 2 or more persons. (Art. 13[b], LC)

Q: Who may engage in recruitment and placement? A: GR: No person or entity other than the public

employment offices, shall engage in the Recruitment and Placement of workers.

XPNs:

1. Construction contractors if authorized by the DOLE and Construction Industry Authority 2. Other persons or entities as may be

authorized by the SLE

3. Members of the diplomatic corps (but hiring must go through POEA)

4. Public employment offices 5. Private recruitment offices 6. Private employment agencies 7. POEA

8. Shipping or manning agents or representatives

9. Name hires (Sec. 1(i) of Rule II, Omnibus

Rules and Regulations implementing the Migrant Workers and Overseas Filipinos Act of 1995 as amended by R.A. 10022)

Q: Who are name hires?

A: They are individual workers who are able to secure contracts for overseas employment opportunities with Ers without the assistance or participation of any agency. [Rule II, Omnibus Rules and Regulations

implementing the Migrant Workers and Overseas Filipinos Act of 1995 as amended by R.A. 10022]

Q: Is recruitment and placement constituted even if employment is offered only to one person?

A: Yes, the number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to 2 or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption

[People vs. Panis, G.R. L-58674-77, (1986)].

Q: What is a private employment agency?

A: Any person or entity engaged in the recruitment and placement of workers for a fee which is charged, directly or indirectly, from the workers or Ers or both.

(Art. 13, LC)

Q: What is a private recruitment agency?

A: It is any person or association engaged in the recruitment and placement of workers without

charging any fee, directly or indirectly, from the

workers or Ers. Q: Who is a seafarer?

A: It refers to any person who is employed or engaged in overseas employment in any capacity on board a ship other than a government ship used for military or non-commercial purposes. The definition shall include fishermen, cruise ship personnel and those serving on mobile offshore and drilling units in the high seas. [Sec. 1(ss), Rule II, Omnibus Rules and

Regulations Implementing Migrant Workers Act as amended by R.A. 10022 (2010)]

U S T Q: What is overseas employment?

A: It is the employment of a worker outside the Philippines.

Q: Who is an Overseas Filipino Worker (OFW)? A: A person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a citizen or on board a vessel navigating the foreign seas other than a government ship used for military or non-commercial purposes or on an installation located offshore or on the high seas. [Sec.(jj), Rule II, Omnibus Rules and Regulations

Implementing Migrant Workers Act as amended by R.A. 10022 (2010)]

Note: The term “OFW” is to be used interchangeably with

“migrant worker” as provided in R.A. 10022.

Q: Who is an Emigrant?

A: Any person, worker or otherwise, who emigrates to a foreign country by virtue of an immigrant visa or resident permit or its equivalent in the country of destination. (Art. 13, LC)

EMPLOYMENT OF NON-RESIDENT ALIENS Q: What are the requirements in employment of non-resident aliens?

A: Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign Er who desires to engage an alien for employment in the Philippines:

1. Shall obtain an employment permit from the DOLE

2. The permit may be issued to a non-resident alien or to the applicant Er after a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired

3. For an enterprise registered in preferred areas of investments, said permit may be issued upon recommendation of the Government agency charged with the supervision of said registered enterprise

Q: The DOLE issued an alien employment permit for Earl Cone, a U.S. citizen, as sports consultant and assistant coach for GMC. Later, the Board of Special Inquiry of the Commission on Immigration and Deportation approved Cone’s application for a change of admission status from temporary visitor to pre-arranged employee. A month later, GMC

requested that it be allowed to employ Cone as full-fledged coach. The DOLE Regional Director granted the request. The Basketball Association of the Phils. appealed the issuance of said permit to the Secretary of Labor who cancelled Cone’s employment permit because GMC failed to show that there is no person in the Philippines who is competent and willing to do the services nor that the hiring of Cone would redound to the national interest. Is the act of the Secretary of Labor valid? A: Yes. GMC’s claim that hiring of a foreign coach is an Er’s prerogative has no legal basis. Under Art. 40 of the LC, an Er seeking employment of an alien must first obtain an employment permit from the DOLE. GMC’s right to choose who to employ is limited by the statutory requirement of an employment permit.

