Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
First Meeting
HISTORY OF LABOR LAW
Labor laws has a shorter tradition than
Criminal Law and Civil Law. Probably the
longest tradition is Criminal Law followed by
Civil Law. But Labor Legislation just came
about after the Industrial Revolution.
THE INDUSTRIAL REVOLUTION
The reason...
For the first time in human history, there came
about a class of people no longer tied to the
land. Before the Industrial Revolution, there
was no mass production no factory.
The basic configuration of society was a
kingdom. There was a king or a prince a
head in the land and the people work the land.
It was called the kingdom set-up.
The potentate protected the subjects (they
were not citizens but they were subjects) from
the enemies like marauders, brigands, in the
confusion of the middle ages.
But then, what changed all that is
technology. When the spinning wheel was
invented, that gave birth to the textile
factories.
Before there was a textile factory, the
ordinary man just have one pair of clothes,
the one on his back. Can you just imagine that
kind of set-up? When you took a bath, that
was also the time when you washed your
clothes. You have to wait for your clothes to
dry, is it not? Magkurog-kurag ka dinha para
maghulat ka saimong sanina na muuga. That
was the set--up.
It was only with mass production that the
factories were built that you could sell and
bought clothes. There was no store selling
clothes.
Now, when the spinning gin was invented.
When the nobles found it profitable to raise a
lot of sheep and so the enclosure
movement came about, in England as well
as in France. They started to enclose huge
areas of lands which used to be planted by the
peasants. The peasants were driven out
because the factories were there. The plague.
Den
Can you imagine? One out of every 3 people in
Europe died because of the plague. What
brought about the plague? The rats! And the
rats abounded in the city because there was
no proper garbage disposal, etc. The city was
one big squatter area. There was no hygiene.
So that is what happened.
Now, unbeknownst to many and to them, the
fact that you were a survivor of the plague
made you very _____. Thats why the
conquerors of the new world in North and
South America, they could conquer so many
people. Many of the North American Indians
died not because of war, not because of
conquest, but they died because of plague.
The conquerors came and brought with them
the _____. The whole tribes would die
because they have no resistance. They also
died because of chicken pox. Ordinary na
hangga mangamatay tawn ang mga Indians
kay limpyo man sila (Haha :D). Tungod sa
mga ilaga, patay sila, tikangkang sila.
FEUDALISM
So before, if you were a subject of a landlord,
you have a home lot; and in that home lot you
built in your hut. And in that hut, not even the
prince can come in without your permission.
In your own hut, you were a king. So in your
home lot, you cannot share it with the king. As
to the other larger agricultural undertaking
where you planted corn etc., you cannot share
it with the king. So that kind of society does
not encourage initiative, is it not? Ngano
magpadako ug tanom na pag mas dako ang
gitanom, mas dako ug bahin ang hari? The
larger your harvest, the larger amount of
harvest that you have to give to the king, so
there is no incentive.
Thats the feudal set-up, attacked by Joma
Sison in his book. What is the book? Which
used to be the bible. Mao na ang gibandera sa
mga tao pag magdemonstrate sila. Ngano
nawala ang mga aktibista? Nawala ang mga
aktibista because they have come to realize
that socialism in its extreme form, which
is communism, does not work. Ang
nahibilin na lng kay is NK. Ang Cuba wala na.
What good was socialism in its extreme? It
was good enough to correct your heart.
As they say...
When you reach 20 and you are not a
communist, you dont have a heart. But
when you reach 30 and you are still a
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
communist, you have no brains.
Wa naman, it did not work sa Russia. China is
only communist in name. It is revealed that
every single member of the Politburo or the
central committee of communist China had an
offshore corporation including Xi Jin Ping, the
secretary general. Why? Because they have a
daughter, a son, a grandson or a
granddaughter who is studying in the US. No
matter how much they badmouth the US,
they send their children to study there. Why is
it that? Because the thesis of communism,
their analysis of society, it is practically the
same as our Constitution.
SOCIAL JUSTICE
Our Constitution presumes that our
society is not all right. In fact, it is fatally
defective. There is a serious imbalance
brought about the fact that so many and
vast majority do not have enough, and a
few have more resources to spend over
10 lifetimes. How do you address the
imbalance in society? You address that by
social legislation. Its a principle in our
Constitution.
What is social justice?
It is a pronounced thrust in the
Constitution to provide more in law to
those who have less in life.
Tagaan nimo sila ug daghang benepisyo, kay
wala man sila. Why? To correct the
imbalance. Why does the imbalance have to
be corrected? It is supposed to be
corrected for the sake of the general
welfare because left as it is, our society
is like a volcano, it can erupt anytime. So
in the end, all the beneficiary of social
justice is society in general.
The immediate beneficiary are those
mentioned in the Constitution, like cultural
minorities, etc. Among them are working
women.
Working women are singled out in the
Constitution. Subsistence fishermen, cultural
minorities. Why are traditional helpless
characters not in the Constitution? For
instance, orphans, widows, the non compos
Den
mentis, disabled not in the Constitution?
Because they are already taken care of in
the Civil Code, under the concept of
parens patriae.
When the factories began to come about,
there were no laws covering employment of
labor. They were exploiting children. They
hire children because they were some of
the most useful. Kanang mukamang sa mga
coal mines, naturally mga bata na sila. Wapa
may balaod ato.
The problem is, if the child in a coal mine was
the most vulnerable. When carbon monoxide
starts to seep out, the child, being small in
stature, has a very low resistance. So mao na
ang unang mamatay. Unsa man na ang ilang
detector pag mugawas na nang odorless,
colorless, tasteless na carbon monoxide?
Those small birds. The moment those birds go
up, lumba na na sila ug dagan sa gawas kay
naa na ang carbon monoxide. That was their
indicator in the coal mines.
Why was coal so important? Because coal
powered the train -- the locomotives.
So, for the first time, you have these people
without any land, wealth, and the only means
by which they could survive was out in the
factory. And because they were so many, it
was a capitalist society.
So, workplaces were not safe. If you met a
work-related injury, sickness or death, what is
your remedy? Your remedy was the ordinary
torts and damages provision of the Civil Code.
And the ordinary worker cannot sustain a
prolonged litigation. So the first labor
legislation that came out was EMPLOYERS
COMPENSATION/WORKMENS
COMPENSATION -- thats the first labor law.
You want to study employers compensation,
you have to go to England because that is
where it began.
So, does the US Constitution have social
justice? It does not. And yet our labor laws are
copied from the US labor laws. Labor
Standards Law are copied from the US Fair
Labor Standards Law. Our LabRel is copied
from their LabRel Act. Our Social Security is
copied from the US Social Security. But, there
are certain features in our law that supersede
their LabRel and LabStan.
Why dont they have social justice?
Because they presume that everyone in
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
their society stands in equal footing.
In the US, there is no such thing as security of
tenure. So if their engagement is for a term,
you can be fired at anytime. You can also
leave at anytime, with or without cause. For
us, if your engagement was for a term, the
employer can only terminate you if there is
just cause (ex: it is your fault). There is no
limit. The only limit is your retirement age.
Why is that? Thats because of social
justice. To tilt the balance, all of a sudden,
the employer who is not related to you
has the obligation to provide you with a
job without ____. Theres an obligation
to keep you working as long as there is
no just an authorized cause to dismiss
you; that he has a higher obligation to
support you than the parents who
brought you to this world. That is SOCIAL
JUSTICE.
Now, the economists are saying that
necessarily, the modern economy must be
able to withstand a certain amount of
unemployment. Why? Because there are
changes. The example that I could give is
cooking rice.
The original Filipino for cooking rice is using
pot. That alone made a job for so many
potters. Eventually, that was replaced by an
iron cauldron (kaldero). When the cauldron
started to come into use, the pot makers ran
put of job -- they became unemployed. Then
that kaldero was replaced by rice cooker. So
nawad.an ug trabaho ang tigbuhat ug kaldero.
Karon naa najud pyrex -- straight from the
oven, right to the table.
The usual unemployment, which is called
FRICTIONAL UNEMPLOYMENT, because of
the movement has now become
STRUCTURAL UNEMPLOYMENT.
Why did it become structural
unemployment? Because there is a 3rd
revolution/a post-industrial revolution.
The unemployment globally is the result of
_____. Those who can get those jobs are
those had spent the longest time in school
doing nothing. Those who did not have
enough schooling will remain _____. So, good
to realize that because this constitution when
it is made, subscribes one of its ideal tenets
FULL EMPLOYMENT! That is a myth. You
cannot have full employment. No decent
economist will tell you that society can
achieve full employment. There is always
Den
a fraction. If you are fully employed, then
you are the Soviet Union before it collapsed.
The State was the biggest employer and it
paid so many people. The finally the burden
was so heavy.
Now you see the SC decisions coming out.
Theyre exactly the opposite of what all the
presidential candidates have promised.
Remember, none of the candidates for
President were in favor of
contractualization. All pf them said, Im
going to abolish contractualization.
Everybody said that theyre against
contractualization. Regular work,
Constitution, no termination or dismissal.
The GDP and the GNP, the biggest
contributors are:
1.) OFW money, is it not? It runs for billions
of dollars a year. All of those people are
contractual workers!
2.) Second biggest contributor, BPO (call
centers). Theyre already approaching 24B a
year. Thats based on a contract. The call
center agency contracts with the principal
abroad. What happens if the principal abroad
says, No more. Cut off!??? They will be
terminated.
Now, all those candidates were making
promises they could not do.
CALIFORNIA RULING vis-a-vis
FRONTERA CASE
CALIFORNIA v. TABAS: If you employ a
____ promo marketing they are regular
workers because they are made to perform
activities which are usual and necessary to
the usual trade/business of the employer. I
want you to feel the basic issues -- what is it
outside.
Kaybaw ka anang mga special offer -- promo.
Mutoktok sa balay. Ex: naay mag.ingon na
palitan ning bag.ong skin whitener. The ruling
in CALIFORNIA is REGULAR. That is despite
what is written in the mother contract
between the indirect employer and the
manpower agency. The er-ee is with the Livi
Manpower Agency and not with the California
Agency. A promotional is a temporary activity.
The SC IN California: There is no consumer
products that does not go into promotional
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
merchandising. Therefore, it is usual and
necessary to the business of the employer.
That was the ruling in 1989. Now there is
FRONTERA.
FRONTERA v CA (2015 case). The SC now
says: It is valid contractualization.
Legitimizing contract employment despite a
specific provision in the Labor Law on
presumption of regularity.
Kanang corporations that are purely for selling
real property. Real property developers, they
go into a place, they buy a piece of land, they
develop it, and then they enter into a contract
with the real on marketing. Is that allowed?
ROYAL HOUSE (2014): That is bonafide
contractual employment. They are not
regular employees. Normally, the reasoning
what makes you regular is if you are engaged
to perform activities which are usual and
necessary to the trade or business of the
employer. If you are a developer, normal and
usual to you are the activity of developing is to
sell the lots or condominium units, otherwise,
why do you go and develop it? So the ____ of
it is USUAL and NECESSARY. So, the SC now
says, you can contract it out because it is not
usual and necessary to your business. If you
terminate the contract, then you can
terminate the employee. So what does that
tell you? The nature of work is changing. Sad
to say, our laws have to catch up to the
change.
SOCIAL JUSTICE
So SOCIAL JUSTICE begins as a mandate
from the fundamental law to the legislature to
pass laws in favor of the ____ of our society.
Now, it is also a mandate to the executive,
thats why the executive has several arms:
The DOLE, DAR, DSWD. Unsa man ni? They
have these different departments that will
execute these laws. And then, it is also a
mandate to the judiciary. What is the mandate?
As far as the social justice laws are concerned,
if there is a doubt, it must be interpreted
in favor of labor.
Article 4. Construction in Favor of Labor
All doubts in the implementation and
interpretation of the provisions of this
Code, including its implementing rules
Den
and regulations, shall be resolved in
favor of labor.
Now, another thing, you have seen in your
political law, all legislation necessary
involves classification. Is it not? There is
such a thing as UNDUE CLASSIFICATION
Kanang dili muabot ug 5 ft ang height, dli
mahimong bartender. Below 5 ft ka dli ka
mahimong pulis. The classification is germane
to the ____.
Because the classification is already made in
the Constitution, labor, working women,
subsistence fishermen, etc. Judicial
discretion is no longer available to hold
these legislations as products of undue
classification. Its already there in the
Constitution -- cannot be challenged.
Thats one effect why it is in the fundamental
law. And yet, all these things mentioned in
Article 13, Section 3 -- all the labor laws there
-- right to self organization, just and humane
conditions of work, security of tenure, just
share of fruits, etc. (taas kaau na). Even the
SC says that they are Constitutional rights.
They are NOT CONSTITUTIONAL RIGHTS!
Just because its just mentioned in the
Constitution they are constitutional rights.
The constitutional rights are the BILL OF
RIGHTS. They are there and they do not need
any implementing legislation. ALL labor rights
still need implementing legislation. They are
only constitutional rights in a secondary sense
-- in a sense that they are mentioned
Constitution. But they are not in the same
level as the BILL OF RIGHTS. Because the Bill
of Rights cannot even be repealed -- it is
taken out of the discretion of the legislature.
Because it cannot be touched. It is essential
for our form of govt and the nature of our
society.
So, it took the SC 25 years to come to a
realization that termination of an employee is
not a violation of due process.
SERRANO v. NLRC
EN BANC
(Justice Vicente Mendoza)
Held: That is not a violation of due process.
That is a violation of the requirement of
process in the Labor Code. Before you can
terminate anybody, you must give him 2
notices, you must investigate, etc. That is
found in the LC. Because your right to due
process is vis a vis your right. It is ______
your right with the employer.
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

say it is glaring because for the first time in

So, this is the crux: With respect to labor
rights -- security of tenure, the right to strike,
the right to organize a civilian -- theyre all
mentioned in the Constitution.
Suppose the legislature does not pass laws or
repeals this law, what happens? And you want
these rights restored. What is your remedy?
Can you go to the SC and ask for an
INJUNCTION to stop Congress from amending
this Labor Code? No! You have no judicial
remedy. You remedy is POLITICAL IN
NATURE. Who will pass laws that are
implementing the various labor laws, rights
that are mentioned in the Constitution. That is
your remedy. So very important!
SOCIAL JUSTICE is a thrust -- a pronounced
dimension -- but it requires IMPLEMENTING
LEGISLATION.
human history, there is now enough means,
enough organization, enough resources, to
raise enough food for the entire 7B of the
worlds population so that no one should go
hungry. And yet, there are people who go to
bed hungry at night! Those that are living
below ABSOLUTE POVERTY. What is absolute
poverty? A dollar a day -- P46.35. Thats
supposed to be the exchange rate.
Theoretically, no one today should live of less
than a dollar a day. We can raise enough food
for everybody. But because of POLITICAL
OBSTRUCTIONISM, ECONOMIC CONTROL,
etc. More than 200M are refugees. Can
you imagine, they are uprooted from their
place because either of man-made conflict or
natural calamity. (Discussion of Pikini Islands).
So, these are issues that affect our society
and are addressed on our Constitution on
SOCIAL JUSTICE.

SOCIAL JUSTICE v. PARENS PATRIAE Now, in your notes, I have given examples of
how social justice has been arrived by our
What is the difference between SOCIAL courts. ALMIRA v. BF GOODRICH...
JUSTICE and PARENS PATRIAE?
Almira v. BF Goodrich
SOCIAL JUSTICE PARENS PATRIAE (J. Enrique Fernando)
Is a permanent Is action by the State
posture of the State. by way of exception Facts: This is a MARTIAL LAW ERA
Because the problem -- now and then. DECISION. The ponente is Justice Enrique
in society is Fernando -- who became Chief Justice of the
STRUCTURAL -- so SC. This pronouncement was so-called
many have so little COMPASSIONATE JUSTICE was taken by
and only a few have the entire labor tribunals to be very
so much more. generous to employees if and when they
are terminated. Bisag pag nakasala sila, wa
Ex: You are Henry Sy may ____ benefits, the Labor Arbiter will
and you are valued at Ex: If there are order the payment of FINANCIAL
over US$12M. How orphans and there ASSISTANCE. Until finally the SC
many lifetimes do are relatives taking CORRECTED it!
you need to consume care of the orphans,
that? parens patriae is NOT
ACTIVATED. When did the SC put an end to FINANCIAL
ASSISTANCE for dismissals due to SERIOUS
MISCONDUCT? The SC corrected it in an EN
INEQUALITY is what social justice is BANC DECISION, PLDT v. NLRC (247 Phil
concerned. There are serious reflections on 641) 1988.
the problem of inequality.
So 1974 -- COMPASSIONATE JUSTICE
DECISION. It was finally overturned by an
They would say, if you begin with inequality,
EN BANC DECISION: PLDT v. NLRC
you will always end with inequality. We begin
with this world UNEQUAL. So kung ingon ana (1988). In spite the 1988 decision, Labor
ang sinugdanan, what is the end product? Arbiters still continued to order FINANCIAL
Inequality lng gihapon. ASSISTANCE for those that were
terminated. Not DISMISSED ha! Kanang
DISMISSED, for CAUSE na. Kanang
When is inequality, glaring inequality? They
TERMINATED, NEUTRAL CAUSE -- dli

Den 5
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
sayop sa employer.
Why are you TERMINATED? Because of
retrenchment, loss of ___ -- the employee
is NOT AT FAULT. When it is
AUTHORIZED CAUSE, there are
BENEFITS! But the Labor Arbiters awarded
FINANCIAL ASSISTANCE on top of
separation benefits. When was that
stopped? It was stopped in SOLIDBANK v.
NLRC (March 30, 2010).
And then, you have this from the PRIVATE
SECTOR, we go to the PUBLIC SECTOR. With
respect to erring employees in the GOVT, the
decision of the SC is erratic. Until, you have
this case of DUMDUMA v. CSC (Oct. 4,
2011)
DUMDUMA v. CSC
(Oct. 4, 2011)
658 SCRA 469
EN BANC DECISION
But, pay attention, it is a PERCURIAM
DECISION.
What is a PERCURIAM DECISION? It is
NOT SIGNED BY ANY JUSTICE. IT IS NOT
AUTHORED BY ANY JUSTICE. By court --
percuriam.
Now, in that decision, Justice Brion wrote a
very strong DISSENTING OPINION.
Facts: This is a member/officer of the PNP
who falsified his records and papers when he
was up for promotion to be General. They
discovered it. And these papers are all
submitted under oath. Not only under oath
but verified.
Whats the difference between under oath and
verified? Mupirma ka ana, subscribed and
sworn to. Then you execute another affidavit.
Ex: I Juan Dela Cruz... sworn in accordance
with law hereby state:
1.) That I caused the preparation of this
petition;
2.) That I have read the entirety of this
petition;
3.) That all that are contained in this petition
are true and correct of my own personal
knowledge. -- not to the best of my
knowledge ha.
Den
Di na ka ka-escapo ana. Di ka na makaingon
na, uy tinuod to, nalipat man ko uy! Sa
kadaghan na gisulti, dli na pwede kay niingon
man ka na gibasa na nimo tagsa2x. --
matag-usa ani tinuod sumala sa akong
pagkahibalo. Personal knowledge. Wa na, di
ka ka.escape ana. PERJURY ka ana. Dli lng kay
perjury but also FALSIFICATION OF PUBLIC
DOCUMENT.
That is the case of DUMDUMA v. CSC. And yet,
the court, in the name of SOCIAL JUSTICE,
awarded him RETIREMENT BENEFITS.
Unsa ba ni cya, hero ba ni cya? Unsa man
iyang nabuhat? Wa man na klaro sa decision.
Nakadakop ba ni cya? Nasamdan ba ni cya sa
encounter? Wa man. Pero ____ man tingali ni.
Ngano man? Kay PERCURIAM gud. Nauwaw
gud ang mga huwes! Pero nigawas ra gihapon
ang decision.
1 year later, the minority dissenting opinion of
Brion became the majority opinion of the
court EN BANC in the case of CSC v. ____:
Now, if you are a govt employee, and you are
DISMISSED FOR CAUSE, NO BENEFITS!
Absolutely no benefits! Is the length of
your service not mitigating? No it is not
mitigating. It is AGGRAVATING! The fact
that you have served the govt you should
have been faithful because it is the govt that
put food upon your table. So you should have
remained faithful. Thats what the SC says.
Is the fact that this is the one mistake that you
have -- you have no previous record -- is that
not mitigating? The SC says, no, that is not
mitigating. But, I am afraid because it just
took 1 year for the SC to move from
financial assistance to no financial
assistance, it must take a couple of years na
naa na sad bag.o na decision na tagaan sa
financial assistance.
Now, I put here this very famous case of
CEBU ROYAL v. DEPUTY MINISTER. This is
a decision penned by Justice Isagani Cruz
-- one of the more lyrical justices.
CEBU ROYAL v. DEPUTY MINISTER
Facts: The worker involved here is a
probationary worker of a big company -- San
Miguel Corp. -- then bottler of Royal ___. To
be admitted to San Miguel, you must pass the
medical examination before you become an
employee. But here in this instance, San Mig
forgot to administer medical examination on
this particular worker, until it was the even on
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
the last day of his probationary work. So he
was hurriedly pulled out from the assembly
line and made to undergo medical
examination and then he was released back to
the bottling line. His probationary period have
already ended when the results came out to
his medical examination. What was the
result? PULMONARY TUBERCULOSIS. Mao
ng giingon sa atong sinultihan na ubo2x.
Giingan cya na, sorry you have to go kay naa
kay TB.
Nagfile cya ug ILLEGAL DISMISSAL.Why? On
the strength of that provision Art. 295 of the
Labor Code: Any probationary employee
whos made to work beyond the
probationary period shall ipso facto
become regular -- that is what the law says.
So, the Labor Arbiter and NLRC held that he is
REGULAR. Saka sa SC -- wa pa may CA ato.
Held: We take this opportunity to
reaffirm our concern for the lowly worker
who, often at the mercy of his employers,
must look up to the law for his
protection. Fittingly, that law regards
him with tenderness and even favor and
always with faith and hope in his
capacity to help in shaping the nation's
future. It is error to take him for granted.
He deserves our abiding respect. How
society treats him will determine
whether the knife in his hands shall be a
caring tool for beauty and progress or an
angry weapon of defiance and revenge.
The choice is obvious, of course. If we
cherish him as we should, we must
resolve to lighten "the weight of
centuries" of exploitation and disdain
that bends his back but does not bow his
head.
Why is the WEIGHT OF CENTURIES in
quotation marks?
He does not believe that the worker has had
his burden for centuries? So why is it in
quotation marks? You have forgotten your HS
literature.
Have you heard of the poem The Man With
The Hoe by Edwin Markham?
Bowed by the weight of centuries he
leans
Upon his hoe and gazes on the ground,
The emptiness of ages in his face,
Den 7
And on his back, the burden of the world.
Who made him dead to rapture and
despair,
A thing that grieves not and that never
hopes,
Stolid and stunned, a brother to the ox?
Who loosened and let down this brutal
jaw?
Whose was the hand that slanted back
this brow?
Whose breath blew out the light within
this brain?
Is this the Thing the Lord God made and
gave
To have dominion over sea and land;
To trace the stars and search the
heavens for power;
To feel the passion of Eternity?
Is this the dream He dreamed who
shaped the suns
And marked their ways upon the ancient
deep?
Down all the caverns of Hell to their last
gulf
There is no shape more terrible than
this--
More tongued with cries against the
world's blind greed--
More filled with signs and portents for
the soul--
More packed with danger to the
universe.
What gulfs between him and the
seraphim!
Slave of the wheel of labor, what to him
Are Plato and the swing of the Pleiades?
What the long reaches of the peaks of
song,
The rift of dawn, the reddening of the
rose?
Through this dread shape the suffering
ages look;
Time's tragedy is in that aching stoop;
Through this dread shape humanity
betrayed,
Plundered, profaned and disinherited,
Cries protest to the Powers that made
the world,
A protest that is also prophecy.
O masters, lords and rulers in all lands,
Is this the handiwork you give to God,
This monstrous thing distorted and
soul-quenched?
How will you ever straighten up this
shape;
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Touch it again with immortality;
Give back the upward looking and the
light;
Rebuild in it the music and the dream;
Make right the immemorial infamies,
Perfidious wrongs, immedicable woes?
O masters, lords and rulers in all lands,
How will the future reckon with this
Man?
How answer his brute question in that
hour
When whirlwinds of rebellion shake all
shores?
How will it be with kingdoms and with
kings--
With those who shaped him to the thing
he is--
When this dumb Terror shall rise to judge
the world,
After the silence of the centuries?
Its an allegory of the working man and his
burden. Hes referring to that. The words with
the QUOTATION MARKS. Isagani Cruz is a
literature man.
So the WHOLE COURT is in favor of this,
SINGLE, SOLITARY, PROBATIONARY
WORKER whos taken off from his job.
Now, let us go to the DISPOSITIVE
PORTION -- because this is the only portion
in the decision that CAN BE EXECUTED! You
cannot file a MOTION FOR EXECUTION to be
compassionate to your worker. You can only
file a MOTION FOR EXECUTION to execute
the DISPOSITIVE PORTION. You know that
it is the dispositive portion because all
dispositive portions begin with the SAME
WORD: WHEREFORE.
WHEREFORE, the petition is DISMISSED
and the temporary restraining order of
November 18, 1981, is LIFTED. The Order of
the public respondent dated July 14, 1981, is
AFFIRMED, but with the modification that
the backwages shall be limited to three
years only and the private respondent
shall be reinstated only upon
certification by a competent public
health authority that he is fit to return to
work. Costs against the petitioner.
SO ORDERED.
Den
Mao lng diay gihapon. Ug ____ lng
gihapon ang iyang baga kay pa x-rayhan
man cya ug public health authority, city
health officer, di cya kabalik! shall be
reinstated only upon certification by a
competent public health authority that
he is fit to return to work. What does
that tell you? What the SC says is very
important. What the SC does is even
more important than what it says.
Despite all the high language here, mao
lng diay gihapon -- kinahanglan lng
gihapon tan.awon ang baga niya kng
ubo2x pa ba siya.
Now, in your notes, there is a list of ER-EE
relationship. There are many and there are
more coming -- new cases. Why is it
important? Because LABOR IS VERY
NARROW. Most service rendered to
another is free!
Ikaw huna-hunaa, most service that I
received is free. Did I pay for it? Its free! Ang
nagluto saimong pagkaon sukad sa gamay pa
ka wa nimo bayri. Ang naglimpyo saimong
balay, wa na nimo bayri. Gamay ra kaayo ang
ER-EE relationship covered by the Labor Code.
There is TENANT AND LANDLORD. The
tenant works on the land of the landlord unya
magbahin sila sa kita. He does not go to the
Labor Arbiter. Where does he go? To the DAR
AJUDICATORY BOARD! It is not the Labor
Code, but the Comprehensive Agrarian
Reform Law.
Theres INDEPENDENT CONTRACTING and
so on. There is a quasi-contract -- do you
remember what a QUASI-CONTRACT is?
NEGOTORIUM GESTIO -- No agreement of
compensation but you have to compensate
the one who took care of your business while
you are away, otherwise, UNJUST
ENRICHMENT! Do you bring that to the LA?
No! You bring that to court! And so on.
Thats why it is important whether or not it is
the Labor Code. Whether it is ER-EE
relationship.
And there are many kinds of contracts.
NOTE: You need to know whether it is ER-EE
relationship so you will know what forum to
resort to -- where to file the action. Whether
or not it is ER-EE relationship so that you will
know what law is applicable -- is it the LC, CC,
CARL? So that is why, these list of cases is
8
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
given to you.
IN THESE EXAMPLES, IS THERE ER-EE
RELATIONSHIP?
Are you familiar of DEEP SEA FISHING? Ang
tag-iya sa barko, magkuha cya ug patron.
Kanang patron, magkuha cya ug tawo --
tagaan niya ug usa ka sako na bugas. Ngadto
sa cya sa lawob, mamasol na cya. Pagbalik
niya, baligya tung unsay nakuha, deduct
dayon ang diesel, kadtong ilang pagkaon na
gidala, deduct dayon to. Unya, ang nahibilin,
tungaon. Katong financier ang tag.iya. Unya
kadtong mga tripolante, bahinon to nila ang
share sa patron with sa ____. 5 sila, unya ang
tripolante, 6 ka bahin. Is that ER-EE
RELATIONSHIP OR INDUSTRIAL
PARTNERSHIP?
Kanang sa Diwalwal naay tag.iya ug
destinasyon. Kanang head nila, ang
equivalent sa patron, mao na ang tawag nila
na ABANTERO. Unsa na? Kanang mubasa sa
___ sa bulawan. Naa cyay mga assistant, mao
na ang ginatawag na TAKER. Ang makuha,
you deduct electricity, water. Paghuman ug
deduct ana, tunga ang tag.iya sa destinasyon.
Doble ang share sa abantero kay cya man ang
maoy mubasa sa mina. Are they EMPLOYEES
or is this a BUSINESS PARTNERSHIP? Are
they INDUSTRIAL PARTNERS? Because in
a partnership you can have an
INDUSTRIAL PARTNER that does not
contribute any money or property but
COMPLETES AN INDUSTRY.
Kanang BOUNDARY -- JEEPNEY-- pa-drivon
nimo. Ang kasabotan kay ang boundary nato
mao ni. Human sa 24 hrs na sigeg padagan sa
taxi, hatag ka sa boundary. Unsa ka man, is
that LEASE or is that ER-EE
RELATIONSHIP? There is an old case which
is now reaffirmed by a 2006 decision of the
SC. Via Maria v. CA April 2006 (487 SCRA
571). HELD: The BOUNDARY SYSTEM is
ER-EE RELATIONSHIP -- Labor Code na!
That is NOT LEASE! Daghan kaau ang wa
kahibawo ana. Di na abang!
Second Meeting
TAKE CARE CLAUSE
I just came across the SHORTEST DECISION I
HAVE EVER READ: 9 WORDS. A decision by
the US Supreme Court, came out June 23,
2016. PER CURIAM -- The judgment is
Den
affirmed by an equally divided court: 4-4.
Why is it PER CURIAM? Because there is no
majority. This is now a very big topic of
IMMIGRATION. This is how the UK govt lost
in the stay of the Euro. Thats the problem of
international labor. Suppose to be no more
borders. But that was a big issue. The Premier
of the UK (David Cameron) just resigned a
couple of hours ago.
TAKE CARE CLAUSE -- This has already been
questioned in the BAR. What is the take care
clause? In the Philippines, I found out in our
Constitution, it is the INSURE CLAUSE.
But the President of the Republic shall insure
the implementation and execution of the laws
in the Philippines -- that is the TAKE CARE
CLAUSE
xxx because in the US Constitution, there is
no such thing as a TAKE CARE CLAUSE. This
was challenged in a INJUNCTION CASE --
Obamas EXECUTIVE ORDER -- the
so-called DACA & DAPA.
*DACA- Deferred Action for Children Arrivals
- if you are children, Obama says that you
should not be reported because under
International Law, children are privileged.
They should be taken care of by the country
where they are found. So Obama ordered
NO DEPORTATION FOR CHILDREN!
What happened? The number of children in
the US increased.
*DAPA- Deferred Action for Parents of
Americans -- you are an illegal undocumented
alien in the US. You got married to another
illegal undocumented alien. You give birth to a
child -- that child is an AMERICAN CITIZEN.
Obama issued an Executive Order -- the
parents can no longer be deported.
What happened? The Republicans -- 22 states
that were controlled by the Republicans --
filed an INJUCTION SUIT in the ordinary
court (Texas Court). Theyre saying that these
Executive Orders should be nullified, because
this is against the duty of the President to
TAKE CARE of the laws that are being
implemented. Our borders are sacred, hence,
there should be no unauthorized persons
coming to the United States. They won! They
go up to the DICTRICT COURT (CA pag dri sa
9
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Philippines) -- they also won! Now, it is the US
who went up to challenge.
First is PROCEDURAL -- assuming that you
have a standing, the question of
IMMIGARATION is a FEDERAL ISSUE
beyond national issue -- hence, that is not for
them to implement -- so therefore, they have
no standing! What is the argument of the
States? WE HAVE STANDING! Why?
Because the moment you are deferred for
deportation, you are eligible to obtain a
DRIVERS LICENSE! The State subsidizes a
part of the cost to pay the drivers license, so
taxpayers money is spent on you -- an illegal
and undocumented alien.
The Solicitor General of the United States says,
Never has the hopes of so many been
crushed by so few words. -- 9 words! And
the hopes of over 200k undocumented aliens
have been crushed!
Never has the hopes of so many been
crushed by so few words. -- Where is that
taken? That is taken is Winston Churchill,
1941, Battle of _____ -- 48 hours, bombed
London. And the Royal Airforce kept flying
even they were outnumbered. So many of
them for 48 hours have no sleep. Then finally
the Germans were defeated, Churchill said,
Never in the history of human conflict has the
hopes of so many been crushed by a few
words. Read all about it!
EMPLOYER-EMPLOYEE RELATIONSHIP
CASES
I would just like to point out to you the basics,
and then we move to the latest development,
some of which are not contained in this list.
But the LANDMARK CASE of LVN v.
Philippine Musicians Guild (1961) -- is
the most important LABOR CASE up to
this moment! So, if there is only one labor
case that you should have read, it should be
this! You do not go to Labor without having
read this. You must read this so many times.
Why? Because its a LANDMARK CASE for
ER-EE RELATIONSHIP and it is a
LANDMARK CASE FOR LABOR
RELATIONS which you will later on take up in
3rd yr.
Now, this case is not a normal case because of
the enumeration of the requisites of ER-EE
RELATIONSHIP. It is a LANDMARK CASE
because it gives the RADICAL
INTERPRETATION of understanding the 4
Den
requisites of ER-EE relationship.
The SC enunciated the 4 requisites of
ER-EE relationship. YOU HAVE ER-EE
RELATIONSHIP, according to the SC, if:
1.You have the selection of the
employees;
2.Payment of wages;
3.Power to dismiss;
4.Power of CONTROL -- the most
important! Control the MEANS & METHOD
and not only the GOAL to be achieved.
If you have those 4, there is ER-EE
RELATIONSHIP.
Now, think about this question, why is there
among the 4 no requirement to the rendering
of service? Can you have ER-EE relationship
even if no service is rendered? It seems YES
because that is not required in the 4
requisites.
The SC in LVN says that even if the 3
requirements are not complied with, but
if you comply with the 4th requisite (the
power of CONTROL), then there is ER-EE
relationship. So that is what is
REVOLUTIONARY about LVN.
LVN v. Philippine Musicians Guild 110
Phil 725 (1961)
Facts: They make movies, that is their
business. In making a movie, there is now,
music. Butngan jud nag music ang movie kay
makatulog man ang tawo. Now, the
appellants here in LVN and Premiere
Productions, they have a uniform way of going
about and making movies. Lets say, we will
shoot this movie. Before they will shoot the
move, they will choose a musical director. And
then they pay him a lumpsum amount,
because they agree as to what music should
be placed in this movie.the musical director
jus connects the existing music, and he will
take care of paying the royalties because
somebody owns this music already. Kng di ka
magbayad ug royalties, di maapil and music
sa movie, so problema na sa musical director.
Now, the musical director is the one who
chooses the musicians. He chooses the
composition of his musical ensemble. The one
who hires the musicians is not LVN or
Premiere Productions -- it is the musical
director. The one who pays them is not LVN or
10
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

Premiere Productions, it is the musical
director. The one who dismisses them is not
LVN or Premiere Productions, it is the musical
director. The musical director is not an
employee of LVN or Premiere Productions. He
is an INDEPENDENT CONTRACTOR,
engaged to produce the music that will be
appended to the movie. so the first 3
requisites is not present!
Held: There is ER-EE RELATIONSHIP! That
is why LVN and Premiere Productions have to
allow a certification of election because the
musicians wanted to form a labor union to
have a collective bargaining with LVN and
Premiere Productions.
The SC says, they must be allowed because
there is ER-EE RELATIONSHIP! LVN says,
no! They are not our employees! They are the
employees of the independent contractor that
we have engaged!
scene, the movie director comes in and
dictates the tenor and timing of the music. Its
the movie director who determines how slow
youll play, and it ceases to be the work of the
musical director. That is CONTROL according
to the SC! Because of that, there is ER-EE
relationship.
IF THE CONTROL TEST IS MET, EVEN IF
THE 3 PREVIOUS REQUISITES ARE NOT
MET, THERE IS ER-EE RELATIONSHIP.
THAT IS THE NOVELTY OF THE RULING
OF LVN v. Philippine Musicians Guild.
Now, LVN and Premiere Productions, they cite
a case why the ruling of the SC should not be
ER-EE relationship. What is that case? Also of
musicians. Tirso Cruz I v. Manila Hotel. He
is the grandfather of Tirso Cruz III.

