LABOR LAW FINALS

1. Art. 280 Regular and Casual Employment (Includes exceptions,

concepts & security of tenure)

Regular employment is not synonymous with permanent employment,

because there is no such thing as a permanent employment. Any employee
may be terminated for just cause.
A regular employee is one who is engaged to perform activities which are
necessary and desirable in the usual business or trade of the employer as
against those which are undertaken for a specific project or are seasonal.
There are two separate instances whereby it can be determined that an
employment is regular:
(1) if the particular activity performed by the employee is necessary or
desirable in the usual business or trade of the employer; and
(2) if the employee has been performing the job for at least a year
Reasonable connection rule: Standard of determination
The primary standard in determining regular employment is the reasonable
connection between the particular activity performed by the employee in
relation to the usual business or trade of the employer. The connection can
be determined by considering the nature of the work performed and its
relation to the scheme of the particular business or trade in its entirety. The
repeated and continuing need for the performance of the job has been
deemed sufficient evidence of the necessity, if not indispensability of the
activity to the business.
Hiring for an extended period
Where the employment of project employees is extended long after the
supposed project has been finished, the employees are removed from the
scope of project employees and considered regular employees.
Project employment
Employment fixed on a specific project or undertaking, completion or
termination of which is determined at the time of engagement of the
employee.
Must have been forewarned of the nature/scope and duration of the project.
Whether or not the project has a direct relation to the business of the ER is
not important, BUT:
EE must be informed of the nature and duration of project
project and principal business of ER are two separate things
no attempt to deny security of tenure to the worker
Test of project employment
The principal test for determining whether employees are properly
characterized as "project employees," as distinguished from "regular
employees," is whether or not the project employees were assigned to carry
out a "specific project or undertaking," the duration and scope of which were
specified at the time the employees were engaged for that project. As
defined, project employees are those workers hired:
(1) for a specific project or undertaking, and
(2) the completion or termination of such project or undertaking has been
determined at the time of the engagement of the employee.
Indicators of project employment
(1) The duration of the specific/identified undertaking for which the worker is
engaged is reasonably determinable;

(2) 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 the hiring;
(3) The work/service to be performed by the employee is in connection with
the particular project/undertaking for which he is engaged;
(4) The employee, while not employed and awaiting engagement, is free to
offer his services to any other employer;
(5) The termination of his employment in the particular project/undertaking
is reported to the DOLE Regional Office having jurisdiction over the
workplace within 30 days following the date of his separation from work,
using the prescribed form on employees terminations /dismissals
/suspensions;
(6) An undertaking in the employment contract by the employer to pay
completion bonus to the project employee as practiced by most
Rationale for project employment
If a project has already been completed, it would be unjust to require the
employer to maintain them in the payroll while they are doing absolutely
nothing except waiting until another project is begun, if at all. In effect, these
stand-by workers would be enjoying the status of privileged retainers,
collecting payment for work not done, to be disbursed by the employer from
profits not earned.
Work pool employee
A project EE or a member of a work pool may acquire the status of a regular
employee when the following concur:
(1) There is a continuous rehiring of project employees even after cessation
of a project; and
(2) The tasks performed by the alleged project employee are vital,
necessary, and indispensable to the usual business or trade of the employer.
However, the length of time during which the EE was continuously rehired is
not controlling, but merely serves as a badge of regular employment.
A work pool may exist although the workers in the pool do not receive
salaries and are free to seek other employment during temporary breaks in
the business, provided, that the worker shall be available when called to
report for a project. Although primarily applicable to regular seasonal
workers, this set-up can likewise be applied to project workers insofar as the
effect of temporary cessation of work is concerned.
Members of a work pool from which a company draws its project employees,
if considered employees of the company while in the work pool, are nonproject employees, or employees for an indefinite period. If they are
employed in a particular project, the completion of the project or any phase
thereof will not mean severance of the employer-employee relationship.

Casual employment
When not regular, project or seasonal employee.
Requirements to become Regular employees:
(1) one (1) year service, continuous or broken
(2) with respect to activity employed
(3) employment shall continue while such activity exists
Nature of work
What determines regularity or casualness is not the employment contract,
written or otherwise, but the nature of the job. If the job is usually necessary
or desirable to the main business of the employer, then employment is
regular.

