INTRODUCTION

I.LABOR
- It is the exertion by human beings of physical or mental efforts, or both, towards the production of

goods and services.

II.LABOR LAW
- The law governing the rights and duties of the employer and employees: (1) with respect to the terms and conditions of employment.

(2) with respect to labor disputes arising from collective bargaining respecting such terms and conditions. III.SOURCES OF LABOR LAW (PLCCC)
1. 2. 3. 4. 5. Labor Code and other related special legislation Contract Collective Bargaining Agreement Past practices Company policies

IV.CLASSIFICATIONS
1. Labor Standards

- minimum requirements prescribed by existing laws, rules and regulations relating to wages, hours of work, cost of-living allowance, and other monetary and welfare benefits, including occupational safety, and health standards. Maternity Childrens Hospital v. Sec. of Labor (89).
2. Labor Relations

- Regulates the institutional relationship between the workers organized into a union and the employers.
3. Welfare Laws

- Designed to take care of the contingencies which may affect the workers.

V.SOCIAL JUSTICE
- an effective instrument for the equalization of the social and economic forces by the State when it is used to shield wrongdoing. Limits of use: 1. Not to undermine property rights resulting in confiscation Guido vs. Rural Progress Adm. (49) 2. May only protect the laborers who come with clean hands Phil. Long Distance Telephone Co. v. NLRC (88) 3. Never result to an injustice or oppression of the employer Phil. Geothermal Inc. v NLRC (94) Basis of limitation: Law also guarantees the ER reasonable returns from his investment Asian Alcohol Corp. v. NLRC (99)

VI.POLICE POWER
- basis of foundation of the state

VII.CONSTITUTIONAL MANDATES REGARDING LABOR LAW

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 selforganization, 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 decisionmaking 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. BASIC RIGHTS OF WORKER GUARANTEED BY THE CONSTITUTION
(SHeR SOCO PaEn)

1. 2. 3. 4. 5. 6. 7. 8.

Security of tenure Receive a living wage Humane working conditions Share in the fruits of production Organize themselves Conduct collective bargaining or negotiation with management Engage in peaceful concerted activities including strike Participate in policy and decision making processes

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 nationbuilding and shall promote and protect their physical, moral, spiritual, intellectual, and social wellbeing. 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 nationbuilding, 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 provides 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. 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. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. 13. Sec. 2, Art. XIII The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and selfreliance. 14. 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.

VIII.GENERAL PROVISIONS
Presidential Decree No.442 this decree shall be known as the Labor Code of the Philippines Art.3 Declaration of Policy (APEAR) 1. Afford protection to labor 2. Promote full employment 3. Ensure equal work opportunities regardless of sex, race, or creed 4. Assure workers rights to self-organization,collective bargaining, security of tenure, and just and humane conditions of work 5. Regulate the relations between workers and Employers Seven basic rights of workers guaranteed by the Constitution: (OConEnEn WORP) 1. right to Organize 2. to Conduct collective bargaining or negotiation with management 3. to Engage in peaceful concerted activities, including strike in accordance with law 4. to Enjoy security of tenure 5. to Work under humane conditions 6. to Receive a living wage 7. to Participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. Art. 4. Construction in favor of labor- When the interest of labor and capital collide, the heavier influence of capital should be counterbalanced with the sympathy and compassion of law for the less privileged workers. But protection to labor does not meanoppression or destruction of capital. The employers act will be sustained when it is in the right. [Eastern Shipping Lines v. POEA, 166 SCRA 523 (1998)] -Court decisions adopt a liberal approach that favors the exercise of labor rights. The mandate is simply to resolve doubt in favor of labor. If there is no doubt in implementing and interpreting the law, labor will enjoy no built-in advantage and the law will have to be applied as it is. - When the subject matter is covered by the Labor Code, doubts which involve implementation and interpretation of labor laws should be resolved in favor of labor, even if the question involves Rules of Evidence. Management Rights / Prerogative except as limited by special laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of workers. Art. 5. Rules and regulations Department of Labor and Employment (DOLE) - Lead agency in enforcing labor laws and it possesses rule-making power in the enforcement of the Code. - But a rule or regulation that exceeds the Departments rule-making authority is void. Art. 6. Applicability of Labor Code - Applies alike to all workers, except as otherwise provided by law, whether agricultural or nonagricultural. -Applies to a government corporation incorporated under the Corporation Code. EXCEPTIONS: (FIGELAC) 1. Government employees (Ees) 2. Ees of government corporations created by special or original charter 3. Foreign governments 4. International agencies 5. Corporate officers/ intracorporate disputes which fall under P.D. 902A and now fall under the jurisdiction of the regular courts pursuant to the Securities Regulation Code (SRC).

6. Local water district except where NLRCs jurisdiction is invoked. 7. As may otherwise be provided by the Labor Code

Book I: PreEmployment

I.RECRUITMENT AND PLACEMENT OF WORKERS (PUTECH PARC)

-any act of canvassing, enlisting, transporting,contracting, hiring, utilizing or procuring workers and includes includes contract services, referrals, advertising for employment, promising 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.

II.REGULATIONS OF RECRUITMENT AND PLACEMENT OF WORKERS

*Entities authorized to engage in recruitment and placement a. public employment offices b. Philippine Overseas Employment Administration (POEA) c. private recruitment entities d. private employment agencies e. shipping or manning agents or representatives f. such other persons or entities as may be authorized by the DOLE Secretary g. construction contractors *Exception -Persons or entities allowed under Chapter 2 of the Labor Code (Art 16). For this purpose, the Labor Code expressly authorizes the participation of the private employment sector in the recruitment and placement of workers, locally and overseas, BUT such recruitment and placement shall be done under such guidelines,rules and regulations, as may be issued by the Secretary of Labor and Employment. (Art 25) Private sector participation in recruitment and placement is sought to be rationalized pursuant to national development objectives (Art 12f) 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 (Art 25). *Prohibited Practices ( ChaFuG Indu.Influ EnOF SuBeW FaFa) 1. 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. 2. To furnish or publish any false notice or information or document in relation to recruitment or employment. 3. 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. 4. 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 5. 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 6. 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 7. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives 8. 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 9. 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 10. 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 11. 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 12. Failure to actually deploy without valid reason as determined by DOLE 13. Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault * Employers cannot directly hire workers for overseas employment except through authorized entities see (enumeration above). The reason for the ban is to ensure full regulation of employment in order to avoid exploitation. Fees to be Paid by Workers: - No worker shall be charged with any fee until employee: (1) obtained work through recruiters efforts; and (2) worker has actually commenced working. - Placement fee in an amount equivalent to one months salary of the worker and documentation costs are the ONLY AUTHORIZED PAYMENTS that may be collected from a hired worker. Nature of the liability of local recruitment agency and foreign principal 1. Local Agency is solidarily liable with foreign principal. 2. Severance of relations between local agent and foreign principal does not affect liability of local recruiter. Joint and solidary liability of recruiter with Foreign Principal - A recruitment agency is solidarily liable for the unpaid salaries of a worker it recruited for employment overseas. - Even if the recruiter and the principal had already severed their agency agreement at the time employee was injured, the recruiter may still be sued for a violation of the employment contract because no notice of the agency agreement's termination was given to the employee. Posting of cash bond by recruiter Capricorn Travel & Tours v. CA, 184 SCRA 123 (1990) -The requirement for the posting of a cash bond is also an indispensable adjunct to the requirement that the agency undertakes to assume joint and solidary liability with the employer for all claims and liabilities which may arise in connection with the implementation of the contract of overseas employment and to guarantee compliance with existing labor and social legislation of the Philippines and the country of employment. The undertaking to assume joint and solidary liability and to guarantee compliance with labor laws, and the consequent posting of cash and surety bonds, may be traced all the way back to the constitutional mandate for the State to "afford full protection to labor, local and overseas." The peculiar nature of overseas employment makes it very difficult for the Filipino overseas worker to effectively go after his foreign employer for employment-related claims and, hence, public policy dictates that, to afford overseas workers protection from unscrupulous employers, the recruitment or placement agency in the Philippines be made to share in the employer's responsibility. Liability of surety - In a surety bond, the surety unequivocally bound itself to answer for all liabilities which the POEA may adjudge or impose against the principal in connection with the recruitment of Filipino seamen. Power to suspend or cancel any license or authority to recruit employees for overseas employment is concurrently vested with the POEA and the Secretary of Labor. - The penalties of suspension and cancellation of license or authority are prescribed for violations of the above quoted provisions, among others. And the Secretary of Labor has the power under Section 35 of the law to apply these sanctions, as well as the authority, conferred by Section 36, not only to 'restrict and regulate the recruitment and placement activities of all agencies,' but also to 'promulgate rules and regulations to carry out the objectives and implement the provisions' governing said activities. Pursuant to this rulemaking power thus granted, the Secretary of Labor gave the POEA on its own initiative or upon filing of a complaint or report or upon request for investigation by any aggrieved person, (authority to) conduct the necessary proceedings for the suspension or cancellation of the license or authority of any agency or entity' for certain enumerated offenses including: 1. the imposition or acceptance, directly or indirectly, of any amount of money, goods or services, or any fee or bond in excess of what is prescribed by the Administration.

2. any other violation of pertinent provisions of the Labor Code and other relevant laws, rules and regulations. -The Administrator was also given the power to 'order the dismissal of the case or the suspension of the license or authority of the respondent agency or contractor or recommend to the Minister (now Secretary) the cancellation thereof.

III.ILLEGAL RECRUITMENT

-defined by law as any recruitment activities undertaken by nonlicenses or nonholders of authority. (People v. Senoron, G.R. No. 119160, Jan. 30,1997) And it is large scale illegal recruitment when the offense is committed against 3 or more persons, individually or as a group. ELEMENTS OF ILLEGAL RECRUITMENT 1. Offender is a nonlicensee or nonholder of authority to lawfully engage in the recruitment/placement of workers 2. Offender undertakes: a. Any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contact services, promising or advertising for employment, locally or abroad, whether for profit or not (Art. 13[b]); or b. Any of prohibited practices under Art. 34 . Simple Illegal Recruitment - It is considered simple illegal recruitment when it involves less than three (3) victims or recruiters. Economic sabotage -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. (Art 38b). *Note, however, that the finding of large-scale illegal recruitment must depend on whether there are at least three complainants in a single complaint who alleges illegal recruitment whether committed to them singly or collectively. RULE OF LIABILITY - The persons CRIMINALLY LIABLE for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable.

IV.EMPLOYMENT OF NON-RESIDENT ALIENS

REQUISITES IN RECRUITMENT OF NON RESIDENT ALIEN -Any alien seeking admission to the Phil. for employment purposes and any domestic or foreign employer (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 nonresident alien or to the applicant Er after a determination of the nonavailability of a person in the Phil. 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 govt agency charged with the supervision of said registered enterprise. PROHIBITION AGAINST TRANSFER OF EMPLOYMENT GENERAL RULE: Only nonresident aliens; EXCEPTIONS: 1. Diplomatic services and foreign govt officials 2. Officers and staff of intl 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. 7506, May 31, 2006) * After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approval of the Secretary of Labor. RESIDENT ALIEN Duration of Permit - Valid for 1 year from date of issuance, unless sooner revoked by the Secretary of Labor - Renewable upon showing of good cause - Non-transferable Other Prohibitions -Aliens shall not transfer to another job or change his employer without prior approval of the secretary of labor -Non-resident alien shall not take up employment in violation of the provisions of the Code.

BOOK II: Tesda act

I. HUMAN RESOURCES DEVELOPMENT PROGRAM

1. Government Machinery Policy -It is the policy of the State to provide relevant, accessible, high quality and efficient technical education and skills development in support of the development of high-quality Filipino middle-level manpower responsive to and in accordance with Philippine development goals and priorities. Power and Functions of TESDA-Responsible for formulating, continuing, coordinating, and fully integrating technical education and skills development policies, plans and programs. Special classes of Workers: - Apprentice - Learners - Handicapped *On learners and handicapped workers the intent of the law is that, part of national interest and development is to have a trained manpower.

II. APPRENTICES
-Practical training on the job, Supplemented by related theoretical instruction, Covered by a written apprenticeship agreement with an individual employer or entity, Needs DOLE approval and Shall no exceed 6 months -They may hired only in highly technical industries and apprenticeable occupations and must be at least 14 years old .Possesses vocational aptitude and capacity for tests, has ability to comprehend, ability to follow oral and written instructions, any form of employment requiring beyond 3 mos. practical training on the job supplemented by related theoretical instruction. Requisites for a Valid Apprenticeship 1. qualifications of apprentice are met 2. the apprentice earns not less than 75% of the prescribed minimum salary 3. apprenticeship agreement duly executed and signed 4. apprenticeship program approved by the Sec. of Labor; otherwise, the apprentice shall be deemed as a regular employee 5. period of apprenticeship not exceed 6 months * At the termination of the apprenticeship, the employer is not required to continue the employment. *Employer may not pay wage if the apprenticeship is : a requirement for graduation required by the School required by the Training Program Curriculum requisite for Board examination Venue of Apprenticeship Programs - The plant, shop, premises of the employer or firm concerned if the apprenticeship program is organized by an individual employer or firm. -The premises of one or several firms designated for the purpose by the organizer of the program if such organizer is an association of employers, civic groups and the like. -DOLE training center or other public training institutions with which the Bureau has made appropriate arrangements.

III.LEARNERS
-Persons hired as trainees in semiskilled and other industrial occupations. -They may hire on nonapprenticeable, may be learned through practical training on the job in a relatively short period of time, shall not exceed 3 months. No experienced workers available, prevent curtailment of employment opportunities, not to create unfair competition in labor costs and lower working standards and list of learnable trades provided by TESDA. Contents of Learnership Agreement 1. names and addresses of employer and learner 2. occupation to be learned and the duration of the training period which shall not exceed 3 months

3. wage of the learner which shall be at least 75% of the applicable minimum wage 4. commitment to employ the learner, if he so desires, as a regular employee upon completion of training *A learner who has worked during the first two months shall be deemed a regular employee if training is terminated by the employer before the end of the stipulated period through no fault of the learner.