In the case of Viana v. Al Lagadag: Out of

the 4 requisites, 3 are clearly not present!

Now, how is the 4th requisite (power to

CONTROL), how is that shown?

CALL SLIPS - when the musicians are

gathered for practice or for actual recording of
their music, they are called by the system of
slip! It tells the musician the time and where
he will be picked up. And then he goes there --
maybe 2 or 3 of them -- and then the LVN or
Premiere Production comes to pick them up.
Why are they picked up? Because of the
instruments. Maglisod sila ug sulod ana sa
jeepney. Bisag taxi. A strand of a violin is very
expensive, unya isakay lng na nimo ug
jeepney? Mao nang ginahatod sundo na sila.

Under SOCIAL LEGISLATION, once they

meet and accident, who is liable already? It is
LVN that will answer! Why? Because the
truck is an EXTENSION of the workplace
and is owned and controlled by LVN!

Now, when they are already at the LVN

premises, that is where they will
practice! If they reach a meal period --
abtan sila ug paniudto, adto na sila pakan.a
didto. Who feeds them? LVN!

So, you can see the CONTROL of LVN!

And finally! When they are recording the final

version of the music that goes with the movie,
the musical director disappears from the

Den 11
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
THE CONTROL TEST
When you go to these cases, it keeps coming
back!
What is the extent of the CONTROL TEST?
Sterling Products v. Sol
Facts: We are talking here about an employee
who was charged to listen to the radio and to
take note of when the advertisements of her
employer is going to be played.
Sterling products is a pharmaceutical
company that sells pharmaceutical products
over the counter. No need of prescription.
Now, Sol does not need to report to the office.
She just listens to the radio in her home.
Is she an employee or an independent
contractual employee?
The reason why Sterling Products denies
ER-EE relationship is this. The control test can
never be met because she is not in the
premises of the workplace. How can I control
somebody in her own home?
Issue: Can the control test be met even if the
so-called putative employee is not in the
workplace of the employer.
Unsa man cya ga-trabaho ba cya or magpa
suso sa iyang anak? Maminaw ra man gihapon
ko ug radyo bisag magpa suso ko sa akong
anak.
Held: There is the presence of control
because the radio given to you. There are
dates, specific dates. What is the use of that?
They would go to the agents if they would not
air the advertisement of Sterling Products.
Mao man na ang radio monitor. Now they also
have t.v. monitors. Because the
advertisements of t.v. are very expensive. So
you have to make sure that your t.v.
advertisement comes out.
What is the most expensive t.v.
advertisement? SUPOWERBOWL. 20 seconds
and more than a million US dollars.
Naa kay tao na magbantay anang
advertisement when it comes out. -- TV
Den
Tirso Cruz I v. Manila Hotel
Facts: Tirso Cruz I was engaged by Manila
Hotel to play in the lobby of Manila Hotel. That
was the job, to entertain the
customers/visitors of the hotel. Now, while
playing there, he had a heart attack!
Vda. de Cruz, filed an action to collect from
the workmans compensation. You can collect
from the workmans compensation for
work-related injury, sickness or death if you
are in an ER-EE relationship.
Issue: Is there ER-EE relationship between
MLA Hotel and Tirso Cruz I?
Held: No, there is none!
What is the difference between Tirso Cruz I
and LVN when both of them used to play
music? There is NO CONTROL! The control
test is not met in the Tirso Cruz v. MLA Hotel
case. Why? Tirso Cruz decided what to play,
the sequence of the pieces that they are going
to play, he did not have to submit the list of
pieces that he is going to play -- it is up to
him! If he sees in the reaction of the people
there that they dont lime what he is playing
then he can change it! But, the goal and the
object was to please the people. No ER-EE
relationship, therefore, they cannot collect
from the workmans compensation.
monitor.
YOU DO NOT HAVE TO BE IN THE
WORKPLACE TO BE CONTROLLED!
So again and again you see that in the
decisions.
DY KEH BENG v. INTL LABOR
90 SCRA 162 (1979)
Facts: The putative employer here makes
cuttings! Huge baskets. The putative
employee here are 2 people who decide to join
a union. They filed a certificate of election and
the International Labor as their petitioner.
The employer says, we do not know these 2
people. They are not our employees -- we do
not know them! They just come around and
show us their basket, we pay them and they
disappear! They go back home and they make
a basket again and then they come back and
12
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
___ to us. They are INDEPENDENT
CONTRACTORS because they are paid on a
piece rate basis!
Is that correct? Is the piece rate basis of
payment and index of the absence of ER-EE
relationship?
Held: No! Piece rate payment is only and
INDEX OF PAYMENT! It does not prove the
character of the relation. It is just the one who
is paid the piece rate and the one who pays.
Now, WHAT IS THE INDEX OF CONTROL?
The SPECIFICS OF THE PRODUCT! The
DIMENSION of the product -- because they
cannot deviate from that. They are under the
control of the employer.
SO, PIECE RATE BASIS, THAT IS NOT THE
INDEX OF THE ABSENCE OF CONTROL!
RJL Martinez v. NLRC
127 SCRA 455 (1984)
Facts: We are talking here about an unskilled
worker that loads and unloads fishing boats.
How long do they stay in the deep? Niadto,
they stay as long as the ice lasts. Ice ang
magbuot kng unsa ka kadugayon. You cannot
preserve your catch without ice.
What is the temperature needed to preserve
fish? Its just zero degrees. Its higher than
meat! Meat has to be lower.
At the time when there was still no fish port in
Navotas, the fishboats just ran ajar to the
shore. The moment they can longer proceed.
(Fr. talks about how the fishes are to be
loaded and unloaded).
The owners of the fishing boat sit on the shore
-- their backs are to the sea. Why do they sit
there? Because the buyers come in and
whisper to the ears of the owner kng tagpila
ang kilo? Mao man na ang sistema didto sa
Navotas.
Then they are instructed where to deliver the
fishes. It could be the Sampaloc market or the
QC market -- that is how it is done before.
Issue: Kini bang tig load ug unload, are they
employees of RJL Martinez Fishing? Must the
control test be continuous and unbroken in
Den
order to meet the requirement of ER-EE
relationship?
Because RJL Martinez, when they failed to pay
the 13th month pay said that they are not our
employees. They are not entitled to 13th
month. They are INDEPENDENT
CONTRACTORS and or relationship is
coterminous with the loading and unloading.
Why is it that it is COTERMINOUS with the
loading and unloading? Because after they
have unload from the RJL fishing boat, they
have to go to another fishing boat of another
company to also load and unload!
Held: It need not be continuous -- it can be
broken. Why is the broken control from the
part of the employer ____?
Since Martinez does not have enough ships to
load and unload everyday, you do not ___ the
cargador for trying to look for other work to fill
up his day. Because you are only paid the
actual hours that you only step to load and
unload. If it takes you half a day, 1/2 pay ra
ka. Mag unsa man diay ka sa other half of the
day, will just sit down? You have to go and find
work. You should not be penalized for looking
for another work.
So, as to the question, w/n power of control
test must be broken -- it can be
discontinuous under the circumstances pf
RJL Martinez Fishing v. NLRC.
Now, that tells you the scope, the extent, the
nature of the power of control test.
Now here comes the case of Fonterra v.
Lagardo (March 18, 2015).
Fonterra Brands v. Largado
Facts: This is a case of merchandisers --
special offers. This is not the first time the SC
has met a case like this. There was an earlier
case, California Manufacturing v. Tabas
(1989).
TABAS RULING: Merchandising special offer,
employees of a manpower agency that is
engaged by a consumer product, they are
actually the employees of the manufacturing
company and not the manpower agency.
Why? Because they are performing activities
which are usual and necessary to the usual
13
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
trade or business of the employer. Xxx
FONTERRA & CALIFORNIA
MANUFACTURING are IMPORTANT,
because you will later find out xxx ER-EE
relationship is a question of fact! And then
there is another decision which the SC says
that ER-EE relationship is a question of
law! How do you reconcile?
Now, if there is only one putative employer,
then ER-EE relationship is a question of fact!
You examine the specific facts of the case. You
have the requisite. How much of the requisites
are complied with? Then that is a question of
fact! But if you have 2 or more employers --
You have an INDIRECT EMPLOYER who
enters into contract with the MANPOWER
AGENCY, and this manpower agency hires
individuals to the indirect employer -- then
ER-EE relationship becomes a question of
law!
Held: The SC says, if there is only LABOR
ONLY CONTRACTING, which is ILLEGAL.
Why is it ILLEGAL? Because the manpower
agency, let us say, does not have
SUFFICIENT INVESTMENT, OR
MACHINERY, OR CAPITAL. In other words,
he is just a CONDUIT! The law cancels him
out! And his employees -- the ones he
selected and hired, the ones he pays wages to
-- the SC says, they are employees for all
purposes of Labor and Social Legislation, of
the INDIRECT EMPLOYER.
Now, what happens if the INDIRECT
EMPLOYER is GOVT? Like the NFA (National
Food Authority) -- its a GOCC with original
charter, and it is covered by the LC because
they cannot employ those that are covered by
the Civil Service! Are they still liable according
to what the Labor Code says if they engage in
LABOR-ONLY CONTRACTING? The SC
says, YES! Why? Because the law now
determines and imposes ER-EE
relationship. That is why, in that instance
you can have a question of law. In another
instance, you have a question of fact!
Tabas v. California Manufacturing (1989)
Facts: They entered into an agreement and
the agreement stipulates:
1. That no ER-EE relationship will be
understood between the employees of the
manpower agency and California
Den
Manufacturing. It is only the manpower
agency that will assume responsibility for the
underpayment and non-payment of wages
and for those other benefits under social
legislation -- e.g. SSS, PhilHealth, Pag-ibig
Issue: Is that binding on the employees?
Held: NO IT IS NOT BINDING! THEY DID NOT
GIVE THEIR CONSENT. So therefore,
California who is the INDIRECT EMPLOYER
can still be made to be the only employer of
these set of workers, selected and hired by
the manpower agency to fulfill their
agreement with California.
The contract cannot fix the legal
relationship of the parties. It is the law
that has the final say.
ARTICLE 138 OF THE LABOR CODE
HOSPITALITY GIRLS
Art. 138. Classification of certain women
workers. Any woman who is permitted
or suffered to work, with or without
compensation, in any night club, cocktail
lounge,
massage clinic, bar or similar establishments
under the effective control or supervision
of the employer for a substantial period of
time as determined by the Secretary of Labor
and Employment, shall be considered as an
employee of such establishment for
purposes of labor and social legislation.
That is a COMPREHENSIVE ER-EE
RELATIONSHIP!
We are talking about a nightclub, cocktail
lounge. Here is a woman who is just allowed
to be there. What is the arrangement? She
gets a commission for every drink or food that
the customer orders in the restaurant!
Does she have to show up everyday? No! She
does not have to show up! There are many of
them! She shows up, hes alright. She does
not shows up, hes also alright! Shes already
working and she wants to go out because the
customer wants to bring her out! What
happened? The manager or whoever is the
supervisor there will just tell the customer,
pay the bar fine. What is the BAR FINE? That
14
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
is the amount of money normally earned
by the club on the average every night!
So you pay that bar fine and then you can
walk out with her!
Does she have specific working hours? No!
Probably she does not even have a record kng
unsay ngalan. But what is the relationship
between that girl and the nightclub? The law
says, shall be considered as an
employee of such establishment for
purposes of the Labor Code and Social
Legislation. -- They have to ay for her SSS,
Medicare, Pag-ibig!
Where is the list of ER-EE requisites? Its the
law itself that imposes for the protection of
these women. Classification of certain women
workers. That is ER-EE relationship as a
question of law.
If it is a BONA FIDE CONTRACTING OUT --
What is a BONA FIDE CONTRACTING OUT?
In the list, you have this case of KIMBERLY
CLARK INDEPENDENT LABOR UNION v.
DRILON.
Kimberly Clark Independent Labor Union
v. Drilon
Held: The SC has made a ruling saying, This
Court takes judicial notice of the widespread
practice of contracting out security services,
maintenance services, janitorial services and
other technical services.
The SC says, this Court takes judicial notice.
What do you mean by judicial notice? You
dont even have to prove it! You go to the
Rules of Court and there are items there that
are of judicial notice. What are examples?
1.) The number of hours in a day that a day is
of 24 hours;
2.) The number of days in a year.
You dont have to go to court and prove that!
Why is the SC make it a matter of judicial
notice of contracting out security services,
janitorial services, maintenance services and
other technical services? Tan. awa ra na
theres a page in the SC website inviting
bidders for security guards in the judicial
district number such and such... The SC
Den
itself engages in contracting and
subcontracting, thats why it says its a
matter of JUDICIAL NOTICE.
Mao nang giingon ni Duterte and all the
Presidential candidates which say that they
will put an end to all contractual employment,
hala sultii na ang SC na we will put and end to
contractual employment kng mahimo ba na
nimo?! And the big issue is, suppose the SC
contracts a security agency, and the security
agency does not pay the security guards even
if the SC has paid the security agency. What
happens? Can those guards sue the SC?
Technically speaking, they can! They can go to
the Labor Arbiter and sue the Court
Administrator.
Tan.awa gani ninyo dra sa court in Ecoland,
naa may security guard dinha. Believe it or
not, the security there is underpaid! Sunod
maabot ra nang kasuha na, if you take it, you
will be in the newspapers! Especially if you do
that right after passing the BAR! :D
Discussion about Tan v. Macapagal -- a
lawyer from ADMU asking the SC that he be
allowed to take the BA twice!
BONAFIDE CONTRACTING AND
LABOR-ONLY CONTRACTING
So a matter of law. If you engage in BONA
FIDE CONTRACTING. Lets say security
guards or janitorial services. The manpower
agency being contracted fails to pay the
wages. What happens? You are liable because
you are the INDIRECT EMPLOYER! You are
liable to pay the underpayment or the
non-payment, only that, you are not
liable to pay their SSS, Pag-ibig and
Medicare! And its a LIMITED ER-EE
RELATIONSHIP ENFROCED BY LAW. But if
it is LABOR-ONLY CONRACTING, or it is
CLASSIFICATION OF CERAIN WOMEN
UNDER ARTICLE 136 OF THE LABOR
CODE -- Comprehensive ER-EE relationship
not only as to the Labor Code but also as to
SSS, Pag-ibig and Medicare.
Now, let us go to California.
Tabas v. California Manufacturing
Facts: The employer in California says we
contract this put because our promo is not a
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
permanent program. The activity for which
they are engaged to perform is not usual to
California. We only do promos when there is a
new product, or an old product is enhanced
and then we will launch it. So therefore, they
are not really engaged to perform activities
which are usual and necessary to the trade or
business of California.
Held: All consumer products are engaged in
promotionals. Give me a product that is
launched that is not being promoted. So, it is
usual and necessary to consumer products.
There is no manufacturer of a consumer
product that will not engage in promotionals.
If you do not engage, then your product will
not be known and it will not be bought.
It is usual and necessary. Therefore,
they are PERMANENT!
Now, FONTERRA says that they are
CONTRACTUAL WORKERS! They are TERM
WORKERS, SPECIFIC PERIOD WORKERS!
Even if they perform activities which are
usual & necessary to the trade or business,
there can be a term agreed upon by free
individuals, as long as the worker engaged
freely accepts that.
Now, why did the SC say that the workers
here on FONTERRA were free to accept the
term? Why? The SC says that they are free
because they were in another manpower
agency. Did they resign? You know that
particular datum is an index of regularity
before. Now, gi-pasa2x ka ug lain2x na
manpower agency, used to be an index that
you are indeed a regular worker because
your activity is continuous. Gi-pasa2x man
ka ug lain2x na manpower agency. That
means that your activity is usual &
necessary to the trade and business of
the INDIRECT EMPLOYER!
This time, the SC says, THAT IS NOT THE
INTERPRETATION. The interpretation is,
YOU FREELY RESIGNED BECAUSE YOU
DO NOT WANT TO BE ASSIGNED TO ANY
OTHER JOB. THEREFORE, YOU FREELY
AGREED WITH THIS NEW MANPOWER
AGENCY (SICAT MANPOWER AGENCY)
TO BE ENGAGED FOR A TERM WITH
FONTERRA IN THIS UNDERTAKING OF
DOING PROMOTIONALS!
Den
The promotionals are all over the place. They
are called by so many names! Special offer,
merchandiser. In fact, my first labor case
after I finished the bar was merchandiser.
Gi-terminate cya. Ngano man? Nanganak
man cya, pagbalik niya wa na cya gidawat.
The case took 8 yrs. Nakalimot na gud ko. In
the 8th yr, nakadawat ko ug notice. Asa naman
ning bayhana wa na nako makit-i. Pagkakita
nako, wa na, lain na iyang trabaho.
Manicurista na cya diadto sa mga bapor ba.
Didto naa ay execution, kadawat cya ug
P50k. Xxx useless. Pero maayo na lng
nakadawat cya. That is the problem. There
are certain individuals who are an in-house
manpower agency. Thats in the circular of
the Department of Labor -- an in-house
manpower agency. The Gaisanos have that.
They have a manpower agency that supplies
employees, janitor, etc. to only the
Gaisanos. The circular in the Department of
Labor says that that is an index that the
manpower agency is a labor-only
contracting.
Because, to be a BONAFIDE CONTRACTOR,
the following must be complied with:
1.) You must have a sufficient capital;
2.) You must have sufficient investments
in equipment;
3.) You must be registered with the
Department of Labor
But now, when you ask me, kanang mga IT
contractors, kanang mutaod sa database
engine, do they have sufficient capital? No!
They have no capital because the equipment
they use is the equipment of the INDIRECT
EMPLOYER. Do they have sufficient
investments in machinery? No! They will use
the same computer of the indirect employer!
Sometimes dinha na sila mangatulog kay ilan
gitrabaho dinha, naa silay gipang-install dinha.
They have no investment at all!
Let me bring to your attention Royal Homes
Marketing Corp. v. Alcantara and
Manufacturers Life Insurance Company v.
CA (622 SCRA 58) 2010 EN BANC.
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Manufacturers Life Insurance Company
v. CA (622 SCRA 58) 2010 EN BANC
Facts: Herein there is just one employer and
the SC says, it is a question of law. Why?
Because the contract that they have entered
in to is AGENT-PRINCIPAL CONTRACT.
Agency -- very important subject! 2 units lng!
THE BASIC PRINCIPLE OF AGENCY: If you
can legally do it, somebody else can do it for
you. Unless there is a law that requires you
that you yourself should do it!
Magminyo ka, unya muingon ka na busy man
kaau ko. SPA to say I do for me. -- that
cannot be done. Why? Because the law
requires you yourself to do it!
You have property and you want to sell it, you
can ask somebody to sell it for you! The law
does not require that it is you yourself who
should sell it!
Now, agency contract is based on
CONFIDENCE! If you loose your confidence
in your agent, you can terminate it at any
time with or without cause!
MANUFACTURERS LIFE INSURANCE v. CA
Facts: It sells life insurance. It enters into an
agency contract with a natural person who is
licensed to be an insurance broker. Many of
the insurance brokers roaming around are not
licensed. They are the ones who sign for and
in behalf of Manufacturers Life, because
Manufacturers Life Insurance is a juridical
person. What is a juridical person? It is a
person that exists only in contemplation of the
law. It has no arms, no mouth, no teeth --
therefore, it requires a natural person to act
for and in behalf of it! It cannot act without a
natural person.
So kinsa may mupirma sa ilang kontrata? This
contract entered into by MLI, represented
herein by its licensed agent MRS. JUANA DELA
CRUZ, with insurance number xxx issued by
the xxx. Cya ang mu-act in behalf. But all
those na agent kuno, di na sila mga agent --
Den
mga asawa, mga maestra -- mamaligya ug
insurance, kana sila, di na sila mga agents!
Mao ni siya ang gi-kontrata. Giingnan cya, put
up an office! We will pay for the rent of the
office -- we will reimburse you! Hire people to
convince to take up insurance! You hire them!
And then, you pay them a commission! So
kana, nakalista na diha.
Now, very detailed! You have to sell this
much! Insurance with annuity. Insurance on
bottomry -- that is marine insurance!
Now, she signs for and in behalf of
Manufacturers Life Insurance. Now, she says
that I am under an ER-EE relationship with
Manufacturers Life. Why was she terminated?
Because, of OVER REIMBURSEMENT --
naay Christmas party unya muingon cya na
we have to buy 3 or 4 lechons! And then these
agents who went to the part say na wa man mi
kakita ug lechon didto!
Held: Under the detailed instruction, you can
see that there is no control on the part of
Manufacturers Life Insurance. There was
control on the part of Manufacturers Life over
here, and as a consequence, there is ER-EE
relationship! So we should disregard the title
in the agreement! Its not an agent-principal
agreement, it is ER-EE relationship!
That is why the SC said that it is a question
of law. This agreement on the 4 corners of
this instrument is a nominate contract
under the Civil Code. Therefore, it is not
under the jurisdiction of the Labor Arbiter
because it is not an ER-EE relationship! While
there may be control in ER-EE relationship,
there is also a certain thing as a DETAILED
INSTRUCTION in which the principal
controls his agent! ANOTHER KIND OF
CONTROL! Bag-o na ha!
Another very nice case about CONTROL is
Manila Gulf Club v. NLRC.
Manila Gulf Club v. NLRC
Facts: Kanang mga cady sa golf club, niingon
man na sila na we are employees of Manila
Golf Club. MGC controls us, we have a collared
shirt, you cannot cady if you are in flipflops!
You must have trousers. Is is not control?
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Held: If that is the case that you consider that
as control of your employer over you, then all
the members are also employees of Manila
Golf! Because: 1.) They cannot wear only
t-shirt when they go to MLA Golf! When they
go there, they must be properly dressed. The
wife of Gen. Buenaventura was not served by
the waiter kay naka-spaghetti man cya! :D Is
that not control? No! Those were just the rules
of the club for the club members! So
pagbantay ana!
But the SC did not say that at the time that
bey wrote the decision, 2 members of the
Court were members of the Manila Golf Club
and they did not inhibit themselves! --
Justices Sarmiento and Padilla.
So alright, read these cases because they are
very important!
--end of discussion for the coverage for
the 1st exam--
Third Meeting
BOOK I
LABOR CODE
(Recruitment and Placement of Workers)
We will not spend too much rime here. I will
give you the readings. There have been so
many supplementary laws. So, from Article 12
of the Labor Code up to Article 39 (Penalties).
There has been several supplementary or
overriding legislation. First which is RA 8042
-- The Migrant Workers and Overseas
Filipino Act of 1995. Since then, that has
been further amended, and the provisions
of the Labor Code from Article 13-39 that
has been amended by RA 10022 (March
2010).
Now, I am giving you the official question and
answer of the Department of Labor on RA
10022. And then there is this Revised Rules
and Regulations Governing Overseas
Employment of Land-based Workers. The
best way to know the law is to go through the
Q&A.
Now, in the BAR Exam, Ill tell you a secret,
Den
many have been asked about ILLEGAL
RECRUITMENT. The problem is, there are
signatories of the International Labor
Organization brought that there should no
longer be any restrictions as to Labor. So labor
as an international issue moved across the
borders without any ARTIFICIAL CONTROL.
In the same way that MONEY moves across
borders without any restrictions. MONEY
now moves at the flip of the switch. So
also, LABOR should be allowed to move! In
fact, the ORIGINAL PROVISION in 8042
has this particular proviso that says that,
This licensing and issuing permits to
recruit and place workers will be
gradually dissolved! -- and there would be
no licensing to ___ because this is a form of
CONTROLLING the ____. But, that was a
long time ago. 1995! Until now there is still
licensing! It should have been erased by year
2000, but it is still continuing! Why? According
to the Philippines, the Philippines has filed a
request for exemption because they say
that there is so much UNSKILLED LABOR.
UNSKILLED LABOR is the problem. So you
go as domestic, lets say, as semi-skilled
drivers, you are bound to be exploited. And
so, the govt says, under the command of the
social justice under the Constitution, we
have to protect our workers.
So the way to protect the workers is
GENERAL PROHIBITION against a
FOREIGN EMPLOYER from DIRECTLY
HIRING or RECRUITING of Filipino
workers. Why is that disallowed? If you
found a foreign employer that directly
hires you, eventually you will land at the
POEA, and then, they will consider that as
HIRING THROUGH POEA. They will arrange
that because that is a violation of law.
UNLESS, YOU GO TO THAT NATION AS AN
IMMIGRANT! That is a question already of
immigration! Then, you are hired! But even
then, you are still considered an OFW. Even
if you are an IMMIGRANT, you will be
made to attend the seminars of the POEA.
But technically speaking, you are supposed to
have privileges like you do not have to pay the
terminal fee in the Manila International
Airport, or any airport that you will fly from.
There is this law that was passed that requires
that the terminal fee will be incorporated in
the plane ticket. So if you are an OFW, how
can you be exempt from the _____? The main
reason for that is to cut the lines -- the
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
queuing in the Manila International Airport!
But now because of that, you are tax free
because you are an OFW, you have to form
another line to get a refund! So, thats one of
the problem.
ILLEGAL RECRUITMENT
In what way is ILLEGAL RECRUITING
committed? Here is a long list:
1.) First, recruiting and placement -- the
definition has not been changed. It is found in
Article 13, letter b.
b. "Recruitment and placement" refers to
any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring or procuring
workers, and includes referrals, contract
services, promising or advertising for
employment, locally or abroad, whether for
profit or not: Provided, That any person or
entity which, in any manner, offers or
promises for a fee, employment to two or
more persons shall be deemed engaged in
recruitment and placement.
So, if you are one of the employees of a
recruitment agency, and the recruitment
agencys license has expired, and you bring
recruits to the airport, you are transporting,
you are involved in ILLEGAL
RECRUITMENT.
CANVASSING -- magkuha lng ka ug mga
ngalan -- ILLEGAL RECRUITMENT
So the definition is COMPREHENSIVE!
2 KINDS OF ILLEGAL RECRUITMENT
(Characterized Criminally)
I. ORDINARY ILLEGAL RECRUITMENT
II. ILLEGAL RECRUITMENT CONSIDERED
AS ECONOMIC SABOTAGE
What is the difference? Then you go to the
latest law which is RA 10022.
ORDINARY IR IR CONSIDERED AS
ES
Den
Penalty: 12 yrs and Penalty: Life
1 day but not more imprisonment
than 20 yrs and a fine
of not less than P1M
but not more than
P2M.
*If the offender is an alien shall in addition of
the penalties herein described, be deported
without further proceedings.
Now, in the original law, only non-licensed or
organizations or entities will have any permit
to operate.
Licensed to recruit - means you can
recruit and charge fees.
Permit to recruit - means that you can
place workers without fee.
*In both cases, you receive permit of
license from the POEA -- you must apply.
ONLY FILIPINOS CAN APPLY. OR THE
PARTNERSHIP OR CORPORATION 75%
PER CAPITA IS OWNED BY A FILIPINO.
TAKE NOTE: In the Constitution, it must be
60% owned by the Filipino. Here, it must
be 75% that must be owned by the
Filipino.
So, the license or the permit granted is
non-transferable and it specifies the
number of offices and locations where
you can recruit. In other words, you cannot
have a license to recruit throughout the
breadth and length of the Philippines? No!
Your license to recruit is limited. Ex: Greater
Manila Area -- so immediately, kakita gani ka
ug roving recruiter, dako nang problema!
Chances are, wa na cyay lisensya! Unya
muingon cya na di man ko recruiter,
canvasser lng man ko! Mao lng gihapon na
-- included man na sa recruitment and
placement. Problema na!
Now, how does the Labor Code and Labor
Legislation protect the worker? The
worker/OFW is protected because the
recruiter or the placement agency is
SOLIDARILY LIABLE with the FOREIGN
PRINCIPAL in case he violates the ____.
For one thing, the agreement must be
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
REGISTERED with the POEA -- the terms,
everything should be there! That s
registered with the POEA.
Now, if you violate, if the foreign principal
violates -- for instance, he expatriates the
OFW without cause -- PRETERMINATION.
When he (OFW) reaches here, he sues the
placement because the RECRUITMENT AND
PLACEMENT AGENCY for land-based.
MANNING AGENCY for seamen/sea
cruise -- those that are hired on ships! Now,
they sue. Then you have to look through RA
10022 of where you can sue. It used to be
the POEA. Now they have AMMENDED it and
they make the LABOR ARBITER as the
venue.
WHO HAS JURISCTION OVER THE CASE?
VENUE WHERE THE OFW CAN SUE
LABOR ARBITER of what? The OFW has a
choice -- he can sue in the ff. venues:
A.) LABOR ARBITER THAT HAS
JURISDICTION OVER HIS RESIDENCE; or
B.) LABOR ARBITER THAT HAS
JURISDICTION UPON THE PLACE WHERE
ANY ESSENTIAL INGREDIENT OF THE
CRIME WAS COMMITTED.
If she was actually made to sign, the OFW, in
Cebu, and made to report in Manila, so she
can sue in Manila, in Cebu (where he signed
the agreement), or in Davao kung taga-Davao
cya.
*The choice is with the OFW.
Now, what makes the crime ECONOMIC
SABOTAGE and therefore, punishable by life
imprisonment?
1.) If the illegal recruiter recruits, places
more than 3 or more -- so ang iyang
gibiktima kay 3 or more -- economic
sabotage nana. Life imprisonment na. OR
2.) He only recruits one, but it is in
conspiracy with 3 or more people --
daghan ba cyag alalay. That becomes an
economic sabotage.
That becomes LIFE IMPRISONMENT.
Den
WHERE CAN THE WORKER SUE?
(Jurisdiction)
*Now, unlike MONEY CLAIMS of
ORDINARY WORKERS in the Philippines
who are ILLEGALLY TERMINATED, the
worker in the Philippines can also sue MONEY
CLAIMS for ILLEGAL TERMINATION with
the LABOR ARBITER.
*The OFW can also sue with the Labor
Arbiter for money claims and damages,
etc.
*But, for illegal recruitment as a
CRIMINAL OFFENSE, when there is
penalty, he has to go to the REGULAR
COURTS -- thats the RTC. RTC since the
penalties are very high! It cannot be MTC.
AS TO THE INTEREST...
Now, besides the ordinary damages, the
OFW can ask for refund of his PLACEMENT
FEE with interest of 12% annually from the
time he _____ until the decision becomes final
and executory.
12% annually ha. Because ypu know, legal
interest now is 6% -- whether it is for
forbearance of money or for
non-forbearance of money -- its just 6%.
That is based on a 2014 case. So 6% per
annum. BUT... since 10022 specifically
specifies 12%, it is 12%.
Now, 10022 has made illegal recruitment
even more complicated because there is
a long list of PROHIBITED PRACTICES,
not just illegal recruitment.
PROHIBITED PRACTICES
Section 6, RA 10022:
"In addition to the acts enumerated above, it
shall also be unlawful for any person or entity
to commit the following prohibited acts:
"(1) Grant a loan to an overseas Filipino
worker with interest exceeding eight percent
20
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
(8%) per annum, which will be used for
payment of legal and allowable placement
fees and make the migrant worker issue,
either personally or through a guarantor or
accommodation party, postdated checks in
relation to the said loan;
"(2) Impose a compulsory and exclusive
arrangement whereby an overseas Filipino
worker is required to avail of a loan only from
specifically designated institutions, entities or
persons;
"(3) Refuse to condone or renegotiate a loan
incurred by an overseas Filipino worker after
the latter's employment contract has been
prematurely terminated through no fault of
his or her own;
"(4) Impose a compulsory and exclusive
arrangement whereby an overseas Filipino
worker is required to undergo health
examinations only from specifically
designated medical clinics, institutions,
entities or persons, except in the case of a
seafarer whose medical examination cost is
shouldered by the principal/shipowner;
"(5) Impose a compulsory and exclusive
arrangement whereby an overseas Filipino
worker is required to undergo training,
seminar, instruction or schooling of any kind
only from specifically designated institutions,
entities or persons, except fpr
recommendatory trainings mandated by
principals/shipowners where the latter
shoulder the cost of such trainings;
"(6) For a suspended recruitment/manning
agency to engage in any kind of recruitment
activity including the processing of pending
workers' applications; and
"(7) For a recruitment/manning agency or a
foreign principal/employer to pass on the
overseas Filipino worker or deduct from his or
her salary the payment of the cost of
insurance fees, premium or other insurance
related charges, as provided under the
compulsory worker's insurance coverage.
"The persons criminally liable for the above
offenses are the principals, accomplices and
accessories. In case of juridical persons, the
officers having ownership, control,
management or direction of their business
who are responsible for the commission of the
Den
offense and the responsible
employees/agents thereof shall be liable.
"In the filing of cases for illegal recruitment or
any of the prohibited acts under this section,
the Secretary of Labor and Employment, the
POEA Administrator or their duly authorized
representatives, or any aggrieved person may
initiate the corresponding criminal action with
the appropriate office. For this purpose, the
affidavits and testimonies of operatives or
personnel from the Department of Labor and
Employment, POEA and other law
enforcement agencies who witnessed the acts
constituting the offense shall be sufficient to
prosecute the accused.
"In the prosecution of offenses punishable
under this section, the public prosecutors of
the Department of Justice shall collaborate
with the anti-illegal recruitment branch of the
POEA and, in certain cases, allow the POEA
lawyers to take the lead in the prosecution.
The POEA lawyers who act as prosecutors in
such cases shall be entitled to receive
additional allowances as may be determined
by the POEA Administrator.
"The filing of an offense punishable under this
Act shall be without prejudice to the filing of
cases punishable under other existing laws,
rules or regulations."1avvphi1
And, 10022 says that even a LICENSED
RECRUITER or PLACEMENT AGENCY or
MANNING AGENCY, can be liable for
ILLEGAL RECRUITMENT! Imagine that!
Before, illegal recruitment only unlicensed.
Now, even those who are licensed can
commit ILLEGAL RECRUITMENT!
SUBSTITUTION OF CONTRACT
Now, one of the standard violations of
ILLEGAL RECRUITMENT is SUBSTITUTION
OF CONTRACT. What does that mean? Pirma
ka dinhi, ang imong sweldo, $400/month.
Ordinary ka na tripolante sa barko. So ok na
ka ana. Palit nakas imong ticket sa eroplano.
Lupad ka gikan sa Manila padung sa Athens.
Pag-abot nimo sa barko, una ka musaka,
ingnon man kag Kapitan, ambi nang kontrata
nimo, pirmahi ni. Unya muana ka na naa man
koy napirmahan na kontrata aong una.
Pagpirma nimo sa kontrata, mas gamay na
lng ang imung sweldo. Pero wa man kay
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
mahimo. Muuli ba ka sa MLA na wa man kay
ticket. Wa kay kwarta. Abi nimo na nasulbad
na ang imong problema -- wa pa diay to.
Gikan mo sa Athens, diretso mo sa Versailles.
Pagdunggo ninyo, that is an ITF Port --
International Seamens Union -- very strong
union sa Europe! Amsterdam, Versailles,
Odessa, London -- theyre all controlled by ITF.
They have a minimum wage for crew. Musaka
na sila sa taas. Adtuon nila ang Kapitan. Tapos
mangutana sila na, How much are your men
receiving? Pabuang-buang dayon ang
Kapitan. Contract! Contract! We want to see
the contract! Ang ipakita dayon sa Kapitan
kay katong contract na imung gi-signan didto
sa MLA na imung sweldo kay $400 -- mao diay
ang purpose ato. If they will not pay you the
right amount, automatkc boycott! The ship
cannot be loaded! ITF, very powerful! The only
recourse of the Captain is what is called
cut-and-brun. Ang kinangilngigan diha na
tripolante mao ang iyang buhaton na
spiderman -- he would cut the rope and the
boat tries to loose it by itself! Very difficult!
The liability is on the Captain because not
even the pilot (harbor pilot) will help you!
Harbor pilot, under na sa ITF! Mao na ang
kaso -- thats where our cases will focus.
SUBSTITUTION OF CONTRACTS -- that is
against 10022 -- file a case!
There is a very controversial provision in
10022 which was actually taken from 8042.
What is that? It says that:
One who successfully or breach of his
employers contract shall be entitled to the ff:
Reimbursement of the deductions made with
interest of 12% per annum and the salaries of
the unexpired portion of his employment
contract, or for 3 months for every year for
the unexpired term, whichever is less.
That has been declared as
UNCONSTITUTIONAL!
Now, in this SHAMEER CASE (August 5,
2014)
Shameer Overseas Placement Agency v.
Cabiles
L-170139 (August 5, 2014)
EN BANC J. Leonen
Facts: The unlawful termination of the
seaman occurred still under 8042. But 8042,
Den
the term entitled to salaries for the unexpired
portion or for 3 months for every year for the
unexpired term, whichever is less had
already been declared
UNCONSTITUTIONAL!
Now, when they decided Shameer, 10022 was
already in effect, but it was not yet applicable
to the case because it fell under 8042. Can
they render again as unconstitutional the
mere repeating of 8042 when it was not
applicable in the case?
Held: This is where the Court rendered
unconstitutional the provision of RA 10022
even if it was not yet applicable in the case.
When can the SC exercise judicial
review?
1.) Actual controversy
2.) The provision in question must be the very
lis mota of the case -- you cannot escape but
you must reckon with this controversial
provision. You cannot decide the case,
otherwise you arrive at the same judicial
determination that is just according to law
without having to reckon with this particular
provision.
Is that the case in Shameer? No! Because it
does not apply! But why did the SC En Banc
rendered, salaries for the unexpired portion
of employment or for 3 months for the
unexpired term, whichever is less
unconstitutional. Why? Isog kaayo nis
Leonen! 3 months before there was also a
case similar to Shameer! A provision in
10022 was already there but it was not
applicable because it happened in 8042! And
Justice Brion refused to render
unconstitutional the same provision that was
made unconstitutional in Shameer! YOU
READ THIS CASE BECAUSE THIS IS A
LANDMARK CASE!
This is August 5, 2014 when they passed the
cut-off date for responsibility of decided cases
by the SC for the October and November BAR
examination 2014. And it came out in the BAR
examination 2014! Its a good thing the night
before, I brought this case out to our
reviewees! Because I have a feeling that this
is going to come out in so weird a case that an
examiner will be tempted. And it came out! I
22
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
think it was the first 2 or 3 questions. Thats
why this year, you check it out.
Why did Leonen say, I have the right to xxx He
says:
1.) That this provision has already been
declared unconstitutional in 8042. It does not
become valid just because Congress reenacts
it word for word. Its still arbitrary! If you are a
Filipino and you are illegally dismissed here in
the Philippines, you have full backwages!
Why does it says here, whichever is less? It
must be full!
2.) If we do not render this unconstitutional
now, then the overseas workers will continue
to be placed unprotected and in danger!
So they render it unconstitutional even if it
is not the very lis mota of the case!
Now there are certain xxx that are supposed
to enhance services for the OFW. The
instances where there is the requirement for
the immediate refund. It is the embassy
where the OFW is located that will
shoulder the purchase of the ticket that
will be refunded from the OFW fund.
When is there, let us say, mandatory
repatriation? The law says that if the OFW is
found in the foreign country and he is a minor,
he/she must be immediately repatriated.
Ex: mga batan-on na muadto sa Japan as
entertainer -- unya maniguwang na lng na sila
didto, mahinog na lng na sila sa consulate kay
wa may pamasahe pabalik. Now it is
required that the govt refunds and the
xxx. Not only that, if the OFW is in trouble,
the commercial attach should procure a
leave of absence in the place where the OFW
is jailed or is facing ___. That is now
MANDATORY!
In places where there are a considerable
numbers of OFW, the embassy or consulate
must demand 24 for the service of tje OFW.
There must be carried out forth. Mandated na
in RA 10022! With legal counsel! They must
procure legal counsel! Ex: In places lime
Korea. Kadaghan nila diadto sa Korea! There
are Filipinos studying 1 yr in Korea. Didato sa
Busan. Study 1 yr in Korea, internet, passed
the exam, and he is now in Busan. What kind
of job do they have there? The job that the
Koreans there do not take anymore! In Korea,
zero na ang growth sa ilangpopulation. Now,
Den
kinsa man sa next generation ang mupuli sa
mga naga trabaho karon? The rates are too
low for the locals. Thats why they get Filipinos
to do the job. Taiwan. So many Filipinos go to
Taiwan. Thats the lifeblood of the nation --
not the taxes! That is $25-26B a year! You put
on top of that, another $24B from BDO call
center. You have $50-60B every year here!
TRILOGY OF CASES
(Pls. read these cases!)
Now, there is very famous case trilogy cases
which I WOULD SUGGEST THAT YOU
READ:
1.) Vir-jen Shipping v. NLRC 125 SCRA
577;
2.) Suzara v. NLRC 176 SCRA 465 (1989);
3.) Seagull Maritime Corp. v. Valatoman
170 SCRA 813 (1989).
These 3 cases all went to the SC! The first
case Vir-Jen is this...
Vir-Jen Sipping v. NLRC
125 SCRA 177
I. FIRST CASE
Facts: Two (2) contracts: First contract,
signed in the Phils -- higjer; Second, when
they get to another place, another contract
was signed -- lower. So when they came back,
they sued.
Issue: Which contract is valid? -- When both
contract were registered with the POEA!
Approved ang both contracts!
Held: One Division of the SC held that it was
the contract that was last signed. So the one
contract that was signed last is considered as
amendment of the first contract. How
about the circumstances that they are there
at the signing? It does not matter. The SC says,
the assumption is, that you go there in their
own. But they are many, therefore, they do
not have to sign! Thats what the FIRST
DIVISION of the SC held.
23
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
II. SECOND CASE
Facts: Here is the second case. Same case.
2 contracts. Both registered with the POEA.
The first contract here provides higher
compensation. Second contract, lower
compensation. Pagbalik nila, they sued.
Held: The SECOND DIVISION says, no its
clearly contrived. The OFW is still taken
advantage of! So the valid contract is the
FIRST ONE! Because it is in favor of the OFW.
Now, 2 Divisions of the SC, with 2 different
decisions. So how do you decide that? They go
EN BANC. Now, the En Banc, that is when
they really begin a full-blown case. Why?
Because so many amici cureae wanted to
enter! Association of Philippine Shipping, they
enter! Association of Philippine Recruiters,
they enter! So many entered! They wanted to
file briefs! They wanted to intervene the case.
So it took longer.
Finally, the SC penned by J. Hugo Gutierrez,
the issue in this case is do We, the Court, kill
the goose that lays the golden egg? Patyon ba
nato ang gansa na nangitlog ug bulawan? It
used to be that the salary of an ordinary crew,
is only $1K a month! With a free bottle of
whiskey a week! With one free cigars a week!
Mao nang niado ang sweldo. Nag-anam
kagamay. Ngano man? Because there are
more and more people who have to enter into
the market and are coming from the much
lower base than we are. Sad to say, the darker
your complexion, the lower your base is! Wa
man nay problema kung ang mga nisulod kay
mga Taiwanese, mga taga HK. Pagsulod sa
mga lagom -- Indian, Bhutan -- ni-anam na
ug kaubos! Because they are made to receive
less and less.
So that is what Hugo Gutierrez said -- Do we
kill the goose that lays the golden egg? -- We
do not kill the goose that lays the golden egg.
We protect the Filipino! INVALID and
second contract! The FIRST CONTRACT is
VALID! That was the decision tha was
reached, 1989 pa.
QUESTION: Has that practice stopped?
No, it has not! Thats when you realize that it
can only legislate wages up to a point. It
cannot go against the market ____. There is a
limit.
Now, some manning and placement agencies
Den
deny culpability by saying, we were the
agents of the foreign principal at the time of
the signing of the contract. But after the
signing, a few months later, we were
disauthorized. We are no longer the agent.
Weve already broken our legal tie. We no
longer represent the principal. You sue the
substitute! Do not sue us! But the substitute
will also says, Im not liable. I did not sign the
contract! Now, there is a provision of law in
10022 that says:
Even if you have ceased to become an
agent, you remain liable for all the
contracts that were signed during your
time.
Remember that! That is an exception to the
LAW ON AGENCY. You are liable for your
principal that is no longer your principal! In
other words, the law holds you liable for as
long as the contract obtains even if you are no
longer the agent of the principal.
Again, if you are a placement agency, you
have to put up certain surety bonds. What is
the purpose of these surety bonds? In case
that liability is meted on you, you have the
means to pay. Because you are backed up by
bonds.
How do you get that surety bond? You get an
insurance company. And then, aside from the
minimum bond that is required, as your
business grows, your bond also increases
because your liability or possibility for liability
also increases.
Now, how do you get the bond?
The placement company is asked by the
recruits. Ikaw placement ang mu-recommend
namo. The placement agency, one of the
prohibitions in the law is, you cannot be a
placement agency and at the same time a
a travel agency.
Article 34. Prohibited Practices. -- It
shall be unlawful for any individual,
entity, licensee, or holder of authority:
(j) To become an officer or member of
the Board of any corporation engaged in
travel agency or to be engaged directly
or indirectly in the management of a
travel agency.
24
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Thats one of the prohibitions. If you do that,
thats a violation of PROHIBITED PRACTICE.
why is that disallowed? Bisag wa pay jobs
didto abroad, you already buy her a ticket,
then she arrives there and apparently there is
no job. So, ganansya man ka kay kabaligya
man ka ug ticket. So that is prohibited under
the LC.
Suppose, he recruits the same. So they go to
the travel agency and they buy the tickets.
They only promise that they will pay. Suppose
that they cannot pay, can the travel agency
sue the placement agency and execute on the
surety bond? It cannot be because the surety
bond is solely for the liability of the
illegal dismissal.
Alright, another issue, DISABILITY.
Suppose the OFW, the seaman, meets with
work-related accident. For example, back pain.
Maglisod na cyag tindog. Di pud cya kaduko.
Di cya katulog. Back pain can result to total
disability, in which case, he is severed from
the service, you are entitled to DISABILITY
PAY. The basic provision now in 10022 is,
who determines w/n an OFW has permanent
disability.
1.) The company accredited physician --
he has the first prerogative.
Now, the seaman might go to another
physician for second opinion, and then if he is
at risk, they will work it out. If they cannot
work it out then it will be a case.
Now, suppose there is no determination, let
us say after a period of 90 days, who has the
prerogative to determine w/n the total
permanent disability is ____.
2.) The other competitive physician, not
necessarily the accredited can now make
the finding total permanent disability and
the court will respect that opinion.
Again, a new provision. Before an OFW leaves
the he is normally asked through a medical
examination. Can the employment agency or
recruitment agency, insist on a particular
medical doctor or medical institution who will
do the examination? Naa man na usahay diha
ang mga fees. Ig-on sila sa medical
examination. The law now says, that an OFW
or a seaman can only be made to go to a
particular doctor or a particular medical
institution if the foreign principal or the
Den
recruitment agency shoulders the
medical fee. But, if there is no
shouldering of the fee by the principal or
the agent, the OFW may go to any doctor,
or any medical institution with the
equivalent qualification. These are the
loopholes before that they are now crossing
subject to many SC decisions.
And now, there is this very famous case. Its a
case about a captain and a ship just plying in
HK and Japan. On the way back to the
Philippines, naabtan sila ug bagyo. And the
court decision has the transcript of the
communication xxx we have jettisoned the
cargo to rebalance the ship. Until finally, the
captain says, abandon ship! And they
abandoned the ship, and the ship was _____.
Now what was the issue? The issue was, for
one month after this final report, the wife still
received the salary. Because as you know, the
OFW, whether land-based or sea-based,
cannot leave the Philippines without opening
an account to which the principal agrees to
deposit a certain portion of the income. If you
are sea-based, I think its about 70% of your
basic pay that must be ____. If youre
land-based, its 50%. Why is that, because
when youre at sea, youre supposed to have
no expense at all -- naa man kas dagat. That
is the point. In the old law and still in the new
law, you have to have an agreement with the
principal that you have to remit money to the
direct dependents. Now, this wife of the
Captain xxx and then all of a sudden, the
company says, the ship is totally lost! No
more! We are no longer giving you the salary.
You know, the SC here says, this is not a
question of absence. If you look at the
transcript, everybody died. No more absence.
They are dead. Patay na ka. Death benefits
na.
So, Ill leave you to cover 10022. We just have
to cover one section about EMPLOYMENT OF
NON-RESIDENT ALIENS.
EMPLOYMENT OF NON-RESIDENT
ALIENS
Title II
For NON-RESIDENT ALIENS, please be
clear, that a working visa does not give you
the authority to work here. That is separate
and distinct from the work permit. You can
25
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