Fixed term employment

Article 280 of the Labor Code does not proscribe or prohibit an employment
contract with a fixed period provided the same is entered into by the parties,
without any force, duress or improper pressure being brought to bear upon
the employee and absent any other circumstance vitiating consent.
It does not necessarily follow that where the duties of the employee consist
of activities usually necessary or desirable in the usual business of the
employer, the parties are forbidden from agreeing on a period of time for the
performance of such activities. There is thus nothing essentially
contradictory between a definite period of employment and the nature of the
employee's duties.
Requisites for validity
Fixed-period employees/ term employment
This arrangement does NOT circumvent Security of Tenure when:
(1) Knowingly and voluntarily agreed upon by the parties without any force,
duress, or improper pressure or any other circumstances vitiating his
consent; OR
(2) 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
(3) If a contract is for a fixed term and the Employee is dismissed without
just cause, he is entitled to the payment of his salaries corresponding to the
unexpired portion of the employment contract.
SECURITY OF TENURE
Definition
Right not be removed from ones job without valid cause and valid
procedure.
Art. 279: in case of regular employment, the employer shall not terminate
the services of an employee except for
a. just cause (Art. 282)
b. authorized cause (Art. 283-284)
Nature
It is a constitutionally protected right (Art. XIII Sec. 3, 1987 Constitution); it
cannot be blotted out by an employment contract.
It does not give the Employee an absolute right to his position; when a
transfer is not unreasonable, nor inconvenient, nor prejudicial to an
employee; and it does not involve a demotion in rank or diminution of his
pay, benefits, and other privileges, the employee may not complain that it
amounts to constructive dismissal.
A finding of illegal dismissal entitles the Employee to:
(1) reinstatement without loss of seniority rights and privileges, and
(2) full backwages inclusive of allowances and to benefits or their monetary
equivalent from the time withheld up to actual reinstatement (Art. 279)
Separation pay in lieu of reinstatement: Doctrine of Strained Relations:
If reinstatement is not feasible, expedient or practical, as where there is
strained relations between the parties, particularly where the; illegally
dismissed employee held a managerial or key position.

2. Sessions Delights
Session Delights Ice Cream and Fast Foods vs Court of Appeals

12 SCRA 10 Labor Law Labor Relations NIRC Remedies Computation of

Backwages/Separation Pay
Adonis Flora filed an illegal dismissal case against Session Delights and Fast
Foods (Session Delights). In February 2001, the labor arbiter, Monroe
Tabingan, ruled in favor of Flora and ordered Session Delights to pay Flora
the following: P26k backwages, P2k 13th month pay, P4.4k separation pay,
P5k damages, and P3.7k attorneys fees a total of about P41k.
Instead of paying Flora, Session Delights appealed the decision of the arbiter.
The National Labor Relations Commission (NLRC) affirmed the decision of the
arbiter. Unsatisfied, Session Delights appealed to the Court of Appeals (CA).
The CA affirmed the decision of the NLRC but deleted the award of
13th month pay as well as the award of P5k in damages. The CA then ordered
the labor arbiter to make a recomputation.
The arbiter made the recomputation and so Session Delights was ordered to
pay Flora the amount of P253k. Session Delights again appealed, but this
time it only appealed the recomputation as it avers that the amount in the
original decision of the Labor Arbiter should be controlling, in short, the
period that lapsed during the time of appeal should not be included in
computing the backwages.
The CA ruled that other than the inclusion again of the 13 th month pay and
the P5k damages, the computation made by the Labor Arbiter is correct.
ISSUE: Whether or not the Court of Appeals is correct.
HELD: Yes. As a rule, backwages is computed from the time of the illegal
dismissal up to the time of actual reinstatement. If reinstatement is no longer
possible, it is computed until the finality of the decision. In this case, the
decision became final when Session Delights no longer appealed the CA
decision affirming the finding of illegal dismissal against Session Delights or
on July 29, 2003. Hence, the original computation made by the labor arbiter
in its February 2001 decision must be recomputed to include the period until
July 29, 2003. The fact that Session Delights liability increased from P41k to
P253k (less the erroneous inclusions) is but an unavoidable consequence of
Session Delights appeal since it lost on appeal.
But does this violate the principle of immutability of judgment considering
the fact that the original decision of the labor arbiter already provided for a
computation?
No. In these types of cases, there are two parts of the decision issued by the
arbiter. The first part is the finding of illegal dismissal against the employer.
The second part is the computation of whatever is due to the employee who