IV.HANDICAPPED WORKERS
Law: RA 7277 Magna Carta for Disabled Persons - These are workers whose earning capacities are impaired, by reason of age, physical or mental infirmity. But these infirmities are not deterrent to gain an employment or livelihood. - Handicapped workers will be treated like a regular worker. Disabled persons have the same rights as other persons to take their proper place in society. - If qualified, handicapped workers may be considered apprentices or for apprenticeship. Bernardo vs. NLRC A qualified disabled EE should be given the same terms and conditions of a qualified able bodied person. This means that a handicapped EE, if his infirmity does not impair his earning capacity, should be considered and treated like a normal EE. Effect: he should be paid full compensation and not 75%). Rights and privileges of disabled persons - Equal Opportunity for Employment (Sec 5, RA 7277) No disabled 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. -Reserved contractual positions (Sec 5, RA 7277) 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. - Sheltered employment (Sec 6, RA 7277) 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. -Apprenticeship opportunity (Sec 7, RA 7277) 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. Incentives for employers 1. Tax incentives for employment of disabled persons (Sec 8, RA 7277) Private entities that employ disabled persons who meet the required skills or qualifications, either ad regular employee, apprentice or learner, shall be entitled to an additional deduction, from their gross income, equivalent to 25% of the total amount paid as salaries and wages to disabled persons: Provided, however, That such entities present proof as certified by the Department of Labor and Employment and the Department f Health as to his disability, skills, and qualifications. 2. Tax incentives for construction of disabled-friendly facilities (Sec 8, RA 7277) Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to 50% of the direct costs of the improvements or modifications. This Section, however, does not apply to improvements or modifications or facilities required under Batas Pambansa Bilang 344. (Sec 8, RA 7277).

book III: conditions of employment

I.HOURS OF WORK
Hours Regulation Rationale and Enforcement -The Eight-Hour Labor Law was designed not only to safeguard the health and welfare of the laborer or EE, but in a way to minimize unemployment by forcing employers, in cases where more than 8hour operation is necessary, to utilize different shifts of laborers or EEs working only for eight hours each. (Manila Terminal Co. Inc. v. CIR, 1952) Coverage -The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not. (Art. 82) Does NOT cover: (Art. 82) (GoMa FiMemDo PerWor) 1. government employees, 2. managerial employees, 3. field personnel, 4. members of the family of the ER who are dependent on him for support, 5. domestic helpers, 6. persons in the personal service of another, and 7. workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. Managerial employees - 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. (Art. 82) "Field personnel" - 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. (Art. 82) Rationale Exemption Managerial Employees -The philosophy behind the exemption of managerial EEs from the 8- Hour Labor Law is that such workers are not usually employed for every hour of work but their compensation is determined considering their special training, experience or knowledge which requires the exercise of discretion and independent judgment, or perform work related to management policies or general business operations along specialized or technical lines. For these workers it is not feasible to provide a fixed hourly rate of pay or maximum hours of labor. (National Waterworks and Severage Authority v. NAWASA Consolidated Unions, 1965) Tests Field Personnel -The clause "whose time and performance is unsupervised by the employer" did not amplify but merely interpreted and expounded the clause "whose actual hours of work in the field cannot be determined with reasonable certainty." The former clause is still within the scope and purview of Article 82 which defines field personnel. Hence, in deciding whether or not an EE's actual working hours in the field can be determined with reasonable certainty, query must be made as to whether or not such EE's time and performance is constantly supervised by the employer. (Union of Filipro Employees v. Vivar, 1992) Actual hours work in the field is to be read in conjunction with Rule IV, Book III of the Implementing Rules. Therefore field personnel are EEs whose time and performance is unsupervised by the employer. (Salazar v. NLRC, 1996) If required to be at specific places at specific times, EEs including drivers cannot be said to be field personnel despite the fact that they are performing work away from principal office of EE. (Auto Bus Transport Systems, Inc. v. Bautista, 2005)

Rationale Exemption Piece Worker -Philosophy underlying the exclusion of piece workers from the 8- hour law is that said workers are paid depending upon the work they do irrespective of the amount of time employed in doing said work. (Red V Coconut Products Ltd., v. CIR, 1966)

II.HOURS WORKED
Normal Hours of Work -The normal hours of work of any employee shall not exceed eight (8) hours a day. (Art. 83) Special Rule for Health Personnel: -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. (Art. 83) Exception to the Special Rule: -Exigencies of the service require work for six 6 days or 48 hours, in which case, they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the sixth day.(Art. 83) "health personnel" 1. resident physicians, 2. nurses, 3. nutritionists, 4. dietitians, 5. pharmacists, 6. social workers, 7. laboratory technicians, 8. paramedical technicians, 9. psychologists, 10. midwives, 11. attendants, and 12. all other hospital or clinic personnel. (Art. 83) Note: Normal hours of work may be shortened or compressed. Regular Working Hours and Days of Hospital and Clinic Personnel -Not more than 8 hrs. in any one day and not more than 40 hrs. in any one week - Not more than 5 days in a work week. The workweek may begin at any hour and on any day Overtime Work of Hospital and Clinic Personnel - May be scheduled to work for more than 5 days or 40 hrs. a week, provided employee is paid for overtime work -Overtime: additional compensation of regular wage + at least 30% thereof Considered as Compensable Hours Worked 1. All time during which an employee required to be on duty or to be at the employers premises or to be at a prescribed work place; and 2. All time during which an employee suffered or permitted to work. 3. Rest periods of short duration during working hours. *PRINCIPLES OF DETERMINING HOURS WORKED 1. All hours which the Ee is required to give to his Er regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. 2. Rest period is excluded from hours worked, even if Ee does not leave his workplace, it being enough that: a. He stops working b. May rest completely

c. May leave his workplace, to go elsewhere, whether within or outside the premises of the workplace 3. All time spent for work is considered hours worked if: a. The work performed was necessary b. If it benefited the Er c. Or the Ee could not abandon his work at the end of his normal working hours because he had no replacement d. Provided, the work was with the knowledge of his Er or immediate supervisor 4. The time during which an Ee is inactive by reasons of interruptions in his work beyond his control shall be considered working time: a. If the imminence of the resumption of the work requires the Ees presence at the place of work or b. If the interval is too brief to be utilized effectively and gainfully in the Ees own interest. (Sec. 4, Rule I, Book III, IRR) COMPRESSED WORKWEEK A: The normal workweek is reduced to less than 6 days but the total number of work hours of 48 hours per week shall remain. The normal workday is increased to more than 8 hours but not to exceed 12 hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the normal workweek of the company. (Department Advisory Order No. 2, Series of 2009) *Validity of Compressed Workweek -The validity of the reduction of working hours can be upheld when the arrangement is temporary, it is a more humane solution instead of a retrenchment of personnel, there is notice and consultations with the workers and supervisors, a consensus is reached on how to deal with deteriorating economic conditions and it is sufficiently proven that the company was suffering from losses. Under the Bureau of Working Conditions bulletin, a reduction of the number of regular working days is valid where the arrangement is resorted to by the employer to prevent serious losses due to causes beyond his control, such as when there is a substantial slump in the demand for his goods or services or when there is lack of raw materials. There is one main consideration in determining the validity of reduction of working hours that the company was suffering from losses. A year of financial losses would not justify a reduced workweek. (Linton Commercial v. Hellera, G.R. No. 163147, October 10, 2007) * Requisites for exception to 8 hour a day (VolDimBen OTSTem) 1. The Ee voluntarily agrees to it 2. There is no diminution in their weekly or monthly take home pay or fringe benefits 3. The benefits are more than or at least commensurate or equal to what is due the Ees without the compressed work week 4. OT pay will be due and demandable when they are required to work on those days which should have ceased to be working days because of the compressed work week schedule. 5. No strenuous physical exertion or that they are given adequate rest periods. 6. It must be for a temporary duration as determined by the DOLE. (2005 Bar Question) *Requisites for adoption of compressed workweek 1. The Er shall notify the DOLE through the Regional Office which has jurisdiction over the workplace, of the adoption of compressed workweek. 2. The notice shall be in Report Form attached to the advisory. 3. The Regional Office shall conduct an ocular visit to validate whether the adoption of the flexible work arrangements is in accordance with this issuance. (Department Advisory Order No. 2, Series of 2009.) WORK INTERRUPTION DUE TO BROWNOUTS *Guidelines on power interruption 1.Brownouts of short duration but not exceeding 20 minutes shall be treated as worked or compensable hours whether used productively by the employees (Ees) or not. 2. Brownouts running for more than 20 minutes may not be treated as hours worked provided any of the following conditions are present: a. The Ees can leave their workplace or go elsewhere within or without the work premises; or

b. The Ees can use the time effectively for their own interest. 3. In each case, the Er may extend the working hours of his Ees outside the regular schedules to compensate for the loss of productive manhours without being liable for OT pay. 4. Industrial enterprises with one or two work shifts may adopt any of the work shift prescribed for enterprises with 3 work shifts to prevent serious loss or damage to materials, machineries, or equipment that may result case of power interruptions. (Policy Instruction No. 36)

III.MEAL PERIODS
-Every Er shall give his Ees not less than 60 minutes or 1 hour timeoff for regular meals. Except: meal period of not less than 20 mins. in the following cases compensable hours worked: 1. Where the work is non-manual work in nature or does not involve strenuous physical exertion 2. Where the establishment regularly operates not less than 16 hours a day 3. In case 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 4. Where the work is necessary to prevent serious loss of perishable goods Rest periods or coffee breaks running from 5 to 20 mins. considered as compensable working time. - To shorten meal time to less than 20 mins, is not allowed. If the so-called meal time is less than 20 mins., it becomes only a rest period. *Not Compensable Ee requested for the shorter meal time so that he can leave work earlier than the previously established schedule. Requisites: a. Ees voluntarily agree in writing and are willing to waive OT pay for the shortened meal period; b. No diminution in the salary and other fringe benefits of the Ees which are existing before the effectivity of the shortened meal period; c. Work of the Ees does not involve strenuous physical exertion and they are provided with adequate coffee breaks in the morning and afternoon; d. Value of the benefits derived by the Ees from the proposed work arrangements is equal to or commensurate with the compensation due them for the shortened meal period as well as the OT pay for 30 minutes as determined by the Ees concerned; e. OT pay will become due and demandable after the new time schedule f. Arrangement is of temporary duration. -Being timeoff, it is not compensable. Employee must be completely relieved from duty. -It is compensable where the lunch period or meal time: 1. Is predominantly spent for the employers benefit; or 2. Where it is less than 20 minutes Note: Where during meal period, the laborers are required to stand by for emergency work, or where the meal hour is not one of complete rest, such is considered OT. (Pan Am vs. Pan Am Ees Association, G.R. No. L16275, Feb. 23, 1961) Rest periods or coffee breaks running from 5 to 20 minutes shall be considered as compensable working time. (Sec. 7, Rule I, Book III, IRR) -since the 1 hour meal period (noncompensable) is not given during OT work because the latter is usually for a short period and to deduct from the same would reduce to nothing the Ees OT work. Thus, the 1 hour break for meals during OT should be treated as compensable. Idle Time means time when EE is not working or completely at rest, or can leave the work spot, therefore, not compensable time, except if the work is continuous, then it is compensable time. Waiting Time Arrica v NLRC case: The 30-minute assembly time was NOT compensable time. Accdg. to SC, such assembly is a routinary practice of EEs, and the proceedings attendant thereto are not infected with complexities so as to deprive EEs time to attend to their personal pursuits. (Sir: This is not good doctrine though) Travel Time The Basic Question to ask in determining WON travel time is compensable is: For whose benefit? In Rada v NLRC, travel time was instituted by the company for its benefit in order to answer the problem of losses connected with the frequent tardiness of EEs. Hence, travel time was compensable time.

*Entry Time Cards cannot be considered substantial evidence to determine the number of hours worked .

IV.NIGHT SHIFT DIFFERENTIAL

-It is additional compensation of not less than 10% of an Ees regular wage for every hour worked between 10:00 pm to 6:00 am, whether or not such period is part of the workers regular shift. NSD = (10% x regular wage/hr.) x no. of hrs. of work between 10 pm 6 am - If work done between 10 pm and 6 am is OT work, the NSD should be based on the OT rate. Employees NOT Covered by NSD 1. Those of the government and any of its political subdivisions, including government-owned and/or controlled corporations 2. Those of retail and service establishments regularly employing not more than 5 workers 3. Domestic helpers and persons in the personal service of another 4. Managerial employees 5. 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 the time consumed in the performance thereof. *Employees cannot waive the right to NSD because such waiver is against public policy. (Mercury Drug Co., Inc. vs. Dayao, et al., G.R. No. L30452, Sep. 30, 1982)except those with higher/better benefits.

V.OVERTIME WORK
*Overtime Work and Offsetting Prohibition 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 25% thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least 30% thereof. (Art. 87) 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. (Art. 88) Emergency overtime work - Any employee may be required by the employer to perform overtime work in any of the following cases: (Art. 89) a. When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; b. When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; c. When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; d. When the work is necessary to prevent loss or damage to perishable goods; and e. Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. (Art. 89) Computation of additional compensation - For purposes of computing overtime and other additional remuneration as required by this Chapter, the "regular wage" of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer. Overtime Pay (OT) work exceeding eight hours within the workers 24-hour workday. Work within the Eees shift is not overtime. - OT on a Regular Day: regular wage + at least 25% thereof - OT on a Holiday/Eees Rest Day: rate of 1st 8 hrs. on holiday/rest day + at least 30% thereof.