apply for a working visa even if you still do not
have a working permit. And, if you pay the
fees, and you pass the scrutiny of the
immigration, you can be granted a
working visa. You come to the the
Philippines, working visa, 6 months,
renewable for another 6 months xxx but that
does not give you the right to work. What
gives you the right to work? EMPLOYMENT
PERMIT. But if you are a resident alien, you
do not need any work permit, like Fr.
Macnamara. He is not a non-resident alien. He
is a Filipino citizen. Thats why he can
become dean kay angpa Filipino citizen man
cya. Nag-apply man cya. Kadto si Fr. Moga di
to cya Filipino but a resident alien.
APPRENTICES, LEARNERS &
HANDICAPPED WORKERS. You can read
that on your own.
If you want to have an APPRENTICESHIP
PROGRAM, you can start at anytime
provided you pay the minimum wage. If you
want to pay less than the minimum wage,
then you have to apply, and the approval you
need is not just on the DOLE, you need the
approval of TESDA.
If your APPRENTICESHIP, LEARNERSHIP
AND HADICAP PROGRAM is approved xxx
the law says in no case the wage be less than
75% of the appropriate minimum wage.

The landmark case is Tim Cone v. NLRC Whats the difference between
LEARNERSHIP and APPRENTICESHIP?
Cone v. NLRC
LEARNERSHIP APPRENTICESHIP
Facts: This was Tim Cone, the longest
non-Filipino PBA coach. The Association of Has no theoretical There is a
Filipino Basketball Coaches opposed his component -- way theoretical part!
coaching. And then it was brought out that he lecture2x na!
did not have a work permit. He has a working Kanang welder, naa
visa but he did not have a working permit. But when you finish, kay theory ana!
the program Electricity, positive
Held: It is the Department of Labor that guarantees you xxx negative
issues you your working permit. When can wa man nay lecture.
you be issued a working permit? The program does
Unsa man nang npt guarantee that
1.) If there is reciprocation of your home janitorial, alangan youd be employed.
country to Filipinos -- if they grant the same to lecturan pa ka unsa But if you are going to
Filipinos working in your home country. pagkupot sa silhig ug be employed by the
dustpan? one running the
2.) It must be a position where there is a program, then you do
dearth of Filipinos. -- so the FCA says, there There is a not go through a
are already many Filipinos who know how to probationary period probationary period
coach! But then it is said that there is still a of 6 months. anymore if you talk
need to upgrade the coaching skills of about one and the
Filipinos. There must be 2 understudies that same worker.
must be trained to eventually take over the
position of the non-resident alien that is
working here.
HANDICAPPED WORKERS

Who are considered? Your mental or

Now, how many aliens are working here in the physical disability affects the precise
Philippines? Very many! You just take a look at productivity of your job.
Manila Standard or Manila Times every
Saturday. They have the list because the
Ex: Polio victim ka, and your job is a
DOLE requires you to publish the positions
telephone operator, are you handicapped? You
where the ____ employer is applying for the
are not handicapped! Alangan tiil imung
foreigner for a work permit. Very long! There
gamiton, di man.
are foreigners that are hired in hotels, in
resorts. So, that is Title II. Now, Book II is
Buta ka, you are hird by Metrobank to count
Employment of SPECIAL WORKERS

Den 26
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
the discarded bills, you are not handicapped!
SC nagingon ana.
If you are cross-eyed and you are hired by the
supermarket to watch out for shoplifters, you
are handicapped! That is a requirement of
your job.
So what is a handicapped worker? It must be
in relation to the productivity. If it does
not affect your productivity for a particular
___, then you are not handicapped.
REMEMBER: If you are in the
handicapped program, you can pay less
than the applicable minimum wage but in
no case less than 75% of the wage,
provided there is an approval of TESDA.
We are finished, we will now go to the LABOR
STANDARDS PROPER.
Fourth Meeting
LABOR STANDARDS PROPER
So now we are already in Labor Standards
proper. It begins with Article 82
COVERAGE PROVISIONS. There are many
coverage provisions in the LC.
1.) The first coverage provision is Article 6 --
APPLICABILITY.
Art. 6. Applicability. All rights and benefits
granted to workers under this Code shall,
except as may otherwise be provided herein,
apply alike to all workers, whether
agricultural or non-agricultural. (As amended
by Presidential Decree No. 570-A,
November 1, 1974)
Muingon ka ug agricultural and
non-agricultural, so covered na diay na tanan?
Is that as big as embrace to include all
agricultural and non-agricultural? Hain man
ang wa maapil ana?
Den
2.) Then there is this other coverage provision
-- overseas employment
Art. 13. Definitions.
a. "Worker" means any member of the labor
force, whether employed or
unemployed.
What does that tell you? It tells you that you
do not need the existence pf ER-EE
relationship for coverage under Book I Title I
of Chapter I because whether or not you are
employed, you are a WORKER for purposes
of recruitment and placement
BOOK II
You will be surprised that the ambit of the
coverage here. What is the COVERAGE
PROVISION here? The section which defines
MANPOWER TRAINING.
Art. 82. Coverage. The provisions of this Title
shall apply to employees in all
establishments and undertakings whether for
profit or not, but not to government
employees, managerial employees, field
personnel, members of the family of the
employer who are dependent on him for
support, domestic helpers, persons in the
personal service of another, and workers who
are paid by results as determined by the
Secretary of Labor in appropriate regulations.
So, after you have decided the problem that
this is ER-EE relationship, of you are given a
problem with respect to salary,
compensability of hours worked, 13th
month pay and all those benefits, then
you must ask if whether this person falls in
any of these categories that are exempted
by law.
Is he a MANAGERIAL EMPLOYEE? Is he a
DOMESTIC? -- by the way, the new category
now they are not called domestics anymore,
they are called kasambahay. But, this is the
sub-category where we can determine if they
are covered by the _____. Because these
categories are exempted or excluded
27
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
THOSE EXCLUDED:
1.) Government employees -- not an
exemption because there is no ER-EE
relationship in govt.
The question is, who are govt employees?
Govt employees, there is no problem if you
are employed in local govt -- municipality,
province or city. The problem is if you are
employed in a GOCC because you must ask
is it a GOCC with orig charter or organized
under an enabling law the Corporation Code?
Because, the Constitution is now clear that it
must be a GOCC with original charter.
ORIGINAL CHARTER definition
If there are ____ corporation and by laws,
must be a LAW! Not filed by incorporators,
submitted to the SEC and approved it must
be CONGRESS!
Now, in 1999, theres this case
CAMPOREDONDO v. NLRC 312 SCRA 37
reiterated 1 year later in BALUYOT v.
_____ 324 SCRA 248 (2000) when the SC
laid down the so-called CHARTER TEST.
Does the corpration have a CHARTER? If
it does, then it is a GOCC. And the employees
there are under the jurisdiction of the CSC,
not with the DOLE.
The issue is: W/N there is a CHARTER.
Now, here comes the case of BOY SCOUTS
OF THE PHILIPPINES v. NLRC 196 SCRA
176
Facts: He was a carpenter n Maquiling. He
was transferred to Cebu. He went to the LA
and filed a vase of constructive dismissal. His
transfer according to him was already
equivalent to being dismissed because he
clearly cannot transfer to Cebu.
Now, the LA took cognizance of the case and
said that he is illegally dismissed. The BSP
appealed to NLRC. NLRC said that he was
illegally dismissed.
Held: The BSP has an original charter. It
was created by an ACT. Whos act? US
CONGRESS -- when we were still under the
Americans, that law was passed creating the
Den
Boy Scouts here in the Philippines. After that
when we have already been given the
Commonwealth, we have the Commonwealth
Act. Then when we had our so-called
independence in 1947/1946, then he have
Republic Acts. Mao nay history ana. Can you
imagine the BSP was created by an Act of US
Congress? The BSP was not an ordinary
corporation. And according to Congress, look
at this particular section -- the President of
the Philippines is the number 1 boy scout! So
what if the President is a woman? She is also a
boy scout!
Read that case! Because there is another case
after that. And this case is even more queer.
PPSA v. COA
534 SCRA 112
2007 EN BANC; Austria-Martinez
Facts: This is a case about PPSA (Philippine
Society for the Prevention of Cruelty to
Animals. It was also created by an Act -- 1903.
How come COA is here? You know the SPCA
went into the limelight because of the National
Geographic Coverage in Baguio City. You
know the xxx for the Igorots and for the
cultural minorities. They have a special
secrion in Baguio City where they only sell dog
meat, and NatGeo took pics of that. And it was
put there that it was unbelievable where
somebody can slaughter a dog and eat it. So
they were sending money to purchase these
dogs away from those slaughtering them.
Nakadungog man ang COA. Ana ang COA na
naa may law ana. So diretso dayon sila. They
will audit it because its govt.
For PPSA, they contended that they are
private because they never receive any govt
funds.
Govt invokes the CHARTER TEST RULE if
there is a CHARTER, it must be govt.
Held: The CHARTER TEST RULE applies
PROSPECTIVELY NOT
RETROSPECTIVELY.
When did they first appear? 1987 Constitution.
So SPCA is not GOCC that is govt even if it
has a original charter.
28
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Now, thats not the only case. There is still
another case which is for the books. Very
famous case!
________ and Philippine National Red
Cross Intervenor
639 SCRA 70 Januuary 18, 2011
EN BANC (2nd Resolution of the SC)
Leonardo de Castro
The first one was 2 years earlier also penned
by Justice _____.
Remember the issue? Gordon is a Senator and
he is at the same time Chairman of the Red
Cross of the Philippines. Did he violate the rule
that you cannot hold any other position on
govt if you are a Congressman, Senator or
President. They said that Gordon violated
such law because the PNRC is a GOCC with an
original charter also created by the
Americans by an Act.
Now, this is really LANDMARK because the
SC comes up with a ruling equivalently saying
that the PNRC is the same category as the
LGBT. It has no personality! It is neither govt
nor private! Tunga2x.
Now, what was the problem in the original
decision? Abad asked the PNRC to better
choose if they want to make themselves
private or govt? So it required another
solution by the Court. And the Court says, you
do not have to choose. You are what you are,
because your personality is derived under
International Law. You are one of those
entities that is a juridical person under
International Law.
Now, what is the problem? Why is it PRIVATE
CORPORATION? According to the PNRC,
whether we are public or private it does not
matter if we respond to natural calamities. But
when it is man-made calamities, like internal
wars, rebellion, Abu Sayaff, kidnapping, etc.,
when we go there, we are not representing
govt. Thats why they can go to the
belligerent -- they can go to the MILF, MNLF,
Abu Sayaff -- because we are non-govt. And
that is necessary as the last bastion of
protection of the victims.
Now, the govt says PNRC is also govt
because their purpose and activityis the prime
Den
responsibility of the govt. Govt must respond
to natural calamity, etc.
Now, if that is the case that you are neither
govt nor private, what happens to the worker
there? However, the SC did not make a
precise announcement as to whether it is
public or private. There must be a decision
where the workers will go.
Now, here is a decision PHILIPPINE
VETERANS FEDERATION v. REYES (2000)
EN BANC penned by J. Chico-Nazario.
Facts: The Veterans organization has several
chapters -- each province has a chapter. Now,
the presidents in different chapters meet in
Manila and they form the Veterans Federation
of the Philippines Incorporated duly registered
with the SEC.
Issue: Is that corporation public or private?
Held: Even if it does not have an original
charter, it is GOVERNMENT! Why is it
government? Even if you are a veteran, the
Secretary of Defense can reactivate you! Can
you imagine that?
The Court says, the VFP is government
because the members there is still under the
Secretary of Defense and through his
command, you can still be reactivated.
Im telling you because the general rule of the
CHARTER TEST is that there is no exceptions!
And you have to be familiar with the
exceptions!
I will tell you by experience.Example: Davao
Water District (DCWD) -- their workers are
organized and they have their own labor union.
They have a CBA registered with the DOLE.
Their increases are determined by
negotiation.
One time, they came and asked for advice
from me. I told them you are GOVERNMENT!
So many decisions that they are govt because
they are formed in accordance with the Water
Code! So, the increases they get because of
the act of the corporate board. Ever since I
told that they never came back to me!
Is it with ORIGINAL CHARTER or is it not
with ORIGINAL CHARTER? Now, Ill tell you
an exception to that rule -- Section 88 of the
Omnibus Election Code.
29
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Section 88, OEC: The moment a
government employee files a certificate
of candidacy, he is ipso facto deemed
resigned.
Now, does that mean GOCC with original
charter or without original charter? The
SC says, it does not matter. You are deemed
resigned if you file your COC. That is an
exception to the general rule because
according to the SC, Section 88 does not
distinguish. And when the law does not
distinguish, neither should we distinguish.
So alright, we are through with government.
Now we go to the second category. What is
that? MANAGERIAL EMPLOYEE.
2.) Managerial Employee -- Article 82 2nd
paragraph, it says here...
As used herein, "managerial employees" refer
to those whose primary duty consists of the
management of the establishment in which
they are employed or of a department or
subdivision thereof, and to other officers or
members of the managerial staff.
2 KINDS OF MANAGERIAL EMPLOYEES:
A.) Those who manage -- You are not a
managerial employee because of your title.
You are a managerial employee because of
what you do. You are not paid for the time that
you put in. You are paid for the goal that you
achieve. To achieve that goal, you have
discretion. Your activities are characterized
by the exercise of INDEPENDENT
JUDGMENT -- those are the KEYWORDS. If
you exercise independent judgment, you
are a MANAGERIAL EMPLOYEE.
You also have the decision to hire or fire.
Kining tawhana na ni saakong atubangan, ako
ba ning dawaton or dili? If that is your decision
to make, then you are a MANAGERIAL
EMPLOYEE.
If you have the effective power to
RECOMMEND, you are a MANAGERIAL
EMPLOYEE. In other words, the manager
before he signs firing, hiring or admitting you,
Den
he asks the supervisor or whether this guy
meets our standards? Has this guy committed
serious error? Pagmuingon na cya uy YES,
pirma na dayon na cya na youre fired! What
does that make you? You are a SPERVISOR,
and you are also a MANAGERIAL
EMPLOYEE -- if you have the effective
power to xxx.
Now, here comes a law passed by Congress --
energy conservation. And the law dictates,
with implementing rules and regulations, that
the company must hire a specific person to
occupy a position called, energy
conservation manager. Ang trabaho niya
kay tig tan-aw siya kun unsa ang pasave sa
electricity. Now, kining tawhanan na gi-hire,
cgeg kuan, misaka man nuon ang power sa
electricity. So gipapahawa cya. Ana na cya na
I am a managerial employee. I am not at
fault ug nganong misakana ang electricity.
The issue is, is he a manager or not? Ana cya
na how can you deny na Im a manager na my
title man is ENERGY CONSERVATION
MANAGER? That is where the SC says na it is
not your title that makes you a manager,
it is what you do that makes you a
manager.
Cge ka ug recommend but you do not have
the power, you do not exercise independent
judgement, you are not a managerial
employee.
Bisag tagaan ka ug title na SANITATION
MANAGER -- unsa man ang imong trabaho?
Janitor ka! Di ka manager even if everybody
calls you manager.
Now, I just would like to tell you na the
manager in Book 3 of Labor Relations is not
the same category as the manager or Labor
Relations Book 5. Maabot na gani kas union,
right to self-organization the category of
managers there is different. In what way? A
supervisor in Book 3 is not entitled to OT and
all the benefits. When you go to Book 5, the
supervisor has the right to exercise the right
to self-organization and form a union among
themselves. So for Book 5, they are not
managerial employees who are absolutely
prohibited from joining labor organizations.
So bantay ka ana kay lahi na sila. 3rd year pa
nuon na -- LabRel.
B.) Those who are members or officers of
the managerial staff.
30
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Let us say a cost accountant. They do not
supervise employees. The wonder of
electronic recording now is that there are no
more _____. The program itself generates the
necessary (not familiar with accounting
terms). At the end of the day, you can know
your costs which before (manual pa) will take
you a year to determine actual costs. Hes a
MANAGERIAL EMPLOYEE.
What makes you managerial if you are a
member of the managerial staff? It is your
duty to ____, accumulate, store _____. So
therefore, you are not the ordinary
rank-and-file, you are a MANAGERIAL
EMPLOYEE. You are not entitled to the
benefits listed in Title 1 Book 3 of the
Labor Code.
Note:
PNOC Energy Development Corporation v.
NLRC
222 SCRA 93 The pertinent section in the OEC
is Section 66.
3.) Field Personnel --
"Field personnel" shall refer to
non-agricultural employees who regularly
perform their duties away from the principal
place of business or branch office of the
employer and whose actual hours of work in
the field cannot be determined with
reasonable certainty.
3 ELEMENTS:
A. Non-agricultural -- nag guna2x gani ka
diha dili ka field personnel. Ang tawag nimo
field worker! AGRICULTURAL ka, di ka
field personnel.
B. What do you do? -- You are not doing it
in the office. Youre always out pf the office!
C. Youre hours of work outside the
office cannot be determined with
reasonable certainty.
Now question, you are a member of the
emergency response crew of Davao Light and
Den
Power Company. Duty2x mo ana tag 12
hours. Naa gani tawag ngadto sa Davao Light,
kamo ang mu-respond. Pero kung wa gani
tawag, ah bara-baraha lng mo diha. Kng
mu-respond na sila diadtotawgon pa man ang
Captain. Samtang wa pa ang Captain, position
sa na sila sa kilid, magbalbacua nana sila. Naa
nana sila ug SanMig Light. Kinsa may
makahibawo ana?
Kanang situation ba diha sa taas, mao ba ang
ang buot pasabot anang whose hours of
work cannot be determined with
reasonable certainty? Just because your
supervisor is away. There are many ways of
checking! They can be checked whether they
are really doing their job. Who are those
category of workers? They have been
identified in Union Filipro case (1992).
According to the SC he is the salesman.
SALESMAN his hours of work is outside
the principal office. If he does his work in
the principal office di jud na cya
maka-sale. Hes not agricultural. Hes
not industrial or commercial worker. Why
is his hours of work incapable of
determination with certainty? Suppose
you are a drug salesman of a pharmaceutical
company, and you are pushing antibiotics. So
you must distinguish yourself from others who
are your competitors. Suppose this particular
doctor, you know he has so many patients and
you are to get him. Then all of a sudden you
find out that his daughter is getting married
so you volunteer na magbuhat ug cake, naa
pud kay barong pabuhat ka. Now, are you
attending a wedding or are you selling? Even if
your supervisor is _____ you, you cannot tell!
When you are eating, are you feeding yourself
or are you selling? Thats why the law says, it
cannot be determined with reasonable
certainty. Therefore, they are excluded.
4.) Members of the family of the
employer who are dependent on him for
support -- you hire a member of the family.
You hire a brother or a sister and your mother
or your father you hire. And the employee
(the one you hire), is dependent on you (the
employer) for support. That employee is
exempted from Labor Standards provision.
Why? Because there is an underlying
relationship also covered by law which is more
fundamental than the ER-EE relationship.
What is your job? There is no description of
my job. Im going up early and Im the first in
the store. Unya pauli alas-8 kay ako man
nagsira. 12 hours pero way OT. Unsa diay ka?
31
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Unya ngano gasakay-sakay man lagi kag auto?
Gihatag mani saakong amahan na akong
gamiton. Gasolina, credit card. Skwela ang
mga anak, Ateneo. Unya unsaon man
pagbayad ana? Credit card. You are npt
covered by the LC. Maybe ou are gaining
more! Because you are covered by Book 1
Family Relations in he Civil Code.
5.) Kasambahay -- One who performs in the
employers home whose services is usually
necessary and desirable for the maintenance
and enjoyment thereof and includes
ministering to the personal comfort and
convenience of the members of the
employers household.
Now, how many drivers are already excluded
by the amendment of the law? Now,
remember it is the employers household that
you serve. Suppose the employer has no
household? Single man cya. Can single person
have a kasambahay? The law says, he can! So
what happens to single people who have the
equivalent of kasambahay? Are they now
covered by the Labor Standards provision? No!
Because they belong to the next category --
PERSONS IN THE PERSONAL SERVICE OF
ANOTHER.
Why are kasambahays excluded from Labor
Standards? Because their existence antedates
the Industrial Revolution. Remember that
Labor laws was born out of the Industrial
Revolution. Even before the advent of
factories, there were already domestics, and
they are covered by a separate and very
elaborate protocol.
PROTOCOL: The service is very personal na
di nimo mabayran ang service saimo.
Q: What makes you a kasambahay? Your
activity for which you are engaged to
perform?
Manlaba ka man. Manghugas ka ug plato,
manilhig ka, magayo ka ug kama, does that
make ou a kasambahay? Thats the issue
raised in Apex Mining v. NLRC (1991).
Facts: You have a staff house of expats
Japanese engineers. And Apex Mining hired
people to keep the house and to make it clean
and to do the laundry of the Japanese, wash
their plates and make their beds. And they
were paid. They want to get their 13th month
pay.
Den
LA said, they are not entitled to 13th month
pay. Then the NLRC overturned it.
Held: They are not house helpers because the
employer is a corporation. So what makes you
a domestic? Its your employer! Not what you
do.
If your employer is not a household, is not a
family, you are not a domestic.
And then, under Article 145, LC, you have this
prohibition against assigning a non-donestic
for household chores.
Art. 145. Assignment to non-household work.
No househelper shall be assigned
to work in a commercial, industrial or
agricultural enterprise at a wage or salary rate
lower than that provided for agricultural or
non-agricultural workers as prescribed
herein.
Unsa man ka? Cook or labandera ka ba anang
pamilyaha? But that family happens to own a
boutique in SM. Now, naa silay tindera, unya
nasakit man ang tindera. Di mitawag ang
cashier ngadto sa balay na siya ra daw usa
ngadto. Paadtuon dayon kas tag-iya sa
boutique aron tabangan tung cashier diadto.
She as a domestic then you assigned her to
non-domestic chores. What is the effect?
According to 145, you have transformed her
into a commercial or industrial worker. He has
ceased to become xxx. Take note that the
transformation occursonly ONE WAY! From
domestic to commercial or industrial. Di man
na pwede na gikan kag commercial mahimo
sad kag domestic.
Unsa man ang imong trabaho? Nurse
receptionist. Usa ra ka na empeyado anang
doctor. Karon, ang asawa sa doctor bag-o ra
nanganak. Naa cyay maid but the maid ran
away with the houseboy of the neighbor so wa
nay mubantay sa bata. Unya ang nurse ang
imong pabantayon diadtos bata. So na
domestic na ang nurse. Does that make the
nurse a domestic now? No! The
transformation is only ONE WAY -- from
domestic to commercial and industrial.
Take note that once the domestics salary
reaches 1k she must now be COMPULSORY
ENROLLED with the SSS.
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Now, is there an EMPLOYERS
COUNTERPART? No, there is NONE! The
registration and premium is paid entirely by
the employer until the salary reaches 5k --
now there is an employer counterpart.
DOMESTIC RIGHTS:
A.) Right to an original contract of not
more than 2 years -- so you cannot engage
a domestic open-ended -- way tinutuban ba.
Dapat 2 yrs lng. And its renewable for
another 2 years.
B.) Right to minimum wage according to
the minimum wage separate for the
kasambahay. There is a new law now. What
is the minimum wage now? You know,
domestic wages are the only kind of wages
that always lags behind the market wage.
Whereas commercial, industrial and
agricultural workers, the wages that are
mandated are always ahead over the market
wage. Sa FIRST CLASS MUNICIPALITIES
and minimum wage ngadto kay P800. Kinsay
muhire ana? I cant image you can get a maid
here in Davao for P2000 -- it still lags behind
the market wage.
C.) They have a right to just and humane
treatment
D.) Right to indemnity for unjust
termination
E.) They are the only employee that has a
right to EMPLOYMENT CERTIFICATION --
Makapangayo sila -- Ex: So and so has been
my maid. She is a cook, etc. Including the
things that she can cook. Icertify nimo siya. A
regular and a commercial worker does not
have that right! But a domestic has those
rights.
Read some more about the KASAMBAHAY
because its there in the handbook. Make sure
you know it because it has now become a
favorite source of questions in the BAR.
7.) Workers paid by results as
determined by the Secretary -- pakiao
workers
2 KINDS OF PAKIAO WORKERS:
A.) Paid on a piece-rate basis
B.) Paid on a results basis.
Den
Suppose you are hired to make buri hats. And
you are paid per buri hat P1.20. At the end of
the day, you make 50 for the hats. So what is
your wage? It is 50 hats x 1.50 = that is your
wage.
Pakiao workers are excluded here
because they do not have hours of work.
Kutob saimong mahimo, buhata, bayran ka.
You do not have working hours.
If you have working hours ans you are also
given a quota, what does that make you? That
makes you a time worker. You are no longer
a pakiao worker.
Suppose, you are gven hours, but you are also
given a quota. What right does the worker
have with respect to the quota? Can he/she
oppose the quota because that is contrary to
being his hour/time worker? The quota
may be given for purposes of disciplinary
sanction.
Suppose you are in the assembly line and you
assemble watches and your quota is 15
watches in 10 hours. What happens if you
cannot finish 15 in passing the quality control
test? You are given a WARNING! The next
time that you cannot make the quota,
another warning. The 3rd time, you are
pulled-out! Then you are subjected to
training -- you go back as a trainee and your
salary is as trainee. In other words, the
QUOTA is for purposes of DISCIPLINE!
Same pud sa pilot. If you failed on the
check-ride -- you have major lapses -- then
you are taken off the regular roster and you
go back. You are not dismissed gawas
musulod ka didto na high ka.
So, PIECE RATE is different from TASK
BASIS! TASK BASIS example: I need you to
finish cementing this _____. I pay you P6k for
this job. Now, paspasan ninyo hangtod gabii
mo cgeg trabaho, dali ra mo mahuman.
Maghinayhinay mo, dugay mo mahuman, naa
ra ninyo.
What is another application of TASK BASIS?
You see those trucks na DAVAO to any point in
MINDANAO -- naa sa silay karga. Kana sila
taripa na. They are paid on the distance.
Suppose you reach there unya nadakpan kas
police unya nadetain ka, can you claimkag OT?
Nabuthan kag tire, can you claim OT?
So be careful ha because these kinds of
33
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
workers -- pakiao workers -- they are not
included in the minimum standard benefits of
Book 3 Title 1.
8.) Retail and service establishments
employing not more than 5 employees
are exempted from night shift
differential (NSD).
NSD -- at least 10% of the basic pay if you
work between the hours of 10pm - 6am.
If you are a retail or service establishment
employed not more than 5, this was
suggested and passed by Blas Ople in order to
save the small sari2x stores, beuaty parlors,
etc from paying OT!
Sari2x store. When you sell alcohol, you stand
to sell up to the wee hours in the morning.
Naa raman na sila maginom diha. Alangan
pahawa.on na nimo sila.
Now a bakery that employees only 5 people, is
he exempt from paying minimum wage, OT
pay? Beauty parlor, that is service
establishment.
Jose Diokno story: Restaurant, oyster soup
with valuable pearl in it.
It depends if the restaurant is a retail
establishment or a service
establishment.
An ordinary restaurant that serves food to the
customer, they sit down and eat the food, that
is a SERVICE ESTABLISHMENT. The
customer does not own the pearl because he
goes there for nutritional satisfaction.
Ibilin man niya ang bukog. Those that had no
contribution to his ____ di to iya.
Now, if it is retail, it means that you can take
out then it is not only the service but it is also
a retail establishment. In which case, even
the non-edible yu can take home with you.
Fifth Meeting
We are already with the special issues
covering Labor Standards isnt it?
WORKERS PREFERENCE IN CASE OF
Den
BANKRUPTCY
Art. 110. Worker preference in case of
bankruptcy. In the event of bankruptcy
or liquidation of an employers business, his
workers shall enjoy first preference as
regards their wages and other monetary
claims, any provisions of law to the contrary
notwithstanding. Such unpaid wages and
monetary claims shall be paid in full before
claims of the government and other creditors
may be paid. (As amended by Section 1,
Republic Act No. 6715, March 21, 1989)
Now, there are 4 or 5 cases decided and rhis
was the issue, and the ruling is still the same.
Surprisingly they always involve the DBP,
because normally, when an employer is in
trouble financially, the workers are not paid,
the workers go up against a bank who is a
secured debtor because the money covered
by the employer is secured by a mortgage.
And so, the workers file their opposition in the
foreclosure proceedings. Thats why the ____
is laid down in the DBP cases. And the SC has
made a number pronouncement saying, this
is not a labor provision. This is a
CONCURRENCE AND PREFERENCE OF
CREDITS provision. You will meet that in
Credit Transactions. Concurrence and
preference of credits are provisions of the law
where they rank the rights of creditors. And
there are many provisions in the CC. And the
SC said, this is also a concurrence and
preference of credit provision. So this cannot
be read in isolation. This must be read
together with all other concurrence and
preference of credits.
If there is a certain entity, whether natural or
juridical, you liability exceeds your assets --
P10 lng ang imong kwarta pero ang imung
utang P100. So your P10 is not enough to
satisfy all your debts. Your creditors worth
P90, theyre after the P10. How will the court
apportion the P10? That is when you have
concurrence and preference of credits.
CONCURRENCE -- the provision might say,
this have the same rank. So they will divide
whatever is _____.
PREFERENCE -- this has an entire claim over
the others. And you know very well that that
34
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
claimant who is superior of all other. Who is
that? His claim can never be compromised.
Nag-una cya kutob sa naay kwarta diha.
Who is that preferred claimant? It is the
GOVERNMENT! When the govts claim is
taxes.
So the SC says, this is a concurrence of credit,
this is not a labor provision. What is the
implication of that? Is is not interpreted in
favor of labor incase of doubt because this is
not a labor provision. So please ____ yourself
from thinking that everything in this Labor
Code is labor because the SC has already said
this is not a labor provision. This is a
concurrence of credits. Then the SC said, 2nd,
this provision applies only if there has been an
IN REM PROCEEDING declaring the
employer as insolvent or bankrupt. With a
very slight difference BANKRUPTCY and
INSOLVENCY are about the same.
*INSOLVENCY is the term used in
CONTINENTAL LAW. Continental Law has
its origin from the NAPOLEONIC CODE,
SPANISH CC and our CC. So we use the
insolvency in our CC because that is our
pedigree.
*BANKRUPTCY is common law. It has its
origin in UK, Finland. Common Law. Although,
there is also a word in Spanish bancarote
which means you are not rich kay na
bancarote gud ka.
Now, in rem proceeding, when the
courtbdeclares you that you are bankrupt,
that is not a cause of sadness. All these
creditors run after me, they can get
everything and from then on, I am
discharged. The final order of the curt in
bankruptcy or insolvency is ORDER OF
DISHCHARGE! You are now dishcharged
from this curt, from your obligation, go your
way! Start business again because these
creditors of yours who are not fully satisfied,
they can no longer run after you. The
bankruptcy law is really created to favor the
businessman. But you know, until 2010 when
they replaced the insolvency law, with the
FINANCIAL REHABILITATION AND
INSOLVENCY ACT OF 2010, it came out in
the BAR but nobody used the insolvency law
because it is something against our culture.
Pilipino gani, makbankrupt na gani,
maningkamot jud na cya sa di cya tan.awon
na bankrupt. Mangutang napud na cya samot
Den
aron bag-o cyag sakyanan, etc! Because, to
be insolvent and bankrupt is a shame! So
culturally, it is not appealing. Many successful
businessmen in the US have gone through
bankruptcy. Henry Ford was bankrupt so
many times. Bankruptcy is there to save you;
to give you another chance. Modern day rule
of law is in favor of debtors! Creditors
lend at their own risk! I dont know but
successful businessmen love to tell their
stories that they were bankrupt! And as you
already know, is an in rem proceeding!
Now, if a creditor of a bankrupt person sells
his credits and there is a guy who is stupid
enough to buy it, and he succesfully obtains a
discharge order of the bankruptcy court, and
then a 3rd party comes around and says, pay
me! You still owe me! I bought your credits
from this guy! He cannot enforce it! Because
bankruptcy proceedings are in rem -- binding
against the whole world. Thats the reason
why bankruptcy requires publication
because publication is notice to the whole
world! If you have any claim at all, come
around, make it known! You are given the
chance to collect. If you do not do so then you
are waiving your right. So, thats the 3rd
element of the decision of the SC. It says,
this provision applies only if there has been
an in rem proceeding declaring bankruptcy.
4th element: This provision giving preference
to ncollected salaries and benefits by the
employees is invoked only over and against
the so-called FREE PROPERTY -- property
of the employer not otherwise
encumbered. An encumberance is mortgage,
pledge, mechanics lien -- gipalit na nimo by
installment. Wa pa nimo nahuman ug bayad
pero naa na saimong possession. If you are
bankrupt, who has a better right? The seller
who is not yet fully paid or the employees who
have not been paid their wages which is
necessary for their living? Only the so-called
FREE PROPERTY can be open to this
preference of credits in 110. Finally, it is said
that the monetary claims of the employees
shall be paid in full before claims of govt and
other creditors will be paid -- is this a
declaration that the claims of the employees
for the unpaid wages is superior to the claims
of govt for taxes? SC says, when it is said
claims of govt, these are proprietary claims
not sovereign claims. Example of
sovereign claims is TAXES -- inherent
power of the govt. So, the power to tax
cannot be set aside, uness it is so declared in
the law. No govt official can on his own forego
35
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
the collection of taxes because it is a
sovereign power. So, if it is a SOVEREIGN
CLAIM of taxes, it would still be superior over
clams of unpaid wages of labor. The only time
the employees will be superior to govt claims
is if the claims of govt is PROPRIETARY.
What do you mean by PROPRIETARY?
When the govt enters into a contract
with the bankrupt employer. And on the
basis of the contract, it can EXACT
PAYMENT because of contract. In other
words, the govt has descended in the same
level as an ordinary citizen to enter into
contracts. So, this is the meaning of worker
preference in case of bankruptcy.
You know that bankruptcy is freedom? But its
a little more complicated because of financial
rehabilitation. It is one of the laws haw is
manageable and very few know it. And if you
master it, because they say, no MBA school
teaches you how to lose. Just like no military
school teaches you how to loose. You are
trying to control or minimize loss. Kay cge
man ka ug maximize saimong profit.
Bankruptcy laws, gamay ra kaau na na balaod,
just like election laws.
Art. 111. Attorneys fees.
a. In cases of unlawful withholding of wages,
the culpable party may be assessed
attorneys fees equivalent to ten percent of
the amount of wages recovered.
b. It shall be unlawful for any person to
demand or accept, in any judicial or
administrative proceedings for the recovery of
wages, attorneys fees which
exceed ten percent of the amount of wages
recovered.
When we say 10%, that is the ceiling -- that
is not the minimum. And the Court made this
pronouncement in the LANDMARK CASE of
TRADERS ROYAL BANK EMPLOYEES
UNION v. NLRC (269 SCRA 733) 1997.
That is the LANDMARK CASE of Article 111.
Read that case!
Facts: The Union here of the employees went
into a contract with a lawyer. The contract had
2 main divisions -- 1.) The so-called general
retainer 2.) Special retainer.
*GENERAL RETAINER -- The lawyer will be
Den
paid a certain amount every month for
providing legal advice or notarial work, ans
other forms of legal assistance.
Now, if a union had a litigation case, the
lawyers fees will be agreed upon in their
contract. Now the union had several
complaints which they went to the lawyer and
said lets make a case about this. Then the
lawyer said we will file this, etc. Special
retainer.
When they went to the LA, they lost all their
cause of actions, except for the 13th month
pay. Now, the lawyer asked them if they want
to appeal, then they appealed. After they
went to the NLRC, they went to the lawyer and
said that they are replacing the lawyer. The
union dismissed their original counsel and got
a new one. And sure enough, the deciaion of
the LA was affirmed, only the 13th month pay
was granted. All theother claims were not.
They went to the SC, pagabot sa SC, the same!
So the SC now ordered the remanding of the
case to the LA for the execution. When it
reached the LA, the old counsel now files a
motion for attorneys fees. He asks for his
attorneys fees. Now, the union moved ro
dismiss because he is asking for his attornes
fees now that they are going to execute it. The
LA wanted to grant the attorneys fees but he
was brought to the SC because of GAOD.
Issues: 1.) Is the motion for attys fees
timely filed after the decision had become
final and executory.
Held: 1.) Yes, you can file and collect your
attys fees in 2 ways: a.) You can file a
separate case; or you can b.) _____ the case
and file a motion for your attys fees for as
long as the proceeds of the case has not been
_____. Even if the decision has already
become final and executory for as long as it
had not yet been actually executed, you can
file a motion. So SC said that his first counsel
had a right to demand his fees. But then the
SC says, he cannot demand 10% because he
did not do the entire work,its only half way.
This is where the SC says that what 111
provides is that no matter what the
agreement is about fees, 1.) It is not iron clad
-- the court can intervene and correct it. 2.)
10% is the ceiling, it is not the floor. So the
Court reduced it to 5% instead of 10%.
--end of second exam--
36
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