was illegally dismissed. The decision of the arbiter is immediately final and
executory subject to a timely appeal by the losing party. As a rule, if a
decision is affirmed on appeal, the dispositive portion of the original decision
controls (subject of course to modifications made by the appellate court). In
this case, the finding of illegal dismissal stays, but the computation must be
done again pursuant to the rule that the end period must be until the finality
of the decision. This does not violate the principle of immutability of
judgment.

3. What happens when the majority union has changed and there is
an existing CBA?
Art. 253. Duty to bargain collectively when there exists a collective
bargaining agreement.
When there is a collective bargaining agreement, the duty to bargain
collectively shall also mean that neither party shall terminate nor modify
such agreement during its lifetime. However, either party can serve a written
notice to terminate or modify the agreement at least sixty (60) days prior to
its expiration date. It shall be the duty of both parties to keep the status
quo and to continue in full force and effect the terms and conditions
of the existing agreement during the 60-day period and/or until a new
agreement is reached by the parties.
Arts. 255, 256:
The labor union designated or selected by the majority of the employees in
an appropriate collective bargaining unit shall be the exclusive
representative of the employees in such unit for the purpose of collective
bargaining.
Book V Rule IX Sec 15 (as amended by D.O. 40-F-03 Series of 2008,
Nov. 8, 2008)The union which obtained a majority of the valid votes cast shall be certified
as the sole and exclusive bargaining agent of all the employees in the
appropriate bargaining unit within five (5) days from the day of the election,
provided no protest is recorded in the minutes of the election.

4. CABO System
It is formed primarily to safe guard the right of its members acting as a
supplier of labor whether in the capacity of an agent of the employer or as
an ostensible independent contractor. A union is not allowed to engage in
such system.
5. Contract Bar Rule
Existence of a CBA duly filed and submitted to the DOLE bars a certification
election in the CBA, except within the 60 days prior to the expiration of such
contract.

6. Prohibited Labor Practice (Di ko alam kung pareho to ng Unfair Labor

Practice o kaya unfair kaya siya prohibited)

Q: What are the ULP that may be committed by Employers?

A:
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. Gross violation of CBA
Unfair Labor Practice (ULP): Definition
Art. 212 (k) Unfair labor practice - any unfair labor practice as expressly
defined by the Code.
Art. 247
Unfair labor practices violate the constitutional right of workers and
employees to self-organization
These are inimical to the legitimate interests of both labor and management,
including their right to bargain collectively and otherwise deal with each
other in an atmosphere of freedom and mutual respect, disrupt industrial
peace and hinder the promotion of healthy and stable labor-management
relations.
Unfair Labor Practices are not only violations of the civil rights of both labor
and management but are also criminal offenses
Purpose of the Policy against ULP
Protection of right to self-organization and/or collective bargaining:
(1) The employee is not only protected from the employer but also from labor
organization
(2) Employer is also protected from ULP committed by a labor organization
(3) The public is also protected because it has an interest in continuing
industrial peace
Unfair labor practice refers to acts that violate the workers right to organize.
The prohibited acts are related to the workers right to self-organization and
to the observance of a CBA. Without that element, the acts, no matter how
unfair, are not unfair labor practices. The only exception is Art. 248 (f) [i.e. to
dismiss, discharge or otherwise prejudice or discriminate against an
employee for having given or being about to give testimony under this
Code].
ULP: Employer-Employee Relationship Required
An unfair labor practice may be committed only within the context of an
employer-employee relationship (American President Lines v. Clave,
1982)
Exception: Yellow Dog Condition: To require as a condition of
employment that a person or an employee shall not join a labor organization
or shall withdraw from one to which he belongs. (Art 248 [b])
ULP: Statutory Construction
The Labor Code does not undertake the impossible task of specifying in
precise and unmistakable language each incident which constitutes an unfair
labor practice. Rather, it leaves to the court the work of applying the law's
general prohibitory language in light of infinite combinations of events which
may be charged as violative of its terms.
ULP: Not Cured by Estoppel
The eventual signing of the CBA does not operate to estop the parties from
raising unfair labor practice charges against each other.
7. Right to Self Organization

