CRITICAL AREAS IN LABOR LAW

By: Atty. Voltaire Duano

CRITICAL ARTICLES TO REMEMBER:

1. GENERAL PROVISIONS: Articles 4 and 6

2. BOOK ONE: Articles 13, 18, 22, 26, 27,28, 29, 35,36,37,38 and 40

3. BOOK TWO: Articles 58, 59,73,74,78,

4. BOOK THREE: Articles 82 to 88, 93, 97 (f), 100, 105,106-109,113,114,115,124,128,129,133,134

to 136, 138

5. BOOK FOUR: Articles 173 (I, J, K L),197,198 and 199

6. BOOK FIVE: Articles 219,224,225,229,232,233,240,241,245,246,247,249,250,

253,254,255,256,257,258,259,260,263,264,265,266,267,268 to 272, 273 to 276,278 to 280,284,285

and 289

7. BOOK SIX: Articles 294 to 302

8. BOOK SEVEN: Articles 305 and306

2018, 2017, 2016, 2015, 2014, 2011, 2010, 2008, 2003, 2002, 1999, 1996, 1991 Bar

Examinations:

Four-fold test the existence of an employer-employee relationship

To ascertain the existence of an employer-employee relationship, jurisprudence has invariably

adhered to the four-fold test, to wit: (1) the selection and engagement of the employee; (2) the payment of

wages; (3) the power of dismissal; and (4) the power to control the employee's conduct, or the so-called

"control test."(South East International Rattan, Inc. v. Coming, G.R. No. 186621, March 12, 2014, 718

SCRA 658, 666, citing Atok Big Wedge Company, Inc. v. Gison, 670 Phil. 615, 626-627 [2011]) Verily, the

power of the employer to control the work of the employee is considered the most significant determinant

of the existence of an employer-employee relationship. This is the so-called "control test," and is

premised on whether the person for whom the services are performed reserves the right to control both the

end achieved and the manner and means used to achieve that end. (Legend Hotel (Manila) v. Realuyo,

691 Phil. 226, 240 (2012), citations omitted.) It must, however, be stressed that the "control test" merely

KokoBar 2019 Labor Law: Atty. Voltaire Duano 1

calls for the existence of the right to control, and not necessarily the exercise thereof. To be clear, the test

does not require that the employer actually supervises the performance of duties by the employee.

(See Tongko v. The Manufacturers Life Insurance Co. (Phils.), Inc., 655 Phil. 384 [2011])

2011, 2007, 1995 and 1994 Bar Examinations: Workers right to participate in policy and

decision-making processes

Any provision of law to the contrary notwithstanding, workers shall have the right, subject to such

rules and regulations as the Secretary of Labor and Employment may promulgate, to participate in policy

and decision-making processes of the establishment where they are employed insofar as said processes

will directly affect their rights, benefits and welfare. (Article 267 [255], Labor Code, as amended by

Section 22, Republic Act No. 6715, March 21, 1989) The right of the workers right to participate in policy

and decision-making processes affecting their rights and benefits as may be provided by law is the

principle of co-determination under Article XIII, Section 3 of the 1987 Constitution.

2017, 2009 and 2006 Bar Examinations: Construction in favor of labor

Labor Code, Article 4. Construction in favor of labor. All doubts in the implementation and

interpretation of the provisions of this Code, including its implementing rules and regulations, shall be

resolved in favor of labor.

Art. 4 of the Labor Code extended to doubts arising from evidence

The consistent rule is that if doubts exist between the evidence presented by the employer and the

employee, the scales of justice must be tilted in favor of the latter. (Malabunga Jr. v. Cathay Pacific Steel

Corporation, G.R. No. 198515, June 15, 2015 citing Asuncion v. National Labor Relations Commission,

414 Phil. 329, 341-342 [2001])

“Going to and from work rule”

This rule simply means when an employee is accidentally injured at a point reasonably

proximate to the place of work, while he is going to and from his work, such injury is deemed

to have arisen out of and in the course of his employment. (See Vda. de Torbela v.

Employees’ Compensation Commission, G.R. No. L-42627 February 21, 1980)

KokoBar 2019 Labor Law: Atty. Voltaire Duano 2

2015 and 2006 Bar Examinations: Disqualification and qualification to engage in recruitment

and placement

Labor Code, Article 26. Travel agencies prohibited to recruit. Travel agencies and sales

agencies of airline companies are prohibited from engaging in the business of recruitment and placement

of workers for overseas employment whether for profit or not.