WAGE RATIONALIZATION ACT representative will always vote for increasing.

The employers will always oppose.
Whichever side the govt goes is the one
that will win. Actually, it is the govt that
Lets go to Articles 120-127. This is the dictates whether the wage will be
complete law. This is RA 6727 WAGE adjusted.
RATIONALIZATION ACT. Articles 120 &
127 was amended entirely new by RA 6727 The Supreme Court has said that there
way back in June 23, 1989. are 2 ways of adjusting the minimum
wage. What are those 2 ways? This is the
REASON BEHIND THE LAW: case of ECOP v. National Wage and
Productivity Commission:
Before this was the law, it was Congress that
1.) First way: The Floor Wage Method -
passed minimum wage law and also amended
involves the fixing of a determinate amount
minimum wage. Because the power to change
that will be added to the prevailing statutory
the law was with Congress, Manila became
minimum wage.
the battleground for labor to _____. Now, the
2.) Second way: The Salary Ceiling Method
workers are concentrated. So if the workers
- wage adjustment is applied to employees
will be organized, Congress cannot do
receiving a certain denominated salary
otherwise but to grant the wishes even if it
ceiling.
cannot be absorbed by the ____. So what did
Congress do? Congress passes a law that
*The former method was used in earlier
created RTWPB (Regional Tripartite Wage
minimum wage laws. The latter is used in the
and Productivity Boards). Then gave the
wage orders following 6727 and it is perceived
power to adjust minimum wage to this
that the second way reduces the occurrence
RTWPB , and their wage orders will only
of what is called WAGE DISTORTION.
be effective within their region. The
justification behind it is the standard of
living is not monolithic -- its different WAGE DISTORTION - shall mean a situation
according to regions. So it should be the where an increase in prescribed wage rates
regions who should determine the levels results in the elimination or severe
of minimum wage. So Congress is ____ the contraction of intentional quantitative
pressures of the labor movement to have the differences in wage or salary rates between
wages increased. and among employee groups in an
establishment as to effectively obliterate the
distinctions embodied in such wage structure
based on skills, length of service, or other
So, this law creates 2 bodies:
logical bases of differentiation.
1.) The National Wage and Productivity
What are the elements of wage
Commission - thats the bigger body but it
distortion?
does not issue wage orders.
2.) RTWPB - it is the one that issues wage
1.) There is a hierarchy of difference of
orders all over the region.
wages among the employees - they are
not of the same salary kaya there is a
Who composes the RTWPB?
hierarchy. The regular, probationary,
(LEG)
apprentice, whatever, there are several
groups.
1.) 2 representatives from labor
2.) 2 representatives from the employers
2.) There is a wage order issued
3.) 2 representatives from the govt
mandating a change in the minimum
wage
*The Regional Director of Labor is the
Chairperson
3.) This wage order does not apply to all
*The Regional Director of NEDA is the
groupings in the hierarchy - it just applies
ex-officio Vice Chairman.
to one or a few, in which case it results in an
obliteration or severe contraction of wage
When it comes to the issue about adjusting differences.
minimum wage, of course the employees

Den 37
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
For example, the regular welders in CCR Metal
Foundries are receiving P350. Now, the
probationary are receiving P300 in which
there is a difference of P50. Now, there is a
new minimum wage that says that all those
that are receiving minimum wage which is
P300 di na salary increase but it is an upward
adjustment of P30. What happens? There is a
severe contraction of the difference
between the regular and the probationary.
And probationary before P300, and
diperensya nila sa regular is only P50. Kinsa
may mureklama ana? And regular. Muingon
ang regular na wage distortion. The
difference should be P50! Karon, P20 na
lng. Maglisod kag kaon anang P20. So
complain, wage distortion. The cry is
always, restore the historical difference!
But the SC has ruled that there is no
obligation on the part of the employer to
restore the historical difference. If the
employer just adds P10 more to the
regular to make the difference P30
instead of just P20, hes in good faith, SC
says alright.
Now, here is one instance:
*P350 - regular
*P300 - probationary
Mandatory wage order, increase it to P30, P20
na lang ang difference.
Reklamo ang regular worker - restore the
original!
The employer says that all the probationaries
will all become regular. Im going to add 20
more! Perting sukoa sa regular. Sila nay
gitagaan ug increase, gidungagan pajud ug
increase sa employer. Is that a legitimate or
valid way to correct wage distortion? SC says,
yes. By what logic? SC says that it is the
employer and his managerial prerogative
that created the hierarchy. It is also the
prerogative of management to remove
the hierarchy.
In the IBM v. NLRC (1996) case:
Facts: They entered into an agreement --
CBA. One of the items in the agreement is the
regularization of overtime. Imagine that, the
union agrees that they work for 10 hrs. Now,
there was a wage distortion. The union
complained. But San Miguel says, we are
under heavy competition, we cannot yet
attend to the solution of that wage order. So
Den
union thereafter filed a notice of strike.
Because NCMB did not entertain their notice
of strike, the NCMB downgraded it to
mediation. So the union went into a
slowdown. What do you mean by that? The
production is low but they work very fast aron
di sila makasaway sailang supervisor. Paspas
ug lihok tanan. Hago nang slowdown pero
imung output gamay. Lower than the usual
output kay daghan ug sayop diha. This is
where the SC comes out with a questionable
ruling.
Held: Slowdown is a strike on the installment
plan. And it is illegal per se! In itself, standing
alone, it is illegal.
How can you say that? You cannot even say
that in killing. Can you say that killing is illegal
per se? You know very well that there is killing
in self-defense, in defense of stranger.
Daghan kaau ug killing na dili illegal, strike na
nuon, illegal per se? I can understand people
slowing down because of health and safety
reasons in the workplace. Slowdown sila kay
the workplace is not safe na. You are mining
underground and you go deeper and deeper
below sea level, and then the air that the
company is giving you is not sufficient. And
then pa-divon ka, cge kag hammer anag bisag
dili coal. Thats justified because of health and
safety reasons.
Here, the SC says, it is illegal per se.
The actual ratio says: Wage distortion
cannot be a ground for strike. Why is WD
removed as a ground? Because there are
remedies provided by the law.
Remedies:
1.) If there is no union you ask for the NCMB
to mediate and conciliate.
2.) After 10 days if it cannot be resolved to the
satisfaction of the parties, then you file the
complaint with the LA. That goes to the justice
system of the NLRC.
LA NLRC CA SC
What happens if there is a union?
3.) If there is a union, you file it through a
grievance. So there is a grievance machinery
that is outlined in the CBA. If the result is
unsatisfactory then you go into voluntary
arbitration. You choose a voluntary arbitrator,
and the voluntary arbitrator will resolve the
38
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
dispute.
4.) If you still do not agree with the voluntary
arbitrator, then you go to the CA.
So there are remedies provided by law.
Because there is a remedy, there cannot
be a strike because a strike is just
another form of _____.
There is another case which adds a new
element to wage distortion.
Prudential Bank case (1999) 302 SCRA
74
This additional element is that in the
implementation of the wage order that
causes wage distortion, only in one and
only in one regional area. In other words,
you cannot have wage distortion in Naga
region and Metro Manila.
Facts: Because of the wage order, they
increased the salary of entry level of the
employee of the bank. Because there was a
complaint in Metro Manila, they also raised
the regular ____. There was no such raising in
Naga of the regular workers. There was a
raising of salary of the entry level position. So
much so that the supervisors in Naga were
already close difference with the salary of the
regular workers in the NCR. Hence they claim
that that is wage distortion.
Held: There is no such thing as wage
distortion in between regions. Its only
within one region. There is really a
difference in wages because there are
different costs of living by region. So if
you have here wage distortion, it will
come out with just one region. And there
is severe contraction or elimination of
wage differences, it should only be in at
least one region, not between regions.
Now, here is a workforce. They are trying to
get welders. No one is applying for welding
position. They went abroad. So management
raised the entry level salary of welders --
almost the same as the regular. Complain ang
regular. Ingon ang regular, wage distortion. Is
that wage distortion? There is a wage order.
That is called WAGE COMPRESSION. Wa pa na
pangutan.a sa BAR EXAM ha. Pangutan.on
gani na, what is WAGE COMPRESSION? The
severe contraction or an elimination of wage
differences between groups of workers, not
Den
because of the wage order but because
of a unilateral act of management
increasing one group of its wages
because of managerial necessity.
Kanang Smart. The cellular equipment in the
Philippines, Smart and Globe, has the same
equipment that they use in Minnesota or in
Stockholm, Sweden. So, the moment our
workforce of engineers are hired there, kinsa
pa may mu.apply dris Pilipinas? Mao na
mag.increase sila sa entry level.
So, that is wage distortion and wage
rationalization.
Id like to bring up to you a 2008 case:
Nasipit Integrated Arrastre v. Nasipit
Employees Labor Union - I think this has a
good chance of coming out in the BAR
examination this year. This was penned by the
BAR Chairman, Justice Velasco. Nxt year,
it will be Justice Bersamin.
Nasipit v. Nasipit
2nd Division
J. Velasco
Facts: The RTWPB says: Wage order. All
workers - commercial, industrial, agricultural
- shall enjoy an upwards adjustment of their
wages by P10 a day.
Issue: May the RTWPB issue a wage order
which in effect grants an across the board
wage increase?
Held: Ultravires - beyond your powers to
grant because this is an across the board
grant. This is not an adjustment of the
wages.
In the present case, the RTWPB did not
determine to fix the minimum wage rate
by the floor wage method or by the
salary ceiling method. The RTWPB did
not set the wage levels nor range to
which wage adjustment to which it shall
be added. Instead, it granted an across
the board wage increase of P15 to all
employees and workers of Region 2.
Nasayop ni sila. You cannot do that!
Moreover, no wage order can bring the
39
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

wages down - its only up! Wages, as far standards provisions of this Code and
as the RTWPB is concerned, can only go other labor legislation based on the
up. It cannot come down. Why? Because of findings of labor employment and
this provision: enforcement officers or industrial safety
engineers made in the course of
Art. 127 - NON-DIMINUTION OF inspection. The Secretary or his duly
BENEFITS - No wage order issued by any authorized representatives shall issue
regional board shall provide for wage rates writs of execution to the appropriate
lower than the statutory minimum wage authority for the enforcement of their
prescribed by Congress. So always going up! orders, except in cases where the
employer contests the findings of the
labor employment and enforcement
officer and raises issues supported by
How often can wage orders be issued? The law documentary proofs which were not
says, unless there are extraordinary considered in the course of inspection.
inflationary conditions that ____ an (As amended by Republic Act No. 7730,
emergency that is economic in nature once a June 2, 1994).
year, you can issue a wage order once a year. An order issued by the duly authorized
As we now know, they issue wage orders representative of the Secretary of Labor
about 4-5 years once. and Employment under this Article may
be appealed to the latter. In case said
order involves a monetary award, an
VISITORAL AND ENFORCEMENT POWERS
appeal by the employer may be perfected
only upon the posting of a cash or surety
bond issued by a reputable bonding
company duly accredited by the
So alright, we are finished with wage orders, Secretary of Labor and Employment in
we go to Arts. 128 &129. the
amount equivalent to the monetary
Art. 128. Visitorial and enforcement award in the order appealed from. (As
power. amended by Republic Act No. 7730, June
2, 1994)

a. The Secretary of Labor and

Employment or his duly authorized c. The Secretary of Labor and
representatives, Employment may likewise order
including labor regulation officers, shall stoppage of work
have access to employers records and or suspension of operations of any unit
premises at any time of the day or night or department of an establishment
whenever work is being undertaken when non-compliance with the law or
therein, and the right to copy therefrom, implementing rules and regulations
to question any employee and poses grave and imminent danger to the
investigate any fact, condition or matter health and safety of workers in the
which may be necessary to determine workplace. Within twenty-four hours, a
violations or which may aid in the hearing shall be conducted to
enforcement of this Code and of any determine whether an order for the
labor stoppage of work or suspension of
law, wage order or rules and regulations operations shall be lifted or not. In case
issued pursuant thereto. the violation is attributable to the fault
of the employer, he shall pay the
b. Notwithstanding the provisions of employees concerned their salaries or
Articles 129 and 217 of this Code to the wages
contrary, and in cases where the
relationship of employer-employee still during the period of such stoppage of
exists, work or suspension of operation.
the Secretary of Labor and Employment
or his duly authorized representatives
shall have the power to issue compliance d. It shall be unlawful for any person or
orders to give effect to the labor entity to obstruct, impede, delay or

Den 40
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

otherwise render ineffective the orders I: Unsa may trabaho nimo?

of the Secretary of Labor and
Employment or his duly authorized W: Ah, utility raman ko dri sir.
representatives issued pursuant to the
authority granted under this Article, and I: Pila may dawat nimo?
no inferior court or entity shall issue
temporary or permanent injunction or W: Minimum sir.
restraining order or otherwise assume
jurisdiction over any case involving the I: Minimum ang imung dawat? Pila may
enforcement orders issued in minimum?
accordance with this Article.
W: Ah, basta minimum sir.

e. Any government employee found

(Gisugo man cya na ang tubag ninyo,
guilty of violation of, or abuse of
minimum!)
authority,
under this Article shall, after appropriate
Now, di naman ka biyaan ana sa inspector.
administrative investigation, be
Mao na dayon nang findings. Muana dayon
subject to summary dismissal from the
nang inspector na... Fact finding man. So in
service.
your inspection report you put down
findings of fact, and then,
recommendation. Nakasulat didto, this we
f.The Secretary of Labor and
found na mao ni ang dawat nila.
Employment may, by appropriate
RECOMMMENDATION: They should be
regulations, require
ordered to follow the law! Hatag dayon na
employers to keep and maintain such
niya sa Regional Director of Labor, who in turn
employment records as may be
will give the copy to the employer. And then,
necessary
the law says, after 5 days, when there is
in aid of his visitorial and enforcement
no response from the employer, what is
powers under this Code.
the next step? Issue an ORDER OF
COMPLIANCE. Comply with the minimum
wage. If there is still no action, mao ni
ang kuyaw kay ORDER OF EXECUTION.
VISITORIAL AND ENFORCEMENT They will attach your bank account. Di na
POWERS - How does this happen? The ka kalihok nuon - that is, to answer all
Regional Directors Office has several the orders.
inspectors. It could be a health and safety
inspector, or they could be labor standards How can you overturn these findings? How
inspectors. They find out if the workplaces are can you neutralize this? Pwede ba ka muingon
complying with the minimum wage. So they na karon di.a na ang among payroll? You
make an inspection. Manuktok sila sa mga wont! You can no longer submit. Why?
planta. Hain man imung search warrant? Because it says, where the employer
Manulod man kaha mo dinhi? Is that proper? contests the findings of the labor
No, you cannot ask for a warrant! This is employment and enforcement officer
visitorial power. For as long as the and raises issues supported by
workplace is open, they can come in and documentary proofs which were not
inspect - at any time of the day or night considered in the course of inspection.
as long as it is open, they can come in
and inspect, and you cannot demand a Next thing you know is COMPLIANCE
warrant. ORDER.

Now, when they come in, they can ask for the
necessary documentations that you have to
submit. For instance, they will ask for the
latest payroll. Hain man ang payroll ninyo? Uy!
Absent man ang paymaster. So unsa may
buhaton sa inspector? Mangutana dayon na
cya sa mga workers. (Scenario)
Now, that is Labor Standards. How about
Health and Safety? Health and Safety is the
labor inspector will go in there to
determine whether or not there is just
and humane conditions of work. They go
to inspect not insurance companies. What
are considered DANGEROUS WORKPLACES?