Who may unionize for purposes of collective bargaining (covered

employees/workers)
(a) All Employees (General Rule)
Right to Self-Organization: Coverage
General Rule: ALL employees of all kind of employers public or private,
profit or non-profit, commercial or religious. (Art. 243)
Employee: Definition
Who is an employee? Art. 212(f). Employee includes:
(1) Any person in the employ of an employer
(2) The term shall not be limited to the employees of a particular employer,
unless this code explicitly states.
(3) It shall include any individual whose work has ceased as a result of or in
connection with any current labor dispute or because of any unfair labor
practice if he has not obtained any other substantially equivalent and regular
employment
Rank-and-File Employees: Definition
IRR Book V Rule I Sec. 1:
(nn) Rank-and-File Employee refers to an employee whose functions are
neither managerial nor supervisory in nature.
Art. 244 now allows employees of non-profit organizations to join, form
and/or assist labor organizations.
(1) Government Corporate Employees (Corporations created under
the Corporation Code)
Art. 244. Right of Employees in the Public Service
Employees of government corporations established under the corporation
code shall have the right to organize and to bargain collectively with their
respective employers.
1987 Constitution, Art. IX-B, Sec. 2 (5)
5. The right to self-organization shall not be denied to government
employees.

E.O. 180, Sec. 2

All government employees can form, join, or assist employees organizations
of their own choosing for the furtherance and protection of their interests.
They can also form, in conjunction with appropriate government authorities,
labor-management committees, work councils and other forms of workers
participation schemes to achieve the same objectives.
(2) Supervisory Employees
Art. 212 (m). Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if the exercise of
such authority is not merely routinary or clerical in nature but requires the
use of independent judgment.
Art. 245. Ineligibility of Managerial Employees to Join any Labor
Organization; Right of Supervisory Employees
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-and-file employees but may join, assist or
orm separate labor organizations of their own.
Why cant supervisors join a union of rank-and-file?

This policy of segregation is founded on fairness to the employer and the

employees themselves. It will be detrimental to the employer if the
supervisors and the rank-and-file, as members of only one union, could take
a common stand against the employer.
Supervisory employees, while in the performance of supervisory functions,
become the alter ego of the management in the making and the
implementing of key decisions. It would be difficult to find unity or mutuality
of interests in a bargaining unit consisting of a mixture of rank-and-file and
supervisory employees.
What is the Effect of Mixed Membership?
As stated in Article 245-A the employees that should not have been included
in membership are automatically deemed removed from the list of
membership.
Note: The rank and file union and the supervisors union operating the same
establishment may join the same federation or national union. (Art. 245).
(3) Aliens
Art. 269. Prohibition against Aliens; Exceptions
General Rule: They are strictly PROHIBITED from engaging directly or
indirectly in all forms of trade union activities
Exception: Aliens working in the country who:
(1) Have valid permits issued by DOLE
(2) Reciprocity: That said aliens are nationals of a country which grants the
same or similar rights to Filipino workers

IRR, Book V, Rule II, Sec. 2, Par. 1, 3rd sentence

Alien employees with valid working permits issued by the Department may
exercise the right to self-organization and join or assist labor unions for
purposes of collective bargaining if they are nationals of a country which
grants the same or similar rights to Filipino workers, as certified by the
Department of Foreign Affairs.
(4) Security Guards
The security guards and other personnel employed by the security service
contractor shall have the right:
To form, join, or assist in the formation of a labor organization of their own
choosing for purposes of collective bargaining and
To engage in concerned activities which are not contrary to law including
the right to strike.
In Dec 1986, President Aquino issued EO No. 111 which eliminated the
provision on the disqualification of security guards and with that
security guards were thus free to join a rank and file organization. Under the
old rule, security guards were barred from joining labor organizations of the
rank-and-file but under RA 6715, they may now freely join a labor
organization with the rank-and-file or the supervisory union, depending on
their rank.
(1) Who cannot form, join, or assist labor organizations
1. Managerial Employees and Confidential Employees
Who are managerial employees? (Functional Test)
Art. 212 (m) Managerial Employee
One who is vested with powers or prerogatives to:

(1) lay down and execute management policies, AND/OR

(2) to hire, transfer, suspend, lay off, recall, discharge, assign or discipline
employees.
Art. 245. Ineligibility of Managerial Employees to Join any Labor
Organization; Right of Supervisory Employees
1) Managerial employees are NOT eligible to join, assist or form any labor
organization.
2) Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form
separate labor organizations of their own.
Art. 245-A. Effect of Inclusion as Members of Employees Outside the
Bargaining Unit
The inclusion as union members of employees outside the bargaining unit
shall not be a ground for the cancellation of the registration of the union.
Said employees are automatically deemed removed from the list of
membership of said union.
Confidential Employees: (Nature of Access Test)
Confidential employees are those who:
(1) assist or act in a confidential capacity (integral part of the job)
(2) to persons who formulate, determine, and effectuate management
policies in the field of labor relations.
Note: These two criteria are cumulative, both must be met if an employee is
to be considered as confidential.
Even if an employee has access to confidential labor relations information
BUT such is merely incidental to his duties and knowledge hereof is NOT
necessary in the performance of such duties, said access does not render the
employee a confidential employee.
Exclusion of Confidential Employees: Rationale
Employees should not be placed in a position involving a potential conflict of
interests.
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. {Thus there is a fiduciary
and confidential relationship between manager and employer.} It is not farfetched that in the course of CB, they might jeopardize that interest which
they are duty bound to protect.

7. Assumption of Jurisdiction
8. Resignation while under investigation
Resignation
Definition
The voluntary act of an Employee who finds himself in a situation in which 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.
Requisites
(1) Unconditional
(2) Intention to relinquish a portion of the term of office accompanied by an
act of relinquishment.
(3) No valid resignation where it was made without proper discernment
(4) Voluntary
(5) Acceptance of Employer necessary to make the resignation effective.

Resignations once accepted and being the sole act of the employee, may not
be withdrawn without the consent of the employer.
The law affords the employee the right to resign regardless of whether the
company has found an able and competent replacement and whether the
operation of the company would be affected, provided he serves a written
notice on the employer at least 1 month in advance. The rule requiring the
employee to stay or complete the 30 day period to the effectivity of his
resignation becomes discretionary on the part of the management as an
employee who intends to resign may be allowed a shorter period before his
resignation becomes effective.
Hence, while an employee under investigation may file for a resignation, he
must do so with 30 days prior notice and it will be discretionary upon the
employer to complete or shorten said period.

9. Management Prerogative (Employment

Managements desire to close business)

Termination

due

to

Management prerogatives
(1) Discipline
(2) Right to dismiss or otherwise impose disciplinary sanctions upon an
employee for just and valid cause, pertains in the first place to the
employer, as well as the authority to determine the existence of said cause
in accordance with the norms of due process.
(3) To Demote
(4) To Dismiss it is a measure of self protection
Requisites for the validity of management prerogative affecting
security of tenure
(1) Exercised in good faith for the advancement of the Employer's interest,
and
(2) NOT for the purpose of defeating or circumventing the rights of the
Employees under special laws or under valid agreements
JUST AND VALID CAUSE INCLUDES:
Closure
Employer may close or cease his business operations or undertaking even if
he is not suffering from serious business losses or financial reverses, as long
as he pays his employees their termination pay in the amount corresponding
to their length of service.
10. Effect of the Legitimacy of a Union
If registered with the DOLE, it is considered a legitimate labor organization
(LLO). An LLO has the legal personality to demand collective bargaining with
the employer, it can petition for a certification election and hold a legal
strike. Being registered with DOLE makes a labor organization legitimate in
the sense that it is clothed with the legal personality to claim representation
and bargaining rights enumerated in in Art. 242 and Art. 255 or to strike or
picket under Art. 263.
An unregistered labor organization may still be considered an organization
and may still deal with the employer but they have none of the
aforementioned rights.