Labor Code, Article 27. Citizenship requirement. Only Filipino citizens or corporations,

partnerships or entities at least seventy-five percent (75%) of the authorized and voting capital stock of

which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and

placement of workers, locally or overseas.

2015, 2011, 2007, 2005 AND 2002 Bar Examinations: Illegal recruitment by a syndicate and large

scale

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or

more persons conspiring or confederating with one another while illegal recruitment is deemed committed

in a large scale if committed against three (3) or more persons individually or as a group. (2nd par., Sec. 6

of RA 8042, as amended by Sec. 6 of RA 10022)

2009 Bar Examinations: Jurisdiction of labor arbiter on money claims of OFW

Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor

Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within

ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee

relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including

claims for actual, moral, exemplary and other forms of damage. (First par., Section 10, RA 8042, as

amended by RA 10022)

2017 Bar Examinations: Joint and several liability the principal/employer and the

recruitment/placement agency

"The liability of the principal/employer and the recruitment/placement agency for any and all claims

under this section shall be joint and several. This provision shall be incorporated in the contract for

overseas employment and shall be a condition precedent for its approval. The performance bond to de

filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or

KokoBar 2019 Labor Law: Atty. Voltaire Duano 3

damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the

corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily

liable with the corporation or partnership for the aforesaid claims and damages. "Such liabilities shall

continue during the entire period or duration of the employment contract and shall not be affected by any

substitution, amendment or modification made locally or in a foreign country of the said contract. (2nd and

3rd pars, Section 10, RA 8042, as amended by RA 10022)

Reliefs granted to OFW in case of termination of overseas employment without just, valid or

authorized cause

In case of termination of overseas employment without just, valid or authorized cause as defined

by law or contract, or any unauthorized deductions from the migrant worker's salary, the worker shall be

entitled to the full reimbursement if his placement fee and the deductions made with interest at twelve

percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract. (5th

par, Section 10, RA 8042, as amended by RA 10022)

2009, 2008, 2001 and 1999 Bar Examinations: Status quo of CBA (Automatic Renewal

Clause/Evergreen Clause/Hold-over)

It shall be the duty of both parties to keep the status quo and to continue in full force and effect the

terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is

reached by the parties. (Article 264 [253], Labor Code). The period of status quo and effectivity of the

existing CBA is during the freedom period (60-day period) and/or until a new agreement is reached by the

parties.

2012, 2006 and 1998 Bar Examinations: Determination of representation status

The following are the modes to determine an exclusive bargaining agent:

Request for Sole and Exclusive Bargaining Agent (SEBA) Certification - This is a request

filed by any legitimate labor organization in the regional office which issued its certificate of registration or

certificate of creation of chartered local in unorganized establishment with only one (1) legitimate labor

organization and supported by the employees comprise at least majority of the number of employees in the

covered bargaining unit. (Sections 1 and 2, Rule VII, Book V, Rules to Implement the Labor Code, as

amended by Section 3 of Department Order No. 40-I-15, Series of 2015)

KokoBar 2019 Labor Law: Atty. Voltaire Duano 4

2014 and 1999 Bar Examinations

Qualification of voters; inclusion-exclusion All employees who are members of the appropriate

bargaining unit three (3) months prior to the filing of the petition/request shall be eligible to vote. An

employee who has been dismissed from work but has contested the legality of the dismissal in a forum of

appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election

shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the

time of the conduct of the certification election. In case of disagreement over the voters' list or over the

eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and

sealed in individual envelopes in accordance with Sections 10 and 11 of this Rule. (Section 6, Rule IX,

Book V, Rules to Implement the Labor Code, as amended/renumbered by Section 10 of Department

Order No. 40-1-15, Series of 2015)

In National Union of Workers in Hotels, Restaurants and Allied Industries- Manila Pavilion

Hotel Chapter v.Secretary of Labor and Employment, G.R. No. 181531, July 31, 2009: In a certification

election, all rank and file employees in the appropriate bargaining unit, whether probationary or permanent

are entitled to vote. This principle is clearly stated in Art. 255 of the Labor Code which states that the "labor

organization designated or selected by the majority of the employees in an appropriate bargaining unit

shall be the exclusive representative of the employees in such unit for purposes of collective bargaining."