- Since the OT work is considered hourly, the pay rate is computed also on per hour basis. The daily wage is divided by 8 to get the hourly base rate. - If employee is paid on a monthly salary basis, the daily rate is obtained by the following formula: Daily Rate = Monthly salary x 12 Total no of days considered paid in a year - Permissible for the employer to stipulate that the employees monthly salary constitutes payment for all the days of the month, including rest days and holidays, where the employees monthly salary, when converted by the increased divisor into its daily equivalent, would still meet minimum wage. Regular Wage includes the cash wage only, without deduction on account of facilities provided by the employer Conditions to be entitled to OT pay 1. Actual rendition of OT work 2. Submission of sufficient proof that said work was actually performed 3. OT work is with the knowledge and consent of the employer Compulsory OT Work (provided employee paid the additional compensation required) (CCUNNN) 1. Country at war/National or Local Emergency 2. Completion of work started before the 8th hour and is necessary to prevent serious obstruction or prejudice to the business 3. Urgent work to be performed on Machines to avoid serious loss or damage to employer 4. Necessary to Prevent loss of life/property or Imminent danger to public safety 5. Necessary to prevent loss or damage to perishable goods 6. Necessary to avail of favorable weather or environmental condition Undertime NOT Offset by OT an employees regular pay rate is lower than the OT rate. Offsetting the undertime hours against the OT hours would result in undue deprivation of the employees extra pay for OT work. - Right to OT pay cannot be waived. But when the alleged waiver of OT pay is in consideration of benefits and privileges which may even exceed the OT pay, the waiver may be permitted.

VI.WEEKLY REST DAY

-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 24 consecutive hours after every 6 consecutive normal work days. (Art. 91a) Scheduling of Rest Day Right to weekly rest day - 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. (Art. 91b) Exception: 1. CBA 2. Rules and regulations as the SLE provides 3. Preference of employee (Ee) based on religious grounds Ee shall make known his preference in writing at least 7 DAYS before the desired effectivity of the initial rest day so preferred. (Sec. 4(1), Rule III, Book III, IRR) Exception to exception 3: Employer (Er) may schedule the WRD of his choice for at least 2 days in a month if preference of the employee will inevitably result in: a. serious prejudice to the operations of the undertaking and b. the Er cannot normally be expected to resort to other remedial measures. (Sec. 4(2), Rule III, Book III, IRR)

*Compulsory Work and Compensation 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.

VII.HOLIDAYS
Right to holiday pay - Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than 10 workers. (Art. 94a) *Coverage and Purpose -The Secretary of Labor cannot exempt Man trade from paying holiday pay just because its employees are uniformly paid by the month irrespective of the number of working days therein. The Labor Code only exempts retail and service establishments regularly employing less than 10 workers. (Man trade / FMC Division Employees and Workers Union v. Bacungan, 1986) -Muslim holidays are provided for in the code of Muslim personal laws. - Art. 170 of the same code: 169 must be read in conjunction with Art. 94. - There should be no distinction between Muslims & non-Muslims as regards to the payment of benefits for Muslim holidays. -Wages & other emoluments granted by law to the working man are determined on the basis of the criteria laid down by laws & not on the basis of the workers faith. - Art. 3(3), PD 1083: nothing herein shall be construed to operate to the prejudice of a non-Muslim. (San Miguel Corp. v. Court of Appeal, 2002) Holiday pay - legislative benefit enacted as part of the constitutional imperative that the state shall afford protection to labor. Holiday pay purpose: -not merely to prevent diminution of the monthly income of the workers on account of work interruptions, -to enable the worker to participate in the national celebrations held during the days identified as with great historical & cultural significance unlike a bonus, which is a management prerogative, holiday pay is a statutory benefit demandable under the law. (Asian Transunion Corp. v. Court of Appeals, 2004). HOLIDAY PAY -It is a premium given to employees (Ees) pursuant to law even if he has not been suffered to work on a regular holiday. It is limited to the 11 regular holidays, also called legal holidays listed by law. The employee (Ee) should not have been absent without pay on the working day preceeding the regular holiday. -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. (Art. 94b) Coverage: (Sec. 1 Rule 4 of IRR) All employees Except: (Sec. 1 Rule 4 of IRR)

1. Those of the government and any of the political subdivision, including government-owned and controlled corporation; 2. Those of retail and service establishments regularly employing less than 10 workers; 3. Domestic helpers and persons in the personal service of another; 4. Managerial employees as defined in Book 3 of the Code; 5. Field personnel 6. 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 the time consumed in the performance thereof. A.SPECIAL HOLIDAYS Classes of special holidays: 1. National Special Public Holiday GENERAL RULE: Non- working days Exception: Otherwise declared by the President 2. Local Special Public Holiday Regular working day. (LOI 814 as amended by LOI 1087) 3. Special National Holiday B.REGULAR HOLIDAYS 1. New Years Day - Jan. 1 2. Maundy Thursday - Movable Date 3. Good Friday - Movable Date 4. Araw ng Kagitingan - April 9 5. Labor Day - May 1 6. Independence Day - June 12 7. Natl Heroes Day - Last Sun. of Aug. 8. Bonifacio Day - Nov. 30 9. Eidul Fitr - Movable Date 10. Christmas Day - Dec. 25 11. Rizal Day - Dec. 30 Note: RA 9492 has already been superseded by Presidential Proclamation No. 18 issued by President Benigno C. Aquino III placing the observance of regular holidays and national special days according to their respective dates in the calendar. Muslim Holidays - The MHs, except Eidl Fitr, are observed in specified Muslim areas. All private corporations, offices, agencies and entities or establishments operating within the designated Muslim provinces and cities are required to observe MH. Eidl Fitr and/or Eidl Adha as a national holiday- The proclamation declaring a national holiday for the observance of Eidl Fitr and/or Eidl Adha shall be issued: 1. After the approximate date of the Islamic holiday has been determined in accordance with the: a. Islamic Calendar (Hijra) or b. Lunar Calendar or c. Upon astronomical calculations d. Whichever is possible or convenient 2. The Office of Muslim Affairs shall inform the Office of the President on which day the holiday shall fall. (Sec.2, Proc. No. 1841) * Christians working within the Muslim areas may not report for work during MH. Not only Muslim but also Christian Ee in the designated provinces and cities are entitled to HP on the MH. (SMC v. CA, G.R. 146775, Jan. 30, 2002) * Muslim Ees shall be excused from work during MH without diminution of salary or wages. Exception: Those who are permitted or suffered to work on MH are entitled to at least 100% basic pay + 100% as premium of their basic pay. (SMC v. CA, G.R. No. 146775, Jan. 30, 2002) Note: Regular holiday falling within temporary or periodic shutdown and temporary cessation of work are compensable. However, if the temporary or periodic shutdown and cessation of work is due to business reverses, the employer may not pay the RHs during such period.

VIII.SERVICE INCENTIVE LEAVE

Service Incentive Leave (SIL) every employee who has rendered at least 1 year of service shall be entitled to a yearly service incentive leave of 5 days with pay. - Commutable to its money equivalent if not used or exhausted at the end of the year. *At least 1 year service service for not less than 12 months, whether continuous or broken reckoned from the date the employee started working, including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contract is less than 12 months, in which case said period shall be considered as one year *Employees NOT Covered 1. Those of the government and any of its political subdivisions, including government-owned and controlled corporations 2. Domestic helpers and persons in the personal service of another 3. Managerial employees 4. Field personnel and other employees whose 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 the time consumed in the performance thereof. 5. Those who are already enjoying the benefit herein provided 6. Those enjoying vacation leave with pay at least five days 7. Those employed in establishments regularly employing less than ten employees

IX.SERVICE CHARGE
-apply only to establishments collecting service charges such as hotels, restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses, and similar enterprises, including those entities operating primarily as private subsidiaries of the Government. -all employees of covered employers, regardless of their positions, designations or employment status, and irrespective of the method by which their wages are paid EXCEPT to managerial employees. * THE DISTRIBUTION OF EMPLOYEE MUST BE PAID Not less than once every 2 weeks or twice a month at intervals not exceeding 16 days.

X.WAGES
Wages 2 preliminary things to consider: 1 Coverage (A97): who are included; government defined as ER re payment of wages 2 A97 (f) Definition of Wage IN GENERAL Coverage -Employer - includes any person acting directly or indirectly in the interest of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned or controlled corporations and institutions, as well as nonprofit private institutions, or organizations. (Sec 97(b)) Employee includes any individual employed by an employer. (Sec 97(c)) Employ includes to suffer or permit to work. (Sec 97(e)) This Title shall NOT apply to: 1. farm tenancy or leasehold 2. domestic service, & 3. persons working in their respective homes in needle work or in any cottage industry duly registered in accordance with law. (Sec 98) - 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 and Employment, of: 1. board, 2. lodging, or 3. other facilities customarily furnished by the employer to the employee. 4. Fair and reasonable value - shall not include any profit to the employer, or to any person affiliated with the employer.

XI.MINIMUM WAGE
lowest wage rate fixed by law that an employer can pay his employee; payment of minimum wages is not dependent on the employers ability to pay. -In the determination of such regional minimum wages, the Regional Board shall, among other relevant factors consider the following: 1.The demand for living wages 2.Wage adjustment visavis the consumer price index 3.The cost of living and changes or increases therein 4.The needs of workers and their families 5.The need to induce industries to invest in the countryside 6.Improvements in standards of living 7.The prevailing wage levels 8.Fair return of the capital invested and capacity to pay of employers 9.Effects on employment generation and family income 10.The equitable distribution of income and wealth along the imperatives of economic and social development

XII.WAGE DISTORTION
- A situation where an increase in wage results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among the Eegroups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service or other logical bases of differentiation. ELEMENTS OF WAGE DISTORTION 1. An existing hierarchy of positions with corresponding salary rates. 2. A significant change or increase in the salary rate of a lower pay class without a corresponding increase in the salary rate of a higher one; 3. The elimination of the distinction between the 2 groups or classes; and 4. The WD exists in the same region of the country. (Alliance Trade Unions v. NLRC, G.R. No. 140689, Feb. 17, 2004) *The Er and the union shall negotiate to correct the distortions. If there is no union, the Er and the workers shall endeavor to correct such distinctions. Basic Principles of Wages 1. The concept of WD assumes an existing group or classification of Ees which establishes distinctions among such Ees on some relevant or legitimate basis. This classification is reflected in a differing wage rate for each of the classes of Ees 2. Often results from govt decreed increases in minimum wages. 3. Should a WD exist, there is no legal requirement that, in the rectification of that distortion by re adjustment of the wage rates of the differing classes of Ees, the gap which had previously or historically existed be restored in precisely the same amount. In other words, correction of a WD may be done by reestablishing a substantial or significant gap (as distinguished from the historical gap) between the wage rates of the differing classes of Ees.

4. The reestablishment of a significant difference in wage rates may be the result of resort to grievance procedures or collective bargaining negotiations. (Metro Transit Org., Inc. v. NLRC, G.R. No. 116008, July 11, 1995) XIII.NON DIMINUTION OF BENEFITS Concept of nondiminution of benefits GENERAL RULE: Benefits being given to employees (Ees) cannot be taken back or reduced unilaterally by the employer (Er) because the benefit has become part of the employment contract, whether written or unwritten. Exception:To correct an error, otherwise, if the error is not corrected for a reasonable time, it ripens into a company policy and Ees can demand it as a matter of right. * It is applicable if it is shown that the grant of benefit: 1. Is based on an express policy of the law; or 2. Has ripened into practice over a long period of time and the practice is consistent and deliberate and is not due to an error in the construction/ application of a doubtful or difficult question of law.

XIV.PAYMENT BY RESULTS
regulated by DOLE Secretary to ensure the payment of fair and reasonable wage rates, preferably through time and motion studies or in consultation with representatives of workers and employers organizations. Includes pakyaw, piece work and other noontime work.

XV.PAYMENT OF WAGES
Form Forms of payment NOT allowed: - promissory notes, - vouchers, - coupons, - tokens, - tickets, - chits, or - any object other than legal tender (Art 102) *Payment by check or money order allowed: -when customary on the date of the effectivity of this Code, or - necessary because of special circumstances as specified in appropriate regulations or as stipulated in a CBA. (Art 102) *Payment through banks; Conditions: -written permission of the majority of the EEs/workers concerned - 25 or more EEs -establishment located within 1 km radius of a commercial, savings or rural bank - payment of wages within the period fixed in the LC.(RA 6727, Sec 7) Labor Advisory on Payment of Salaries through Automated Teller Machine (ATM) Based on Article 104, as well as the provisions of Sec. 4, Rule VIII, Book III of the Codes Implementing Rules and considering present day circumstances, practices and technology, employers may adopt a system of payment other than in the workplace, such as through automated teller machine (ATM) of banks, provided that the following conditions are met: 1. The ATM system of payment is with the written consent of the employees concerned. 2. The employees are given reasonable time to withdraw their wages from the bank facility which time, if done during working hours, shall be considered compensable hours worked. 3. The System shall allow workers to receive their wages within the period or frequency and in the amount prescribed under the Labor Code, as amended. 4. There is a bank or ATM facility within a radius of one kilometer to the place of work 5. Upon request of the concerned employee/s, the employer shall issue a record of payment of wages, benefits and deductions for particular period.

6. There shall be no additional expenses and no dimunition of benefits and privileges as a result of the ATM system of payment. 7. The employer shall assume responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement. *Full Payment - The law does not consider as valid any agreement whereby a worker agrees to receive less compensation than what he is entitled to recover. A deed of release or quitclaim cannot bar an EE from demanding benefits to which he is legally entitled. (Lopez Sugar Corp. v. Franco, 2005)

XVI.CONTRACTOR OR SUBCONTRACTOR
-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. (Art 106)

XVII.INDIRECT EMPLOYER
-The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project.