Den 41
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Workplaces that involve high temperature.
Naa kay foundry. Naa kay Boiler.
Years ago, the Office of the President was
called up because Ateneo was said to be a
dangerous workplace. Ang ilang diay gitan.aw
kanang boiler diha sa engineering. Di mana
ipa.boil jud. Murag illustration ra man na na
this is a boiler.
Kanang laundry and dry cleaning, dangerous
workplace na because they have boilers. Now,
if you also have chemical processes, you are
in a dangerous workplace. Underground
mining - dangerous workplace. So they come
and inspect.
Now, the law says that if there is grave and
imminent danger to the life and limb, once
that finding is made, the regional director of
labor will, without need of any hearing, ____.
Mas grabe pa na sa TRO. At least and TRO
naay hearing ex parte. Kini, wa gani hearing
ex parte basta mureport na gani ang
inspector na dangerous, suspend, the
regional director can automatically
suspend. What is his obligation under the law?
Within 54 hours he must call a hearing, pero
suspended ka na. Abot na ang inspector
ngadto, martilyohan ka na, sira na nang tanan
nimong pultahan, imong tanan na makinarya,
wa nay trabaho, una pa mag hearing. And the
only issue in the hearing is: W/N the ___
order shall be continued or shall be lifted
- that is the power of the Regional Director.
c. The Secretary of Labor and
Employment may likewise order
stoppage of work
or suspension of operations of any unit
or department of an establishment
when non-compliance with the law or
implementing rules and regulations
poses grave and imminent danger to the
health and safety of workers in the
workplace. Within twenty-four hours, a
hearing shall be conducted to
determine whether an order for the
stoppage of work or suspension of
operations shall be lifted or not. In case
the violation is attributable to the fault
of the employer, he shall pay the
employees concerned their salaries or
wages during the period of such
stoppage of work or suspension of
operation.
Den
So, that is VISITORIAL POWERS.
Now, muingon ka na is this a law that judges
before it hears? Where is my due process?
Ngano di man ko patubagon? Remember this
is ____. Ex: Naay dakong sign na NO
PARKING, unya naay police unya ticketan ka,
alangan muingon ka na is this a law that
judges before it hears? Mao na ang buot
ipasabot anang VISITORIAL POWERS.
Now, do not forget because now and then they
will come up with the POEA has visitorial
powers over recruitment and placement
agencies. That is, at anytime of the day or
night as long as you are open! Di na sila
mamukaw. Open gani ka sulod na sila.
The DOLE Bureau of Labor Relations also
has visitorial powers over unions - inspect
the records and the books. That is
ENFORCEMENT POWERS.
Now, Art. 129 is the AJUDICATORY
POWERS of the Regional Director of Labor.
Art. 129. Recovery of wages, simple
money claims and other benefits. Upon
complaint of any interested party, the
Regional Director of the Department of
Labor and
Employment or any of the duly
authorized hearing officers of the
Department is
empowered, through summary
proceeding and after due notice, to hear
and decide any
matter involving the recovery of wages
and other monetary claims and benefits,
including legal interest, owing to an
employee or person employed in
domestic or
household service or househelper under
this Code, arising from
employer-employee
relations: Provided, That such complaint
does not include a claim for
reinstatement:
Provided further, That the aggregate
money claims of each employee or
househelper
does not exceed Five thousand pesos
(P5,000.00). The Regional Director or
hearing
officer shall decide or resolve the
complaint within thirty (30) calendar
days from the
date of the filing of the same. Any sum
thus recovered on behalf of any
42
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
employee or
househelper pursuant to this Article shall
be held in a special deposit account by,
and
shall be paid on order of, the Secretary of
Labor and Employment or the Regional
Director directly to the employee or
househelper concerned. Any such sum
not paid to
the employee or househelper because he
cannot be located after diligent and
reasonable
effort to locate him within a period of
three (3) years, shall be held as a special
fund of
the Department of Labor and
Employment to be used exclusively for
the amelioration
and benefit of workers.
Any decision or resolution of the
Regional Director or hearing officer
pursuant to this
provision may be appealed on the same
grounds provided in Article 223 of this
Code,
within five (5) calendar days from
receipt of a copy of said decision or
resolution, to the
National Labor Relations Commission
which shall resolve the appeal within ten
(10)
calendar days from the submission of the
last pleading required or allowed under
its
rules.
What is the JURISDICTION?
Labor Arbiter - can decide money
claims without a prayer for reinstatement
-- that means that there has been no
termination, its just a question of money
that does not exceed P5k, individual
aggregate wage.
Now what happens kung 15 ka buok ang mag
complain saimong employer padayon gihapon
ug trabaho kay wa man nimo pahawaa - its
just a money claim. Ang 14 ang claim is just
above 4k ang money claim. But there is one
whose complain goes beyond 5k. What
happens? According to the SC: The whole
(the one that is above 5k and the 14
others whose claim was 5k below must
go to the LA. Why? In order to avoid
CONFLICT OF DECISIONS. So only 1
Den
forum to decide. Naa may usa na
nailaktaw ug 5k unya ang 14 na uban kay
below 5k, everybody else goes to the LA.
READ! Peoples Broadcasting Bombo
Radio (L-179652) May 8, 2009; 2nd
Division; J. Tinga - The power of the
Regional Director is to decide issues of the
ER-EE relationship was questioned. The SC
had to come up twice: First - mere
incidental power to decide ER-EE
relationship. SC in its 1st resolution said, no
jurisdiction to determine ER-EE
relationship - mere incidental. Almost 2
yrs later, another pronouncement by the SC.
The same case. The SC says: it has
jurisdiction just like the LA in
determining ER-EE relationship. But there
was a strong DISSENTING OPINION by J.
Brion.
Read! Dissenting opinion of J. Leonen in the
Gloria Arroyo case. Leonen has brought out
that the final decision that was signed was not
the one that they have signed. Its out now.
Sixth Meeting
DEPARTMENT ORDER 115-11
I would like to discuss this DO 115-11.
Article 128 is VISITORIAL POWERS of the
duly authorized representative of the
Secretary of Labor and Employment who is
the Regional Director of Labor. What is
written in the law (Art. 128) has practically
been suspended. Why? Unilaterally the
DOLE has stopped all inspections in
workplaces. What do they do? They have
DO 115-11 (Guidelines on the
Implementation of the Incentivizing
Compliance Program). In other words they
are now asking, if you are the employer, you
come to the DOLE and ask for an inspection.
And then, we will go there and when we find
out that you are complying with the Labor
Standards law then we will give you a
COMPLIANCE CERTIFICATION. So for 3
years you will not be inspected! You will be
presumed to be in compliance with Labor
Standards. So, this DO 115-11 is called
INCENTIVING COMPLIANCE PROGRAM.
43
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Now, these certifications is not just for
compliance of Labor Standards. There are
now several kinds of certifications of
compliance. I dont know whether you have
noticed, the University is CHILD LABOR
FREE. Thats one of the compliance -
certification that there are no children at
work here. There are no children in ER-EE
relationship that are there to work for pay.
That is another compliance certification.
And then, there is also the CERTIFICATION
OF HEALTH AND SAFETY - this workplace
complies with health and safety requirements.
That is called in the US OSHA (Occupational
Safety and Health Administration). The
classification in the US whether you are in a
hazardous workplace or in a non-hazardous
workplace. When you are in a hazardous
workplace then you have to comply with the
so many requirements and the OSHA rules for
unsafe workplaces. They even determine the
heights of steps. Kita dinhi wa magbuot niana.
Didto they require it - the size of the corridors.
Asbestos insulators - very expensive and so
many requirements! Asbestos
manufacturing - where is it done? Its done
in China where there are no OSHA. Abestos
are microscopic particles that are afloat in the
air and its permanent! When you ingest it, it
is cumulative. It is carcinogenic - causes
cancer. So, if you ever work with asbestos,
one of the requirements of OSHA is that you
must put air filters. Where is it used? Water
pipes. Kanang puti na naa dra sa gawas, that
is asbestos. And the workers who handle that,
unbeknownst to them, they are handling
asbestos - they are ingesting the particles
there. The moment a certain occupation
has a death rate of more than 3 per
thousand, it is classified as DANGEROUS
OCCUPATION. Now, if you have that in your
workplace, what is your workplace? You are in
ship building and repair. But you have
underwater complement. In other words, as a
1st class ship builder and repairer, it is possible
for you to do underwater without dry-docking
the ship. And divers xxx Its considered as a
DANGEROUS OCCUPATION. Mu.welding
gani ka diha unya diver ka, DANGEROUS
OCCUPATION na. What is the consequence?
Their employees compensation SAFETY
RATED. Musaka imung contribution the
moment and in proportion to the number
of deaths or injuries that occurs in your
workplace. Sa Pilipinas wa man na. Mamatay
or wa mamatay mao ra na P20 ra gihapon ang
imung icontribute Employees Compensation
Den
per worker - P20/month paid entirely by the
employer. So it is not experience rated.
Now, they are trying to approach that by a
system of VOLUNTARY COMPLIANCE. They
are now coming around instead of a stick,
they are using a carrot. Mas maayo pa na
mupagawas na lng na sila. What is your
incentive? If you are not compliant and you go
to the DOLE and you say inspect me and then
they found out that you are not compliant?
Masilutan ka nuon. You will be given time
allowance to correct your deficiency. So your
incentive to comply. Is that a good policy or
not?
In DO 115-11, they even have contests:
Gawad Kaligtasan at Kalusugan - refers to
the national award given by the DOLE in
recognition of the outstanding achievements
of an establishment in terms of responding to
the safety and health needs of its workers,
workplaces and communities. And then they
have established tax incentives. If you try to
improve your workplace and introduce safety
devices that are imported, then this may be
deducted from your taxable income.
If you are found in violation, then you go to a
program of REMEDIATION - this is a twilight
word. I doubt we can see this in Websters
Dictionary.
REMEDIATION - refers to the process of
facilitative and collaborative connection
of compliance, gaps and improvement of
working conditions in a specific
establishment or company through
implementation of appropriate Programs
and Services in the DOLE Toolbox of
Programs and Services for Labor Laws
Compliance.
Big words! But the whole idea is, the DOLE
will help you to comply so that in the end
you will not be violating the law.
So what are these areas? Labor standards,
minimum wage, hrs of work, basic pay
etc. After you have been compliant then you
get a COMPLIANCE CERTIFICATE that you
are found to be observing labor standards,
wages and benefits. If you are paying 13th
month - you are complying. If you are
paying at least minimum wage - you are
complying.
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
HEALTH AND SAFETY is another compliance
certificate.
Third, by special endorsement of the
International Labor Organization (ILO),
being a child-free workplace, there is also
a COMPLIANCE CERTIFICATE. You are not
employing any children.
What is the particular industry now that
employs children and they are paid high
wages? Nintendo and X-Box - they are
employing children to critique games. Can
they apply to be child-free? The child there
playing games, they would not want to be
somewhere else. Theyd like to be there.
Suppose you are a maker of ice cream and
youd like to find the taste of children - that is
a job made for heaven as far as children are
concerned. These are the problems of present
labor cases.
TRAFFICKING is also one of the compliance
programs. But its all in DO 115-11, and its a
committee.
The certificate awarded establishment shall
not be exempt for inspection should there be a
complaint for violation of Labor Standards,
occupational safety or disputes settlememt
processes. However, findings of violations are
subject to a remediation phase and
compliance of corrective actions should be
processed through a single-entry approachs
30-day mandatory conciliation and mediation
services. (Sec. 17, DO 115-11).
There is a new Labor Secretary - he is from
Davao - Sec. Silvestre Bello III. He will
decide whether this will continue or not. But
as of now, no inspection.
There are particular terminologies like:
DCC - the Department Certification
Committee
Gawad Kalikasan at Kalusugan
(GKK) - the award for health and safety
Outstanding Award for LMC (Labor
Management Conciliation)
Den
Then there is this supposed to be toolbox1
where you can choose the remediation
measures. The toolbox is described also in the
circular.
You know you can create a while DOLE just to
implement this. The skills here are not the
skills of remediation oriented Department of
Labor because xxx. Now, will they ask this in
the BAR? I dont know of whether they really
read this. But it is just possible because the
Department of Labor Secretary can just say
that there must be no inspection.
Second thing that I would like to bring up with
you is the ITEMS OF PAY. I used to have a
matrix with that. 2
We will now go to another Department Order
that I would like to point out to your attention
is DO 18-02, a 2002 DO and it lists the
so-called provisions in the contracting and
sub-contracting.
What are prohibited in contracting and
sub-contracting? They are as follows
(Sec. 6):
1.) Contracting out a job, work or service
when not done in good faith and not
justified by the agencies of the business,
exigencies of the business and the same
results in determination of regular
employees and reduction of work hours
or reduction or splitting of the bargaining
agreement.
*Splitting bargaining unit - you will
understand this more in LabRel.
*Contracting out a job done by regular
workers - it depends on whether or not the
activity is usual and necessary to the trade
and business of the employer. For instance,
the non-parties contracting out regular
workers jobs which is not a violation of the LC
is Shell Oil v. Secretary: What happens is,
1
Toolbox of of Programs and Services for Labor Laws
Compliance - is a collecrion of consolidated programs
and interfaced delivery of services in one package
designed to correspond to the identified training or
technical assistance needs of the enrolled establishment
or company under the Incentivizing Compliance
Program.
2
Check Exhibit A plus discussion.
45
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Shell had their own security guards. This was
way way back in the 1960s. The company
(Shell) decided to go into engaging of a
security agency that offered the security
guards. Those that have accumulated years of
service accepted. But those who were still
newly engaged did not accept. Now, since
they were part of the union of the regular
workers, they convinced the union to file a
notice of strike was because of the unfairness
of Shell not to replace the retired security
guards with regular employees but with
security agency guards.
Held: They can be filled up with
contractual workers. Why? Because they
can be contracted out. They are not usual
and necessary to the trade and business.
Security service for shell is not directly
related to its business which is storage
and sale of petroleum products.
So if you lay-off people who are regular
workers but they are not performing jobs
that are usual and necessary to the trade
and business of the employer, then you
do not commit any irregularity or you do
not violate the LC, if you fill up those
same positions with contracting parties.
It is for you to layoff workers that are doing
jobs that are directly related to the main
business of the employer. Ex: Coca-cola
bottling - those that stand on the bottling line,
you hire contractual workers. Because of the
increase of workforce, you are running the
line for 24 hrs now instead of shifting lng. Why?
Nagkaduol naman ang Pasko. By the end of
October, you must have excess inventory to
meet with the special demands of the
business itself. Butangan nimo diha u
contractual workers. But then, those
positions are usual and necessary to the
trade and business of the employer. SC
says: You cannot do that. It must be filled
up by regular workers. Pay the regular
workers with OT. But you cannot put in
contractual workers. You cannot
contract out those jobs.
2.) Contracting out work with a CABO as
defined in Sec. 2, Rule 1, Book 5 of this
Rules.
*CABO - refers to a person or group of
persons or to a labor group which in the
guise of a labor organization supplies
Den
workers to the employer with or without
any monetary or other consideration
whether in the capacity of an agent of an
employer or as an ostensible
independent contractor.
As I told you, this system of CABO is
prevalent in industries where you hire so
many unskilled workers. Ex: Construction,
arrastre, agriculture - there you have CABOs.
The CABOs are needed. Why? Because the
people they bring cannot read or write.
Because they cannot read or write, they are
willing to suffer the heat of the sun out in the
fields. Wa man silay laing trabaho makit.an, di
mao na sila ang muagwanta sa init sa adlaw.
Example ni Father: Mumata na sila sayo sa
kabuntagon. Magsugod na sila kay di na sila
ganahan mainitan. Pag gawas jud sa init ana,
muagwanta paman na sila. Pag.abot sa alas
10 am, init naman jud kaau, muundang nana
sila. But then they have put in already 6 hrs
because they started at 4am hangtod sa alas
10 am. Then in the afternoon, they just work
2 hrs. Pagka alas 3pm na ana, sugod nasad na
sila. They do that because no other work.
Now naa may pad dinha, musign na ang
worker diadto unya mao na ang iyang
sweldo - thats the job of the CABO.
Thereafter, the CABO will ask a portion of
their pay. They depend on the CABO. So
muhatag na sila ug ginagmay sa CABO to
ensure that they have work.
Now, kung CABO ka, muingon lang man ka,
nia koy 18 ka tao, then San Miguel will give
you the money ikaw ang mudistribute ana.
Then ang CABO na ang mukamada ana.
Fr. Discusses about accounting: The trouble is
if your stocks are not moving. In other words,
there are bottles which you have forced upon
your distributor and the distributor has not
solved it, and its there and is already expired.
And you still record it there as your ____. Xxx
That is what happened in RC Cola. Wa naman
mulihok. Daghan kaau ug mga ___ dira,
naay RC Cola dira, wa na. Wa namay sizzle.
Kay ngano man? Mga 2-3 na ka bulan dira
gipanada. Sige pag kaigo sa adlaw. Di naman
pud masaligan ang ilang balance sheet.
Napurdoy ang RC Cola. Xxx Coke ba or Pepsi.
Whats the job of the ____ workers? Put up
the inventory. Load and unload it. You can
make a ____ only up to a certain point. But
46
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
beyond the certain point, you cannot. Kung
gikan sa bottling plant ang usa ka case,
palihukon na nimo muagi nag rulers. Daghan
mag mangahulog ana unya maguba kung dili
na nimo atimanon. SanMig will solve it by
using what is called a load rator, which is a
substitute to rollers. Pagdagan anang mga
rollers masipyat man. Edi mangahulog unya
maguba. Kinsa man ang mutrabaho ana?
Normally ang CABO - lihuka na. Hatag daon
diadto sa CABO. Mao ni ang kwarta nimo. Is
that legal? No its not supposed to be legal.
CABO system is not supposed to be legal.
That is expressly put there in the LC. So if
you have a CABO and it is discovered, the
CABO is discounted and all the people of
the CABO become the employees of the
INDIRECT EMPLOYER. San Miguel who
engages the CABO becomes the SOLE
EMPLOYER and the CABO is cancelled
out.
3.) Taking undue advantage of the
economic situation or lack of bargaining
strength of the contractual employee or
undermining his security of tenure or
basic rights, or circumventing the
provisions of regular employment in any
of the following instances:
A.) In addition to his assigned functions,
requiring the contractual employee to
perform functions which currently can be
performed by the regular employees of
the principal or the contractor or
sub-contractor.
Where do you find this? You find this in the
SUPERMARKET. Merchandisers of Alaska
Milk, they are supposed to be employees
of Alaska, and yet they are being forced
by the department store owner or
supermarket owner to do supermarket
works. Adto mo sa NCCC 6 sa gabii.
Ngano kanang merchandiser sa Alaska
niapil manag sayaw sa mga regular
workers? Di gani na sila muapil sa sayaw
ireport unya na sila, tang2x nana sila. In
the supermarket, everything is for sale. Naa
ka sa daplin, naa ka sa tunga, naa ka sa above
shelve, naa ka sa eye-level shelve, etc - thats
all determined by the product owner and the
supermarket owner. You pay something if you
want to display your shampoo (for ex:
Palmolive) or other products. Those who take
care of that are the employees of Palmolive or
Den
whoever is the maker (Unilever, Proctor &
Gamble). And yet, they are made to do
chores by INDIRECT EMPLOYER - thats
prohibited! This is still going on (this still
happens in real life).
B. Requiring him to sign as a
pre-condition to employment or
continued employment an ante-dated
resignation letter, blank payroll, a
waiver of labor standards including
minimum wage, social and welfare
benefits, and quitclaim releasing the
principal contractor from any liability as
to the payment of wages.
-This is prohibited! Does this occur? Yes, it still
occurs. And it occurs at the highest level. You
cannot become a director of JG Summit if
you do not sign an undated letter or
resignation you sign. You do not become
board member of PLDT unless you sign
an undated letter of resignation. If you
dont sign, you dont ____. That means
you have nefarious plans. So, if that
happens even in the BOD, how about the
lowly, single, defenseless worker? He
also signs.
C. Requiring him to sign a contract fixing
the period of employment to a term
shorter than the term of the contract
between the principal or the contractor
or sub-contractor, unless the latter
contract is divisible into phases for which
substantial different skill is required, and
this is made known to the employee at
the time of engagement.
-When does this happen? For instance, it is
usual that the contractor provides xxx You
have a contract to build a hotel for Marco Polo.
You are Engineering Equipment Inc. You hire
carpenters, masons, etc. Mangabot na sila.
Then, in 1 week you have all of a sudden 2k
workers from zero. Ok, lets take a look at
carpenters. Klase2x mana sila. Naa kay
outside carpenters, mao na sila ang
magbuhat sa mga scaffolding, sa porma. Naa
say mga finisher - this is what is meant that
the contract is divisible by phases. A
carpenter whos an outside rough carpenter -
mao na sila ang mubuhat sa mga scaffolding.
Mao na sila ang mubuhat sa ma porma. Naa
47
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

sad mga finishing carpenter. This is what is an upgrading, you will be called. So here
meant that the contract is divisible by is what you will do. Then the law will
phases. A carpenter who is an outside interpret that as in-house agency. That is
rough carpenter cannot complain that he the problem with this provision.
is already discharged when rough
carpentry is already finished. Wa naman E. Contracting out of job, work or service
- constructed naman. What is now directly-related to the business or
needed are finishing carpenters - kanang operation of the principal by reason of
magpauyon sa pultahan aron di mukagos the strike or lock-out, whether actual or
sa salog if sirad-an. Kana, lisod na na imminent.
carpenter pangitaon. Daghan na nangapply
ana. Unsaon mana nimo na mahibal-an na
tinuod ba gayod ni na carpentero?
Pangutan.on nimo unsa man imung nahuman?
F. Contracting out of a job, work or
Muana cya na gikan man kos trade school - wa
service being directly performed by
naman na run. Karon kay tes naman. Unsa
union members when such will interfere
man nang tes? TESDA ba. Naa mana silay
with, restrain or coerce employees in the
mga papeles na certified TESDA. Kining
exercise of the right to self-organization
TESDA, kada region lain2x ug certification ug
as provided for in the Labor Code.
format. That is why CABO is needed. In the
end, good project engineers have good
CABOs. CABO may muingon ana, naa koy
tawo, mao ni sandigan ni. Pila na ni ka
project namo. Hawod ni di ni musipyat. Sec. 8: Contractual employees are
Humanon niya ang kontrata nato. CABOs entitled to service incentive leave, rest
are like lone sharks. days, 13th month pay and separation pay.

D. Contracting out of a job, work or

service through an in-house agency. This
refers to a contractor or sub-contractor
engaged in the supply of labor which is
owned, managed or controlled by the
principal and which operates solely for
the principal.
-You have a manpower agency for only one
company or group of companies. The
assumption of the law is, because you have
only these companies that you service,
therefore you are owned by these companies.
That is the conclusion of law, which is not
necessarily the truth. These companies
require such a high standard that they have
commissioned somebody to do works
according to their standards, and because it is
so demanding, they stick with this particular
manpower agency. Whats an example? An
example is IT. There are certain IT jobs that
you can get from anywhere. But when you
come to very delicate IT job, like upgrading a
system. Kanang encoding2x, makahimo man
ana si bisag kinsa. But if it is upgrading a
system, lisod na. If you are a big
conglomerate and you have several
companies, then you ask ___. You ____
the company and you will be partners.
And yo will upgrade. Every time there is
-This last is questionable, because when a
contractual employee reaches his end of the
contract, he is not separated. His contract
expires, and there is no benefit. If you say
that he is a contract employee for 3 yrs, does
he have retirement benefits? The law says, to
be entitled to compulsory retirement benefits,
you must reach the age of retirement
according to company policy. Or, if there is no
company policy, when you reach the age of 60.
And then, you must have worked for at least 5
years. Then you are entitled to retirement
benefits. But then, this is the labor
requirement extending its ruling power to add
benefits to workers when it says contractual
employees are entitled to separation benefits.
Sec. 9: Contract between contractor or
sub-contractor with contractual
employee shall be in writing which will
include the description of the job,
statement of wage rate, duration of
employment which must be co-extensive
with contract of principal and contractor.
-There is now a requirement of a written
contract for the employees. How would the
manpower agencies complete this contract?

Den 48
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

They have a contract. But then, you just sign conditions for special groups:
and it is a group contract. You have there IDs,
residence certificate. And the DOLE says, that 1.) Women
is already substantial compliance.
2.) Domestics - now called Kasambahay - in
Requirement of registration of a contract the LC they are still called house helpers
or sub-contract. It must be registered.
The duty to produce the copy of the 3.) Minors
contract between the principal and the
contractor or sub-contractor, no more *Those are the 3 groups of workers.
submission and registration of contracts,
but the duty to produce it once it is
demanded.
Article 1303 requires that the Secretary
Then you have annual reporting of registered
of Labor shall set standards that will
contractors. You must register your self as
ensure the safety and health of women
a contractor and at the end of the year,
employees. They shall by regulations
you register the projects that are
require employers to:
terminated during that year. If you fail to
do that, then those workers are
presumed to be regular workers and not a.) Provide seats proper for women and
contract workers. So, many requirements permit them to use such seats when they
by the DOLE. Unya muingon ka na uy naa man are free from work and during working
diay ni, wa man magsulti si Fr. Remember DO hours, provided they can perform their
15-02 and DO 115-11. Whether it does really duties in this position without detriment
any good, well Im not in the position to say. to efficiency.
The requirement to stop any waiver. Pero its
still occurring. All the department stores,
supermarkets, etc., they still require 6 mos.- 6
mos. - into-into ba. Naa pa na sila: Maayo ba Women should have seats only if it is not
ka mutrabaho? Oo. Sigurado ka na makabalik detrimental to their job. I challenge you.
bisag mahuman na an 6 mos. basta Look for the seats of the SM sales girls. There
magproduce ka ug bag-ong cedula. Tan.awa are none. And that is not a violation of this
ra. Nagkuha na ka sauna ug cedula, pakuhaon provision. If you have been to Manila, you
ka ug laing cedula. Saato pa, mag.usab ka
saimong identity. They are doing that - NCCC, 3
This is now Article 132 of the Labor Code.
SM. Sad to say, we have some alumni there in
the personnel office. Art. 132. Facilities for women. The Secretary of Labor
and Employment shall
Sixth Meeting establish standards that will ensure the safety and health
of women employees. In
Title III appropriate cases, he shall, by regulations, require any
employer to:
WORKING CONDITIONS FOR SPECIAL a. Provide seats proper for women and permit them to
use such seats when they
GROUPS OF EMPLOYEES
are free from work and during working hours, provided
they can perform their
duties in this position without detriment to efficiency;
b. To establish separate toilet rooms and lavatories for
EMPLOYMENT OF WOMEN men and women and
provide at least a dressing room for women;
c. To establish a nursery in a workplace for the benefit of
the women employees
therein; and
It is now politically correct to ask questions
d. To determine appropriate minimum age and other
specifically about employment of women.
standards for retirement or
For the past 5-6 BAR exams, there has always termination in special occupations such as those of flight
been a question about working women. attendants and the
like.
The following belong to the working

Den 49
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

will notice that some buses have women
conductresses. They do not have a
special seat, otherwise they cannot
collect the fares. They are not provided
seats because it is detrimental to heir job.
But you notice now that women security
guards here not only have seats, they
have a desk. Can you imagine that?
b. To establish separate toilet rooms and
lavatories for men and women and
provide at least a dressing room for
women
This is outdated because the controversy now
is to accommodate the transgenders.
That is now the issue. Can you imagine? They
have to decide that in the state of Michigan by
referendum: Will we allow the transgender to
go into the toilets of women? But that is a
GENDER ISSUE, NOT a LABOR ISSUE. The
labor issue is women who are nursing
mothers.
c. To establish a nursery in a workplace
for the benefit of the women employees
therein.
age and other standards for retirement
or
termination in special occupations such
as those of flight attendants and the
like.
-Again, that is a gender issue as to flight
attendants. That is not a workplace issue.
They say that a flight attendant has to bring 2
separate pairs of shoes. One is one size
smaller than the other. The fitting shoes when
you are on land cannot fit you if you are 3000
ft above, because your feet expands. So you
use the one size bigger. This is not a
workplace issue. That is a labor issue.
Can they have a special retirement age? The
special retirement age for underground
miners is provided by law. 55 instead of 60.
That is a workplace issue. But as to the
flight attendant, I dont think if it is a
purely workplace issue.
Article 1314 is about MATERNITY LEAVE
4
This is now Article 133 of the Labor Code.
Art. 133. Maternity leave benefits.

a. Every employer shall grant to any pregnant woman

Can an employer be required to provide for employee who has rendered
nursing stations? There is still a debate an aggregate service of at least six (6) months for the last
because some employers would say that it is twelve (12) months,
added cost to have a day care center. If you maternity leave of at least two (2) weeks prior to the
are nursing an infant, you should bring your expected date of delivery
and another four (4) weeks after normal delivery or
baby to the day care enter if you have work, to
abortion with full pay based
which you can periodically report to nurse
on her regular or average weekly wages. The employer
your baby. Those are workplace issues. Those may require from any
are not gender issues. As to whether a woman employee applying for maternity leave the
transgender employee can use the ladies CR, production of a medical
that is a gender issue. Transgender - that is certificate stating that delivery will probably take place
the letter T of LGBT. Why are you a within two weeks.
transgender? Because youve undergone a
medical procedure by which you can shout to
the whole world that you have a gender b. The maternity leave shall be extended without pay on
different from the gender to you are account of illness
registered with. Youre male, now you are medically certified to arise out of the pregnancy, delivery,
female after this procedure. Can you go the abortion or
the female CR? That is a gender issue. If you miscarriage, which renders the woman unfit for work,
are given that kind of question, cite it unless she has earned
that is not a labor issue. It is a gender unused leave credits from which such extended leave
issue, because there is so much may be charged.
confusion about it. Para matauhan ang
examiner, muingon ka, no uy.
c. The maternity leave provided in this Article shall be
paid by the employer only
d. To determine appropriate minimum
for the first four (4) deliveries by a woman employee

Den 50
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
BENEFITS. Note that working women
have maternity benefits. Transgender do
not have maternity benefits because no
medical procedure that can change your
gender can enable you to bear children. That
is not yet possible.
Now, 131 says, any pregnant woman
employee. So this has been interpreted as
whether you are married or unmarried, if
you become pregnant, then you are
entitled to maternity leave credits. What
is the maternity leave credits? Maternity
leave credits is 60 paid days. 2 weeks
prior to the expected date of delivery,
and another 4 weeks after normal
delivery or abortion, with full pay based
on the regular or average weekly wages.
Actually what happens is the employer
advances the amount and pregnant
employee signs a waiver that she waives
the maternity benefits she will receive
from the SSS in favor of the employer.
Because the employer has advanced the
maternity benefits.
The employee receives more than what the
law requires, because the maternity leave
credits daily basis is lower than the
salary. The average daily credit with the
SSS is lower than your salary - that is
called the COEFFICIENT OF INSURANCE.
For example, you will ensure your car. The
first, we will say 1k is charged to you. That is
the coefficient of insurance. What is that
meant to be? It is meant to prevent abuse.
Because if its not there and you suddenly see
your pay light and it is out of order, what
would prevent you from banging it up against
the post and say, ooppsss! You go to the
insurance and report it as an accident. So, to
prevent that, there is the coefficient of
insurance. So also waived, health
insurance. In health insurance, there is a
minimum first payment borne by the
insured - first 1k. The more expensive
the insurance, the bigger the coefficient.
Why is that? To prevent you from abusing.
In the SSS, there is what is called, AVERAGE
DAILY CREDIT, which is lower than your
average wage. Why is it lower? To
discourage you from ____. Because if you
are replaced full amount, there is no
difference between you working and you
after the effectivity of this
Code.
Den
not working. You will be encouraged not
to work because you will get the same
coefficient of insurance. With the system of
advancing by the employer of the maternity
benefits, you end up getting more because
the employer just gets the average ___. Most
employers do not bother anymore to compute.
They dont bother. They just put the salary.
This is the common experience of ____
workers. And its too late for them to
correct. Why? Because it becomes a
source of right. Since it was practiced,
you cannot take it back anymore.
If you undergo ceasarian, your maternity
benefits is higher.
ORDINARY DELIVERY - 60 days
CEASARIAN DELIVERY - 78 days
- brought by the amendment of RA 1161.
When do you have arrived of these maternity
benefits? Deemed to have rendered an
aggregate service that is 6 months for
the last 12 months. Before you avail of it,
you must report your pregnancy the
moment that you are medically certain
that you are pregnant. Its recorded in
the SSS book - its where workplace
accidents are recorded, pregnancies.
Why is the notice necessary? To prevent
so-called SIMULATED PREGNANCIES.
Single ka. Unya naa kay igsoon na way
trabaho. Naminyo unya ning hapdos na. Way
trabaho ang bana, wa pud cyay trabaho.
Muingon ang imong inahan na tabangi ang
imung igsoon. Ireport na ikaw ang maoy
nanganak. Wa kay uyab pero nanganak ka na
dayon. What happens? You enjoy the
benefits you have. Ipasa dayon nimo ang
imung benefits diadto sa imung sister.
Muingon ka na kasayang man aning
benefits.
NOTE: ANY PREGNANT WOMAN
EMPLOYEE.
Article 1325: Family planning services;
incentives for family planning.
a. Establishments which are required by
law to maintain a clinic or infirmary shall
provide free family planning services to
their employees which shall include, but
5
Now Article 134 of the Labor Code.
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
not be limited to, the application or use
of contraceptive pills and
intrauterine devices.
b. In coordination with other agencies of
the government engaged in the
promotion of family planning, the
Department of Labor and Employment
shall
develop and prescribe incentive bonus
schemes to encourage family planning
among female workers in any
establishment or enterprise.
Article 1336: Discrimination prohibited.
It shall be unlawful for any employer to
discriminate against any woman
employee with respect to terms and
conditions of
employment solely on account of her sex.
-On account of her sex: It should be gender.
Sex is action. Lels! :D
The following are acts of discrimination:
In the US, it is called equal pay for equal
work.
a. Payment of a lesser compensation,
including wage, salary or other form of
remuneration and fringe benefits, to a
female employees as against a male
employee, for work of equal value;
Theres a very famous case in the US. The
issue is about male and female jackhammer
operators. They associate that as being
operated by males. In the States, there are
also females - now they operate that. It has
been a practice that at the end of the day,
when the females need help, bringing
the jackhammer to the truck or to the
maintenance vehicle. That is pointed out as
a cause why women jackhammer operators is
paid less than the males. Females have been
complaining the the union but the union does
not bring it up to the construction company.
So finally the females bring the grievance to
6
Now Article 135 of the Labor Code.
Den
the court. Is the pay differential justified? Or
is the differential discriminatory? That is the
issue. The ruling of the Court is, that is not
enough to justify wage differential.
Because if the difference, if there is, is
NOT SUBSTANTIAL. It is very
INCIDENTAL. Thats a very famous case.
You know what the evidence that the women
presented? They also presented instances
wherein sometimes the male that when
it is a bad day and he has a cold, he also
needed help to transport the
jackhammer from the work site to the
vehicle. So it can happen to the male and
female. Hence, it is not substantial
difference as to justify differences in the
wages. So, equal work for equal pay -
that is the message here.
b. Favoring a male employee over a
female employee with respect to
promotion,
training opportunities, study and
scholarship grants solely on account of
their
sexes.
Criminal liability for the willful
commission of any unlawful act as
provided in this
Article or any violation of the rules and
regulations issued pursuant to Section 2
hereof
shall be penalized as provided in Articles
288 and 289 of this Code: Provided, That
the
institution of any criminal action under
this provision shall not bar the aggrieved
employee from filing an entirely separate
and distinct action for money claims,
which
may include claims for damages and
other affirmative reliefs. The actions
hereby
authorized shall proceed independently
of each other. (As amended by Republic
Act No.
6725, May 12, 1989).
This is very special because the law itself
allows for the SEPARATION of criminal
liability from the civil liability, and both
can PROCEED INDEPENDENTLY, and it is
not a violation of forum shopping. Many
have called that this is dangerous because it is
possible that the civil proceeding can come
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
out with a different judgment from the
criminal proceeding. Then many would
discuss and say that in a civil proceeding, the
quantum of evidence is just preponderance of
evidence. Whereas the quantum of evidence
in a criminal case is proof beyond reasonable
doubt. Now, OJ Simpson, criminal case xxx It
is possible that the employer can be
absolved in the criminal case but he can
have a civil liability in a civil action.
Art. 136. Stipulation against marriage. It
shall be unlawful for an employer to
require as a condition of employment or
continuation of employment that a
woman
employee shall not get married, or to
stipulate expressly or tacitly that upon
getting
married, a woman employee shall be
deemed resigned or separated, or to
actually
dismiss, discharge, discriminate or
otherwise prejudice a woman employee
merely by
reason of her marriage.
2 decided cases here. Very interesting. What
are these cases?
Duncan v. Glaxo (2004); 48 SCRA
158
Star Paper v. Simbol (2006)
Duncan v. Glaxo
Duncan v. Glaxo 7
has an ____ in so many
7
Management Prerogative
Yes. No reversible error can be ascribed to the Court of
Appeals when it ruled that Glaxos
policy prohibiting an employee from having a
relationship with an employee of a competitor company
is a valid exercise of management prerogative. Glaxo
has a right to guard its trade secrets, manufacturing
formulas, marketing strategies and other confidential
programs and information from competitors, especially
so that it and Astra are rival companies in the highly
competitive pharmaceutical industry.
The prohibition against personal or marital relationships
with employees of competitor companies upon Glaxos
employees is reasonable under the circumstances
because relationships of that nature might compromise
the interests of the company. In laying down the assailed
Den
policy. What is the policy saying? If you are an
employee of Glaxo and you marry someone
who is a competitor of Glaxo, you agree to
resign or you agree to make your wife resign
from the competition. The nature of the
pharmaceutical business is, its very
competitive. So, it is a matter of self-defense
that you keep your secrets. Now, this guy of
Glaxo falls in-love with the sales manager of
the competitor. When top management found
out that he was already in a relationship - as
they say in Facebook :) - he was given a
warning - you know what the consequence is.
But he continued. He finally got married. After
they got married, he sort of suspended but
xxx in other words, he was not allowed to
attend the sales strategy meetings. They took
away his samples, etc. It was proposed that
he be transferred to the infant formula
division. But it did not work. Finally they
moved him to Butuan from Legaspi, Albay.
Check the ruling!
So the decision of the SC in the Glaxo case is
that it is a matter of management
prerogative for an employer as a valid
business endeavor to protect the sales
strategy, its way of doing business.
Therefore it was VALID. The employer
there was seen as implementing this
policy in GOOD FAITH It took him about a
year to decide to terminate the
employee.
Star Paper v. Simbol
Now, when you have the Star Paper case. The
Star Paper case is, you also have a written
policy which you agree to when you engaged
___. And the policy is, if you marry anyone
also employed in the same company, then,
either one of you xxx. That is the policy. What
company policy, Glaxo only aims to protect its interests
against the possibility that a competitor company will
gain access to its secrets and procedures. That Glaxo
possesses the right to protect its economic interests
cannot be denied. No less than the Constitution
recognizes the right of enterprises to adopt and enforce
such a policy to protect its right to reasonable returns on
investments and to expansion and growth. Indeed, while
our laws endeavor to give life to the constitutional policy
on social justice and the protection of labor, it does not
mean that every labor dispute will be decided in favor of
the workers. The law also recognizes that management
has rights which are also entitled to respect and
enforcement in the interest of fair play.
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Ateneo de Davao University College of Law
First Semester SY 2016-2017

happens is, these 2 people, both employees of Workplace

Star Paper, they both sign their engagement
paper knowing this policy. And still, they got Educational level
married. When they were asked to resign,
they filed an illegal dismissal complaint. Training-related sexual harassment

This time the SC says, that the dismissal is

illegal. What did the SC cite?
DISCRIMINATION AGAINST MARRIAGE. When is sexual harassment committed8?
Just because you got married you are
discriminated. Thats a violation of this
1. When the sexual favor is made as a
provision. Then the Court says, collusion
condition in the hiring or in the
between valid employees that is
employment, re-employment or
sufficient to bar the marriage. It must be
continued employment of said
strong, substantial compelling reason.
individual, or in granting said
individual favorable compensation,
terms of conditions, promotions, or
privileges; or the refusal to grant
There is now a pending case with the SC. It is the sexual favor results in limiting,
a case of 2 ONB employees. One is a loans segregating or classifying the
officer, the other is a manager. They got employee which in any way would
married, but there is an ____ policy that xxx discriminate, deprive ordiminish
Now, what is the reason for that? The reason employment opportunities or
is because ONB is highly computerized otherwise adversely affect said
and each employee has a password, and employee;
there are various access of ___ levels to
one and the same system. When youre a
loan officer and here is a manager, you
collude. It could mean considerable loss
This is easier part of the mode of
to the bank. That is why there is this
commission of sexual harassment. Sexual
policy. That was brought up. The defense
favor - positive.
is, there are also other banks with the
same ___ level of occupation. They have
2. The above acts would impair the
passwords also, and they do not have
employees rights or privileges
this policy - so what makes yours
special? That is now with the SC. We will
await the result because it should resolve 8
(a) In a work-related or employment environment,
the apparent conflict between the Glaxo sexual harassment is committed when:
case and the Star Paper case. It is not
simple at all. There are many cases in the
(1) The sexual favor is made as a condition
US - they go as far as equal rights.
in the hiring or in the employment, re-employment or
continued employment of said individual, or in
granting said individual favorable compensation, terms
of conditions, promotions, or privileges; or the refusal
ANTI-SEXUAL HARASSMENT ACT OF to grant the sexual favor results in limiting, segregating
1995 or classifying the employee which in any way would
discriminate, deprive ordiminish employment
opportunities or otherwise adversely affect said
employee;
Theres one famous case of SEXUAL
(2) The above acts would impair the
HARASSMENT. employee's rights or privileges under existing labor
laws; or
Anti-Sexual Harassment Act of 1995 (RA
7877). Became law on February 14, (3) The above acts would result in an
1995. This concerns sexual harassment intimidating, hostile, or offensive environment for the
in 3 situations: employee.

