2015 Finals Samplex

A. 1. Management Prerogative

Under the Doctrine of Management Prerogative, every employer has the inherent right
to regulate, according to his own discretion and judgment, all aspects of employment,
including hiring, work assignments, working methods, the time, place, and manner of
work, work supervision, transfer of employees, lay-off of workers, and discipline,
dismissal, and recall of employees.

2. Worst Forms of Labor

3. Persons with Disability

Those suffering from restriction or different disabilities, as a result of a mental, physical

or sensory impairment, to perform an activity in the manner or within the range
considered normal for a human being.

4. Run-off Election

Run-off election takes place between the unions who received the 2 highest number of
votes in a certification election with 3 or more choice, where not one of the unions
obtained the majority of the valid votes cast, provided that the total union votes is at
least 50% of the votes cast.

5. Permanent Total Disability

Article 192. Permanent total disability.

Under such regulations as the Commission may approve, any employee under this Title
who contracts sickness or sustains an injury resulting in his permanent total disability
shall, for each month until his death, be paid by the System during such a disability, an
amount equivalent to the monthly income benefit, plus ten percent thereof for each
dependent child, but not exceeding five, beginning with the youngest and without
substitution: Provided, That the monthly income benefit shall be the new amount of the
monthly benefit for all covered pensioners, effective upon approval of this Decree.

The monthly income benefit shall be guaranteed for five years, and shall be suspended if
the employee is gainfully employed, or recovers from his permanent total disability, or
fails to present himself for examination at least once a year upon notice by the System,
except as otherwise provided for in other laws, decrees, orders or Letters of Instructions.
(As amended by Section 5, Presidential Decree No. 1641)

The following disabilities shall be deemed total and permanent:

 Temporary total disability lasting continuously for more than one hundred twenty days,
except as otherwise provided for in the Rules;

Complete loss of sight of both eyes;

Loss of two limbs at or above the ankle or wrist;

Permanent complete paralysis of two limbs;

Brain injury resulting in incurable imbecility or insanity; and

Such cases as determined by the Medical Director of the System and approved by the
Commission.

The number of months of paid coverage shall be defined and approximated by a formula
to be approved by the Commission.

6. Portability

Transfer of funds for the account and benefit of a worker who transfers from one system
to the other.

B. 1. The leaves that employees are entitled to:

a. Service Incentive Leave

b. Paternity Leave
c. Maternity Leave
d. Solo Parent Leave
e. Battered Woman Leave
f. Gynecological Surgery Leave
g. Vacation Leave
h. Sick Leave
i. Leave for Victims of Violence against Women and Children

2. Authorized causes for dismissal of employees

a. Automation/Robotics
b. Redundancy
c. Retrenchment
d. Closure or Cessation of Operation of the Establishment or Undertaking
e. Disease
f. Other Authorized Causes
i. Total and permanent disability of employee;
ii. Valid application of union security clause;
 iii. Expiration of period in term of employment;
iv. Completion of project in project employment;
v. Failure in probation;
vi. Relocation of business to a distant place;
vii. Defiance of return-to-work order;
viii. Commission of illegal acts in a strike;
ix. Violation of contractual commitment; and
x. Retirement
3. 5 instances when separation pay in lieu of reinstatement may be awarded:

a. Reinstatement cannot be effected in view of the long passage of time or because of

the realities of the situation;
b. It would be inimical to the employer’s interest;
c. Reinstatement may no longer be feasible;
d. It will not serve the best interest of the parties involved;
e. Company will be prejudiced by the reinstatement;
f. It will not serve a prudent purpose;
g. There is resultant strained relations (Doctrine of Strained Relations);
h. The former position of the illegally dismissed employee no longer exists;
i. Employer’s business has closed down;
j. Business recession;
k. Attainment of retirement age;
l. Injury or disability of the employee;
m. Dissolution of the company;
n. Merger of companies;
o. Sale of the company;
p. Insolvency of the company;
q. Abolition of the position; or
r. Difficulty in enforcing the employee’s reinstatement.