Collective bargaining covers all aspects of the employment relation and the resultant CBA negotiated by

the certified union binds all employees in the bargaining unit. Hence, all rank and file employees,

probationary or permanent, have a substantial interest in the selection of the bargaining representative.

The Code makes no distinction as to their employment status as basis for eligibility in supporting the

petition for certification election. The law refers to "all" the employees in the bargaining unit. All they need

to be eligible to support the petition is to belong to the "bargaining unit." (Emphasis supplied)

Double Majority Rule

It is well-settled that under the so-called "double majority rule," for there to be a valid certification

election, majority of the bargaining unit must have voted AND the winning union must have garnered

majority of the valid votes cast. (National Union of Workers in Hotels, Restaurants and Allied

Industries- Manila Pavilion Hotel Chapter v.Secretary of Labor and Employment, G.R. No. 181531,

July 31, 2009)

Author’s Note: This is provided in the 2nd and 3rd sentences of Art. 268, LC. which provides: To

have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The

labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent

KokoBar 2019 Labor Law: Atty. Voltaire Duano 5

of all the workers in the unit. Take note that the true importance of ascertaining the number of valid votes

cast are as follows: (1) to serve as basis for computing the required majority to win an election; and (2) to

determine which union won the elections. Abstention is considered a valid vote (Rule I, Sec. 1 [a], Book

V, as amended by D. O. 40-I-15)

Re-run Election - When a certification, consent or run-off election results to a tie between the

two (2) choices, the election officer shall immediately notify the parties of a re-run election. the

election officer shall cause the posting of the notice of re-run within five (5) days from the certification,

consent or run-off election. the re-run election shall be conducted within ten (10) days after the

posting of notice. The choice receiving the highest votes cast during the re-run election shall be

declared the winner and shall be certified accordingly. (Section 18, Rule IX, Book V, Rules to

Implement the Labor Code, added by Section 16 of Department Order No. 40-1-15, Series of

2015)

2006 Bar Examination

Run-off elections - When an election which provides for three (3) or more choices results in

none of the contending unions receiving a majority of the valid votes cast, and there are no objections

or challenges which if sustained can materially alter the results, the Election Officer shall motu propio

conduct a run-off election within ten (10) days from the close of the election proceedings between the

labor unions receiving the two highest number of votes; provided, that the total number of votes for all

contending unions is at least fifty (50%) percent of the number of votes cast. "No Union" shall not be a

choice in the run-off election. (Section 1, Rule X, Book V, Rules to Implement the Labor Code)

2015, 2010 and 2008 Bar Examinations: Assumption and certification order in national interest

cases

When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an

industry indispensable to the national interest, the Secretary of Labor and Employment may: 1. Assume

jurisdiction over the dispute and decide it; or 2. Certify the same to the Commission for compulsory

arbitration. (Article 278(g) [263(g)], Labor Code)

Effects of assumption Such assumption or certification shall have the effect of: 1. Automatically

enjoining the intended or impending strike or lockout as specified in the assumption or certification order; 2.

If one has already taken place at the time of assumption or certification, all striking or locked out

employees shall immediately return-to-work and the employer shall immediately resume operations and

KokoBar 2019 Labor Law: Atty. Voltaire Duano 6

readmit all workers under the same terms and conditions prevailing before the strike or lockout; 3. The

Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement

agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce

the same. (Article 278(g) [263(g)], Labor Code)

Industries indispensable to the national interest as interpreted by the Rules to

Implement the Labor Code

For the guidance of the workers and employers in the filing of petition for assumption of

jurisdiction, the following industries/services are hereby recognized as deemed indispensable to the

national interest: a. Hospital sector; b. Electric power industry; c. Water supply services, to exclude

small water supply services such as bottling and refilling stations; d. Air traffic control; and e. Such

other industries as maybe recommended by the national tripartite industrial peace council (TIPC)."

(Section 16, Rule XXII, Book V, Rules to Implement the Labor Code, as amended by

Department Order No. 40-H-13, Series of 2013)

2013 and 1999 Bar Examinations: Scope of the “assume jurisdiction” and Doctrine of "great

breadth of discretion" and "incidental jurisdiction"

In Tabangao Shell Refinery Employees Association v. Pilipinas Petroleum Corporation, G. R.