Den 54
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Ateneo de Davao University College of Law
First Semester SY 2016-2017

under existing laws; or nimo na dai kanus.a mani giluto, bahaw ni

dai? :D So, that is sexual harassment.
3. The acts of the employer would
result in an intimidating, hostile or Now, duties of the employer in case of
offensive environment for the sexual harassment. This is in RA 7877:
employee.
1. The employer has the duty to
promulgate appropriate rules and
regulations in consultation with and
This is difficult to understand. If an jointly approved by the employees
employee is put in an intimidating, hostile or students or trainees, through their
or offensive environment, then sexual duly designated representatives,
harassment is committed. What is an example? prescribing the procedure for the
You are the manager of the SM sales investigation of sexual harassment
personnel - 90% of them are women. You call cases and the administrative
one into your office. You scold her for making sanctions therefor.
a mistake. Thats not a problem. But the
problem is that youre scolding her in
your office and your office is filled with
these calendars with SCANTILY CLAD So, if you have certification that you are free
WOMEN and your desk top is filled with from sexual harassment by the DOLE, you
these Playboy pullouts and so on. You must produce this rule book with respect
are putting her into and intimidating, to sexual harassment. You have your
hostile and offensive environment - that committee. Then you will provide ways
is SEXUAL HARASSMENT. That is the for ____ of reported cases. You will also
cause of action. have rules for decorum. You must specify
xxx needed in this workplace. What is
In the US case, it involves Stanford medical the attire that is allowable and what is
___. The case is brought by a resident the attire that is desired. If theres a
physician whose training to be a surgeon. And uniform, it is the uniform. When it is not
that physician is a she. What is she uniform-based, what is allowed and
complaining about? She is complaining that what is not allowed and then what is the
she is placed in an IHO environment. Because ____.
in the operating room, all those are doing the
operation and she is just assisting. Theyre all 2. Create a committee on decorum and
consultants. And she says, they all address investigation of cases on sexual
her as honey. Honey dear can you pass on harassment. The committee shall
the scalpel, etc. She says, I cannot address conduct meetings, as the case may be,
them as dear or honey. They can address me. with officers and employees, teachers,
I am been placed in an IHO environment instructors, professors, coaches,
because of my gender. And then you inject the trainors, and students or trainees to
competitive structure of xxx and she won. increase understanding and
That is sexual harassment. Addressing prevent incidents of sexual harassment.
an employee in a workplace situation can It shall also conduct the investigation of
place somebody in an IHO environment. alleged cases constituting sexual
So pagbantay mo. Parehas atong, dai. harassment.
Because in the art of the bisayas, when we say
dai, inday is a term for endearment and also a 3. In the case of a work-related
term for respect. When you call somebody environment, the committee shall be
Inday Sara, you are not calling her down, composed of at least one (1)
youre calling her up. That is a mark of respect, representative each from the
especially for those who are older but under management, the union, if any, the
___. Kng mas tiguwang nimo, di man ka employees from the supervisory rank,
musulti saila ug dai. Pero ikaw nag mandong and from the rank and file employees.
nila, so unsa may tawag nila nimo? Inday Sara.
Unsa may mas nindot, dai, tagai ta ug
toothpick dai or miss? Diba musugot ka ug
miss? That is a mark of respect. Insulto kaau
Another very important provision in Section 5

Den 55
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
of the law - The employer or head of office,
educational or training institution shall
be SOLIDARILY LIABLE for damages
arising from the acts of sexual
harassment committed in the
employment, education or training
environment if the employer or head of
office, educational or training
institution is informed of such acts
by the offended party and no immediate
action is taken.
Please take note of that.
The victim of sexual harassment does not
have to file a complaint. If the head of
office knows that there is this incident
and the head of office does not take
action thereon - immediate action - then
the employer can be held SOLIDARILY
LIABLE for the damages. Very very
important.
Now, the victim of sexual harassment is not
precluded from instituting a separate and
independent action for damages and other
affirmative relief.
SECTION 6. Independent Action for
Damages. - Nothing in this Act shall
preclude the victim of work, education or
training-related sexual harassment from
instituting a separate and independent
action for damages and other affirmative
relief.
SECTION 7. Penalties. - Any person who
violates the provisions of this Act shall,
upon conviction, be penalized
by imprisonment of not less than one
(1) month nor more than six (6) months,
or a fine of not less than Ten thousand
pesos (P10,000) nor more than Twenty
thousand pesos (P20,000), or both such
fine and imprisonment at the discretion
of the court.
Any action arising from the violation
of the provisions of this Act shall
prescribe in three (3) years.
3 yrs, just like money claims.
Den
Art. 137. Prohibited acts.
a. It shall be unlawful for any employer:
1. To deny any woman employee the
benefits provided for in this Chapter
or to discharge any woman employed by
him for the purpose of
preventing her from enjoying any of the
benefits provided under this
Code.
2. To discharge such woman on account
of her pregnancy, or while on leave
or in confinement due to her pregnancy;
3. To discharge or refuse the admission
of such woman upon returning to
her work for fear that she may again be
pregnant.
Discrimination by reason of pregnancy.
But suppose that it is the pregnancy that
makes you counter-productive and you
are asked to leave because you are
pregnant. Is that discrimination? Suppose
you are a security guard, and then you
become pregnant. Saon mana nimo naay
kawatan unsaon man nimo paggukod ana? Is
that discriminatory when you are asked to
take a leave? Maybe the employer should
try to find the best job for you. But if
there is no other job, then you are asked
already to take an early leave. You are a
belly dancer of a restaurant and you become
pregnant. Its your pregnancy that makes
you counter-productive. Can you imagine
a pregnant belly dancer? That is not
discrimination.
Art. 138. Classification of certain women
workers. Any woman who is permitted
or suffered to work, with or without
compensation, in any night club, cocktail
lounge,
massage clinic, bar or similar
establishments under the effective
control or supervision
of the employer for a substantial period
of time as determined by the Secretary of
Labor
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
and Employment, shall be considered as
an employee of such establishment for
purposes of labor and social legislation.
We have already taken this up. These are
hospitality women in nightclubs, cocktail
lounge, massage clinic, bar or similar
establishment and their special
treatment under the law is there is an
ER-EE relationship imposed by law.
The next group of special workers are minors.
EMPLOYMENT OF MINORS
What is the lowest age that a person may be
employed? 15 years old.
Art. 139. Minimum employable age.
a. No child below fifteen (15) years of
age shall be employed, except when he
works directly under the sole
responsibility of his parents or guardian,
and his
employment does not in any way
interfere with his schooling.
So, if you are working with your parents
directly, then you can be employed even if you
are young - younger than 15.
b. Any person between fifteen (15) and
eighteen (18) years of age may be
employed for such number of hours and
such periods of the day as determined
by the Secretary of Labor and
Employment in appropriate regulations.
c. The foregoing provisions shall in no
case allow the employment of a person
below eighteen (18) years of age in an
undertaking which is hazardous or
deleterious in nature as determined by
the Secretary of Labor and Employment.
What is the exception to that rule? The
exception is, even if it is dangerous,
hazardous or deleterious nature of work, you
are allowed. Example: Suppose your parents
Den
are high-wired walking artists in a circus. And
their main attraction is their 6 y.o. Kid who
rides with his grandpa crossing, walking on a
high wire. Does the parents break the law
because there are many of those. Very
famous: The Flying Gualendas. Are you liable
for putting your child in danger - that is the
issue. Hazardous workplace. Minors should
not be allowed to work in a hazardous
workplace. Hazardous workplace are those
involving high temperature, chemicals,
underground mining, underwater work. Those
are hazardous jobs. You cannot expose
children/minors in those areas. Now there is a
specific law Section 1 of RA 7658 which
amended Section 12 Article 8 of RA 7610.
What does 7658 amend?
Section 2. Section 12 of the same Act, as
amended, is hereby further amended to
read as follows:
Sec. 2. Employment of Children
Children below fifteen (15) years of age
shall not be employed except:
1) When a child works directly under
the sole responsibility of his/her parents
or legal guardian and where only
members of his/her family are
employed: Provided, however, That
his/her employment neither endangers
his/her life, safety, health, and morals,
nor impairs his/her normal
development: Provided, further, That the
parent or legal guardian shall provide the
said child with the prescribed primary
and/or secondary education; or
2) Where a childs employment or
participation in public entertainment or
information through cinema, theater,
radio, television or other forms of media
is essential: Provided, That the
employment contract is concluded by the
childs parents or legal guardian, with
the express agreement of the child
concerned, if possible, and the approval
of the Department of Labor and
Employment:Provided, further, That the
following requirements in all instances
are strictly complied with:
(a) The employer shall ensure the
protection, health, safety, morals and
normal development of the child;
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Ateneo de Davao University College of Law
First Semester SY 2016-2017

(b) The employer shall institute
measures to prevent the childs
exploitation or discrimination taking into
account the system and level of
remuneration, and the duration and
arrangement of working time; and
(c) The employer shall formulate and
implement, subject to the approval and
supervision of competent authorities, a
continuing program for training and
skills acquisition of the child.
Now, it seems here the thesis is the
Department of Labor is sufficient for your
protection - they participate in your
contract. If youre a minor, you cannot
sign it all alone - the DOLE participates.
That is to check on whether your parents
have complied. So those are the special laws
for minors who are special workers.
HOMEWORKERS

In the above-exceptional cases where Art. 153. Regulation of industrial

any such child may be employed, the homeworkers. The employment of
employer shall first secure, before industrial
engaging such child, a work permit from homeworkers and field personnel shall
the Department of Labor and be regulated by the government through
Employment which shall ensure the
observance of the above requirements. appropriate regulations issued by the
Secretary of Labor and Employment to
ensure the
For purposes of this Article, the term
general welfare and protection of
child shall apply to all persons under
homeworkers and field personnel and
eighteen (18) years of age.
the industries
employing them.
And then...

Art. 154. Regulations of Secretary of

Labor. The regulations or orders to be
Section 14. Prohibition on the issued
Employment of Children in Certain pursuant to this Chapter shall be
Advertisements. No person shall designed to assure the minimum terms
employ child models in all commercials and conditions
or advertisements promoting alcoholic of employment applicable to the
beverages, intoxicating drinks, tobacco industrial homeworkers or field
and its byproducts and violence. personnel involved.

Art. 155. Distribution of homework. For

purposes of this Chapter, the "employer"
So no child can be made to portray scenes of homeworkers includes any person,
involving alcoholic beverages, intoxicating natural or artificial who, for his account
drinks, tobacco and its by-products. or benefit,
or on behalf of any person residing
Sammy Davis Jr. Story: Child model of outside the country, directly or
tobacco -He took our breath away. It took indirectly, or through
his life away. Died of lung cancer. an employee, agent contractor,
sub-contractor or any other person:
Now there is no prohibition for a minor once
he reaches, let us say, 15, you can now opt for 1. Delivers, or causes to be delivered,
emancipation xxx emancipation from parental any goods, articles or materials to be
authority - when can you xxx Lebron James processed or fabricated in or about a
when he was still 18 yo already signed the home and thereafter to be returned or to
multi-million dollar contract. But there were be disposed of or distributed in
others who were relatively younger - I think accordance with his directions; or
Durant signed when he was 17.

Den 58
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Ateneo de Davao University College of Law
First Semester SY 2016-2017
2. Sells any goods, articles or materials
to be processed or fabricated in or about
a
home and then rebuys them after such
processing or fabrication, either by
himself or through some other person.
KASAMBAHAY
The third group of special workers are
Kasambahay. And then you have
homeworkers. Those who stays in their own
home.
Difference between the Kasambahay and
the Homeworker:
Kasambahay is some sort of a
homeworker but he works in the home of
the employer.
Homeworker stays in her own home.
They are supplied by materials by their
own employer.
*Let us say, to make buri hats after a sample.
And then the employer comes around and
collects the finished products, pays them less
the costs of the raw materials. That is a
homeworker.
Remember, a homeworker has a right to
form a labor organization. But the
kasambahay is not provided a right to
form a labor organization. The
implementing rules though of the new law
says that the kasambahay may form a
labor organization. But that is ultra vires
because the red letter of the law is silent
as to whether they can form a labor
organization.
The homeworkers, if they make a
mistake, can be made to undo their work
to conform with the standards agreed
upon. The undoing of the work is no
longer with pay - that is allowed. The
Secretary of Labor shall provide for
special regulations for the homeworkers.
Den
NIGHTWORKERS
Night workers - this is the amendment of the
provision prohibiting women from doing night
work. Articles 154-161 - these provisions are
for call center workers.
Art. 154. Coverage. This chapter shall
apply to all persons, who shall be
employed or permitted or suffered to
work at night, except those employed in
agriculture, stock raising, fishing,
maritime transport and inland
navigation, during a period of not less
than seven (7) consecutive hours,
including the interval from midnight to
five oclock in the morning, to be
determined by the Secretary of Labor
and Employment, after consulting the
workers representatives/labor
organizations and employers.
Night worker means any employed
person whose work requires
performance of a substantial number of
hours of night work which exceeds a
specified limit. This limit shall be fixed by
the Secretary of Labor after consulting
the workers representatives/labor
organizations and employers.
Art. 155. Health Assessment, At their
request, workers shall have the right to
undergo a health assessment without
charge and to receive advice on how to
reduce or avoid health problems
associated with their work:
(a) Before taking up an assignment as a
night worker;
(b) At regular intervals during such an
assignment; and
(c) If they experience health problems
during such an assignment which are not
caused by factors other than the
performance of night work.
With the exception of a finding of
unfitness for night work, the findings of
such assessments shall not be
transmitted to others without the
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Ateneo de Davao University College of Law
First Semester SY 2016-2017

workers consent and shall not be used to (1) During pregnancy;

their detriment.
(2) During a specified time beyond the
Art. 156. Mandatory period, after childbirth is fixed pursuant
Facilities. Suitable first-aid facilities to subparagraph (a) above, the length of
shall be made available for workers which shall be determined by the DOLE
performing night work, including after consulting the labor organizations
arrangements where such workers, and employers.
where necessary, can be taken
immediately to a place for appropriate During the periods referred to in this
treatment. The employers are likewise article:
required to provide safe and healthful
working conditions and adequate or
(i) A woman worker shall not be
reasonable facilities such as sleeping or
dismissed or given notice of dismissal,
resting quarters in the establishment
except for just or authorised causes
and transportation from the work
provided for in this Code that are not
premises to the nearest point of their
connected with pregnancy, childbirth
residence subject to exceptions and
and childcare responsibilities.
guidelines to be provided by the DOLE.

(ii) A woman worker shall not lose the

Art. 157. Transfer. Night workers who
benefits regarding her status, seniority,
are certified as unfit for night work, due
and access to promotion which may
to health reasons, shall be transferred,
attach to her regular night work position.
whenever practicable, to a similar job for
which they are fit to work.
Pregnant women and nursing mothers
may he allowed to work at night only if a
If such transfer to a similar job is not
competent physician, other than the
practicable, these workers shall be
company physician, shall certify their
granted the same benefits as other
fitness to render night work, and specify,
workers who are unable to work, or to
in the ease of pregnant employees, the
secure employment during such period.
period of the pregnancy that they can
safely work.
A night worker certified as temporarily
unfit for night work shall be given the
The measures referred to in this article
same protection against dismissal or
may include transfer to day work where
notice of dismissal as other workers who
this is possible, the provision of social
are prevented from working for reasons
security benefits or an extension of
of health.
maternity leave.

Art. 158. Women Night

The provisions of this article shall not
Workers. Measures shall be taken to
have the effect of reducing the
ensure that an alternative to night work
protection and benefits connected with
is available to women workers who
maternity leave under existing laws.
would otherwise be called upon to
perform such work:
Art. 159. Compensation. The
compensation for night workers in the
(a) Before and after childbirth, for a
form of working time, pay or similar
period of at least sixteen (16) weeks,
benefits shall recognize the exceptional
which shall be divided between the time
nature of night work.
before and after childbirth;

Art. 160. Social Services.Appropriate

(b) For additional periods, in respect of
social services shall be provided for night
which a medical certificate is produced
workers and, where necessary, for
stating that said additional periods are
workers performing night work.
necessary for the health of the mother or
child:
Art. 161. Night Work