XVIII.WORKER PREFERENCE IN CASE OF BANKCRUPCY

-In the event of bankruptcy or liquidation of an employer's business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provision of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before the claims of the Government and other creditors may be paid. (As amended by R. A. 6715) *Bankruptcy 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. - A declaration of bankruptcy or a judicial liquidation must take place before the workers preference may be enforced. - Establishes a preference of credit and NOT alien. -Bankruptcy is referred to in the Philippines as Insolvency. It denotes the state of an entity or person that has liabilities greater than its assets.

XIX.ATTORNEYS FEES
1. In case of unlawful withholding of wages, the culpable party may be assessed attorneys fees equivalent to ten percent of the amount of wages recovered. 2. 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.

XX.PROHIBITION REGARDING WAGES

Art. 112. NonInterference in Disposal of WagesNo 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 properties from the employer or from any other person, or otherwise make use of any store or service of such employer or any other person. Art. 113 Wage DeductionNo 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.

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 equipments 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 in appropriate rules and regulations. Art. 115 LimitationsNo 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 ProhibitedIt 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 EmploymentIt 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 or retention in employment. Art. 118 Retaliatory MeasuresIt 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 instituted any proceeding under this Title or has testified or is about to testify in such proceedings.

XXI. EMPLOYMENT OF WOMEN

1. Women *Consti recognizes the role of women (Art. 2 Sec.14) *3 provisions: 1) re protection the institution of marriage, 2) protecting womens pregnancy, and 3) discrimination provisions on women under certain conditions. 3 Areas of Concern: [a] Institution of marriage A136 provides for stipulation against marriage. When does the law apply? Pre-employment and Post-employment. In case of the pre-employment, does the law apply within the time of pre-hiring or hiring? [b] Law on pregnancy 2 associated laws: Paternity Leave and Maternity Leave [c] Discrimination A135 LC prohibits discrimination against women with respect to terms and conditions of employment solely on account of their sex. There must be equal opportunity, growth, work and pay between male and female EEs.Special Women Workers: A138 LC provides for a classification of certain women workers. - Women under certain conditions deemed EEs when they meet the test of the workplace, meaning, when they are permitted or suffered to work in bars, lounges, night clubs and other similar establishments. - Wage is immaterial: with or without compensation - Sec. of Labor should provide rules and regulations re terms and conditions of these women workers Star Paper case No spouse employment policy declared invalid.

XXII.UNLAWFUL ACTS AGAINST WOMEN

1. Discrimination with respect to the terms and conditions of employment solely on account of sex a. Payment of lesser compensation to a female Ee as against a male Ee for work of equal value b. Favoring a male Ee with respect to promotion, training opportunities, study and scholarship grants on account of gender. (Art. 135) c. Favoring a male applicant with respect to hiring where the particular job can equally be handled by a woman d. Favoring a male Ee over a female Ee with respect to dismissal of personnel. 2. Stipulating, whether as a condition for employment or continuation of employment:

a. That a woman Ee shall not get married, or b. That upon marriage, such woman Ee shall be deemed resigned or separated. (Art. 136) Note: A woman worker may not be dismissed on the ground of dishonesty for having written single on the space for civil status on the application sheet, contrary to the fact that she was married. (PT&T Co. v. NLRC, G.R. No. 118978, May 23, 1997) 3. Dismissing, discriminating or otherwise prejudice a woman Ee by reason of her being married. (Art. 136) 4. Denying any woman Ee benefits provided by law. (Art. 137) 5. Discharge any woman for the purpose of preventing her from enjoying any of the benefits provided by law. (Art. 137) 6. Discharging such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy. (Art. 137) 7. Discharging or refusing the admission of such woman upon returning to her work for fear that she may again be pregnant. (Art. 137) Note: Discrimination in any form from pre employment to post employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual is unlawful. (Philippine AIDS Prevention and Control Act of 1998, [R.A. 8504]) Under Sec. 2 of R.A. 9710 or the Magna Carta of Women, the State condemns discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international instruments consistent with Philippine law. The State shall accord women the rights, protection, and opportunities available to every member of society. The State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women within three (3) years from the effectivity of this Act. (Sec. 12, R.A. 9710)

XXIII.EMPLOYMENT OF MINORS
2 Areas of Concern: [a] Minimum Employable Age: 15 years old General. Rule: Below 15 y.o. NOT to be employed Exceptions: 1) when employed by parents of legal guardian, 2) when employment in entertainment is essential, provided that children are protected from any hazardous undertaking, both physical and moral hazards [b] Absolute prohibition on that range: No person shall employ children models in all commercial ads, promoting alcoholic beverages, intoxication drinks, tobacco and its b-products, and violence (Sec.14 RA 7610) Main Requisite before Employment: ER must secure a work permit from DOLE before engaging the child.

XXIV.EMPLOYMENT OF HOUSE HELPERS

Househelpers A141 LC coverage: all persons rendering services in households for compensation Domestic or Household services shall mean service in ERs 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 ERs household, including services of family drivers. *Househelpers shall not be assigned to non-household work assignment. If suffered to work in a commercial, industrial or agricultural enterprise, he must be paid the prevailing wage or salary of such workers. *Domestic servants or Househelpers are excluded from fringe benefits Legal measure: - place of work: ERs home

- nature of work: for maintenance and enjoyment of ERs home and for personal comfort and convenience of ERs family - inclusion of family driver

XXV.HOMEWORKERS
Homeworkers A153 LC Regulations of industrial homework to be done by DOLE to ensure general welfare and protection of homeworkers *Industrial Homework: A system of production under which work for an ER or contractor is carried out by a homework at his/her home.Material may or may not be furnished by ER or contractor.

LABOR RELATIONS

BOOK V: LABOR RELATIONS

I.POLICY AND DEFINITION

-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) To ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. (j). 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).

II. RIGHT TO SELF ORGANIZATION

-It includes the right: 1. To form, join and assist labor organizations for the purpose of collective bargaining (CB) through representatives of their own choosing; and 2. To engage in lawful and concerted activities for the purpose of CB or for their mutual aid and protection. (Art. 246) The persons/Ees eligible to join a labor organization (LO) for purposes of CB -The entities covered are all persons employed in: 1. Commercial industrial, and agricultural enterprises; and 2. In religious, charitable, medical or educational institutions whether operating for profit or not. (Art. 243) The persons/Ees eligible to join a labor organization for mutual aid and protection (AmInIt SelRuWit) -The following enjoy the right to selforganization for mutual aid and protection: 1. Ambulant workers 2. Intermittent workers 3. Itinerant workers 4. Selfemployed people 5. Rural workers 6. Those without and definite Ers. (Art. 243) The persons/Ees not granted the right to selforganization: 1. High level or Managerial Government Ees. (Sec. 3, E.O. 180) 2. Ees of International organizations with immunities. (ICMC v. Calleja, G.R. No. 85750, Sep. 28, 1990) 3. Managerial Employees. (Art. 212 of LC) 4. Members of the AFP including the police officers, policemen, firemen, and jail guards. (Sec. 4, E.O. 180) 5. Confidential Employees. (Metrolab Industries Inc. v. Confesor, G.R. No. 108855, Feb. 28, 1996) 6. Employees of cooperatives who are its members. (Benguet Elec. Coop. v. FerrerCalleja, G.R. No. 79025, Dec. 29, 1989); However they may form workers association. (NEECO Ees Assoc. v. NLRC, G.R. No. 16066, Jan. 24, 2000) 7. NonEes. (Rosario Bros. v. Ople, G.R. No. L5390, July 31, 1984)

8. Govt Ees, including GOCCs with original charters. (Arizala v. CA, G.R. Nos. 4363334, Sep. 14, 1990) -Aliens without a valid working permit or aliens with working permits but are nationals of a country which do not allow Filipinos to exercise their right of selforganization and to join or assist labor organizations. (Art. 269 of LC; D.O. No. 9 [1997], Rule II, Sec. 2)

III.MANAGERIAL AND SUPERVISORY EMPLOYEES

- Under Art. 245, managerial employees are not eligible to join, assist or form any labor organization. - Supervisory employees shall not be eligible for membership in a labor organization of the rank-andfile employees but may join, assist or form separate labor organizations of their own. Manager one who is vested with the power or prerogative to lay down an execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees - Note that the management policies must pertain exclusively to labor relations. Supervisor one, who, in the interest of the employer, effectively recommends managerial actions. Power to recommend Must be both: 1. Effective, and 2. Requires the Use of Independent Judgment.

IV.CONFIDENTIAL EMPLOYEES
-Confidential employees are also prohibited from forming, joining or assisting any labor organization. Confidential Employees a confidential employee is one who is entrusted with confidence on delicate matters, or with custody, handling, or care and protection of the employers property. (National Association of Trade Unions (NATU) Republic Planters Bank Supervisors Chapter v. Honorable Ruben Torres, 1994) - Confidential employees assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations [Philips Industrial Development v. NLRC; G.R. No. 88957 (June 25, 1992)] NOTE: Confidential employees may be managerial, supervisory or even a rank and file employee. Purpose of Disqualification of Confidential Employees Doctrine of Necessary Implication - what is implied in s statute is as much part thereof as that which is expressed - Under Art. 245, confidential employees are not prohibited from joining, assisting, or forming any labor organization. But by virtue of necessary implication, confidential employees are similarly disqualified. - By the very nature of their functions, they assist and act in a confidential capacity to, or have access to confidential matters of, persons who exercise managerial functions in the field of labor relations. As such, the rationale behind the ineligibility of managerial employees to form, assist or join a labor union equally applies to them. (Metrolab Industries, Inc. v. Roldan- Confesor ,1996) Access to Confidential Labor Relations Information - The information must be related labor relations matters. When the employee does not have access to confidential labor relations information, then the prohibition to form, join, or assist a union does not apply. (Sugbuanon Rural Bank v. Laguesma,2000) - If the access is merely incidental to his duties and not necessary in the performance of such duties, the access does not render the employee a confidential employee (San Miguel Corp. Supervisors & Exempt Union, et. al. v. Laguesma 1997)

V.SECURITY GUARDS - Under RA 6715, they may now join a labor organization of the rank and file or that of the
supervisory union, depending on their rank. (Manila Electric Co. v. Secretary of Labor and Employment, GR No. 91902, 20 May 1991)

VI.MEMBERS OF COOPERATIVES
Benguet Electric Cooperative v. Ferrer-Calleja, 180 SCRA 740 (1989) Issue: - Whether employees of a cooperative are qualified to form or join a labor organization for purposes of collective bargaining. Held: - The right to collective bargaining is not available to an employee of a cooperative who at the same time is a member and co-owner thereof. With respect, however, to employees who are neither members nor co-owners of the cooperative they are entitled to exercise the rights to self-organization, collective bargaining and negotiation. The fact that the member-employees of petitioner (cooperative) do not participate in the actual management of the cooperative does not make them eligible to form, assist or join a labor organization purposes of collective bargaining. They cannot invoke the right to collective bargaining for certainly an owner cannot bargain with himself or his co-owners. It is the fact of ownership of the cooperative, and not involvement in the management thereof, which disqualifies a member from joining any labor organization within the cooperative.

VII.RELIGIOUS OBJECTORS
Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54 (1974) - What the Constitution and the Industrial Peace Act recognize and guarantee is the right to form or join associations. Notwithstanding the different theories propounded by the different schools of jurisprudence regarding the nature and contents of a right, it can be safely said that whatever theory one subscribes to, a right comprehends at least 2 broad notions, namely: first, liberty or freedom, i.e. the absence of legal restraint, whereby an employee may act for himself without being prevented by law; and second, power whereby an employee may, as he pleases, join or refrain from joining an association. It is therefore, the employee who should decide for himself whether he should join or not in an association. It is clear, therefore, that the right to join a union includes the right to abstain from joining any union. The legal protection granted to such right to refrain from joining is withdrawn by operation of law, where a labor union and an employer have agreed on a closed shop. What the exception provides is that members of said religious sects cannot be compelled or coerced to join labor unions even when said unions have close shop agreements with the employers; that in spite of any closed shop agreement, members of said religious sects cannot be refused employment or dismissed from their jobs on the sole ground that they are not members of the collective bargaining union. It is clear therefore, that the assailed Act, far from infringing the constitutional provision on freedom of association, upholds and reinforces it. It does not prohibit the members of said religious sects from affiliating with labor unions. If, notwithstanding their religious beliefs, the members of said religious sects prefer to sign up with the labor union, they can do so; the law does not coerce them to join; neither does the law prohibit them from joining; and neither may the employer or labor union compel them to join. Kapatiran sa Meat and Canning Division v. Ferrer-Calleja, 162 SCRA 367 (1988) - This Courts decision in Victoriano v. Elizalde Rope Workers Union upholding the right of members of the Iglesia no Kristo sect not to join a labor union for being contrary to their religious beliefs, does not bar the members of that sect from forming their own union. The public respondent correctly observed that the recognition of the tenets of that sect xxx should not infringe on the basic right of self-organization granted by the constitution to workers, regardless of religious affiliation.

VIII.GOVERNMENT EMPOLYEES
Art. 244. Right of employees in the public service. Art. 276. Government employees. Association of Court of Appeals Employees v. Ferrer-Calleja, 203 SCRA 596 (1991) The terms and conditions of employment in the government service are governed by law. Any understanding between the top officials of a government agency and the union which represent the

rank-and-file is subordinate to the law governing the particular issue or situation. Davao City Water District v. Civil Service Commission, 201 SCRA 593 (1991) - By government owned or controlled corporation with original charter, we mean government owned or controlled corporation created by a special law and not under the Corporation Code of the Philippines. It is clear that what has been excluded from the coverage of the CSC are those corporations created pursuant to the Corporation Code. Government Employees Not Allowed To Unionize 1. Members of the Armed Forces 2. Police Officers/Policemen 3. Firemen 4. Jail Guards - High level employees are also not allowed to join the organization of rank and file government employees. High level employees- one whose functions are normally considered policy determining, managerial or one whose duties are highly confidential in nature.