4. Jurisdictional preconditions for collective bargaining:

C. 1. In all cases, the employer shall make known to the employee the standards under which
he will qualify as a regular employee at the time of his engagement. Where no standards
are made known to him at that time, he should be regarded as a regular employee.
2. As a general rule, probationary employment shall not exceed 6 months from the date
the employee started working. The computation of the 6-month probationary period is
reckoned from the date of appointment up to the same calendar date of the 6 th month
following, except (1) when it is covered by an apprenticeship agreement stipulating a
longer period; (2) when the parties to an employment contract agree otherwise; (3) when
the same is established by company policy; and (4) when the same is required by the
nature of the work performed by the employee.
3. The employer/principal is treated as direct employer of the contractor’s employees in
all instances (contractor is deemed agent of the employer).
4. Project employees are not regular employees, their services needed only when there
are projects to be undertaken, except where the employment of project employees is
extended long after the supposed project has been finished, the employees are removed
from the scope of project employees and are considered as regular employees.
5. A charge of abandonment is totally inconsistent with the immediate filing of a
complaint for illegal dismissal. The filing thereof is proof enough of one’s desire to
return to work, thus negating any suggestion of abandonment.
6. Separation pay is paid to the affected employees who are terminated based on
authorized causes.
7.
a. Just Cause – twin-notice & hearing (opportunity to be heard)
i. Pre-notice – write employee informing him of the alleged infractions,
violations, sins committed by him, and let him explain in writing within
a reasonable time (5 days from the receipt of the letter). Make sure
that it is received by the employee.
ii. Post-notice
b. Authorized Cause – notify the employee and DOLE at least 30 days before
actual termination of employment. The notice must be in writing (letter).
8. If employment is terminated by just cause, there is no payment of separation pay,
except if tempered by social justice.
9. Art. 287. Retirement. Any employee may be retired upon reaching the retirement age
established in the collective bargaining agreement or other applicable employment
contract.
In case of retirement, the employee shall be entitled to receive such retirement benefits
as he may have earned under existing laws and any collective bargaining agreement and
other agreements: Provided, however, That an employee’s retirement benefits under any
collective bargaining and other agreements shall not be less than those provided therein.
In the absence of a retirement plan or agreement providing for retirement benefits of
employees in the establishment, an employee upon reaching the age of sixty (60) years
or more, but not beyond sixty-five (65) years which is hereby declared the compulsory
retirement age, who has served at least five (5) years in the said establishment, may retire
and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary
for every year of service, a fraction of at least six (6) months being considered as one
whole year.
Unless the parties provide for broader inclusions, the term ‘one-half (1/2) month salary’
shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash
equivalent of not more than five (5) days of service incentive leaves.
Retail, service and agricultural establishments or operations employing not more than ten
(10) employees or workers are exempted from the coverage of this provision.
Violation of this provision is hereby declared unlawful and subject to the penal provisions
under Article 288 of this Code.
 10. For the injury and the resulting disability or death to be compensable, the injury must
be the result of accident arising out of and in the course of the employment.

D. 1.
2. The hiring of replacements for the strikers during a strike is not an unfair labor practice
act of the employer. Such hiring may even be done on a permanent basis in case of an
economic strike. An employer is entitled to carry out his business. But in an unfair labor
practice strike, such replacements may not be permanently employed. In case of defiance
of a return-to-work order, or a certification or assumption order, a hearing is not required
for the employer to validly hire replacement for workers who committed the defiance.
3. Six Factors Affecting Legality of Strikes:
a. Statutory Prohibition
b. Procedural Requirements of the Law
c. Purpose must be ULP and Economic
d. Lawful Means and Methods
e. Injunction
f. Agreement of the Parties
2016 Finals Samplex

1. A.
B. Retrenchment
a. Reduction of personnel usually due to poor financial returns so as to cut down on costs of
operations in terms of salaries and wages to prevent bankruptcy of the company;
b. Linked with losses; it is a cost-cutting measure made immediately necessary by business
reduction or reverses.

Requisites of Retrenchment
i. The retrenchment must be reasonably necessary and likely to prevent business losses;
ii. The losses, if already incurred, are not merely de minimis, but substantial, serious, actual and
real, or if only expected, are reasonably imminent;
iii. The expected or actual losses must be proved by sufficient and convincing evidence;
iv. The retrenchment must be in good faith for the advancement of its interest and not to defeat
or circumvent the employee’s right to security of tenure;
v. There must be fair and reasonable criteria in ascertaining who would be dismissed and who
would be retained among the employees, such as status, efficiency, seniority, physical fitness,
age, and financial hardship for certain workers.
C. Four Kinds of Separation Pay
a. Separation pay as employer’s statutory obligation in cases of legal termination due to
authorized causes;
b. Separation pay as financial assistance, as an act of social justice, even in case of legal dismissal,
at court’s discretion;
c. Separation pay in lieu of reinstatement in illegal dismissal cases where the employee is ordered
reinstated but reinstatement is not feasible;
d. Separation pay as an employment benefit granted in a CBA or company policy.
D. Except as otherwise provided under the Labor Code, the Labor Arbiters shall have original and
exclusive jurisdiction to hear and decide, within 30 calendar days after the submission of the case
by the parties for decision without extension, even in the absence of stenographic notes, the
following cases involving all workers, whether agricultural or non-agricultural: (TV-CORD-U-
DOVE)