[GMC vs. Torres, G.R. No. 9366, (1991)]

PROHIBITION AGAINST TRANSFER OF EMPLOYMENT Q: Who are required to obtain employment permit? A: GR: Only non-resident aliens;

XPNs:

1. Diplomatic services and foreign government officials;

2. Officers and staff of international organizations and their legitimate spouses; 3. Members of governing board who has voting

rights only;

4. Those exempted by special laws;

5. Owners and representatives of foreign principals who interview Filipino applicants for employment abroad;

6. Aliens whose purpose is to teach, present and/or conduct research studies;

7. Resident aliens. (D.O. 75-06)

Q: May the non-resident alien transfer employment after issuance of the employment permit?

A: After the issuance of an employment permit, the alien shall not transfer to another job or change his Er without prior approval of the SLE.

Q: What is required for immigrants and resident aliens?

A: An Alien Employment Registration Certificate. Q: What is the duration of the employment permit? A: GR: Minimum of 1 year

XPN: Unless the employment contract, consultancy services, or other modes of engagement provides otherwise, which in no case shall exceed 5 years. [DOLE Department

Order 97-09, Revised Rules for the Issuance of Employment Permits to Foreign Nationals (2009)]

Q: May aliens be employed in entities engaged in nationalized activities?

A: GR: No. XPNs:

1. Secretary of Justice specifically authorizes the employment of technical personnel;

2. Aliens are elected members of the board of

directors or governing body of corporations or associations engaging in partially nationalized activities shall be allowed in

proportion to their allowable participation or share in the capital of such entities [Section

2-A of 2-Anti-Dummy Law, as amended by P.D. 715]; or

3. Enterprises registered under the Omnibus Investment Code in case of technical, supervisory or advisory positions, but for a limited period.

PRIVATE SECTOR PARTICIPATION IN THE RECRUITMENT AND PLACEMENT OF WORKERS Q: What are the entities in the private sectors that can participate in recruitment and placement of workers?

A:

1. Shipping or manning agents or representatives 2. Private recruitment offices

3. Public employment offices

4. Construction contractors if authorized by the DOLE and Construction Industry Authority. 5. Persons that may be authorized by the SLE 6. Private employment agencies. (Sec. 1, Rule VII,

Book I, IRR of the LC)

Q: What are the qualifications for participation in recruitment and placement of workers?

A:

1. Filipino citizens, or partnerships or corporations with at least 75% of the authorized capital stock is owned and controlled by Filipino citizens; (Art.

27, LC)

2. Capitalization

a. Single proprietorship or partnership

-A minimum capitalization of P2 million b. Corporation

-A minimum paid-up capital of P2 million

Provided, that those with existing licenses shall,

within 4 yrs. from the affectivity hereof, increase their capitalization or paid up capital, as the case may be, to P2 million at the rate of Php 250,000.00 every year. (Art. 28, LC)

3. Not otherwise disqualified by law or other government regulations to engage in the recruitment and placement of workers for overseas employment. (Rule I, Part II, POEA

Rules)

4. Payment of registration fees 5. Posting of surety/cash bonds

Q: How will POEA regulate private sector participation in the recruitment and overseas placement of workers?

A: By setting up a licensing and registration system.

(Sec. 14, R.A. 10022)

Q: Is a corporation, 70% of the authorized and voting capital of which is owned and controlled by Filipino citizens, allowed to engage in the recruitment and placement of workers, locally or overseas? Explain briefly. (2002 Bar Question) A: No. It is because Art. 27 of the LC requires at least 75%.

Q: Who are disqualified to engage in the business of recruitment and placement of workers?

A:

1. Travel agencies and sales agencies of airline companies; (Art. 26, LC)

2. Officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency; 3. Corporations and partnerships, when any of its

officers, members of the board or partners, is also an officer, member of the board or partner of a corporation or partnership engaged in the business of a travel agency;

4. Persons, partnerships or corporations which have derogatory records, such as but not limited to those:

a. Certified to have derogatory record or information by the NBI or by the Anti-Illegal Recruitment Branch of the POEA;

b. Against whom probable cause or prima facie finding of guilt for illegal recruitment or other related cases exists;