IX.EMPLOYEES OF INTERNATIONAL ORGANIZATIONS

International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1989) - Labor organizations in the International Catholic Migration Commission (ICMC) and International Rice Research Institute (IRRI), both international organizations, filed a petition for certification election. ICMC and IRRI claimed immunity. Held: - The grant of immunity from local jurisdiction to ICMC and IRRI is clearly necessitated by their international character and respective purposes. The objective is to avoid the danger and partiality and interference by the host country in their internal workings. The exercise of jurisdiction by the DOLE in these instances would defeat the very purpose of immunity, which is to shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member states of the organization, and to ensure the unhampered performance of their functions. The immunity granted being from every form of legal process except in so far as in any particular case they have expressly waived in their immunity, it is inaccurate to state that a certification election is beyond the scope of that immunity for the reason that it is not a suit against ICMC. A certification election cannot be viewed as independent or isolated process. It could trigger off a series of events in the collective bargaining process together with related incidents and/or concerted activities, which could inevitably involve ICMC in the legal process, which includes any penal, civil and administrative proceedings.

X. ACQUISITION AND RETENTION OF MEMBERSHIP; UNION SECURITY AGREEMENTS

Art. 277. Miscellaneous provision. - Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered as an employee for purposes of membership in any labor union. Art. 248. Unfair labor practices of employers. - Discrimination. - What the law prohibits is discrimination to encourage or discourage membership in a labor organization. Where the purpose is to influence the union activity of employees, the discrimination is unlawful. - However, the inclusion of union security clause in the CBA is not considered ULP. Union Security Clause generic term which comprehends closed shop, union shop, or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition of employment. Kinds of Union Security Agreements 1. CLOSED-SHOP only union members can be hired and they must remain as union members to retain employment.

2. UNION SHOP Nonmembers may be hired, but must become union members after a certain period to retain employment. 3. MODIFIED UNION SHOP Employees who are not union members at the time of the signing the contract is not required to join the union, but all workers hired after is required to join. 4. MAINTENANCE OF MEMBERSHIP SHOP Employees are not compelled to join the union, but all present or future members must remain in good standing in the union. 5. EXCLUSIVE BARGAINING SHOP Union is recognized as the exclusive bargaining agent for all employees in the bargaining unit, whether union members or not. 6. BARGAINING FOR MEMBERS ONLY Union is recognized as the bargaining agent only for its own members. 7. AGENCY SHOP an agreement whereby employees must either join the union or pay to the union as exclusive bargaining agent a sum equal to that paid by the members. - These union security agreements are opposite of OPEN SHOP. Open shop does not require union membership as a condition of employment.

XI.LABOR ORGANIZATIONS
Rights of Labor Organization Art. 242. Rights of legitimate labor organizations. Art. 277. Miscellaneous provisions. - All unions are authorized to collect reasonable membership fees, union dues, assessments and fines and other contributions for labor education and research, mutual death and hospitalization benefits, welfare fund, strike fund and credit and cooperative undertakings. Rights of Labor Organizations 1. To act as the representative of its members for the purpose of collective bargaining; 2. To be certified as the exclusive representative for purposes of collective bargaining; 3. To be furnished by the employer, with its annual audited financial statements, including the balance sheet and the profit and loss statement. 4. To own property, real or personal, for the use and benefit of the labor organization and its members; 5. To sue and be sued in its registered name; 6. To undertake all other activities designed to benefit the organization and its members, including cooperative, housing, welfare and other projects not contrary to law. - The income and properties received by legitimate labor organization which are actually, directly and exclusively used for their lawful purposes shall be free from taxes, duties and other assessments.

XII.REGISTRATION OF COLLKECTIVE BARGAINING AGREEMENNTS

Where to file - With the Regional Office which issued the certificate of registration/certificate of creation of chartered local. - If the certificate of creation of the chartered local was issued by the bureau, the agreement shall be filed with the Regional Office which has jurisdiction over the place where it principally operates - Multi-employer collective bargaining agreements shall be filed with the Bureau. When to file - within 30 days from execution of the CBA. Requirements for registration - The application for CBA registration shall be accompanied by the original and 2 duplicate copies of the following documents: 1. CBA 2. A statement that the CBA was posted in at least 2 conspicuous places in the establishment concerned for at least 5 days before its ratification. 3. Statement that the CBA was ratified by the majority of the employees in the bargaining unit.

- The following documents must be certified under oath by the representative of the employer and the labor union. - No other document shall be required in the registration of the CBA.

XIII. UNFAIR LABOR PRACTICES

Art. 247. Concept of unfair labor practice and procedure for prosecution thereof. Concept of Unfair Labor Practices - The aim of labor relations policy is industrial democracy whose realization is most felt in a free collective bargaining or negotiation over terms and conditions of employment. Because self organization is a prerequisite of industrial democracy, the right to self organize has been enshrined in the Constitution, and any attack to it. - any attack to it any act intended to defeat or debilitate the right is regarded by law as an offense. - The victim of the offense is not just the workers as a body and the well meaning employees who value peace, but the State as well. Thus, the attack to this constitutional right is considered a crime which carries both civil and criminal liabilities. Elements of Unfair Labor Practice 1. EER between the offender and the offended. - ULP is negation of a counteraction to the right to organize which is available only to employees in relation to their employer. No organizational right can be negated or assailed if the employer employee relationship is absent in the first place. 2. The act done is expressly defined in the Code as an act of unfair labor practice. - Art. 212(k) defines unfair labor practice as any unfair labor practice as defined by this Code. - The prohibited acts are all related to the workers self organizational right and to the observance of a collective bargaining agreement. Because ULP is and has to be related to the right to selforganization and to the observance of the CBA, it follows that not every unfair act is unfair labor practice. - ULP therefore, refers only to acts opposed to workers right to organize. When committed by the employer, it commonly connotes anti unionism. Aspects of Unfair Labor Practice 1. Civil Aspect 2. Criminal Aspect - Civil aspect may include liability for damages and may be passed upon by the labor arbiter. - Prosecution of ULP as a criminal offense can be initiated only after the finality of judgment in the labor. - But judgment in the labor case will not serve as evidence of ULP in the criminal case. Jurisdiction of Criminal Charge of ULP The criminal charge fall under the concurrent jurisdiction of the MTC or the RTC. - Only substantial evidence is required in the labor case while proof beyond reasonable doubt is need in the criminal prosecution. - Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code. Who are Liable when ULP is Committed by Other than a Natural Person The penalty shall be imposed upon the guilty officers of a corporation, partnership, association or entity (Art. 289). If the ULP is committed by a labor organization, the parties liable are the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified such (Art. 249). Prescription of actions for ULP The offense prescribes in 1 year (Art. 290).

XIV.UNFAIR LABOR PRACTICE OF EMPLOYER

1. interference 2. yellow dog condition

3. contracting out 4. company unionism 5. discrimination for or against union membership 6. discrimination because of testimony 7. violation of duty to bargain 8. paid negotiation 9. violation of CBA First ULP: Interference (Art. 248 (A)) - Interference with employee organizational rights were found where the superintendent of the employer threatened the employees with cutting their pay, increasing rent of the company houses, or closing the plant if they supported the union and where the employer encouraged the employees to sign a petition repudiating the union Second ULP: Yellow Dog (Art. 248 (B)) Yellow Dog Contract - a promise exacted from workers as a condition of employment that they are not to belong to, or attempt to foster, a union during their period of employment 3 Usual Provisions under the Yellow Dog Contract 1. a representation by the employee that he is not a member of a labor union 2. a promise by the employee not to join a labor union 3. a promise by the employee that, upon joining a labor union, he will quit his employment Third ULP: Contracting Out [Art. 248 (C)] Contracting Out as ULP - Contracting out services or functions being performed by union members when such act will interfere with, restrain, or coerce employees in the exercise of their right to self organize. - However, an employer is not guilty of an unfair labor practice in contracting work out for business reasons such as decline in business, the inadequacy of his equipment, or the need to reduce the cost, even if the employers estimate of his cost is based on a projected increase attributable to unionization. Runaway shop - An industrial plant moved by its owners from one location to another to escape union labor regulations or state laws or to discriminate against employees at the old plant because of their union activities. - Resorting to runaway shop is ULP. - Where a plant removal is for business reasons but the relocation is hastened by anti union motivation, the early removal is unfair labor practice. It is immaterial that the relocation is accompanied by a transfer of title to a new employer who is an alter ego of the original employer. - Mere ownership by a single stockholder or by another corporation of all or nearly all of the capital stock of a corporation is not of itself sufficient ground for disregarding the separate corporate personality. [Sunio v. NLRC, 127 SCRA 390 (1984)] Fourth ULP: Company Domination Of Union (Art. 248 (D)) Manifestations of Domination of a Labor Union 1. Initiation of the company union idea. This may further occur in three styles: a. outright formation by the employer or his representatives b. employee formation on outright demand or influence by employer c. managerially motivated formation by employees 2. Financial support to the union. By defraying the union expenses or pays the attorneys fees to the attorney who drafted the constitution and by laws of the union. 3. Employer encouragement and assistance. Immediately granting the union exclusive recognition as a bargaining agent without determining whether the union represents the majority of employees. 4. Supervisory assistance. This takes the form of soliciting membership, permitting union activities during working time or coercing employees to loin the union by threats of dismissal or demotion (Philippine American Cigar & Cigarette Factory Workers Union v. Philippine American Cigar & Cigarette Mfg. Co., Inc., 7 SCRA 375).

Fifth ULP: Discrimination (Art. 248 (E)) Pagkakaisang Itinataguyod ng mga Manggagawa sa Ang Tibay, et. al. v. Ang Tibay, et. al., GR No. L-22273, 16 May 1967 - Under the Industrial Peace Act (as under the present Labor Code), to constitute an unfair labor practice, the discrimination committed by the employer must be in regard to the hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. The exaction by the Company, from strikers returning to work, of a promise not to destroy company property and no to commit acts of reprisal against the Union members who did not participate in the strike, cannot be considered as intended to encourage or discourage Union membership. Taking the circumstances surrounding the prescribing of that condition, the requirement by the Company is actually an act of self preservation and designed to insure the maintenance of peace and order in the Company premises. Sixth ULP: Discrimination Because Of Testimony [Art. 248 (F)] - The testimony or proceedings might involve wages, employees benefits disciplinary rules, or organizational rights, or anything covered by the Labor Code. What is chargeable as ULP is the employers retaliatory act regardless of the subject of the employees complaint or testimony. Seventh ULP: Violation of the Duty to Bargain [Art. 248 (G)] Four Forms of ULP in bargaining: a. Failure or refusal to meet and convene b. Evading the mandatory subjects of bargaining c. Bad faith in bargaining, including failure or refusal to execute the collective agreement, if requested d. Gross violation of the CBA Eighth ULP: Paid Negotiation [Art. 248 (H)] - Self organization and collective bargaining are treasured rights of the workers. The law zealously shields them from corruption. It is a punishable act of ULP for the employer to pay the union or any of its officers or agents any negotiation fee or attorneys fees as part of the settlement in collective bargaining or any labor dispute. To do so is not only unlawful. It is ethically reprehensible. - Correspondingly, Art. 249 prohibits union officers or agents from asking for or accepting such payments. Such act, furthermore, is a ground for cancellation of union registration under Art. 239(g). Ninth ULP: Violation of the CBA - Implementation of the CBA is still part of the bargaining process. The duty to bargain requires good faith, and good faith implies faithful observance of what has been agreed upon. It logically follows that noncompliance with the agreement is non observance of good faith in bargaining; therefore, the noncompliance amounts to a ULP. - Violation of the CBA must be gross. Relief In ULP Cases 1. Cease and Desist Order - To support a cease and desist order, the record must show that the restrained misconduct was an issue in the case; that there was a finding of fact of said misconduct and such finding was supported by evidence. - The Court is not authorized to issue blank cease and desist orders, but must confine its injunction orders to specific act or acts which are related to past misconduct. 2. Affirmative Order - In addition to a cease and desist order, the court may issue an affirmative order to reinstate the said employee with back pay from the date of the discrimination. - If other laborers have been hired, the affirmative order shall direct the respondent to dismiss these hired laborers to make room for the returning employee. 3. Court may order the Employer to Bargain, CBA may be imposed 4. Strike by union members

XV.UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS

1. To restrain or coerce employees in the exercise of their right to self-organization.

2. To attempt to or cause an employer to discriminate against an employee to whom membership in the labor organization was denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members. 3. To refuse to bargain collectively with the employer, if it is the representative of the employee. 4. To attempt to or cause the employer to pay money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed. This includes fee for union negotiations. 5. To ask or accept negotiations or attorneys fees from employers as part of the settlement in any dispute. 6. Violation of CBA.