No. 170007, April 7, 2014 the scope of the “assume jurisdiction” was explained as follows: Article 263(g)

is both an extraordinary and a preemptive power to address an extraordinary situation - a strike or lockout

in an industry indispensable to the national interest. This grant is not limited to the grounds cited in the

notice of strike or lockout that may have preceded the strike or lockout; nor is it limited to the incidents of

the strike or lockout that in the meanwhile may have taken place. As the term "assume jurisdiction"

connotes, the intent of the law is to give the Labor Secretary full authority to resolve all matters within the

dispute that gave rise to or which arose out of the strike or lockout; it includes and extends to all questions

and controversies arising from or related to the dispute, including cases over which the labor arbiter has

exclusive jurisdiction. (Citation omitted.)

University of the Immaculate Conception v. Office of the Secretary of Labor and Employment, G.R.

Nos. 178085 - 178086, September 14, 2015: The Court citing LMG Chemicals Corporation v. Secretary of

Labor G.R. No. 127422, April 17, 2001, 356 SCRA 577, 585, said we already settled the extent of the

Secretary’s jurisdiction under Article 263(g): It is well settled in our jurisprudence that the authority of the

Secretary of Labor to assume jurisdiction over a labor dispute causing or likely to cause a strike or lockout

KokoBar 2019 Labor Law: Atty. Voltaire Duano 7

in an industry indispensable to national interest includes and extends to all questions and controversies

arising therefrom. The power is plenary and discretionary in nature to enable him to effectively and

efficiently dispose of the primary dispute. xxx.

2015, 2014, 2012, 2010, 2008, 2007, 2006, 1997, 1995 and 1994 Bar Examinations: Effects of

participation in illegal strike and commission of illegal acts during strike

The following are the effects of participation in an illegal strike and commission of illegal acts during

strike: 1. Any union officer who knowingly participates in an illegal strike; and 2. Any worker or union officer

who knowingly participates in the commission of illegal acts during a strike may be declared to have lost

his employment status; (Third paragraph, Article 279 (a) [264 (a)], Labor Code)

2014, 2012, 2006 and 1995 Bar Examination: Effect of participation in a lawful strike

The mere participation of a worker in a lawful strike shall not constitute sufficient ground for

termination of his employment, even if a replacement had been hired by the employer during such

lawful strike. (Third paragraph, Article 279 (a) [264 (a)], Labor Code)

2014, 2007, 2004, 2001 and 1994 Bar Examinations: Requirements for valid strike

In Pilipino Telephone Corporation v. Pilipino Telephone Employees Association (PILTEA),

G. R. No. 160058, June 22, 2007, and Pilipino Telephone Employees Association (PILTEA) v.

Pilipino Telephone Corporation , G. R. No. 160094, June 22, 2007, the Supreme Court laid down the

procedural requirements for a valid strike, it mandatory character and the effect of failure to comply thereon

as follows: Article 263 of the Labor Code, as amended by Republic Act (R.A.) No. 6715, (Took effect on

March 21, 1989) and Rule XXII, Book V of the Omnibus Rules Implementing the Labor Code outline the

following procedural requirements for a valid strike: 1) A notice of strike, with the required contents, should

be filed with the DOLE, specifically the Regional Branch of the NCMB, copy furnished the employer of the

union; 2) A cooling-off period must be observed between the filing of notice and the actual execution of the

strike thirty (30) days in case of bargaining deadlock and fifteen (15) days in case of unfair labor practice.

However, in the case of union busting where the unions existence is threatened, the cooling-off period

need not be observed. xxx xxxxxx 4) Before a strike is actually commenced, a strike vote should be taken

by secret balloting, with a 24-hour prior notice to NCMB. The decision to declare a strike requires the

secret-ballot approval of majority of the total union membership in the bargaining unit concerned. 5) The

result of the strike vote should be reported to the NCMB at least seven (7) days before the intended strike

or lockout, subject to the cooling-off period. (National Federation of Labor (NFL) v. NLRC, G.R. No.

KokoBar 2019 Labor Law: Atty. Voltaire Duano 8

113466, December 15, 1997, 283 SCRA 275, 286) It is settled that these requirements are mandatory in

nature and failure to comply therewith renders the strike illegal. (CCBPI Postmix Workers Union v.

NLRC, G.R. No. 114521, November 27, 1998, 299 SCRA 410, 424)

2012, 2009, 2006, 2004, 1999, 1998 and 1994 Bar Examinations: Due process in employment

termination

The two aspects of due process are the following: 1. Substantive, i.e., the valid and authorized

causes of employment termination under the Labor Code; and procedural, i.e., the manner of dismissal; 2.