Den 60
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Schedules. Before introducing work
schedules requiring the services of night
workers, the employer shall consult the
workers representatives/labor
organizations concerned on the details of
such schedules and the forms of
organization of night work that are best
adapted to the establishment and its
personnel, as well as on the occupational
health measures and social services
which are required. In establishments
employing night workers, consultation
shall take place regularly.
They are not really given specific rights except
health check-up when they are engaged,
when they are transferred or whenever they
ask for a medical exam. The medical check-up
is not for the medical check-up. It is for health
assessment.
Art. 155. Health Assessment, At their
request, workers shall have the right to
undergo a health assessment without
charge and to receive advice on how to
reduce or avoid health problems
associated with their work:
(a) Before taking up an assignment as a
night worker;
(b) At regular intervals during such an
assignment; and
(c) If they experience health problems
during such an assignment which are not
caused by factors other than the
performance of night work.
Magpahealth assessment ko. Ngano man? Wa
man ko katulog sa adlaw. Trabaho ka ug gabii
unya pagka adlaw di ka katulog ug maayo. Is
that a health problem? Thats not a health
problem. Di ka katulog ug maayo sa adlaw
because the day is made for waking up and for
working. And it is the night that is made for
rest and sleep. Unless you have more than
that as a problem xxx your right to health
assessment.
Art. 156. Mandatory Facilities. Suitable
first-aid facilities shall be made available
for workers performing night work,
including arrangements where such
Den
workers, where necessary, can be taken
immediately to a place for appropriate
treatment. The employers are likewise
required to provide safe and healthful
working conditions and adequate or
reasonable facilities such as sleeping or
resting quarters in the establishment
and transportation from the work
premises to the nearest point of their
residence subject to exceptions and
guidelines to be provided by the DOLE.
They must have rest or beds or place to retire
so that they do not have to go home at 2
oclock in the morning. That is required now.
Or if you are made to go home in such an
unholy hour, you should be provided with a
transportation which will be delivered to the
main place of your residence. Thats almost
the coverage of the law.
The, if you are a woman night worker, you
should be with a medical certificate that
allows you to work if you are pregnant and
during a specified time or period after
childbirth. If you are nursing, you should also
provide for a medical certificate. In other
words, the disputable presumption is, if you
are pregnant, you are assumed to be not in
the position to work, so you must produce the
certificate that you are healthy or eligible to
work.
HEALTH AND SAFETY
Art. 156. First-aid treatment. Every
employer shall keep in his establishment
such
first-aid medicines and equipment as the
nature and conditions of work may
require, in
accordance with such regulations as the
Department of Labor and Employment
shall
prescribe.
The employer shall take steps for the
training of a sufficient number of
employees in
first-aid treatment.
If its an ordinary workplace xxx when the
number of employees exceeds 50 but not
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
more than 200, then the employer shall see to
it that one of the employees is trained in first
aid. He knows how to rescue someone whos
choking. He must know how to do CPR. There
must be one employee who must be trained.
Where do you get the training? You go to the
Red Cross. Then you get a certificate, then the
employer has the xxx.
Art. 157. Emergency medical and dental
services. It shall be the duty of every
employer to furnish his employees in any
locality with free medical and dental
attendance and facilities consisting of:
a. The services of a full-time registered
nurse when the number of employees
exceeds fifty (50) but not more than two
hundred (200) except when the
employer does not maintain hazardous
workplaces, in which case, the services
of a graduate first-aider shall be
provided for the protection of workers,
where
no registered nurse is available. The
Secretary of Labor and Employment shall
provide by appropriate regulations, the
services that shall be required where
the number of employees does not
exceed fifty (50) and shall determine by
appropriate order, hazardous
workplaces for purposes of this Article;
b. The services of a full-time registered
nurse, a part-time physician and dentist,
and an emergency clinic, when the
number of employees exceeds two
hundred
(200) but not more than three hundred
(300); and
c. The services of a full-time physician,
dentist and a full-time registered nurse
as
well as a dental clinic and an infirmary or
emergency hospital with one bed
capacity for every one hundred (100)
employees when the number of
employees exceeds three hundred (300).
In cases of hazardous workplaces, no
employer shall engage the services of a
physician
or a dentist who cannot stay in the
premises of the establishment for at
least two (2)
hours, in the case of those engaged on
part-time basis, and not less than eight
(8) hours,
in the case of those employed on
full-time basis. Where the undertaking is
non
Den
hazardous in nature, the physician and
dentist may be engaged on retainer
basis, subject
to such regulations as the Secretary of
Labor and Employment may prescribe to
insure
immediate availability of medical and
dental treatment and attendance in case
of
emergency. (As amended by Presidential
Decree NO. 570-A, Section 26).
But then there are these others like it is a
hazardous workplace, there is these number
of workers, 100 employees, 300, there must
be a part-time nurse. Then, when it comes to
hazardous workplace, 500 workers, you must
have a full-time physician. SC has held that
the full-time physician is not a regular
employee. It is the service that is full time
but not the tenure in the Escasinas v. CA
case. So also with the nurse. Full time
nurse. Can you imagine it involves the
Shangrila Hotel in Mactan, Cebu. Because the
doctor there xxx SC says, as to the service,
you are full time, but your engagement
cannot be permanent. Why? The usual
and necessary occupations of hotels is
not medical. So how can you be made
permanent? The moment you are made
permanent there, the following year you
are already a well___ - you have lost
your training, etc. That is a continuous
training. That is why it cannot be made
xxx nurses and doctors.
So alright, we are finished with Labor
Standards proper. Next is we will go to
termination - Book 6. More interesting
including the cases. Termination does not
begin with Book 6 because this is a
disorganized book.
Book 6 begins with Article 292. But in 291,
there are provisions with respect to
termination.
-end of 3rd exam-
Seventh Meeting
TERMINATION OF EMPLOYMENT
So alright, tonight we begin with Book 6 -
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Post-Employment Termination. It has the
most number of cases, because
TERMINATION according to CJ Enrique
Fernando, is the capital punishment for
labor. When you terminate somebody, thats
when he really feels it and files a case.
Notes given by Fr. for termination: These
are basically causes of termination that are
not found in the Labor Code. So you have to
read the standard commentary to know the
decided cases on termination based on what is
found in the Labor Code. The list of causes for
termination are in 296 and 297. So for those
cases, those early found in standard
commentaries - Azucena, Chan - all those
different commentaries. What I give you is a
list of cases of termination purposes not found
in the Labor Code.
What is the termination of security of
tenure?
Security of tenure - the right of
the employee to continue employment
indefinitely subject to the condition that no
just or authorized cause supervenes.
Just cause - cause attributable to
the employee.
Ex: Nangawat cya, nahimog inefficient
cya. Sala na niya so it is a just cause. NO
SEPARATION BENEFITS.
Authorized cause - you have
retrenchment, redundancy, labor saving
devices that are introduced, loss on the part of
the employer - these are beyond the control
and responsibility of the employee. For these
type of causes, there are SEPARATION
BENEFITS. For the previous kind of
causes, JUST CAUSES, there are NO
SEPARATION BENEFITS.
So, the term for the cessation of employment
due to JUST CAUSE is DISMISSAL. The
correct term for the termination of
employment due to AUTHORIZED CAUSE is
TERMINATION.
Ordinary pedestrian language, the term for
cessation of employment due to just cause is
FUTBOL! Haha. Na-futbol ko. Nasipa ko.
Napahawa ko. The term for cessation of
employment due to authorized cause - not
Den
the fault of the employee outside is
TERMINATE! Naunsa ka? Na.terminate ko.
Mao nang lenggwahe sa gawas. Pareha lng na
sa, asa mo run? Mamakwit mi. Thats not an
original word on our language. That is
evacuate. Even the cultural minorities know
what bakwit means. Thats how widespread
the WWII linggo is. So, even the ordinary man
knows the difference between DISMISSAL
and TERMINATION.
DISMISSAL - its your own fault
TERMINATION - not your fault but due
to a sufficient neutral cause.
Now, we are one of the few countries of the
world that has a strict security of tenure
right - we are one of the few. In the US, they
do not follow security of tenure. They follow
the so-called DOCTRINE OF EMPLOYMENT
AT WILL.
DOCTRINE OF EMPLOYMENT AT WILL - It
is common law rule that an employment
contract of indefinite duration may be
terminated by either the employer or the
employee at any time for any reason with or
without cause.
Thats why, in the cartoon depictions of
termination in the US, you have this fellow at
the opposite side of the desk where there is
also the employer who is so flustered and he
shouts, Youre fired! The employee at the
opposite side of the desk also shouts back,
You dont have to fire me, I quit! See?
That shows you that they have equal
rights with respect to termination of
employment.
Is security of tenure good or bad? Every
candidate has promised to end ENDO.
Security of tenure - is it good or bad as a
policy? If youre weak, if you have no skills, if
you have little education, it is good for you.
But, if you have skills, if youre educated, if
you have had considerable education training,
its bad for you. So you have Cuba. There is no
hiring in Cuba because the biggest employer
is the govt. Everybody is employed. But the
wages and their remuneration are a ___. They
dont have much by way of wages. But, if
there is a calamity, theres a storm, their loss
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
of life is practically ____ - they move very fast.
Why? People will vacate their homes. By the
way, they dont have much homes. So they
move right away, and that xxx many of them
pray that the storm will wash away their home
so that the govt. can give them a new home.
Now, thats why they say, if you were born
without resources; they dont have
natural gifts like Michael Jordan, its
good for you if you are born in a
communist state. Many share equally.
But, if you are born with good abilities,
you better not be born in Russia because
youll suffer, unless youre a real genius
who loves to stay poor. Story about the
mathematician in Russia who discovered the
solution to the ____ conjecture. Gregory
Perellman. Youre a doughnut - you have a
whole in you mouth up to your ass! Haha.
This Gregory Perellman gave lectures from
the West Coast to the East Coast of the US. He
was was offered $1M USD. But he declined to
get the $1M USD and went back to Russia. He
still lives in a hose infested with cockroaches
and rats. is he happy or sad in Russia? I dont
know.
Security of tenure. You have heard of...
FRICTIONAL UNEMPLOYMENT9 - a
terminology used by economists. An economy
has a minimum of unemployment which can
never be erased. Why? If you do not have it,
then you are not a ____.
The usual example that is given is the
receptacle for cooking rice. Time was when it
used to be an earthen pot. When it was an
earthen pot, the potters ang maoy nag-hari.
Naa silay trabaho because everybody was
9
Frictional unemployment is always present in the
economy, resulting from temporary transitions made by
workers and employers or from workers and employers
having inconsistent or incomplete information. For
example, a first-time job seeker may lack the resources
or efficiency for finding the company that has the job
that is available and suitable for him and as a result does
not take other work, temporarily holding out for the
better-paying job. Another example of when frictional
employment occurs is when a company abstains from
hiring because it believes there are not enough qualified
individuals available for the job, when in actuality there
is.
Den
using earthen pot. But then came the kaldero
- it replaced the earthen pot. Those potters
who made earthen pots become unemployed.
They cannot be employed in the making of
kaldero. Then things moved - from the
kaldero to the aluminum pot which is now
used in an oven - gas na ba. And then, it
moved to rice cooker. The workers who knew
how to make kaldero and aluminum pot are
now put of work. Finally we have this wonder
material known as Pyrex. From the fire to the
table. In every stage it creates its own
frictional unemployment as the economy
moves. There is always unemployment.
Only fools like the author of the Labor Code
who says that it is the policy of the state to
pursue full employment - fool. Who has
discovered that? Who has succeeded to that?
Full employment which is a labor policy
is a myth because of frictional
unemployment. But frictional
unemployment has been overshadowed by
what is called STRUCTURAL
UNEMPLOYMENT.
Structural unemployment10 is more
revolutionary that comes with a radical
revolution such as what digitalization
brings.
DIGITALIZATION. If you became a lawyer
in the 60s or 70s, by now, if you have not
learned how to use a word processor, youll be
largely considered as unproductive. Can you
imagine writing a brief of 70 pages using a
typewriter? But now, in between letters, you
can insert a whole book. People of my
generation, we are DIGITAL MIGRANTS.
You are the DIGITAL NATIVES - you are
born already with tablets, cellphones, etc.
That goes to all professions and skills. That is
now responsible of increase of
productivity and also increase of
unemployment, and it is not yet over.
Unless you are going to make a fundamental
correction of your own approach, then, you
10
Structural unemployment is a longer-lasting form
of unemployment caused by fundamental shifts in an
economy and exacerbated by extraneous factors such as
technology, competition and government policy.
Reasons why structural unemployment occurs include
workers' lack of requisite job skills or that workers live
too far from regions where jobs are available and cannot
move closer. Jobs are available, but there is a
serious mismatch between what companies need and
what workers can offer.
64
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
will take even 5 unemployment by surface
measures. But in the end, it is basically
education. You dont know how lucky you are.
There are children who go to school and all
they do is copy what the teacher writes in the
blackboard. Why? Because there are no books.
You are already concerned about the problem
of digitalization they are still trying to learn
how to read and write. Then you add the
fundamentally faulty approach of teaching of
Filipino. What happens? You have a bunch of
incompetents because they make language a
question of nationalism. There are so many
great countries who do not have their own
language. It is your English skills that are
tested when you apply for a job.
Father tells his story of teaching catechism in
the youth correctional in Mandaluyong.
Fantastic skill of a great pickpocket - hes
never unemployed. That kind of skill does not
gone out of date. That is not SECURITY OF
EMPLOYMENT. If you have skill, that is
security of employment - that is what
labor should work. Not security of
tenure.
In the Philippines, xxx in his employment
because it is guaranteed by the Constitution.
It is implemented by Book 6. You cannot
end the engagement unless there is a
cause. And the cause must be a JUST
CAUSE.
DOUBLE SECURITY OF TENURE
Now, there is an employee which the SC says
that employee enjoys DOUBLE SECURITY
OF TENURE - not just one but double. That
employee is named by J. Enrique Fernando
(1997) in the celebrated case of
Montemayor v. Araneta University. Who is
that employee? It is the professor or
teacher of the tertiary level of an
educational institution. If you teach in
college or higher, you enjoy DOUBLE
SECURITY OF TENURE.
The first security of tenure is the
security of tenure of the Labor Code.
The second is the security of tenure that
arises from ACADEMIC FREEDOM - is
more often identified with the right of a
faculty member to pursue his studies in
his particular specialty and thereafter to
Den
make known or publish the result of his
endeavors without fear that retribution
would be visited on him in the event that
his conclusions are found distasteful or
objectionable to the powers that be,
whether in the political, economic, or
academic establishments.
*Tenure is the essence of such freedom.
Wiwithout tenure that assures a faculty
member "against dismissal or professional
penalization on grounds other than
professional incompetence or conduct that in
the judgment of his colleagues renders him
unfit" for membership in the faculty, the
academic right becomes non-existent,
Security of tenure, for another scholar, Love
joy, is "the chief practical requisite for
academic freedom" of a university professor.
Example:
A good example here is Galileo Galilee. He
made adjustments on the telescope. At that
time, the cosmology principles held that it was
the earth that was the center of the
universe. From his observations, he started
concluding that the earth was not the
center of the universe. And lo and
behold, his findings became more
accurate, predicting the positions of the
planets and the stars. So he put it out in a
publication paper. All the scholars of the
Catholic Church attacked him because its
contrary to the Bible according to them - that
was a wrong reading of the Bible ha. So, he
was banned from the universities, because
what he was teaching was not in consonance
with the teachings of the RCC. It was not
until less than 10 yrs ago that the
Catholic Church apologized for banning
Galileo. Thats a little late isnt it? Who
knows? There might be a greater
progress in Science if he was allowed to
freely discuss what he had found. That is
why there is this ACADEMIC FREEDOM.
If youre teaching at the tertiary level, you
are supposed to be free to conduct your own
research not matter where it leads you. And
you are free to disseminate even if it is against
the establishment or the particular stage of
the field of knowledge holds.
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
To the question as to who will be your
correctors? How will you be measured if the
establishments doctrine is not ___. The
answer is, your colleagues - the same
people who are in your field will be your
correctors. If you say you can reach this
based on your experiment, they should be
free to conduct the same experiment. If the
results are not the same, then you will be
corrected. Have you read the life of Einstein?
How he proved the speed of light? That is the
reason why ACADEMIC FREEDOM is a
source of SECURITY OF TENURE. People
will be encouraged to look for the
advancement of the furthering of the
boundaries of science of human
knowledge without fear of losing your
livelihood/work. So technically speaking,
fear will unsit in the opposite side of the desk
- I should be free to speak about what I
have found for whatever research that I
do. But that is not the same with high school
and grade school teachers. This only applies
to the 3rd or tertiary level educational
institution.
So, who enjoys security of tenure? All workers?
Is there a uniform enjoyment of security of
tenure? There is only one who enjoys FULL
SECURITY OF TENURE and that is
REGULAR WORKER. The others either enjoy
the LIMITED SECURITY OF TENURE or a
QUALIFIED SECURITY OF TENURE. It is
the REGULAR WORKER that enjoys FULL
SECURITY OF TENURE. The regular worker
is defined in Article 294.
REGULAR WORKER - one who is
engaged to perform activities that are
usual and necessary to the usual trade
and business of the employer. he
enjoys FULL SECURITY OF TENURE.
Security of tenure as a legal concept is not
____. In other words, it has decreased.
Fullness is enjoyed by the regular worker.
Others enjoy it to a lesser degree.
CLASSIFICATION OF WORKERS
ACCORDING TO THEIR ENJOYMENT OF
SECURITY OF TENURE:
Managerial employees - to appreciate
managerial employees with regard to
Den
their security of tenure, you read MGT
Marine Services v. NLRC, 259 SCRA
664, EN BANC, CJ Panganiban.
Facts: This case is a story of a controller. A
family corporation. The officers were all family
members except for the controller who is an
outsider. These officers one day have to take a
trip abroad. They left this controller with
specific instructions. The instructions were:
We have this much money available. Here is a
checkbook. Since our account requires 2
signatures for the drawing of the account with
pre-signed checks. All it needs is just one
more signature and that is your signature. You
pay only these accounts because our cash is
limited. So when this current accounts come
nothing, the other accounts will not work
because we do not have enough money to
answer for our obligations. When they are
gone, here comes a very persistent account
that is not on the list. And the collector here is
very persistent to the point that gives him and
issues full payment for that contrary to the
instructions given to him in the agreement. As
a result, cash is lacking now for the other
claimants. Sure enough when they came back,
they found out and they tried to get an
emergency loan because of what the
controller was not able to hold off the other
accounts which were just and valid obligations
of the corporations.
Should the controller be penalized? Because
the Board decided to fire her. She was fired.
She filed an illegal dismissal complaint
because according to her, I did not do
anything wrong. An employee can only be
dismissed if he has done anything that is
considered as just cause under Article 296.
What I did cannot fit to any of those
enumerated in 296. I disobeyed the orders
but it was in payment of a just obligation that
had become due and demandable. So, I
represented a corporation that had an
obligation to pay under the Civil Code. Thats
what I did. In so doing, I disobeyed, it is not
willful and serious as a just cause under 296.
Held: And yet, the majority of the Court
upheld the dismissal. This is what the Court
said: The leeway for wrong do of
management is wider than that of a
regular rank-and-file employee. You can
be dismissed, not exactly for wrong
doing, but for impropriety. You can be
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
dismissed for falling short of a
committed goal. In this case, you are
dismissed for disobeying a specific
instruction. That is upheld, under the pen of
CJ Artemio Panganiban.
If, let us say, in a sales meeting, the sales
manager stands up after this very staged xxx
and then he stands up and he commits to a
certain sales contribution; and then he fails to
make it, would it be a valid ground for
dismissal? Yes. Because he is a manager.
He committed himself to that goal and it
has consequences for the rest of the
troops. It is not alright if the leader
cannot reach a goal which he says hes
going to do and there is no extraordinary
circumstance that prevents him - like act
of God or act of nature - that will
intervene. When you are in employment,
remember, the measurement of regular
employment is not time. Naay mangutana,
regular ka na ba? Unya muingon ka na wa pa
kay wa pa may 6 mos. - that is not the
measurement. You are REGULAR if you are
made to perform activities which are
usual and necessary to the usual trade or
business of the employer, then you are
regular - as a general rule. Unless, lets
say youre PROBATIONARY, they tell you
at the time of engagement: You are still
on a trial basis. These are the goals that
you must achieve. The standards that
you must meet in order for you to be
regular. There you are still
PROBATIONARY. But when the time
comes and they do not tell you whether
you have met the standards or not but
they continue to hire you beyond the
probationary period, you become a
regular employee. The burden of the
doubt is resolved in your favor, because
that is how labor statutes are interpreted
in case of doubt.
Casual employment - The Labor Code
is xxx. This is regular employment. All
other employment is casual. So you have
to know regular. You are not made to
perform activities which are usual
and necessary to the trade and
business of the employer.
Project employment - project
employee v. pool employee this is in a
construction industry because they do
Den
the same thing.
Let us say you are an engineer engaged for a
particular project. What is that project?
Constructing a building of Marco Polo. So,
what are you? Civil engineer. But the
construction company also has an engineer
that goes around projects measuring the
extent of completion what are to be
corrected, etc. He is engaged regardless of
any project. So he belongs to the core of
the employees. He is regular. In other
words, now you cannot distinguish as to the
chore because what they do is usual and
necessary to the trade or business of the
construction contractor. But one, at the time
of his engagement is specifically referred
to a project. The other is engaged
without any reference to a project. That
other is REGULAR. This one is with
respect to project is a PROJECT
EMPLOYEE. At the end of the project, he
goes, hes not dismissed, hes not
terminated, he has just his term
EXPIRED. Does he get any benefit? No
benefits because his time in the contract
just ran out.
Seasonal employee - a cousin to the
project employee. They can be seasonal
as to a natural season or seasonal as to
an industrial or commercial season.
2 KINDS OF SEASONAL EMPLOYEE:
A.) Natural season - the sugar, mill, 10
mos. of a year - no no - unless its a ___ crop
and theres so much ___ that there cannot
possibly have mill in 10 months. If the single
mill is so greedy as to insist in milling all of it,
it has to pass it on to the other mills because
sugar standing there in the trucks not milled,
that is organic matter - it decays and you lose
the sugar. But the, some sugar mills are, they
dont want to share their harvest to the
others. Here in our region, there are 3 big
mills. But all 3 now are controlled by the
Filinvest group. If you are in a mill, working in
a mill, no more sugar to the mill, the levy
plant manager announces that the season has
come to an end. This is your last pay check.
See you again next season. He does not say
what you are going to do for the next few
months before the beginning of another
67
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
season. What are you going to do? You have
to find ways for you to fill up your time for the
next 2 months. That is a NATURAL SEASON.
B.) Commercial season - But if it is a
COMMERCIAL SEASON - Christmas
(December to Valentines Day) Ex: Selling
flowers - the peak season because people buy
flowers for this special day. What is the
COMMERCIAL SEASON? If you have been a
seasonal employee and the sum total of your
engagement has reached 1yr - you are 4x
hired - then you become permanent as to
the season. That is the ruling in Manila Hotel
v. CIR (1963).
It is now enshrined in 29411, 2nd paragraph:
An employment shall be deemed to be casual
if it is not covered by the preceding
paragraph: Provided, That any employee who
has rendered at least one year of service,
whether such service is continuous or
broken, shall be considered a regular
employee with respect to the activity in
which he is employed and his employment
shall continue while such activity exists.
that is a QUALIFIED SECURITY OF
TENURE. Qualified as only to the particular
portion.
Term employment - this is exemplified
in the Brent School v. Zamora (1990).
Facts: This was the old Labor Code where
from the LA, you appeal to the NLRC, and
from the NLRC, you still have to appeal to the
Secretary of Labor and then you could still go
to the Office of the President. Zamora here
was the Acting Executive Secretary at the
time of Marcos. Brent School is that school in
Baguio, an international school. They hire an
athletic director - contract for 3 yrs. Then the
AD performed his job. At the end of 3 yrs, he
was asked to go because his contract was
concluded. When he found out that there was
another person hired as an athletic director in
his stead, he said I was illegally dismissed. I
was already a regular worker because I was
engaged to perform activities which are usual
and necessary to the business of the employer
educating the youth in sports. I was
11
Now Article 280 of the Labor Code.
Den
performing a regular occupation. Therefore, I
am a regular worker.
He says that that definition in the LC put an
end to term contracts. His contract was to
circumvent what the LC is now providing
because this provision in 294 is the definition
of regular employment effectively puts an end
to term contracts that is his thesis.
Held: That is not the intention of the Labor
Code - to put an end to term contracts
altogether. Because, there are certain
industries and businesses that are on a term
basis like educational institutions.
Department heads, school heads, deans, etc.
those who head departments in
educational institutions always have a term
because a department, a college, school
continually needs fresh ideas, and you
cannot consider it as if you own that position
because its usual and necessary to the trade
and business of the employer. Here, the term
is valid. That is why, all appointed deans,
etc. have a term. You might be renewed
term but your term ends.
Re-hired after retirement - he does
not have security of tenure by the
nature of his engagement and status.
Let us say the retirement age is 60. His job is
a telephone operator. Retire cya and he was
given his retirement benefit. But the,
everyday he still reports to work because he
gotten used to reporting to work everyday.
Naa na cyay internal fact. Besides if he stays
home, mag-away lng sila sa iyang asawa. So
he begs the head of the company: Can you
still use me and Im willing to work. So the
school hires him back and rehires him on a
contract basis.
Will he achieve regularity of status? No more.
He is basically on a contract basis. What is the
policy here? 60 is the retirement age. If
you are rehired up to 65 yrs of age, thats
the decision of the president. If it is
above 65 and you are still rehired, then
its the decision of the Board the
Board approves. But if you teach in the
law school, we are not regular. We do not
have tenure. Those who teach in LS, they
are all part-time faculty. The only law
school in the Philippines that has regular
faculty is UP. J. Leonen comes from the
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
regular faculty of UP.
So, educational institution is, to me, it should
not be under the LC because the LC envisions
a ___ floor - it arose out of the industrial
revolution. Whereas the school has already a
long history. At the time of the industrial
revolution, theres already universities, and it
has its own protocol.
Big difference in the US - if you are a professor
in a university and you have a tenure track,
you cannot form a union. There are no unions
of tertiary level teachers. Why? Because the
professors themselves have a say on who
obtains tenure. You begin to have tenure
when you are associate professor. How do you
get tenure? Youll be measured by what you
publish - your research. There are some who
are ___ teachers - they cannot teach at all but
are tremendous researchers. They publish -
the become professors. I dont know if youve
heard about Karl Saddie - The Origins of the
Universe. His class were open to everybody.
Half of those who attended his class did not
enroll in his class. His class was well attended
because it was a show. So many special
effects of the planets. So where he went, the
university was enhanced by his research,
shows, teaching.
Probationary
So, SC says, there are certain industries
that have different protocols when it
comes to TERM EMPLOYMENT. That is why,
where the LC says that probationary
employment should not exceed 6 mos., -
Article 29712: Art. 281. Probationary
employment. Probationary employment
shall not exceed six (6) months from the date
the employee started working, unless it is
covered by an apprenticeship agreement
stipulating a longer period. The services of an
employee who has been engaged on a
probationary basis may be terminated for a
just cause or when he fails to qualify as a
regular employee in accordance with
reasonable standards made known by the
employer to the employee at the time of his
engagement. An employee who is allowed to
work after a probationary period shall be
12
Now Article 281 of the Labor Code.
Den
considered a regular employee.
Sc says: Educational institutions are not
covered by these. Because what is the
period of probation for educational institutions?
The probationary period is 3 yrs. That is
found in the Manual of Private Education
issued by the DepEd. The SC has validated
that. So educational institutions are not
entirely covered by the LC. Case: UST v.
NLRC.
You should read Cebu Royal Plant v.
Deputy Minister13. We took that up in the
introduction on Social Justice. Remember that
probationary employee? The xray TB minimal.
But then they found about it already 2 or 3
days in to past the probationary period and
into the regular employment. So SC said that
he was presumed to be regular because
thats what the law says... Last sentence of
13
From an X-ray taken on the last day of his
probationary period, a soft-drinks assembly line worker
was found to have pulmonary tuberculosis minimal
and was ordered dismissed for being unfit for work 4
days after he had been allowed to work beyond his
probationary period. Social justice Issue: Is the workers
retention on the ground of social justice demanded by
the Labor Code (Article 295 [before 281]) superior to
public welfare requirement of healthy food workers?
We take this opportunity to reaffirm our concern for the
lowly worker who, often at the mercy of his employers,
must look up to the law for his protection. Fittingly, that
law regards him with tenderness and even favor and
always with faith and hope in his capacity to hwlp in
shaping the nations future. It is error to take him for
granted. He deserves our abiding respect. How
societytreats him will determine whether the knifein his
hands shall be a caring tool for beauty and progress or
an angry weapon of defiance and revenge. The choice is
obvious, of course. If we cherish him as we should, we
must resolve to lighten the weight of centuries of
exploitation and disdain that bends his back but does not
bow his head.
WHEREFORE, the petition is DISMISSED and the
temporary restraining order of November 18, 1981, is
LIFTED. The Order of the public respondent dated July
14, 1981, is AFFIRMED, but with the modification that
the backwages shall be limited to 3 years only and
private respondent shall be reinstated only upon
certification by a competent public health authority that
he is fit to return to work. Costs against the petitioner.
SO ORDERED [Cebu Royal Plant v. Deputy Minister,
153 SCRA 38, at 44-45 (1987) Isagani A. Cruz, ponente!
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Article 29514: An employee who is
allowed to work after a probationary
period shall be considered a regular
employee.
But then, the decision of the Court is very ___.1.
He can be reinstated after a physician This is when an employee purposely goes
certifies that you are cured of that
finding of TB minimal. against specific company policies, such as
Former hotel employees hired on a
trial basis by new owners
Eighth Meeting
DISMISSALS & TERMINATIONS
Let us go to more mundane subjects such as
dismissals and terminations.
DISMISSAL - for just cause enumerated performance of the duties of the employee
under Article 29615. Is 296 exhaustive of
the grounds for dismissal? No. There
3.
are other grounds. Duties
The SC has already upheld that a valid just
cause for dismissal is SEXUAL
HARASSMENT - it is not found in the Labor
Code. That is a special law. So are the
14
Now Article 281 of the Labor Code.
15
Now Article 282 of the Labor Code
Art. 282. Termination by employer. An employer may
terminate an employment for any of the following
causes:
a. Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work;
b. Gross and habitual neglect by the employee of his
duties;
c. Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
d. Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representatives; and
e. Other causes analogous to the foregoing.
Den
so-called authorized causes for termination
under Article 29716.
Here is a simplified list of Just Causes for
Termination under the Labor Code of the
Philippines:
Serious Misconduct
stealing office property or violating rules in
the company handbook. This implies wrongful
intent and not just a mere error in judgment.
2. Gross Insubordination
There is gross insubordination when the
employee intentionally, with bad intent,
disregards an order by the management. The
order violated must be reasonable, lawful,
and must be related to those tasks in the
Gross and Habitual Neglect of
Here, what is controlling is the totality of the
infractions of the employee. The neglect of his
duties must result to a repeated failure to
16
Now Article 283 of the Labor Code.
Art. 283. Closure of establishment and reduction of
personnel. The employer may also terminate the
employment of any employee due to the installation of
labor saving devices, redundancy, retrenchment to
prevent losses or the closing or cessation of operation of
the establishment or undertaking unless the closing is for
the purpose of circumventing the provisions of this Title,
by serving a written notice on the workers and the
Ministry of Labor and Employment at least one (1)
month before the intended date thereof. In case of
termination due to the installation of labor-saving
devices or redundancy, the worker affected thereby shall
be entitled to a separation pay equivalent to at least his
one (1) month pay or to at least one (1) month pay for
every year of service, whichever is higher. In case of
retrenchment to prevent losses and in cases of closures
or cessation of operations of establishment or
undertaking not due to serious business losses or
financial reverses, the separation pay shall be equivalent
to one (1) month pay or at least one-half (1/2) month pay
for every year of service, whichever is higher. A fraction
of at least six (6) months shall be considered one (1)
whole year.
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
perform his duties, and not just because of
one or two isolated instances. For instance,
when an employee constantly abandons his
shift or absents himself without good reason,
then he can be rightfully terminated under
this ground.
4. Fraud or Willful Breach of Trust
This is a just cause for termination when such
fraud is committed by an employee who holds
a position of trust and confidence in the
company. The breach must be done by the
employee intentionally and must be related in
the performance of his duties. The burden of
proving the case is based on the employer: it
must be based on substantial evidence and
not just based on mere speculations.
5. Other analogous causes
Two major grounds under analogous causes
are Incompetence and Immorality. There is
incompetence when the employee is seriously
lagging behind industry standards. This must
be proven by factual circumstances, and it
must be based on a standard or benchmark
for reference. Immorality, on the other hand,
is when the employee commits an act which is
inherently bad in itself, whether punishable by
law or not. These are usually seen as contrary
to good morals and public policy.
Art. 28317. Closure of establishment and
reduction of personnel. The employer
may also terminate the employment of
any employee due to the installation of
labor-saving devices, redundancy,
retrenchment to prevent losses or the
closing or cessation of operation of the
establishment or undertaking unless the
closing is for the purpose of
circumventing the provisions of this
Title, by serving a written notice on the
workers and the Ministry of Labor and
Employment at least one (1) month
17
Previously, Article 297 of the Labor Code.
Den
before the intended date thereof. In case
of termination due to the installation of
labor-saving devices or redundancy, the
worker affected thereby shall be entitled
to a separation pay equivalent to at least
his one (1) month pay or to at least one
(1) month pay for every year of service,
whichever is higher. In case of
retrenchment to prevent losses and in
cases of closures or cessation of
operations of establishment or
undertaking not due to serious business
losses or financial reverses, the
separation pay shall be equivalent to one
(1) month pay or at least one-half (1/2)
month pay for every year of service,
whichever is higher. A fraction of at least
six (6) months shall be considered one
(1) whole year.
Under 297, all you have is retrenchment to
prevent loss, cessation of operation or closing
due to loss, installation of labor-saving
devices and the so-called redundancy. Many
economists will say that computerization has
not yet played out its complete consequence
in the area of ___. If the unemployment rate
has remained 7% in Europe and in the US,
that is the cause - computerization has not
really played a ___. xxx Discussion about
UNEMPLOYMENT INSURANCE. But it has
not yet played out. Pretty soon there will be a
new wave. The law says that if the closure of
an establishment is due to serious cause,
there is NO MORE SEPARATION
BENEFITS.
Retrenchment due to loss or to loss
which are not serious: That means that if it
is serious loss, you will later on learn when
you study the latest FINANCIAL
REHABILITATION AND INSOLVENCY ACT
OF 2010 that when a corporation xxx
bankruptcy, then there is a stay order - all
your creditors cannot sue you. They have to
process it in that particular court where the
file a voluntary petition for INSOLVENCY.
So its processed there - all your ___ because
the workers are creditors as to the salary. So
they file the case, and they are one of the
junior creditors - lupig man sila sa mga
mortgage all those so-called secured
creditors. When the employer is already
experiencing serious loss, so much so
that its assets are less than its liabilities,
they cannot ask for separation benefits.
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
All you can ask for are so-called
ACCRUED SALARIES which have not yet
been paid. Accrued salaries falls into what
is called MECHANICS LIEN - you are
producing the goods and the value of those
goods are the labor that you apply and if that
labor has not been paid, its a lien that goes to
the ___. But as to separation benefits, no
more because there is already serious
financial loss. There is more law FRIA
very few like to study that.
Now, the procedure for dismissals is
different from the procedure of
termination. What are the procedural
requisites for a valid termination on the
grounds of redundancy: (Case cited not clear)
It is imperative that be employer must
comply with the requisites for a valid
implementation of the companys
redundancy program:
A.) employer must serve a written notice
to the affected employees and the DOLE
at least 1 month before the intended date
of retrenchment.
Please be careful when you start reading
cases about this. There are some cases which
says that you can do away with be 1 month
notice but just xxx that is no longer the rule.
Why is that no longer allowed? Because you
will serve notice to the employee: 1
month from now you will be terminated
due to redundancy or due to loss, closure
of the department. And then, you serve a
copy with the Department of Labor. Why
can you not just give him 1 month salary and
consider that you have been informed, and
then you tell the Department of Labor that the
employee signed the waiver. That is not
allowed because according to the SC, that 1
month gives the employee concerned a
chance to question the ground of
termination. Because if he succeeds in
questioning the ground for termination, then
the old 277 which is now 291 (b) 2nd par. will
apply:
The Secretary of the Department of
Labor and Employment may suspend the
effects of the termination pending
resolution of the dispute in the event of a
prima facie finding by the appropriate
official of the Department of Labor and
Den
Employment before whom such dispute
is pending that the termination may
cause a serious labor dispute or is in
implementation of a mass lay-off. (As
amended by Section 33, Republic Act No.
6715, March 21, 1989)
Those are the grounds by which the Secretary
of Labor may exercise in effect an
INJUNCTION stopping the employer
from terminating. So its not just under the
old termination law they call that the
MENSA one month salary. The employees
in question may file a complaint with the
Regional Director of Labor, and then the
Secretary may restrain the implementation of
the termination. What are the grounds? If the
termination may cause a SERIOUS LABOR
DISPUTE - like a strike - or is in
implementation of a mass lay-off this has
something to do with the statistics of govt. In
other words, the DOLE does not want to feed
the ____ with negative statistics that affects
our economic standing.
Countries now are being monitored by
credit-rating agencies. If you are not
favorable in the credit-ratings, what happens?
The cost of credit of this country grows. The
Philippines is one of those which vows. And if
you have a poor rating from the ratings
agency like Moodys whos very moody about
its ratings, then the cost of value increases.
Then it follows that whatever bonds are issued
against the PI, it has a country risk, and then
it has a 1 or 2% added to its interest rate
imbes na 4 or 5% ra unta na interest rate,
because this is a sure ball that issued by a
utility company, the country list adds another
1 or 2%. That increases the cost of money.
Very few appreciate the cost of money. The
pedestrian thinks that the more money you
have, the better. No! The right one is that you
have to have just enough money. The market
will punish you for excess money you
should put it to work; make it productive. If
you have less money than you need to run
your business, so you borrow. When you
borrow, you pay interest thats an
additional cost. The important thing is just to
have enough money. The pedestrian does not
understand that. Role of chief finance officer:
Closer to the role of a race car formula one
driver. Because the formula one driver who
sits at his car and his ass is just 3 inches from
the pavement, the car is as close as it can go
72
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
over 200km/ph. All he does is he makes sure
that he makes the turns at the maximum. If
the turn is taken at 100. If you take it at 90,
somebody else will come along and take it at
100 and overtake you. If you take it at 120,
then youre off the road. They have to have a
memory of a law student very good
memory. So this is an economic provision:
The Secretary can order you to stop the
termination.
Notice that 277 which is now 291 is before
Book 6 which is Post Employment,
Termination of Employment. This is proof that
this book is confused. Wa gani maapil na sa
cost employment. So, the employer must
serve a WRITTEN NOTICE to the affected
employees and the DOLE for at least 1
month before the intended date thereof.
B.) In case of termination due to the
installation of labor-saving devices or
redundancy, the worker affected thereby
shall be entitled to a separation pay
equivalent to at least his one (1) month
pay or to at least one (1) month pay for
every year of service, whichever is
higher.
C.) In case of retrenchment to prevent
losses and in cases of closures or
cessation of operations of establishment
or undertaking not due to serious
business losses or financial reverses, the
separation pay shall be equivalent to one
(1) month pay or at least one-half (1/2)
month pay for every year of service,
whichever is higher. A fraction of at least
six (6) months shall be considered one
(1) whole year.
What does that mean? That a person who
has employed only for 1 month and the
person who is employed for 2 yrs and
they are both terminated due to loss,
they receive the same separation benefit,
because it says 1 month. The lowest
benefit is 1 month or 1/2 month for
every year of service if it is due to loss. 1
yr ka nagserve, 1/2 month. 2 yrs, 1
month. 1 month ka lng nagserve 1/2 lng
gihapon ang ihatag nimo. So pareho na.
Tan.awa ragud, basaha ragud na ug maayo. I
bring this up because I highly doubt that Chan
and Azucena will point this out because I
really doubt that they would handle a
Den
termination case. Very few know that under
the NLRC rules that just before judgment you
can ask for a supplementary pleading. But the
LA really computes kng unsa ang insakto.
Because from the LA, it is he who is supposed
to give the amount. I dont blame the LA.
There are so many cases. Many of them they
do not compute. Thats very important
because if you appeal, that is the basis of
the bond.
D.) The employer must abolish the
redundant position in good faith.
What is an example of the abolition of a
position done in bad faith? An example is
these decided cases:
Suppose there is a particular production line
that is proven to be no longer economic. The
company continues to register a loss because
of that. Management decides to close that
particular department. They know that the
union cannot contest the closure because they
have the figures audited financial
statements. As we learned before, loss is
proven not by photographs or
statements but by audited financial
statements. Ok you can prove this
department. But the mgt says that
manangtang na lng man ta ug mga tao,
tangtangon na lng nato nang mga opisyal sa
union na mga militante kaau. Iapil nato na sila.
So you start abolishing positions which
are not in the division that is being closed.
That is CLOSURE IN BAD FAITH. The real
reason why you have abolished the position is
to cripple the union. You cannot do that. How
do you do that legally? Paliton nimo ang tao.
Ingnan nimo na naa koy ani na position for
this consideration. Kng imung pirmahan ni, 5x
imung dawaton ani. Pirma nasad kag lain. Ok
ka ba? Pila lng man ka tuig ang nabilin bag.o
ka muretire? D gani ni nimo dawaton, wa gani
ni katunga imung madawat pagretire nimo 5
yrs from now, maypag karon ka na lng. Apil ka
na sa redundancy. Pabor na nimo. Daotan ba
na? Di mana daotan dba? Gipalit man nimo
ang tao there is consideration.
E.) The employer must set fair and
reasonable criteria in ascertaining which
positions are redundant and may be
abolished.
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
The rule in seniority is first in, last out. Kay
ako may nakauna dinhi, ako ang katapusang
tigbason. Mao man nay kasagaran na rule.
But sometimes the company says that
this guy is first in but his efficiency is
already going down. Kahoy pa ni cya,
gahi na kaau di na ni mabawog-bawog.
Di na ni matudluan ug bag.o na
kinaagman you cannot teach old dogs
new tricks. So, kani nay unahon nato.
Magkuha na ta ug ug bag.o kanang computer
literate na. Kini cya mahadlok ug computer.
Kakita lng ug computer mudagan. So, if that is
the situation then you put down the criteria of
what is necessary for the company, how many
these kind of workers are necessary, what
kind of skills are needed.
The procedural requirements for a valid
dismissal that is FOR CAUSE, has been
drastically affected by this EN BANC
ruling of 2009 Sandoria case, one of the
LANDMARK DECISIONS penned by CJ
Renato Corona. The pertinent ratio
decidendi is found there in your notes:
The note lf marked difference in the standards
of due process to be followed as prescribed in
the Labor Code and its implementing rules.
The Labor Code on the one hand provides
that the employer must provide the
employee ample opportunity to be heard
and to defend himself with the
assistance of his representative if he so
desires. The omnibus rules implementing the
Labor Code on the other hand require the
hearing and conference due to which the
employee concerned is given the opportunity
to respond to the charge, present his evidence
or Check! While the phrase ample
opportunity may in fact include an actual
hearing, it is not limited to a formal hearing
only. In other words, the existence of an
actual, formal, trial-type of hearing,
although preferred, is not absolutely
necessary to satisfy the employees right
to be heard. This is a good change because
before, most decisions require some sort of
investigation that is hearing-type.
Whenever the employee is in jeopardy of
being either suspended or dismissed, then his
right to the process outlined in the Labor Code
is activated. So, decisions of the SC have said:
An employee is entitled to 2 notices:
1st notice: Charging what is
sufficient notice? Notice of dismissal
must enumerate the acts or
Den
omissions which constitutes the
offense.
How detailed are the acts and omissions? It
must be such as to enable the erring
employee to prepare for his defense.
Looks like an information. What is the
sufficiency of the information? It is the
recital of the acts or omissions and the
characterization of the offense is not ___
as to the challenge. It is not a recitation of
the acts or omissions. Almost the same. That
is the 1st notice that you give to the employee.
Normally the personnel director or his
assistant writes it: Dear Mr. So and so... This
letter formally informs you that you are under
investigation for the following charges:
For the loss of the following equipment under
your charge. You fail to report the loss of
these equipment. And then, you are hereby
directed to answer these charges within ...
before it used to be within 48 hrs, now there is
a decision that the SC says, 48 hrs is not
sufficient; 2 days is not sufficient. It is now 72
hrs. The moment that you have given that to
the employee, what happens if he does not
want to receive it? They think that they can
escape. So you bring the erring employee
to sign after the annotation: Serve but
not received on such and such a date xxx
time xxx place. Thats the 1st notice.
2nd notice: The superior of any
employee now sending a notice after
the investigation is over. Because
the head of the investigation will
make a written report as to their
findings of fact and
recommendation.
They will write a letter: Dear Mr. So and so...
Attached is the report of the investigating
committee reciting its findings of fact and
recommendation. This office is adopting the
investigation committees report in toto for it
is found to be reasonable and can stand the
test of ___. Therefore, you are informed that
Monday, August 31, is your last day of work.
You are hereby directed to turn over the ff.
property which is in your custody but belongs
to the company: Mga yabi, mga unsa pa na
because you have to return. You are
directed to report to the finance office to
receive your accrued 13th month pay and
your accrued regular wage before there
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

is an investigation. that can be used as an index of

____, but that is not the
admission that renders an
investigation superfluous
But now, CJ Corona can you imagine that? because admission must be
2009 and the LC became effective when? Nov. PERSONAL. A formal hearing or
1, 1974. Hapit na ma 30 yrs una pa migawas conference becomes
sa SC explaining that there NEED NOT BE A MANDATORY, just as it is where
HEARING that is equivalent to an there exist SUBSTANTIAL
adversarial trial-type hearing. According EVIDENTIARY DISPUTES or
to CJ Corona, while an ample opportunity to where COMPANY RULES OR
be heard may in fact include and actual PRACTICE REQUIRES ACTUAL
hearing, it is not limited to a formal hearing BEARING as part of employment
only. In other words, the existence of an pretermination procedure. So
actual and formal trial-type hearing, these are the exception.
although preferred, is not absolutely
necessary to satisfy the employees right RULE: As a rule now, NO HEARING is
to be heard. required just the EQUIVALENT. But, if
the employee requests it in writing, xxx
In sum, the ff. are the guiding principles: or substantial evidentiary disputes.

Ample opportunity to be heard

means any meaningful opportunity,
verbal or written, given to the
employee to answer the charges
against him and so new evidence in
support of his defense, whether in
hearing conference or in any some
other or just and reasonable way.
So it could have been enough if you give
your 1st notice and you direct him to
answer it in writing. You are hereby
directed to answer in writing within 72
hrs of the ff charges: loss of these
equipment, etc. Kay tubagon pd niya.
Daw be kng ang tubag niya kay sa
pagkatinuod sir, nagbasol na ko saakong
mga gibuhat. Ayaw lng ko ifutbol sir. Mao
na ang iyang tubag. What is the effect of
that? ADMISSION. What is the effect of
admission? To render trial no longer
necessary. That is when you do not
need the procedure anymore. But
remember, the admission must be
made by the employee.
There is a decided case: Nawagtang
ang mga fertilizer, mga insecticide sa
agribusiness concerned. Gilusob nila
ang balay. Nakita nila didto ang mga
empty cans. Unya naa didto ang
asawa naghilak pasayloa tawon
ang akng bana kay natintal ang akng
bana. Is that admission? No! Thats
the wife. You can consider that in
the investigation. Since the
investigation is not governed by
the technical rules of evidence,
SUBSTANTIAL EVIDENTIARY
DISPUTE - Muingon ang security guard,
kita jud ko niya na nagdala na cya ug pila
ka sako nga fertilizer, nigawas na cya sa
warehouse unya gikandaduhan niya ug
balik pahuway pa gani ug kadiyot,
nanigarilyo pa unya gialsa niya unya
milakaw siya. Mao na. Naa man sad siyay
witness. Niadtong tungura naa mi
saamong balay kay bunyag saakong
anak. Wa na cya katindog kay nahubog
kay nalabian cya ug inom sa ilimnon na
naay anghel na nagdalag bunal
(Ginebra :D). Nabunalan cya, wa cya
katindog. So unsaon mana na 3 naman
kabuok witness? Kinahanglan na ka ug
hearing cross-examination na.
You need a HEARING because you
have evidence and counter-evidence.
Thats what is meant by CJ Coronas
SUBSTANTIAL EVIDENTIARY
DISPUTES exists for a company rule
or practice xxx your company
requires an investigation or a
formation of a committee, then you
have no choice but to go to the
procedure. Or when similar
circumstances justly needed.
Whats an example of similar
circumstances?
Tadeco very wide workplace. And dont
think that there are only male field workers.
There are also female field workers. A field