XVI.COLLECTIVE BARGAINING
1. It is the process of negotiation by an organization or group of workmen, in behalf of its members, with the employer (Er), concerning wages, hours of work, and other terms and conditions of employment and 2. The settlement of disputes by negotiation between an Er and the representative of his employees (Ee) 3. It is the obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such does not compel any party to agree to a proposal or to make any concession. (Art. 252, LC) Note: GENERAL RULE: 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 EXCEPTION:As otherwise provided under the LC: 1. National Wages and Productivity Commission and RTWPB as to wage fixing. (Art. 99 and 122, LC) 2. NCMB and NLRC as to wage distortion. (Art. 124, LC) 3. SLE and President of the Philippines as to certification and assumption of powers over labor disputes. (Art. 236[g], LC)

XVII.DUTY TO BARGAIN COLLECTIVELY WHEN THERE IS NO CBA

It is the performance of a mutual obligation: 1. To meet and convene promptly and expeditiously in good faith (GF) 2. For the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment 3. Including proposals for adjusting any grievances or questions arising under such agreement; and 4. To execute a contract incorporating such agreements if requested by either party. (Art. 252)

XVIII. DUTY TO BARGAIN COLLECTIVELY WHEN THERE IS A COLLECTIVE BARGAINING AGREEMENT

- When there is a CBA, the duty to bargain also means that neither party shall terminate nor modify such agreement during its lifetime. - But 60 days before the CBA expires, either party may notify the other in writing that it wants to terminate or modify the agreement.

XIX. BARGAINING AGENT &CERTIFICATION ELECTION PROCEEDINGS

Art. 255. Exclusive bargaining representation and workers participation in policy and decision making. Art. 256. Representation issue in organized establishments.

Art. 257. Petitions in unorganized establishments. Art. 258. When an employer may file petition. Art. 259. Appeal from certification election orders. Bargaining Unit a group of employees sharing mutual interests within a given employer unit, comprised of all or less than all of the entire body of employees in the employer unit or any specific occupational or geographical grouping within such employer unit Certification Election/Consent Election The process of determining through secret ballot the sole and exclusive representative of the employees in an appropriate unit for purposes of collective bargaining or negotiation. A certification election is ordered by the Department, while a consent election is voluntarily agreed upon by the parties, with or without the intervention by the Department. Organized Establishment an enterprise where there exists a recognized or certified sole and exclusive bargaining agent Run-off Election an election between the labor unions receiving the 2 highest number of votes in a certification or consent election with 3 or more choices, where such a certified or consent results in none of the 3 or more choices receiving the majority of the valid votes cast; provided that the total number of votes for all contending unions is at least 50% of the number if votes cast.

XX.VOLUNTARY RECOGNITION
- process by which a legitimate labor union is recognized by the employer as the exclusive bargaining representative or agent in a bargaining unit, reported with the Regional Office in accordance with Rule VII, section 2 of these Rules. 3 Methods to Determine the Bargaining Union 1. Voluntary Recognition 2. Certification Election 3. Consent Election Voluntary Recognition When to file - In unorganized establishments with only one legitimate labor organization, the employer may voluntarily recognize the representation status of the union. - Within 30 days from such recognition, the employer and union shall submit a notice of voluntary recognition. Where to file - Regional Office which issued the recognized labor unions certificate of registration or certificate of creation of a chartered local. Requirements for Voluntary Recognition - The notice of voluntary recognition shall be accompanied by the original copy and 2 duplicate copies of the following documents: 1. A joint statement under oath of voluntary recognition attesting to the fact of voluntary recognition. 2. Certificate of posting of the joint statement of voluntary recognition for 15 consecutive days in at least 2 conspicuous places in the establishment or bargaining unit where the union seeks to operate. 3. Approximate number of employees in the bargaining unit, accompanied by the names of those who support the voluntary recognition comprising at least a majority of the members of the bargaining unit. 4. A statement that the labor union is the only legitimate labor organization operating within the bargaining unit. - These documents shall be certified under oath by the employers representative and president of he recognized labor union. Procedure: Voluntary Recognition 1. If notice of voluntary recognition is sufficient in form, number and substance, and there is no other registered labor union operating within the bargaining unit, the Regional Office shall record the fact of voluntary recognition within 10 days from receipt of notice.

2. Where notice of voluntary recognition is insufficient, the Regional Office shall notify the labor union of its findings and advise it to comply with the necessary requirements. - If the employer or union failed to complete the requirements for voluntary recognition within 30 days from receipt of advisory, the Regional Office shall return. Effects of recording of fact of Voluntary Recognition 1. The recognized labor union shall enjoy the rights, privileges and obligations of an existing bargaining agent of all the employees in the bargaining unit. 2. A petition for certification election cannot be filed for 1 year from the date of entry of the voluntary recognition.

XXI.CERTIFICATION ELECTION
Who may file 1. any legitimate labor organization 2. employer, when requested to bargain collectively Where to file - Regional Office which issued the certificate of registration/certificate of creation. When to file - Anytime, except: 1. When voluntary recognition has been entered, or a valid certification, consent or run-off election has been conducted within 1 year prior to the filing. 2. negotiations in good faith with the employer 3. bargaining deadlock had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. 4. Registered CBA may file only within 60 days prior to the expiration of the CBA. Grounds for Denying Petition 1. the petitioner is not listed in the Departments registry of legitimate labor unions or that its legal personality has been revoked or cancelled with finality in accordance with Rule XIV of these Rules; 2. the petition was filed before or after the freedom period of a duly registered collective bargaining agreement; provided that the sixty-day period based on the original collective bargaining agreement shall not be affected by any amendment, extension or renewal of the collective bargaining agreement; (Contract Bar). 3. the petition was filed within 1 year from entry of voluntary recognition or a valid certification, consent or run-off election and no appeal on the results of the certification, consent or run-off election is pending; (12-month Bar/Certification year bar) 4. a duly certified union has commenced and sustained negotiations with the employer in accordance with Article 250 of the Labor Code within the one-year period referred to in Section 14.c of this Rule, or there exists a bargaining deadlock which had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout to which an incumbent or certified bargaining agent is a party; (Negotiation Bar) 5. in case of an organized establishment, failure to submit the 25% support requirement for the filing of the petition for certification election.

XXII.CONSENT ELECTION
- In case the contending unions agree to a consent election, the Med-Arbiter shall not issue a formal order calling for the conduct of certification election, but shall enter the fact of the agreement in the minutes of the hearing. - The minutes of the hearing shall be signed by the parties and attested to by the Med-Arbiter. - The Med-Arbiter shall, immediately thereafter, forward the records of the petition to the Regional Director or his/her authorized representative for the determination of the Election Officer by the contending unions through raffle. - The first pre-election conference shall be scheduled within ten (10) days from the date of entry of agreement to conduct consent election.

XXIII.RUN-OFF ELECTION
-When an election which provides for 3 or more choices results in none of the choices (unions or no union choice) receiving a majority of the valid votes cast, the Election Officer shall motu propio conduct a run-off election within 10 days from the close of the election proceedings between the labor unions receiving the two highest number of votes. Provided, that the total number of votes for all contending unions is at least 50% of the number of votes cast. - And there are no objections or challenges which if sustained can materially alter the results, - No Union shall not be a choice in the run-off election. Notice of run-off elections shall be posted by the Election Officer at least five (5) days before the actual date of run-off election.

XXIV. BARS TO CERTIFICATION ELECTION

Art. 232. Prohibition on certification election Grounds for denying petition for certification election 1. Deadlock Bar 2. Contract Bar 3. 12-month bar/certification year bar 4. Negotiation Bar Contract Bar While a valid and registered CBA is subsisting, the BLR is not allowed to hold an election contesting the majority status of the incumbent union. When contract bar rule not applied 1. CBA is not registered 2. CBA deregistered 3. CBA is incomplete in itself 4. CBA does not foster industrial peace 5. CBA was concluded in violation of an order enjoining the parties from entering into a CBA until the issue of representation is resolved 6. Petition is filed during the 60-day freedom period Deadlock Bar A petition for certification election cannot be entertained if, before the filing of the petition for certification election, a bargaining deadlock to which an incumbent or certified bargaining agent is a party, had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout. Negotiation Bar A petition for certification election cannot be filed if the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Art. 250 of the Labor Code within 1 year prior to the filing of the petition for certification election. Certification Year Rule Bar No petition for certification election may be filed within one year from the date of a valid certification, consent, or run-off election or from the date of voluntary recognition.

XXV. STRIKES, LOCKOUTS AND CONCERTED ACTIONS

Art. 263. Strikes, picketing and lockouts Art. 264. Prohibited activities Art. 265. Improved offer balloting. Concerted Action an activity undertaken by two or more employees, by one on behalf of others Strike any temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute Lockout temporary refusal of any employer to furnish work as a result of an industrial or labor dispute

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 Strike-breaker 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 Strike Area establishment, warehouses, depots, plants or offices, including the sites or premises used as runaway shops, of the employer struck against, a 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 Characteristics of a Strike 1. There must be an employer-employee relationship. 2. Existence of a dispute. 3. Employment relation is deemed to continue although in a state of belligerent suspension. 4. There is temporary work stoppage. 5. Work stoppage is done through concerted action. 6. The striking group is a legitimate labor organization. In case of bargaining deadlock, it must be the employees sole bargaining representative. Grounds for lockout 1. Collective Bargaining Deadlock 2. Unfair Labor Practice - violations of CBA must be gross to be considered as ULP Conversion Doctrine A strike may start as economic and, as it progresses, becomes ULP, or vice-versa.

XXVI.INJUCTION
General Rule: No court or entity shall enjoin any picketing, strike or lockout. Exceptions: 1. When prohibited or unlawful acts are being or about to be committed that will cause grave or irreparable damage to the complaining party. 2. National Interest

XXVII.IMPROVED OFFER BALLOTING

1. In case of strike Regional branch of the Board shall, conduct a referendum by secret balloting on the improved offer of the employer. on or before the 30th day of strike. at its own initiative or upon the request of any affected party. When at least a majority of the union members vote to accept the improved offer, the striking workers shall immediately return to work and the employer shall thereupon re-admit them upon the signing of the agreement. 2. In case of lockout The regional branch of the Board shall also conduct a referendum by secret balloting on the reduced offer of the union. on or before the 30th day of the lockout. When at least a majority of the board of directors or trustees or the partners holding the controlling interest in the case of partnership vote to accept the reduced offer, the workers shall immediately return to work and the employer shall thereupon readmit them upon the signing of the agreement.

BOOK vi: POST EMPLOYMEN T

I.REGULAR EMPLOYMENT 1.An employment shall be deemed to be regular where the Ee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the Er, the provisions of written agreements to the contrary notwithstanding and regardless of the oral agreements of the parties. (Sec. 5 [a], Rule I, Book VI, IRR) 2.Any Ee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular Ee with respect to the activity in which he is employed and his employment shall continue while such activity exists. (Sec. 5 [b], Rule I, Book VI, IRR) Note: Regularization is not a management prerogative; rather, it is the nature of employment that determines it. It is a mandate of the law. (PAL v. Pascua, G.R. No. 143258, Aug. 15, 2003) - Regular employment does not mean permanent employment. A probationary Ee becomes a regular Ee after 6 months. A regular Ee may only be terminated for just/authorized causes. The practice of entering into employment contracts which would prevent the workers from becoming regular should be struck down as contrary to public policy and morals. (Universal Robina Corp. v. Catapang, G.R. No. 164736, Oct. 14, 2005) II.PROJECT EMPLOYMENT - Employment that has been fixed for a specific project or undertaking the completion for which has been determined at the time of engagement of the employee (Ee). (Sec.5 [a], Rule I, Book VI, IRR). The period is not the determining factor, so that even if the period is more than 1 year, the Ee does not necessarily become regular. Note: Where the employment of a project Ee is extended long after the supposed project has been finished, the Ees are removed from the scope of project Ees and considered as regular Ees. - Repeated hiring on a projecttoproject basis is considered necessary and desirable to the business of the Er. The Ee is regular (Maraguinot v. NLRC, G.R. No. 120969, Jan. 22, 1998 ). However, repeated hiring does not necessarily mean regular employment. (Filipinas PreFabricated Building Systems (FILSYSTEMS), Inc. v. Puente, G.R. No. 153832,. March 18, 2005 ) Indicators of Project Employment - Either one or more of the following circumstances, among others, may be considered as indicators that an employee is a project employee. (Hanjin v. Ibaez, G.R. No. 170181, June 26, 2008) a. The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable b. Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the employee at the time of hiring. Note: Absent any other proof that the project employees were informed of their status as such, it will be presumed that they are regular employees. c. The work/service performed by the employee is in connection with the particular project/ undertaking for which he is engaged

d. The employee, while not employed and awaiting engagement, is free to offer his services to any other employer e. The termination of his employment in the particular project/undertaking is reported to the Department of Labor and Employment Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the prescribed form on employees termination/dismissal/suspensions f. An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies Requisites in determining whether an employee (Ee) is a project Ee? 1. The project Ee was assigned to carry out a specific project or undertaking, and 2. The duration and scope of which were specified at the time the Ee was engaged for that project. (Imbuido v. NLRC, G.R. No. 114734, Mar. 31, 2000) 3. The Ee must have been dismissed every after completion of his project or phase 4. Report to the DOLE of Ees dismissal on account of completion of contract (Policy Inst. No. 20; D.O. 19 [1997] III. Term Employment Brent Ruling Criteria under which term employment does NOT Circumvent Security of Tenure -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; -It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter. (Brent School v. Zamora, 1990; Romares v. NLRC, 1998; Medenilla v. Phil. Veterans Bank, 2000) -If a contract is for a fixed term and the EE is dismissed without just cause, he is entitled to the payment of his salaries corresponding to the unexpired portion of the employment contract. (Medenilla v. Phil. Veterans Bank, 2000) Nature of term employment - A contract of employment for a definite period terminates by its own terms at the end of such period. (Brent School v. Zamora, G.R. No. L48494, Feb. 5, 1990) Decisive determinant in term employment - It is the day certain agreed upon by the parties for the commencement and the termination of their employment relation. Fixedterm employment It is an employment where a fixed period of employment was agreed upon: 1. 2. 3. 4. Knowingly and voluntarily by the parties, Without any force, duress or improper pressure being brought to bear upon the employee (Ee) and Absent any other circumstances vitiating his consent, or Where it satisfactorily appears that the Er and Ee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter. (Brent School, Inc. v. Zamora, G.R. No. 48494, Feb. 5, 1990)

Note: A fixedperiod Ee does not become a regular Ee because his employment is coterminus with a specific period of time.