1. Claims for actual, moral, exemplary and other forms of damages arising from employer-
employee relations;
2. Unfair labor practice cases;
3. If accompanied with a claim for reinstatement, those that workers file involving wages,
rates of pay, hours of work and other terms and conditions of employment;
4. Wage distortion disputes in unorganized establishments not voluntarily settled by the
parties pursuant to R.A. No. 6727;
5. Monetary claims of overseas contract workers arising from employer-employee relations;
6. Cases arising from any violation of Article 278 including questions involving the legality of
strikes and lockouts;
 7. Except claims for Employment Compensation, Social Security, Philhealth and maternity
benefits, all other claims arising from employer-employee relations, including those of
persons in domestic or household service, involving an amount exceeding P5,000
regardless of whether accompanied with a claim for reinstatement;
8. Termination disputes;
9. Contested cases under the exception clause of Article 128 (b) of the Labor Code (Visitorial
and Enforcement Powers of the DOLE Secretary);
10. Enforcement of compromise agreements when there is non-compliance by any of the
parties;
11. Issuance of writ of execution to enforce decision of Voluntary Arbitrators or panel of
Voluntary Arbitrators for any reason;
12. Other cases as may be provided by law.

E.

2. A. Apprentice and Learner

Apprentice is a person undergoing training for an approved apprenticeable occupation
during an established period assured by an apprenticeship agreement. Learner is a person
hired as trainee in a semi-skilled and other industrial occupations which are non-
apprenticeable and which may be learned through practical training on the job in a
relatively short period of time which shall not exceed 3 months.

B. Facilities and Supplements

Facilities Supplements
Items of expense necessary for the Constitute extra remuneration or
laborer’s and his family’s existence special privileges or benefits given to
and subsistence or received by the laborers over and
above their ordinary earnings and
wages
Part of the wage Independent of the wage
Deductible from the wage Not wage deductible

C. Just Cause and Authorized Cause for Termination of Employment

Just causes are (1) serious misconduct; (2) willful disobedience or insubordination; (3)
gross and habitual neglect of duties; (4) fraud or willful breach of trust; (5) commission of
a crime or offense; and (6) analogous cases. Authorized causes are (1)
Automation/Robotics; (2) Redundancy; (3) Retrenchment; (4) Closure or Cessation of
Operation of the Establishment or Undertaking; (5) Disease; (6) Other Authorized Causes:
Total and permanent disability of employee; Valid application of union security clause;
Expiration of period in term of employment; Completion of project in project
employment; Failure in probation; Relocation of business to a distant place; Defiance of
return-to-work order; Commission of illegal acts in a strike; Violation of contractual
commitment; and Retirement.
E. Job Contracting and Labor-Only Contracting
Job Contracting Labor-Only Contracting
As to nature of employer/principal
The employer/principal is merely an The employer/principal is treated as direct
indirect employer, by operation of law, of employer of the contractor’s employees in
his contractor’s employees. all instances (contractor is deemed agent
of the employer).
As to existence of employer-employee relationship with employer/principal
The law creates an employer-employee The statute creates an employer-
relationship for a limited purpose, i.e. to employee relationship for a
ensure that the employees are paid their comprehensive purpose, i.e. to prevent a
wages. circumvention of labor laws.
As to liability of the principal
The principal becomes solidarily liable The principal becomes solidarily liable
with the contractor in the event the with the contractor not only for unpaid
contractor fails to pay the employees’ wages but also for all the rightful claims of
wages and for violation of labor standard the employees under the Labor Code and
laws. The liability, however, does not ancillary laws.
extend to the payment of backwages or
separation pay of employees who are
illegally dismissed.
As to validity
Permissible Prohibited by law
As to capital
There is a presence of substantial capital There is an absence of substantial capital
or investment or investment

E. Compulsory Arbitration and Voluntary Arbitration

Compulsory Arbitration is the process of settlement of labor disputes by a government

agency which has the authority to investigate and make award binding on all the parties.
Under the Labor Code, it is the Labor Arbiter who is clothed with the authority to conduct
compulsory arbitration on cases involving termination disputes.

Voluntary Arbitration refers to the mode of settling labor-management disputes by which

the parties select a competent, trained and impartial persons who shall decide on the
merits of the case and whose decisions in final, executory and unappealable.

F. Grievance refers to any question by either the employer or the union regarding:
a. Interpretation or implementation of any provision of the CBA;
b. Interpretation or enforcement of company personnel policies; or
c. Violation of any provisions of the CBA or company personnel policies.
G. Interference means to interfere with, restrain or coerce employees in the exercise of their
right to self-organization. An employer who interfered with the right to self-organization
before a union is registered can be held guilty of ULP.
H. The “no work, no pay” or “fair day’s wage for fair day’s labor” means that if the worker
does not work, he is generally not entitled to any wage or pay. The exception is when it
was the employer who unduly prevented him from working despite his ableness,
willingness and readiness to work; or in cases where he is illegally locked out or illegally
suspended or illegally dismissed, or otherwise illegally prevented from working, in which
event, he should be entitled to his wage.
I. a. Money claims – 3 years
b. ULP – 1 year
c. Illegal Dismissal – 4 years
d. Reinstatement – 4 years
e. Sexual Harassment – 3 years