Den 75
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
worker was raped. Suppose there is already a
prelim investigation conducted by the
prosecutors office, do you still have to
conduct and investigation? Or can you adopt
the prosecutors findings? If you say you no
longer have to adopt then you rely on the
investigation of the prosecutors office,
thinking that because its a criminal
investigation, that it it more strict; that the
requirement of quantum of evidence is higher.
Here, there is only substantial evidence. Is it
preferred that way or if you say that we still
need to conduct our own investigation. If you
say that you still need to conduct your own
investigation, then you are saying that you
are better than the prosecutors office? What
is the correct rule? There are 2 lines of
decided cases:
1.) One line SC says, it is sufficient to rely
on the investigation of the prosecutors office
that is indicative of the guilt of innocence of
the erring employee.
2.) On the other line, the SC says, it is not
sufficient. The employer is not bound by the
investigation of the prosecutors office,
especially if there is no finding of the
non-existence of the offense there is just
desistance on the part of the employee.
What is the proper rule?
If you are a personnel manager, something
like this happens then it becomes the subject
of a criminal complaint. If there is a
prosecutors inquest, then actual examination.
If it is thorough when the prosecutor really
sits down and calls a hearing to determine w/n
there is a prima facie case and there is a
transcript because the same transcript will be
used for the fixing of the bail. That is the key.
If it is MERELY CURSOY, then it should
not substitute the duty of the employer
to make an investigation. If it is
THOROUGH then it can be used.
In other words, the parties have a chance
to air out not just the main issue but all
the other ancillary underlying issues. Of
course, the employer had conduct his
investigation and may not be bound by
the contrary finding of the prosecutor,
esp. if the prosecutor relies on an
AFFIDAVIT OF DESISTANCE. Dli na daw
kuno ipadayon ang sumbong sa rape sir.
Den
Ngano man? Ana man ang mga ginikanan sir
atong tungod sir pero naa naman nuon
nagdrive naman ug bag.ong multicab. Di wa
nay sumbong sa rape. Pagkapaita. Ngano
man? Gitagaan naman ug multicab sa
supervisor. Once that will happen, thats the
policy first. There had been other cases,
probably just kept quiet. Or if that is the 1st, if
that guy continues in the service, they have a
way of repeating themselves. Im just talking
from what I know. Thats why there is a
special law SEXUAL HARASSMENT. The
thing about sexual harassment is once it
occurs, it is always subject to
investigation because the law on sexual
harassment requires a COMMITEE to be
already in existence, which must
investigate the moment they know. Not
even a complaint no need. They just
need news. They just need to know. Then
they must conduct an investigation. So
that it is an exception to the Corona
ruling in the Perez case.
The third rule that Corona says is the
ample opportunity to be heard
standard in the Labor Code prevails
over the hearing or conference
requirement in the implementing
rules and regulations.
Is the erring employee entitled to
cross-examination? Kinsa ba ang
nagsumbong nako? Gusto nako ni cya
maatubang. Kana jud na magharap-harapan
mi. Dli nang mag-istorya2x storyang
mingaw. Kana jung tinutukay jud mi. Eyeball
to eyeball. The list of cases are in your notes.
The cases held that:
The personal confrontation and
cross-examination cannot be invoked as
a matter of right in procedural due
process in employees ____ cases. The
right to cross-examination belongs to
the accused only in criminal prosecution.
This is what Manggagawa ng
Komunikasyon v. NLRC (1992) says:
Actual adversarial proceedings may be
necessary for clarification purposes or
when there is a need to propound
searching question to ___ witnesses.
That has to do with the duty of the trial
judge. Usually, the LA has a ___ w/n
there is SUBSTANTIAL EVIDENCE
supporting the claim.
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
If you conduct an investigation that is
adversarial, remember that the law says that
the erring employee has the right to
bring counsel during the investigation.
He has the right.
Article 291: The employer shall furnish
the worker whose employment is sought
to be terminated a written notice
containing a statement of the causes for
termination and shall afford the latter
ample opportunity to be heard and to
defend himself with the assistance of his
representative if he so desires in
accordance with company rules and
regulations promulgated pursuant to
guidelines set by the Department of
Labor and Employment.
So he is allowed to bring a representative
and it could be a lawyer. Now, what
happens when he brings a lawyer but the
investigating committee is composed of
personnel manager, representative from the
union, rep. from the supervisors lets say 5
of them are in the committee and none of
them are lawyers. That is when the committee
can control the lawyer. The committee can say,
alright, Atty. X, you can serve your client
before he answers the question we allow you
to confirm it here. But you cannot directly
intervene. If you have a question, write it
down xxx a voice in this investigation. You can
participate. You can tell your client, do not
answer that question or answer that question
its up to you. In other words, the
committee can lay down the rules and
control the investigation. This is as to
procedure in DISMISSALS.
When an illegal dismissal/termination is
brought before the LA and the LA makes a
decision, what is the consequence of that
ruling? The law now says that there should be
an IMMEDIATE REINSTATEMENT
PENDING APPEAL. That rule is found in...
Article 229 Appeals from the Labor
Arbiters Decision: In any event, the
decision of the Labor Arbiter reinstating a
dismissed or separated employee, insofar
as the reinstatement aspect is concerned,
shall immediately be executory, pending
appeal.
Den
So the employer, while he appeals, must already
reinstate the employee.
The employee shall either be admitted back to
work under the same terms and conditions
prevailing prior to his dismissal or separation
or, at the option of the employer, merely
reinstated in the payroll.
So there are 2 kinds of immediate
reinstatement:
1.) Actual reinstatement - patrabahuon cya,
swelduhan cya parehas sa nangagi; or
2.) He is just reinstated in the payroll -
ingnan na lng cya na pag.abri na lng pug account
dra kada 15 ug 30 pareho ka sa mga trabahante
sa city hall - 15-30. Adto ka lng sa imong acct,
draw ka ug imung salary, because you are
reinstated payroll wise.
The posting of a bond by the employer shall
not stay the execution for reinstatement
provided herein.
So that is now this rule called IMMEDIATE
REINSTATEMENT PENDING APPEAL.
Pioneer Texturizing Corp. v. NLRC (1997):
The Court established the doctrine that an order
or a word reinstatement from the Labor
Arbiter is self-executory. you do not file
a motion for immediate reinstatement
pending appeal because it is
SELF-EXECUTORY. How is it self-executory?
The LA when he renders the decision illegally
dismissed, therefore he is entitled to immediate
reinstatement. Then the decision that
accompanies the notice of the decision, it says
there you are hereby directed to report as to
the reinstatement of the respondent. So he must
inform the court are you actually reinstating
him or are you just reinstating him payroll wise?
Without need for MOTION FOR EXECUTION
of the reinstatement. Meaning, it does not
require a writ of execution, much less a
motion for its issuance. This is the basis of the
current NLRC rules that leaves the
ENFORCEMENT AND REINSTATEMENT
ORDER to the EMPLOYER who is given the
duty to submit a COMPLIANCE REPORT
within 10 days from RECEIPT OF THE
DECISION. The LA issues a WRIT OF
77
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
EXECUTION only when the employer
DISOBEYS the above directive or REFUSES TO
REINSTATE the dismissed employee. That is
Rule 9, Sec. 6 of the NLRC rules.
Now, the employee is reinstated. The employer
appeals to the NLRC. What happens if the NLRC
overturns the LA? He says, there is no illegal
dismissal. Mao na ning nagkalandrakas na ning
decision sa SC. There was one decision that said
that the dismissed employee must pay back the
wages that he received pending appeal when he
was reinstated. That was quickly overturned by
another decision EN BANC Hermino v.
NLRC: Which ordered the reimbursement
which was later on overturned by Garcia et. al.
v. Philippine Airlines EN BANC (2009)
penned by J. Carpio-Morales. This decision
even says:
The LA says, illegally dismissed, therefore
reinstated. For some reason the actual or payroll
wise, the reinstatement was never carried out.
NLRC reverses the LA. Employer said na di na ko
kinahanglan mubayad niya. Reversed naman.
SC says: No, you have to pay. The object of the
law according to the SC is to put the employee
in equal footing with the employer. A
dismissed employee does not have the
wherewithal to last a litigation. That is why
the moment that he is found to be illegally
dismissed, right away he is given the
benefit so he can last. It is his BY RIGHT. If
for some reason or another, you did not
reinstatement him, that is something that
you owe to that worker even if ultimately
he is found to be illegally dismissed. That is
now the ruling. There is no ___ as
erroneously enforced by the Genuino
Doctrine, the Garcia et. al. v. PAL has
reversed that ruling. IMMEDIATE
REINSTATEMENT.
The rule says, you have 15 days to appeal
from the LA to the NLRC. He must post a
bond if there is a money judgment. Within
what time must you comply? Also within the
15 days to appeal. The appeal is 10
calendar days and not 15. 10 calendar days
from RECEIPT of such decision, award or
order.
Within that period of time you must comply with
the bond. What is the amount of the bond? The
LA, according to the NLRC rules, must
already state the actual computation of the
money award because that is the basis of
Den
the amount. It cannot be less than the
aggregate amount of the money award. Let
us say, there is an award for underpayment of
wages. There is an award for non-payment of
13th month pay. Award for separation benefits
because it is authorized. That is all added up and
that constitutes a bond. Suppose the bond is so
huge that the company cannot afford? Lets say
1k workers adjudge to be illegally dismissed and
there is a bond. Is he excused for paying the
bond within 10 days because he filed a motion for
reduction of bond? SC says: Before you can
file for a motion for reduction of bond, you
must at least post 10% of the amt declared.
Only then will the appellate forum ___ for
the reduction of the amt. There must first
be, butang ka diha 10%.
Suppose the LA orders: Payment of OT, 13th
month, separation benefits and moral damages
for the manner of the dismissal of the employee
was malevolent, arbitrary, whimsical and
malicious. Then he orders payment of attys fees.
This is when the SC says: Moral damages,
attys fees are not included in the
computation of the bond. If you appeal the
case without appealing the money award
but you are just appealing the award of
MORAL DAMAGES and ATTYS FEES, you do
not have to file a bond because that is not
included in the computation. I hope you go
over the notes, you go over the cases.
If there is a failure in the procedure, it does
not make the dismissal illegal. You only pay
a FINE.
*If it is a failure of procedure in dismissals
10k.
*Failure of procedure in authorized
dismissal fine is higher - 20k
Why? Because if you fail in the procedure in
AUTHORIZED CAUSES, the employee is
deprived of his benefits. Whereas in
DISMISSAL, if there is a failure in procedure,
there is no benefit that he receives. Only the
absence of SUBSTANTIAL CAUSE will make
the dismissal ILLEGAL. ILLEGAL is NO JUST
CAUSE no scandal, disobedience,
violation of trust and confidence of the
employer.
If he is ILLEGALLY DISMISSED, he has to be
REINSTATED, he has to be given FULL BACK
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
WAGES. So also with AUTHORIZED CAUSE. If
there is NO LOSS and the REDUNDANCY is
CONTRIVED REINSTATED and BACK
WAGES. FULL BACK WAGES. So now, it is not
advantageous for the employer to prolong
the case because if you prolong the case
and you loose it, the back wages that you
have to pay, can you imagine? Muabot ug 15 ka
tuig unya pildi ang employer. And he is adjudged
to pay FULL BACK WAGES 15 yrs of
wages. Unya ug 100 na sila kabuok. Tsk2x. That
is what happened to the University of Tacloban.
Fight sila ug maayo sa kaso. Bati man ang
abogado sa mga pari diadto mao na pildi sila.
P14M monetary award. They want to execute
and sell the land of the university. But when they
sought to execute it, the SBD of the University of
Tacloban did not own the land. The owner of the
land is the Archdiocese of Palo, Leyte. At the time
when the university was founded, the Divine
Word Congregation were composed of Germans
who are not like the Americans with Parity Rights
equal to the Filipinos. The Americans could own
lands. Thats why Ateneo was owned by the
Jesuits even if 90% of the Jesuits at that time
were Americans because the Americans have
parity rights under the 1935 Constitution. So
empty victory. Di maexecute kay ang tag.iya
man sa yuta kay ang archdiocese of Palo, Leyte.
The owner of the building is the owner of the land.
You cannot even use a single galvanized sheet of
the roof of the building because the building is an
accessory to the land. So the workers finally said
na ireopen na lng ang skul. But SBD wa na
misugot kay gikapoy na sila. The school is
already closed but there is one department
that is the college of law. Opened by Romualdez,
the bro of Imelda Marcos. We still meet each
other during the BAR examination. Mangisog
gani ka ug labor case, sigurua jud ninyo na naa
moy ma.execute. The bigger the employer,
the more security there is to execute.
Multinationals are best respondents in the
Philippine labor case.
Last Meeting
REINSTATEMENT PENDING APPEAL
You have more notes. Before the end of these
classes, I hope youll read the cases. Now, we
said that, once there is a ruling from the LA, that
there has been illegal dismissal and the employer
appeals, there is REINSTATEMENT PENDING
APPEAL. And this reinstatement is not supposed
to be as ___ in an execution pending appeal. In
Den
other words, the notice of the decision
already cotains a WARNING from the court
that within 10 days from the receipt of the
decision, the employer is supposed to
inform the court as to what choice he
makes for the reinstatement. Because
under the Labor Code, jurisdiction of the LA,
he has 2 choices:
Article 229 Appeals: Decisions, awards
or orders of the LA are final and executory,
unless appealed to the Commission by any
or both parties within 10 calendar days
from the receipt of such decisions, awards
or orders. Further... In any event, the
decision of the LA reinstating a dismissed
or separated employee insofar as the
reinstating aspect is concerned, shall be
admitted back to work under the same
terms and conditions prevailing prior to his
dismissal or separation. Or, at the option of
the employer, merely reinstated in the
payroll. The posting of a bond by the
employer shall not stay the execution of he
reinstatement provided herein.
The red letter of the law is clear that it is a
decision of the LA. Suppose it is the voluntary
arbitrator that decides because the issue of the
dismissal of the employer is by choice of the
parties brought to voluntary arbitration. You
remember under the Constitution, voluntary
arbitration is preferred by the Constitution rather
than compulsory arbitration because in VA, the
parties xxx acceptable to both parties. In a 2015
decision, the SC says: This immediate
reinstatement also applies if a VA decides
or makes a finding that there is illegal
dismissal and ___ reinstatement. Now,
many are saying thats JUDICIAL
LEGISLATION because the law is specific
(Article 229) that its the LA it does not include
the VA. But you have a decision already from
the SC that if it is the VA that decides, then
there must also be REINSTATEMENT
PENDING APPEAL.
As you know very well, theres a heated conflict
because under the LC, the decision of the VA
becomes final and executory within 10 days from
the receipt of the copy of the decision. But
Section 1, Rule 43 Appeals: Grants the
parties 15 days to appeal the decision of
the VA. All the offices and the lower courts
are mentioned there SSS, GSIS You
have 15 days to appeal to the CA, and one
79
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
of them is the VA.
Now, theres a difference. The issue is, is that just
a PROCEDURAL RIGHT or a SUBSTANTIVE
RIGHT? In practice, what we do is, once you
receive the decision of the VA, you serve a
notice to the VA that you are appealing so
that he will not enter in the judgement
entry book after 10 days that the judgment
has already become final and executory.
And you inform the VA that you are
appealing and you are making use of the 15
days granted by the ROC. Anyway when
you take up procedure, you will know this.
There is a STATUTORY RIGHT for appeal
and there is appeal which is
DISCRETIONARY. Lets say youre having a
case in the lower court MTC. You can appeal it
to the RTC. That is statutory. That is your right.
Here, you take a look at 229, the appeal is
very narrow. Decisions of the LA on
termination is very narrow. Take a look at the
1st paragraph: Decisions, awards or orders of
the LA are final and executory unless
appealed to the Commission by any or both
parties within 10 calendar days from the
receipt of such decision, awards or orders.
Such appeal may be entertained only on
any of the following grounds. So SPECIFIC
GROUNDS. In other words, if its a simple
error, it will not be entertained. It must be
on any of these grounds:
A. If there is prima facie evidence of abuse
of discretion on the part of the LA.
What is an example of that? The action has
prescribed, and yet the LA issues a decision
making a finding that there has been illegal
dismissal and ordering reinstatement. Is that
prima facie? Yes! If you take a look at it, you see
the dates on the 1st looking prima facie.
Thats the meaning of prima facie. Just from
the 1st look, you already know. That is a
ground for appeal.
B. If the decision, order or award was
secured through fraud, coercion, including
graft and corruption.
Now, this is the most difficult because this is
another case.
Den
C. If made purely on questions of law.
Just like the case of Cheryl Santos-Leus v. St.
Scholastics College Westgrove (Jan. 28,
2015).
Facts: Cheryl Santos-Leus was hired by St.
Scholasticas College, a Catholic educational
instituion, as a non-teaching personnel, engaged
in pre-marital sexual relations, got pregnant out
of wedlock, married the father of her child, and
was dismissed by SSCW, in that order.
Issue: W/N pregnancy out of wedlock by an
employee of a Catholic educational institution is a
cause for the termination of her employment.
Held: No! Admittedly, the petitioner is
employed in an educational instituion where the
teachings and doctrines of the Catholic Church,
including that on pre-marital sexual relations, is
strictly upheld and taught to the students. That
her indiscretion, which resulted in her pregnancy
out of wedlock, is anathema to the doctrines of
the Catholic Church. However, viewed against
the prevailing norms of conduct, the
petitioners conduct cannot be considered
as disgraceful or immoral; such conduct is
not denouced by public and secular
morality. It may be an unusual
arrangement, but it certainly is not
disgraceful or immoral within the
contemplation of the law.
To stress, pre-marital sexual relations
between two consenting adults who have
no impediment to marry each other, and,
consequently, conceiving a child out of
wedlock, guaged from a purely public and
secular view of morality, does not amount
to a disgraceful or immoral conduct under
Section 94(e) of the 1992 MRPS.
You must abide by the moral standards and
tenets of the Catholic faith you sign. You get
pregnant out of wedlock. Is that sufficient? You
read that case so that you would know the
answer. Because it was raised to the SC on a
question of law. (Case is already given above)
D. If serious errors in the finding of facts
are raised which could cause grave or
irreparable damage or injury to the
complainant.
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Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
This is the more common ground that is cited.
Very rare can you say prima facie evidence of
abuse of discretion. Very rare can you say that
there is collusion, graft, coercion, corruption, or if
you raise purely questions of law. So normally
you cite serious errors, not just simple errors
which if not raised would cause irreparable
damage or injury.
When you receive the decision, there is a note
that you have to inform the judge within 10
days how you will reinstate the employee
that has been found to have been illegally
dismissed. ACTUAL REINSTATEMENT or
so-called PAYROLL REINSTATEMENT
(1520).
PAYROLL REINSTATEMENT - Just make
him open an account and then he goes
there and he continues to receive his salary.
This RETURN TO WORK - that is in LabRel. I will
not hold you responsible for that yet since you
are not taking up LabRel yet.
PROJECT EMPLOYEE
How about a project employee who is hired on
the duration of the project? Certainly he does
not have security of tenure unlike the
regular worker. The case in point here is
Filipinas Free Fabrication v. Fuente (2005):
We said that it is the regular employee that
enjoys the fullness of security of tenure. How
about a project employee? According to the SC,
the project employee hired for a specific
task enjoys security of tenure during the
project. If the phase of the project the
project employee has been working on has
not yet been completed, his services were
terminated without just or authorized
cause, and there is no showing that his
services are unsatisfactory, the project
employee is entitled to REINSTATEMENT
WITH BACKWAGES to his former position
or substantially equivalent position. If the
reinstatement is no longer possible, the
employee is entitled to his SALARIES for
the UNEXPIRED PORTION of the
agreement.
So you can see that the reinstatement of a
project employee that has been illegally
Den
dismissed is different because by the time the
case is decided, no more project, he is just
given the salary which he lost because he
was dismissed.
Now there was a pronouncement by the SC that
a project employee enjoys security of
tenure for a duration of the project. This is a
correction because you might be hired for a
project but only for a specific task within the
project. Lets say, you are a rough carpenter. You
are hired for a construction project which is
supposed to be 1 or 2 yrs like Marco Polo. You are
hired for a specific project. It takes 2 yrs for the
project to be completed before it is finally turned
over to the owner of the project. It does not
mean that for the entire period of the
project they need carpenters. Specifically
you, you are just a rough carpenter. As
soon as your particular phase of the project
is over, then that is the extent of your
tenure. If you are dismissed earlier and
there is no just or authorized cause for your
dismissal, then there is a violation of your
security of tenure. That is the ruling in
Filipinas Free Fabricated v. Fuente.
Again, as to project employees: Failure of the
employer to file termination reports following DO
19 dated April 1, 1993 After the finishing
project, they file a report with the DOLE stating
that these are the people associated with the
project and they can no longer work when the
project is over. If you do not file that report and
later on he files a case of termination, what is the
prima facie ruling that is open to be overturned
by superior evidence? He is a REGULAR
WORKER because he was not reported as
among those whose engagement ended
with the end of the project.
VERY IMPORTANT REQUIREMENT! Failure of
the employer to file termination reports after
every completion of a project or any phase
thereof with the nearest public employment
office of the DOLE is an indication that the
employee is not a project employee
(Equipment Technical Services v. CA; Oct.
8, 2008).
SEASONAL EMPLOYEES
SEASONAL EMPLOYEES (2 kinds):
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Natural season
Industrial or commercial season
In a 2000 case: There is such a thing as a
regular seasonal employee.
REGULAR SEASONAL EMPLOYEE - Once
he has been hired as to a season and the
hiring, whether it is continuos or broken,
adds up to 1 yr, he has become regular as to
that seasonal employment.
They are called to work from time to time mostly
during certain seasons. The nature of the
relationship with the employer is such that
during the off season, they are temporarily
laid off, but they are re-employed during
the season or when their services will be
needed. They are not, strictly speaking,
separated from the service. But are merely
considered as on LEAVEOF ABSENCE
WITHOUT PAY, until they are re-employed.
Their employment relationship is never
severed but only SUSPENDED. As such,
they can be considered as being in the
regular employment of the employer. So,
that is the ruling of Abasolo v. NLRC.
TAKE NOTE: The seasonal employee is free not
to come back to the employer. But the employer
is not free not to rehire the seasonal employee
during the season. Thats the difference.
How about security guards? You know, security
guards of an agency, it is the agency that enters
into a contract with the indirect employer. What
the employer does is they conduct a bidding. And
then the bdding is good for, let us say, for 2 yrs.
So they engage the serices of a security guard to
second to the IE in case they win the bid. At the
end of the 2yrs, the security agency, lets say, is
no longer the contractor for security service; he
has to pull out his guards. Where will he place his
guards? He will look for another contract. Thats
why the law says that the guards who are pulled
out may be on what is called floating status
for 6 months. That is the rule. And they are not
considered as illegally dismissed or
suspended. The security agency is given 6
months to look for another assignment for
them. 6 months suspension of operations
Den
and of the security service is not considered
as termination.
That is the same ruling as, let us say, the
employer is a supermarket. A supermarket
catches fire and was gutted to the ground. The
employees are out of work. Can they go to the
employer and say, We are terminated, give us
separation pay? They cannot. A provision in the
Labor Code says...
You are allowed 6 months of suspension of
operations or temporary closure.
Article 300 The bona fide suspension of
the operation of a business or undertaking
for a period not exceeding 6 mos. for the
fulfillment of a duty of a military or civic
duty shall not terminate employment. In all
such cases, the employer shall reinstate the
employee to his former position without
loss of seniority rights if he indicates his
desire to resume his work not later than 1
month from the resumption of operations
or his employer or from his relief from
military or civic.
So, if there is a fire, there is no right to
termination benefits yet. If within 6 months,
the supermarket is rebuilt and business is going
on, then all those former employees can go back
and say, we have a right to ___. Now, if at the
end of 6 mos, there is no resumption of
operations, that is when the employee can
say, you have to give us separation benefits
because you have presumed to have
undertaken a closure.
Suppose its a loss nasunog man. Unsa may
ikabayad nimo? Mao ning supermarket unya
nasunog or nawala na. Loss. O, nawala gud. That
is not sufficient proof of loss. What is proof of loss?
AUDITED FINANCIAL STATEMENTS.
Because SERIOUS LOSS EXEMPTS the
employer from payment of SEPARATION
BENEFITS.
What is separation benefit if there is
closure due to loss? MEMORIZE THAT!
1 month salary or 1/2 month salary for every
year of service, a fraction of at least 6 mos is
considered 1 yr, whichever is greater.
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
Mao na imung isulat sa BAR EXAMINATION. Mao
nay novena nato. That tells you that no one
receives separation benefit lesser than 1
month salary. Due to loss not serious loss. 2
ka katuig mutrabaho. Pilay imung separation
benefits? 1 month salary kay 1/2 month
man for every year of service. 1 ra ka katuig
nagtrabaho pilay imung separation benefits? It
cannot be 1/2 month because 1 month or
1/2 month salary for every year of service
whichever is greater 1 month lng
gihapon.
If the separation is not due to loss but is due to
redundancy. Redundancy excess
employment. It could happen because they hire
more than what is needed. They have introduced
labor-saving devices. Or, they have reduced the
size of their operations. So you are redundant.
There is no issue of loss. There is no loss no
impending loss; no actual loss. What is the
SEPARATION BENEFITS? 1 month salary or
1/2 month salary for every year of service,
a fraction of at least 6 mos is considered 1
yr, whichever is greater.
I recommend that you read this 2013 case of
Abbott Laboratories Philippines v. Alcaraz.
It went to the SC thrice. All EN BANC ruling.
The ponente is J. Perlas-Bernabe. To put it in
context:
*If the dismissal or termination of the
employee is not attended with the proper
due process required by the LC, there is no
illegal dismissal provided there is
SUBSTANTIAL CAUSE. The words there is
really JUST CAUSE or AUTHORIZED CAUSE.
If it is only the procedure that is missing, it
is not an illegal dismissal but you have to
pay a FINE. When the JUST CAUSE
procedure is missing, you have to P20k as a
general rule.
*If it is AUTHORIZED CAUSE and the
procedure is missing, the fine is higher. It is
raised to, sometimes 30k, sometimes 50k.
In this case, Abbott Laboratories, they followed
the procedure because this was a case of
probationary worker upper level, middle
management. The old ruling of the SC in a list of
long cases, longer than my arm, it says: The
standard of the employer must be made
known to the probationary employee at the
time of the engagement. It might not be
wrong, it might not be malicious, but if you
do not comply with the standards, then you
Den
are not made permanent. In other words,
thats an ADDITION CAUSE OF A
PROBATION of a worker. There is no due
process there. You are just confronted with
your performance violation and you are
reminded of the standard of which you
were informed at the time of the
engagement. Here, there was no spelling out of
the standards. The company said, how can we
spell out the standards when there are so many
because you are a managerial employee? You
cannot get along but you must get along with all
other same level managerial employees. That is
the standard. If you cannot get along, then you
cannot be made permanent. That was not told in
the beginning, but that is understood according
to the employer. Is that correct? The SC
says,YES! There are many positions where
you cannot possibly spell out the higher
standards required, and this is one of them.
The employer has this written policy, in his blue
book. Lets say his probation is 6 mos. Halfway
through his probation, he must be___ and he
must be informed of the results of the violation.
Abbott Laboratories did not comply. And then,
the SC says, that is a violation of procedure.
So therefore, Abbott has to pay a fine. The
SC says, there is no escape in that. That is
why the SC issues, on MFR, another lengthy
discussion of just this issue, because the old
rulings of Agabon, etc., merely postponed
deficiencies that are outlined in the LC. Here it is
deficiency of the procedure of the company
itself, even if the Court held that there is
cause not to make this particular employee
permanent. Abbott had satisfied its
statutory duty to serve a written notice of
termination. The fact that it violated its own
company procedure renders the
termination of Alcarazs employment
PROCEDURALLY INFIRMED, warranting the
payment of nominal damages. So 1st
decision is on 701 SCRA 682 (2013). The
2nd EN BANC resolution of the SC is in April
22, 2014 by J. Perlas-Bernabe.
ENDO WORKERS
Then when you work through this ENDO-ENDO,
the decided case here is Purefoods Corp. v.
NLRC (1997). The highly practice of 555 of
endo workers is explicitly prohibited by the
DOLE under DO 18-A series of 2010. 5
mos.-5 mos. mao nang gitawag na ug 555.
555 sardinas raba na. Pero 555 endo na. I just
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 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
met one of our staff here who is now working in
Busan. Naa daw kunoy Filipino store didto na
namaligya ug 555. The equivalent of 555 in
Busan is P115.
PROBATIONARY EMPLOYEES
In a 2004 case, Philipps Semi-Conductors
Inc. V. Fariquera. The SC held that the CBA
xxx in a probationary status of an employee
for 17 mos. before he/she can be
regularized. Although the SC in many cases
has said that the particular provision on
probationary employment teaches that
probationary period shall not exceed 6 mos.
is DIRECTORY rather than mandatory.
ART. 295 [281]. PROBATIONARY
EMPLOYMENT. Probationary
employment shall not exceed six (6)
months from the date the employee
started working, unless it is covered by
an apprenticeship agreement stipulating
a longer
period. The services of an employee who
has been engaged on a probationary
basis may be terminated for a just cause
or when he fails to qualify as a regular
employee in accordance with reasonable
standards made known by the employer
to the employee at the time of his
engagement. An employee who is
allowed to work after a probationary
period shall be considered a regular
employee.
Now, there had been many cases where the SC
said that this shall not exceed 6 mos. is
NOT considered as mandatory. It is
DIRECTORY.
If it is ordinary work semi-skilled,
unskilled then you cannot extend it to
more than 6 mos. If it is SKILLED WORK, this
was brought out in an old case involving
Philippine Directories. You know the thick book of
PLDT. The salesmen of these directories, because
they solicit enterprising space there, their
probationary period is 1 yr., and that was
upheld by the SC because there are many
intricacies that you have to consider. That
was allowed by the SC.
Again, the SC has validated the special
Den
circumstances surrounding the teaching
profession. Teaching profession, the
probationary period is 3 yrs before you
become a regular teacher this is in
primary and secondary education. Higher,
its either longer. When you have a system
of being tenured, there are publication
requirements, higher degrees needed, the
probationary period may be longer. You
may not be able to advance if you do not
have the required qualifications. TENURED
STRUCTURE.
When you go to the US, tenure begins with Asst.
Professor. Then from that, you become an Assoc.
Prof. Then from that, you make it to full Prof.
From Assoc. to full, that is the most difficult
transition because theres so much, the
publication requirement is difficult to achieve. Its
not enough that you are able to publish especially
now that they can keep track whether your
article is referred to. You might publish but you
are not referred to; you are not cited in other
researches. That is the requirement which the SC
says is a valid requirement. It is required by the
academic institution.
AUTHORIZED CAUSES
I strongly urge you to read the Manila Polo Club
Employees Union v. Manila Polo Club (July 24,
2013). Here, the SC summarizes the rules with
respect to closure.
SC says, based on the above cases of
similar import, we summarize:
1.) Closure or cessation of operations of an
establishment may either be partial or
total;
2.) Closure or cessation of operations of
establishment or undertaking may or may
not be due to serious business losses or
financial reverses. However, in both
instances, proof must be shown that: (1) It
was done in good faith to advance the
employers interest and not for the purpose
of defeating or circumventing the rights of
employees under the law or a valid
agreement, and (2) A written notice on the
affected employees and the DOLE is served
at least 1 month before the intended date
of termination of employment.
3.) The employer can lawfully close shop
84
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
even if not due to serios business losses or
financial reverses but separation pay,
which is equivalent to at least 1 month as
provided for by Article 297 (283) of the
Labor Code, as amended, must be given to
all the affected employees.
So there is no cause and you want to close down,
you have to pay the max. separation benefits.
4.) If the closure or cessation of operations
of establishment or undertaking is due to
serious business losses or financial
reverses, the employer must prove such
allegation in order to avoid the payment of
separation pay. Otherwise, the affected
employees are entitled to separation pay
So, no separation pay if the closure is due to
serious business loss.
5.) The burden of proving compliance with
the above-stated falls upon the employer.
So the employer merely just files a complaint for
illegal termination; just alleges. What does he
have to prove? All he has to prove is that he was
an employee, and thats it. And it is the employer
that must prove that the termination was in
accordance with due process, there has been
payment of the required separation benefits if
that is applicable, or there has been an
investigation. Everything is the work of the
employer. Why is that? That is so because the
bias of the Constitution is SECURITY OF
TENURE. Our regime is a regime of security
of tenure. Once you are engaged for an
indefinite period of time, you must be made
to continue in your work with
compensation unless there is a just or
authorized cause that supervenes. That is
the normal procedure.
PROCEDURE FOR JUST CAUSE DISMISSALS
Investigation;
Give the employee ample opportunity to be
heard, give him a chance to adduce
evidence to prove his defense; and
He can be accompanied by his lawyer or his
chosen representative.
Den
What are some of the exceptions? 3 cases here
where the employee admits his responsibility for
the act he was accused of which renders a formal
hearing no longer necessary.
What if the confession or alleged admission of
guilt is made by a co-conspirator? You are
charged of robbery in band. Admit to ang
co-conspirator nimo na kamo ang nangawat. For
him, trial is no longer necessary kay
niadmit man cya. Kato iyang kauban na
giapil niya is not covered by the admission.
The same thing with Labor.
The unilateral confession made by an
alleged co-conspirator cannot be the basis
for terminating an employee. Such
confession must be corraborated by other
competent and convincing evidence.
Absent any such corraboration, the
confession must be received with
considerable caution.
That is a 1988 case Century Textile Mills
Inc. v. NLRC: A prior consultation with the
union of which the dismissed employee is a
member is not sufficient compliance with
the due process required. It is important to
stress that the rights of an employee whose
services are sought to be terminated to be
informed before hand on his pruposed
dismissal or suspension as well as the
reasons therefore and to be afforded an
adequate opportunity to defend himself
from the charges against him are rights
PERSONAL to the employee.
*So the union cannot waive those rights for
the employee. Those rights were not
satisfied by petitioners corporation
obtaining the consent or the consultation
with the labor union. Only the employee
can waive those rights.
Again, confrontation of witnesses is not a
matter of right in company investigations.
Many decided cases here from 1997 all the
way to the latest case, December 27, 2006:
Muaje-Tuazon v. Wenphil Corp: Actual
adversarial proceedings become necessary
only on clarifications or when there is need
to propound searching questions to
witnesses who give vague testimonies.
This is not an inherent right company
investigations summary proceedings.
85
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017
*Naay nakasala na employee. Naassign ka na
in-house counsel. Ingnon ka sa manager na o,
fulfill the requirement. Buhat kag committee,
padala kag sulat na mao ning charges nimo.
Butang nimo dinha, klaro recitation of facts or
omissions. So, nahatag na nimo. Unsa may iyang
tubag? Naa na iyang tubag. Naa na gani na unya
gusto jud ka na ma.pin-down jud nimo,
investigation. Pero, ang investigation di sila
magtagbo. You call him pero way labot tung
defense kay di man ni court, summary man. First,
the one who charges, ang mga witnesses. Hain
mani? Isulti dinhi. Icross examnine nimo. Record.
Sunod, tawgon to nimo tung employee who was
charged. Give him a chance. You have now a
basis to ask him from the testimonies of those
who are charging the witnesses. After that, you
make a decision. The decision is normally is
basically findings of fact Mao ning nahitabo.
Why? Mao ning evidence. And then, based on the
findings of fact, 2nd part recommendation.
Recommendation means dismissal, or di ba,
suspension with fine, etc. depending on your blue
book or red book or whatever color your book is
that is your disciplinary book. Magdala gani
ug lawyer, you will inform the lawyer of the
rules. You cannot directly address the court.
You just talk to your client. He can confirm
with you before he answers a question. But
you cannot directly question. Why? This is
summary. Pataas-taas naka, mudiskurso ka pa.
Tindog pa ka dinha to justify your attys fees,
madugay ta ini. Diha ra ta kutob holding
hands lang mo saimong client. Lels! :D
What happens when you serve the 1st written
notice and the employee refuses to accept
service? Di cya mudawat. Di sab cya mutambong.
What happens? Ok you are given the chance. Ok
you are dismissed. Ok ba na? No. The
investigation continues without his order.
The prosecution presents evidence. And
then, you inform them again. Send a notice
its now time. You are informed. Pls appear
on such and such a date and place. Di pa
siya. Another notice. 2 or 3 times. Best if 3
times. Dli pa gani, thats when the
commitee will make an ex parte decision.
Of course, written into the decision is the
notice was served 2 or 3 times that he
should appear and he has refused. So ready
naka saimong position paper. Its already
there. That is your evidence that you have
complied with the due process.
What is the essence of due process?
Opportunity to be heard.
Den
If the person has been granted the
opportunity and he has not take advantage
of the opportunity, it is no longer the fault
of the trial judge. It is the fault of the
employee. That does not mean that he has
waived his right xxx HE HAS WAIVED HIS
PART TO DUE PROCESS. Thats why you still
conduct an investigation. You continue the
investigation, this time without his/her
intervention. Kadaghanang sayop ana kay,
ah wa na diay, sad-an jud! What is the basis?
Wa man nimo dungga ang mga witnesses.
You have to hear the witnesses. You write it
down so their testimony, the evidence that
they proffer is not contested. So therefore it
stands. He has WAIVED his right to contest
the witnesses.
GROUNDS FOR DISMISSALS THAT ARE NOT
IN THE LABOR CODE
Disease
Retirement
Sec. 66, OEC
Conflict of interest
When continuation of employment
prohibited by law
Sexual harassment
Resignation
Permanent disability
Detention by military without basis
merely suspends employment, not
terminates the same
CARL
Constructive dismissal
Merger or consolidation
Union members who knowingly
participate in an illegal strike; union
members for committing acts of illegal
acts during strike
Union officers & members who
knowingly participate in a Prohibited
86
 Labor Standards
Fr. Agustin Nazareno
Ateneo de Davao University College of Law
First Semester SY 2016-2017

Strike Constructive dismissal. Constructive delivery

Expulsion from Union and Union
Security Clause violation
Validity of Exogamy policy
Invalidity of Exogamy policy
Failure to comply with Drug Test
So what we are left with are grounds for
dismissals that are not in the Labor Code. They
are listed in your old notes. There are 18 grounds.
This last one is failure to comply with the
drug test. It is accepted as a ground for
termination. But here, this is an example of
how not to conduct a drug test. Kaduha ka
gikuhaan ug drug test. That is Plantation Bay
Resort v. Rubrico, a 2009 case. These are very
interesting cases: Disease, retirement, Omnibus
Election Code, Section 66 Conflict of interest:
When the position requires a govt license like a
license for annual insurance, sexual harassment,
permanent disability, detention by military
authorities, CARP law this one is a Davao
case.
if di nimo mahatag physically, it becomes
constructive delivery. There is no actual physical
transfer but in effect there is a transfer
constituted. Dismissal gipapahawa ba ka?
Wala pa ka gipapahawa. Gilabay ka diadto.
Giassign ka sa lahi na lugar na wa saimong
kontrata. Nag opisina ka didto, nagbayad
pa kag balay nganhi, doble na imung gasto.
Cge ka pag pauli. Hangtod saimong kaguol,
saimong kalisod, ingon ka na di na ni
mahimo, muresign na lng ko. Mura nag
gipahawa ka. Thats CONSTRUCTIVE
DISMISSAL. SC says, kinahanglan na
muresign sa ka una bag.o ka makaingon na
you are constructively dismissed.
Merger or consultation, etc. Daghan ni. We
cannot take up all these cases, but you have to
read it. Mas daghan ang kaso na imong nabasa,
maapas nimo unsa nang panghuna-huna sa SC.
The more cases that you read, the more you
can predict what the SC will most likely
decide because you have so many
precedents.
-end of Labor Standards-
:)

They are employed in the plantation. The

plantation is subjected to agrarian reform. They
are the beneficiaries. Ingon sila, hain man
among separation benefits? Nangayo sila ug
separation benefits unya sila ang beneficiaries.
Kuyawa. Gikaso pajud nila, abot pajud ug SC.
Their ground is closure of the establishment.
They were working in this farm and now the farm
is closed because agrarian reform is
implemented. They want their termination
benefits and yet its not because of loss. So 1
month salary for every year of service, gilaliman
mo na. SC: This is not termination. Your
employer did not terminate you. We
terminated the govt terminated the
operations because it is put under agrarian
reform. So its not covered by the LC. All the
terminations here or dismissals are
employer-initiated. If it is the govt who
closes you down because of the
implementation of the law, it is not covered
by the LC. But it took 9 yrs. Dugay kaayo
ang kaso.

CONSTRUCTIVE DISMISSAL

Den 87