Ee hired on a fixedterm is regular if job is necessary and desirable to the business of Er. (Philips Semiconductor v. Fadriquela, G.R. No. 141717, April 2004) IV.SEASONAL EMPLOYMENT - Employment where the job, work or service to be performed is seasonal in nature and the employment is for the duration of the season. (Sec.5 [a], Rule I, Book VI, IRR) An employment arrangement where an employee (Ee) is engaged to work during a particular season on an activity that is usually necessary or desirable in the usual business or trade of the employer (Er). Note: For seasonal Ees, their employment legally ends upon completion of the project or the season. The termination of their employment cannot and should not constitute an illegal dismissal. (Mercado v. NLRC, G.R. No. 79869, Sept. 5, 1991) - One year duration on the job is pertinent in deciding whether a casual Ee has become regular or not, but it is not pertinent to a seasonal or project Ee. Passage of time does not make a seasonal worker regular or permanent. (Mercado v. NLRC, G.R. No. 78969, Sep. 5, 1991) During offseason, the relationship of ErEe is not severed; the seasonal Ee is merely considered on LOA without pay. Seasonal workers who are repeatedly engaged from season to season performing the same tasks are deemed to have acquired regular employment. (Hacienda Fatima v. National Federation of Sugarcane WorkersFood and General Trade, G.R. No. 149440, Jan. 28, 2003) Seasonal Ees entitled to separation pay - When the business establishment is sold which effectively terminates the employment of the seasonal Ees, the latter would be entitled to separation pay. Seasonal employees (Ees) considered as regular Ees - The fact that seasonal Ees do not work continuously for one whole year but only for the duration of the season does not detract from considering them in regular employment. Seasonal workers who are called to work from time to time and are temporarily laid off during offseason are not separated from service in that period, but merely considered on leave until reemployed. If the Ee 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. Hence, the employment is considered regular, but only with respect to such activity and while such activity exists. (Benares v. Pancho, G.R. No. 151827, April 29, 2005) V.PROBATIONARY EMPLOYMENT General Rule: Not to exceed 6 months Exceptions: a. covered by an apprenticeship agreement stipulating a longer period b. voluntary agreement of parties (especially when nature of work requires a longer period) c. the employer gives the employee a second chance to pass the standards set Termination of Probationary Employment a. just / authorized causes b. when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to employee at the time of his engagement If allowed to work after the probationary period, he shall be considered a REGULAR employee - After lapse of probationary period (6 months), the employee becomes regular. (Voyeur Visage, 2005) - Probationary employee may be dismissed before end of the probationary period. Aberdeen Court, Inc. v. Agustin, GR No. 149371, 13 April 2005 - There is probationary employment where the employee, upon his engagement, is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement.

The services of an employee who has been engaged on probationary basis may be terminated only for a just cause, when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer. In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee. Mariwasa Manufacturing, Inc. v. Leogardo, Jr., 26 January 1989

(4)Casual employment Q: What is casual employment? A: 1. It is an employment where the Ee is engaged in an activity which is not usually necessary or desirable in the usual business or trade of the Er, provided: such employment is not project nor seasonal (Art. 281). Note: But despite the distinction between regular and casual employment, every Ee shall be entitled to the same rights and privileges, and shall be subject to the same duties as may be granted by law to regular Ees during the period of their actual employment. 2.An Ee is engaged to perform a job, work or service which is merely incidental to the business of the Er, and such job, work or service is for a definite period made known to the Ee at the time of engagement (Sec. 5 [b], Rule I, Book VI, IRR) Note: If he has rendered at least 1 year of service, whether such service is continuous or broken, he is considered as regular Ee with respect to the activity in which he is employed and his employment shall continue while such activity exists. A Casual Ee is only casual for 1 year, and it is the passage of time that gives him a regular status. (KASAMMACCO v. CA, G.R. No. 159828, April 19, 2006) The purpose is to give meaning to the constitutional guarantee of security of tenure and right to self organization. (Mercado v. NLRC, G.R. No. 79868, Sep. 5, 1991) B. SECURITY OF TENURE Art. 279. Security of tenure Applies to all establishment or undertakings whether for profit or not Project employees have no security of tenure. (see how full backwages are computed) Full backwages are computed from the time wages are withheld up to the time the employee is actually reinstated. In the case of project employees, you cannot demand wages for the time when there is no project. Thus, 279 does not apply to project employees. C. JUST CAUSES Art. 282. Just Causes for Termination by employer Grounds: (SoMe WiD GAN FWeT CO) 1. Serious Misconduct or Willful Disobedience by the employee of the lawful orders of his employer or representative in connection with his work (work-related)

2. Gross And habitual Neglect by the employee of his duties 3. Fraud or Willful breach by employee of the Trust reposed in him by his employer or duly authorized representative (not mere suspicion) 4. Commission of a Crime or offense by the employee against the person of his employer or any immediate member of his family or duly authorized representative 5. Other analogous cases 1.Serious Misconduct Q: What is serious misconduct? A: It is an improper or wrong conduct; the 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. To be serious within the meaning and intendment of the law, the misconduct must be of such grave and aggravated character and not merely trivial or unimportant. (Villamor Golf Club v. Pehid, G.R. No. 166152, Oct. 4, 2005) Q: What are the elements of serious misconduct? A: 1. It must be serious or of such a grave and aggravated character; 2. Must relate to the performance of the employees (Ee) duties; 3. Ee has become unfit to continue working for the employer. (Philippine Aeolus Automotive United Corp. v. NLRC, G.R. No. 124617, April 28, 2000) Q: Give some examples of serious misconduct. 1. Sexual harassment 2. Fighting within the company premises 3. Uttering obscene, insulting or offensive words against a superior 4. Falsification of time records 5. Gross immorality 2.Willful Disobedience Q: When is willful disobedience of the Ers lawful orders a just cause for termination? A: 2 requisites must concur: 1. The employees (Ees) assailed conduct must have been willful or intentional, the willfulness being characterized by a wrongful and perverse attitude. 2. The disobeyed orders, regulations or instructions of the Er must be: a. Reasonable and lawful b. Sufficiently made known to the Ee c. Must pertain to or be in connection with the duties which the Ee has been engaged to discharge. (Cosep V. NLRC, G.R. No. 124966 June 16, 1998) Note: There is no law that compels an Ee to accept a promotion for the reason that a promotion is in the nature of a gift or reward, which a person has the right to refuse. The exercise of the Ee of the right to refuse a promotion cannot be considered in law as insubordination or willful disobedience. (PT&T Corp. v. CA, G.R. No. 152057, Sep. 29, 2003) 3.Negligence Q: When is negligence a just cause for termination? A: When it is gross and habitual. Q: When is there Gross Negligence?

A: Gross negligence implies a want or absence of or failure to exercise slight care of diligence of the entire absence of care it evinces thoughtless disregard of consequences without exerting any effort to avoid them. However, such neglect must not only be gross but habitual in character. (Judy Phils. v. NLRC, G.R. No. 111934, April 29, 1998) 4.Abandonment Q: What is abandonment as a just cause for termination? A: It means the deliberate, unjustified refusal of an employee to resume his employment. Q: What are the requirements for a valid finding of abandonment? A: For a valid finding of abandonment, 2 factors must be present: 1. The failure to report for work, or absence without valid or justifiable reason; and 2. A clear intention to sever ErEe relationship, with the 2nd element as the more determinative factor, being manifested by some overt acts. (Sta. Catalina College s. NLRC, G.R. No. 144483, Nov. 19, 2003) Q: How to prove abandonment? A: To prove abandonment, the Er must show that the Ee deliberately and unjustifiably refused to resume his employment without any intention of returning. There must be a concurrence of the intention to abandon and some overt acts from which an Ee may be deduced as having no more intention to work. The law, however, does not enumerate what specific overt acts can be considered as strong evidence of the intention to sever the EeEr relationship. (Sta. Catalina College v. NLRC, G.R. No. 144483. Nov. 19, 2003) Fraud or Willful Breach of Trust Can be committed only by confidential and managerial employees - confidential employees charged with custody and protection of employers property like a cashier (this is different from the confidential employees in labor relations) A criminal case need not be actually filed. Commission of acts constituting a crime is sufficient. Immorality When a teacher engages in extra-marital relationship, especially when the parties are both married, such behavior amounts to immorality, justifying his termination from employment. (Santos v. NLRC, 1998) What is union security clause? A union security clause is a stipulation in the CBA whereby the management recognizes that the membership of employees in the union which negotiated said agreement should be maintained and continued as a condition for employment or retention of employment. The obvious purpose is to safeguard and ensure the continued existence of the union. MARRIAGE It shall be unlawful for an employer: 1. to require as a condition of employment or continuation of employment that a woman employee shall not get married, or

2. to stipulate expressly or tacitly that upon getting married a woman employee shall be deemed resigned or separated or 3. to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. (Art. 136) GENERAL 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, while on leave or in confinement due to her pregnancy; or 3. To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant. Stipulation Against Marriage It shall be unlawful for the employer to: 1. require as a condition of employment or continuation of employment that a woman employee shall not get married 2. to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated 3. to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage PT&T Co. v. NLRC, 272 SCRA 596 (1997) A woman worker may not be dismissed on the ground of dishonesty for having written single on the space for civil status on the application sheet, contrary to the fact that she was married.

Prohibited Acts It is unlawful for any employer: 1. To discharge any woman employed by him for the purpose of preventing such woman from enjoying the maternity leave, facilities and other benefits provided under the Code 2. To discharge such woman employee 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 be pregnant 4. To discharge any woman or child or any other employee for having filed a complaint or having testified or being about to testify under the Code 5. To require as a condition for a 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

(4)Constructive Dismissal Q: What is constructive dismissal? A: An involuntary resignation resorted to when: 1. continued employment becomes impossible, unreasonable, or unlikely 2. there is a demotion in rank or diminution in pay or 3. clear discrimination, insensibility or disdain by an Er becomes unbearable to the Ee. (Leonardo v. NLRC, G.R. No.125303, June 16, 2000) Constructive Dismissal 1. No formal dismissal 2. The employee is placed in a situation by the employer such that his continued employment has become UNBEARABLE. Veterans Security Agency v. Vargas, GR No. 159293. 16 December 2005 Constructive dismissal exists when an act of clear discrimination, insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment. Abandonment, as a just and valid cause for termination, requires a deliberate and unjustified refusal of an employee to resume his work, coupled with a clear absence of any intention of returning to his or her work. Abandonment is incompatible with constructive dismissal. Preventive Suspension Definition Preventive suspension is a disciplinary measure for the protection of the company's property pending investigation of any alleged malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his coworkers. (PAL v. NLRC, 1998) Preventive Suspension Limited to 30 days Preventive suspension for an indefinite period amounts to a dismissal, and is violative of Rule XIV, Sec. 4, IRR, which limits the

preventive suspension to 30 days. (Kwikway EngineeringWorks v. NLRC, 1991) Preventive Suspension justified where the employees continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers (there is a REASONABLE POSSIBILITY of the employee posing such a threat) must not exceed 1 month It is only for the purpose of investigating the offense to determine whether he is to be dismissed or not. IT IS NOT A PENALTY. if more than 1 month, the employee must be actually reinstated or reinstated in the payroll officers liable only if with malice and bad faith Art. 283. Authorized Causes for Termination Grounds: 1. Introduction of labor-saving devices 2. Redundancy 3. Retrenchment 4. Closure of business as a result of grave financial loss 5. Closure not due to lossesRedundancy Q: What are the requisites of a valid redundancy?

A: 1. Written notice served on both the employees (Ees) and the DOLE at least 1 month prior to separation from work 2. Payment of separation pay equivalent to at least 1 month pay or at least 1 month pay for every year of service, whichever is higher 3. Good faith in abolishing redundant position 4. Fair and reasonable criteria in ascertaining what positions are to be declared redundant: a. Less preferred status, e.g. temporary Ee b. Efficiency and c. Seniority Retrenchment Resorted primarily to avoid or minimize business losses. Standards to Justify Retrenchment 1. The losses expected should be substantial and not merely de minimis in extent. 2. The substantial loss apprehended must be reasonably imminent. 3. It be reasonably necessary and likely to effectively prevent the expected losses. The employer should have taken other measures prior or parallel to retrenchment to forestall losses. 4. The alleged losses if already realized, and the expected imminent losses must be proved by sufficient and convincing evidence. (Oriental Petroleum & Minerals Corp. v Fuentes, 14 October 2005) Difference between redundancy and retrenchment: In redundancy, company has no financial problems; in retrenchment, company suffers from financial problems. Closure Not Due to Losses In cases of closure not due to losses, it must NOT be in BAD FAITH. If the dismissal is based on a just cause under Article 282 but the employer failed to comply with the notice requirement, the sanction to be imposed upon him should be tempered because the dismissal process was, in effect, initiated by an act imputable to the employee. If the dismissal is based on an authorized cause under Article 283 but the employer failed to comply with the notice requirement, the sanction should be stiffer because the dismissal process was initiated by the employers exercise of his management prerogative Closure Q: What are the requisites of a valid closure?

1. Written notice served on both the employees and the DOLE atleast 1 month prior to the intended date of closure 2. Payment of separation pay equivalent to at least one month pay or at least month pay for every year of service, whichever is higher, except when closure is due to serious business losses 3. Good faith 4. No circumvention of the law 5. No other option available to the Er

What is the test for the validity of closure or cessation of establishment or undertaking? A: The ultimate test of the validity of closure or cessation of establishment or undertaking is that it must be bona fide in character. And the burden of proving such falls upon the Er. (Capitol Medical Center, Inc. vs. Dr. Meris, G.R. No. 155098, Sep. 16, 2005, J. CarpioMorales) Q: When is separation pay required in case of closure? A: Only where closure is not due to serious business losses nor due to an act of govt. (North Davao Mining Corp v. NLRC, G.R. No. 112546, Mar. 13, 1996; NFL v. NLRC, G.R. No. 127718, Mar. 2, 2000) Disease Q: When is disease a ground for dismissal? A: Where the Ee suffers from a disease, and: 1. His continued employment is prohibited by law or prejudicial to his health or to the health of his coEes. (Sec.8, Rule I, Book VI, IRR) 2. With a certification by competent public health authority that the disease is incurable within 6 months despite due medication and treatment. (Solis v. NLRC, GR No. 116175, Oct. 28,1996)

Note: The reqt for a medical certification cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary determination by the Er of the gravity or extent of the Ees illness and thus defeat the public policy on the protection of labor. (Manly Express v Payong, G.R. No. 167462, Oct.25, 2005) Termination of services for health reasons must be effected only upon compliance with the above requisites. The reqt for a medical certificate under Art. 284 of the LC cannot be dispensed with; otherwise, it would sanction the unilateral and arbitrary determination by the Er of the gravity or extent of the Ees illness and thus defeat the public policy on the protection of labor. (Sy et. al v. CA, G.R. No. 142293, Feb. 27, 2003) Q: What is the procedure in terminating an employee (Ee) on the ground of disease? A: 1. The employer (Er) shall not terminate his employment unless: a. There is a certification by a competent public health authority b. That the disease is of such nature or at such a stage that it cannot be cured within a period of 6 months even with proper medical treatment. 2. If the disease or ailment can be cured within the period, the Er shall not terminate the Ee but shall ask the Ee to take a leave. The Er shall reinstate such Ee to his former position immediately upon the restoration of his normal health. (Sec. 8, Rule I, Book VI, IRR) Q: Is an employee suffering from a disease entitled to reinstatement? A: Yes, provided he presents a certification by a competent public health authority that he is fit to return to work. (Cebu Royal Plant v. Deputy Minister, G.R. No. L58639, Aug. 12, 1987) Q: Is the requirements of a medical certificate mandatory?

A: Yes, it is only where there is a prior certification from a competent public authority that the disease afflicting the employee sought to be dismissed is of such nature or at such stage that it cannot be cured within 6 months even with proper medical treatment that the latter could be validly terminated from his job. (Tan v. NLRC, G. R. No. 116807, April 14, 1997) Note: Termination from work on the sole basis of actual perceived or suspected HIV status is deemed unlawful. (Sec. 35, R.A. 8504 HIV/AIDS Law) (3)Backwages Q: What are backwages? A: It is the relief given to an employee (Ee) to compensate him for the lost earnings during the period of his dismissal. It presupposes illegal termination. Note: Entitlement to backwages of the illegally dismissed Ee flows from law. Even if he does not ask for it, it may be given. The failure to claim backwages in the complaint for illegal dismissal is a mere procedural lapse which cannot defeat a right granted under substantive law. (St. Michaels Institute v. Santos, G.R. No. 145280, Dec. 4, 2001) Q: What is the basis of awarding backwages to an illegally dismissed employee (Ee)? A: The payment of backwages is generally granted on the ground of equity. It is a form of relief that restores the income that was lost by reason of the unlawful dismissal; the grant thereof is intended to restore the earnings that would have accrued to the dismissed Ee during the period of dismissal until it is determined that the termination of employment is for a just cause. It is not private compensation or damages but is awarded in furtherance and effectuation of the public objective of the LC. Nor is it a redress of a private right but rather in the nature of a command to the employer to make public reparation for dismissing an Ee either due to the formers unlawful act or bad faith. (Tomas Claudio Memorial College Inc., v. CA, G.R. No. 152568, Feb. 16, 2004) Q: What is the period covered by the payment of backwages? A: The backwages shall cover the period from the date of dismissal of the employee up to the date of: 1. Actual reinstatement, or if reinstatement is no longer feasible 2. Finality of judgment awarding backwages (Buhain v. CA, G.R. 143709, July 2, 2002) Note: The backwages to be awarded should not be diminished or reduced by earnings elsewhere during the period of his illegal dismissal. The reason is that the Ee while litigating the illegality of his dismissal must earn a living to support himself and his family. (Bustamante v. NLRC, G.R. No. 111651, Mar. 15, 1996; Buenviaje v. CA, G.R. No. 147806, Nov. 2002) (a)Components of the amount of backwages Q: What is included in the computation of backwages? A: They cover the following: 1. Transportation and emergency allowances 2. Vacation or service incentive leave and sick leave 3. 13th month pay Note: Facilities such as uniforms, shoes, helmets and ponchos should not be included in the computation of backwages because said items are given for free, to be use only during official tour of duty not for private or personal use. The award of backwages is computed on the basis of 30day month. (JAM Trans Co. v. Flores, G.R. No. L63555, Mar. 19, 1993) Q: What does the term full backwages mean? A: The Labor Code as amended by R.A. 6715 points to "full backwages" as meaning exactly that, i.e., without deducting from backwages the

earnings derived elsewhere by the concerned Ee during the period of his illegal dismissal. (Buenviaje v. CA, G.R. 147806, Nov. 12, 2002) The underlying reason for this ruling is that the employee, while litigating the legality (illegality) of his dismissal, must still earn a living to support himself and family, while full backwages have to be paid by the employer as part of the price he has to pay for illegally dismissing his Ee. (Bustamante v. NLRC, G.R. No. 111651, Mar. 15, 1996) Q: Is an Ee entitled to backwages even after the closure of the business? A: Yes. The closure of the business rendered the reinstatement of complainant to her previous position impossible but she is still entitled to the payment of backwages up to the date of dissolution or closure. An employer found guilty of unfair labor practice in dismissing his Ee may not be ordered to pay backwages beyond the date of closure of business where such closure was due to legitimate business reasons and not merely an attempt to defeat the order of reinstatement. (Pizza Inn v. NLRC, G.R. No. 74531, June 28, 1988) Q: What are the circumstances that prevent award of backwages? A: 1. Dismissal for cause 2. Death, physical or mental incapacity of the employee 3. Business reverses 4. Detention in prison DAMAGES If the evidence adduced by the employee before the Labor Arbiter should establish that the employer did indeed terminate the employees services without just cause or without according him due process, the Labor Arbiters judgment shall be for the employer to reinstate the employee and him backwages, or exceptionally, for the employee simply to receive separation pay. These are reliefs explicitly prescribed by the labor code. But any award of moral damages by the Labor Arbiter obviously cannot be based on the labor code but would be grounded on the Civil Code. Such an award cannot be justified solely upon the premise (otherwise sufficient for redress under the Labor Code) that the employer fired his employee without just cause or due process (Suario vs. Bank of the Philippine Islands). MORAL DAMAGES Moral damages may be awarded to compensate one for diverse injuries such as mental anguish, besmirched reputation, wounded feelings and social humiliation. It is however, not enough that such injuries have arisen. It is essential that they have sprung from a wrongful act or omission of the defendant which was the proximate cause thereof (Suario vs. BPI). Damages Award of moral and exemplary damages for an illegally dismissed employee is proper where the employee had been harassed and arbitrarily terminated by the employer. Moral damages may be awarded to compensate one for diverse injuries such as mental anguish, besmirched reputation, wounded feelings and social humiliation occasioned by the employers unreasonable dismissal of the employee. (Cruz v. NLRC, 2000) To warrant an award of moral damages, it must be shown that the dismissal of the employee was attended to by bad faith, or constituted an act oppressive to labor, or was done in a

manner contrary to morals, good customs or public policy. (Nueva Ecija Electric Cooperative, Inc. v. NLRC, 2000) Moral damages are recoverable only where the dismissal of the employee was tainted by bad faith or fraud, or where it constituted an act oppressive to labor, and done in a manner contrary to morals, good customs, or public policy. Exemplary damages may be awarded only if the dismissal was done in a wanton, oppressive, or malevolent manner. None of these circumstances exist in the present case. (Permex, Inc. v. NLRC, 2000) Determination of Amount In determining the amount of damages recoverable, the business, social and financial position of the offended parties and the business and financial position of the offender are taken into account. (Nueva Ecija Electric Cooperative, Inc. v. NLRC, 2000) Termination of employment by employee Q: How can an employee (Ee) terminate his service with his employer (Er)?

A: 1. Without just cause by serving written notice on the Er at least 1 month in advance. The Er upon whom no such notice was served may hold the Ee liable for damages. 2. With just cause an Ee may put an end to employment without serving any notice on the Er for any of the following just causes: a. Serious insult by the Er or his representative on the hour and person of the Ee b. Inhuman and unbearable treatment accorded the Ee by the Er or his representative c. Commission of a crime or offense by the Er or his representative against the person of the Ee or any of the immediate members of his family d. Other causes analogous to any of the foregoing Q: When is employment not deemed terminated? A: 1. Bona fide suspension of the operation of a business or undertaking for a period not exceeding 6 months, or 2. The fulfillment by the Ee of a military or civic duty shall not terminate employment. Note: In all such cases, the Er shall reinstate the Ee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than 1 month from the resumption of operations of his Er or from his relief from the military or civic duty. (Art. 286Retirement. - Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract.) (as amended by the Retirement Pay Law RA 7641) Exempted: retail, service, agricultural establishments operations employing not more than 10 employeesExempted: retail, service, agricultural establishments operations employing not more than 10 Employees What is the retirement age in the absence of a retirement plan or other applicable agreement?

A: 1. Optional 60 years old / 5 years in service (includes authorized absences, vacations, regular holidays, mandatory military or civic service) Note: The option to retire upon reaching the age of 60 years or more but not beyond 65 is the exclusive prerogative of the employee (Ee) if there is no provision on retirement in a CBA or any other agreement or if the employer (Er) has no retirement plan. (R.A. 7641; Capili v. NLRC, G.R. No. 117378, Mar. 26, 1997) Compulsory 65 years old, regardless of years of service (company is not bound to dismiss Ee; it is automatic). (Sec. 4, Rule II, Book VI, IRR) Note: Retirement benefits, where not mandated by law, may be granted by agreement of the Ees and their Er or as a voluntary act on the part of the Er. Retirement benefits are intended to help the Ee enjoy the remaining years of his life, lessening the burden of worrying for his financial support, and are a form of reward for his loyalty and service to the Er (Aquino v. NLRC, G.R. No. 87653, Feb. 11, 1992) Benefits 1/2 month salary per year of service which shall include: 1. 15-day basic wage, plus 2. 1/12 of the 13th month pay, plus 3. 5-day Service incentive leave pay plus 4. other benefits as maybe agreed upon by employer and employee (a fraction of at least 6 months considered as 1 year) Minimum benefits to be received = (no. 1 + no. 2 + no. 3) x years of service If CBA / retirement plan has no prohibition, an employee can get pay under the law, CBA, and the retirement plan. If what is provided in the CBA is lower that what is provided for in law, the employee is entitled to the higher amount. Can Art. 287 of the LC (on retirement) as amended by R.A. 7641 be applied retroactively? A: Yes, provided: 1. The claimant for retirement benefits was still the employee of the employer at the time the statute took effect; and 2. The claimant was in compliance with the reqts for eligibility under the statute for such retirement benefits. (PSVSIA v. NLRC, G.R. No. 115019, April 14, 1997) Q: Are the provisions of the retirement plan binding as part of the employment contract? A: Yes. The retirement plan forms part of the employment contract since it is made known to the Ees and accepted by them, and such plan has an express provision that the company has the choice to retire an Ee regardless of age, with 20 years of service, said policy is within the bounds contemplated by the LC. Moreover, the manner of computation of retirement benefits depends on the stipulation provided in the company retirement plan. (Progressive Devt Corporation v. NLRC, G.R. No. 138826, Oct.30, 2000) Resignation Definition The voluntary act of an EE who finds himself in a situation where he

believes that personal reasons cannot be sacrificed in favor of the exigency of the service and he has no other choice but to dissociate himself from his employment. (Habana vs. NLRC, 1998) Requisites of Resignation: 5. Unconditional (Azcor Manufacturing, Inc. v. NLRC, 1999) 6. Intention to relinquish a portion of the term of office accompanied by an act of relinquishment. (Azcor Manufacturing, Inc. v. NLRC, 1999) - No valid resignation where it was made without proper discernment (Metro Transit Organization, Inc. v. NLRC, 1998) 4. Voluntary (Pascua v. NLRC, 1998) 4. Acceptance of ER necessary to make the resignation effective (Shie Jie Corp./Seastar Ex-im Corp. v. National Federation of Labor, 2005; Reyes v. CA, 2003) - Resignations, once accepted and being the sole act of the employee, may not be withdrawn without the consent of the employer. (Intertrod Maritime, Inc. v. NLRC, 1991) Rule: Filing of an illegal dismissal case is inconsistent with resignation (Valdez v. NLRC, 98) Willi Hahn Enterprises v. Maghuyop, 2004: The rule that the filing of a complaint for illegal dismissal is inconsistent with resignation is not applicable to the instant case. The filing of an illegal dismissal case by respondent was evidently a mere afterthought. It was filed not because she wanted to return to wok but to claim separation pay and back wages. RESIGNATION PAY The general rule is that an employee who voluntarily resigns from employment is not entitled to separation pay, unless there is a stipulation for payment in the employment contract or Collective Bargaining Agreement, or payment of the amount is sanctioned by established employer practice or policy (Travelaire & Tours Corp. vs. N. Medelyn).