Procedural due process requirements for dismissal are found in the Implementing Rules of P.D. 442, as

amended, otherwise known as the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as amended

by Department Order Nos. 9 and 10. (Department Order No. 9 took effect on 21 June 1997.

Department Order No. 10 took effect on 22 June 1997) Breaches of these due process requirements

violate the Labor Code. Therefore statutory due process should be differentiated from failure to comply

with constitutional due process. (Agabon v. NLRC G.R. No. 158693, November 17,2004)

Three types of employees under Article 295 [280] of the Labor Code

In Paz v. Northern Tobacco Redrying Co., Inc., G. R. No. 199554, February 18, 2015, the

Supreme Court discussed that jurisprudence identified three types of employees as follows: Article 280 of

the Labor Code and jurisprudence identified three types of employees, namely: "(1) regular employees or

those who have been engaged to perform activities which are usually necessary or desirable in the usual

business or trade of the employer; (2) project employees or those whose employment has been fixed for a

specific project or undertaking, the completion or termination of which has been determined at the time of

the engagement of the employee or where the work or service to be performed is seasonal in nature and

the employment is for the duration of the season; and (3) casual employees or those who are neither

regular nor project employees." (Benares v. Pancho, 497 Phil. 181, 189–190 (2005) [Per J. Tinga,

Second Division],citing Perpetual Help Credit Cooperative, Inc. v. Faburada, 419 Phil. 147, 155

(2001) [Per J. Sandoval-Gutierrez, Third Division]. See also Gapayao v. Fulo, G.R. No. 193493, June

13, 2013, 698 SCRA 485, 498–499 [Per C.J. Sereno, First Division])

2013 and 2008 Bar Examinations: Classifications of regular employees

Regular employees are further classified into: (1) regular employees by nature of work; and (2)

regular employees by years of service. (E. Ganzon, Inc. vs. National Labor Relations Commission,

G.R. No. 123769, 22 December 1999, 321 SCRA 434, 440) The former refers to those employees who

KokoBar 2019 Labor Law: Atty. Voltaire Duano 9

perform a particular activity which is necessary or desirable in the usual business or trade of the employer,

regardless of their length of service; while the latter refers to those employees who have been performing

the job, regardless of the nature thereof, for at least a year. (Pangilinan vs. General Milling Corporation,

G.R. No. 149329, 12 July 2004)

Criteria of a valid fixed-term employment

In Convoy Marketing Corporation v. Albia, G. R. No. 194969, October 7, 2015, the criteria for a

valid fixed period employment was explained as follows: Considered to be legitimate under the Labor

Code, (AMA Computer College Paraniaque and/or Amable C. Aguiluz IX v. Austria, 563 Phil. 745,

757 (2007); Brent School, Inc. v. Zamora,260 Phil.747 [1990]) fixed-term employment contracts

terminate by their own terms at the end of a definite period. (Brent School, Inc. v. Zamora,supra, at 755)

The fact that the service rendered by the employees is usually necessary and desirable in the business

operations of the employer will not impair the validity of such contracts.(Palomares v. NLRC,

343,Phil.213,223 [1997]) For, the decisive determinant in the term employment is not the activities that

the employee is called to perform, but the day certain agreed upon by the parties for the commencement

and termination of their employment relationship. (Brent School, Inc. v. Zamora, supra note 25, at 757)

Aware of the possible abuse of fixed-term employment contracts, the Court stressed in Brent School, Inc.

v. Zamora that where from the circumstances it is apparent that the periods have been imposed to

preclude acquisition of tenurial security by the employee, they should be struck down as contrary to public

policy or morals. (GMA Network, Inc. v. Pabriga, G.R. No. 176419, November 27, 2013,710 SCRA 690,

700) The Court thus laid down indications or criteria under which the term "employment" cannot be said to

be in circumvention of the law on security of tenure, namely:

1) The fixed period of employment was knowingly and voluntarily agreed upon by the

parties without any force, duress, or improper pressure being brought to bear upon the

employee and absent any other circumstances vitiating his consent; or

2) It satisfactorily appears that the employer and the employee dealt with each other on

more or less equal terms with no moral dominance exercised by the former or the latter.

(Id., citing Romares v. National Labor Relations Commission, 355 Phil. 835, 847

(1998) and Philips Semiconductors (Phils.).Inc. v. Fadriquela, 471 Phil. 355, 372-

373 [2004])

2013, 2012, 2011, 2010, 2005, 2002 and 2000 Bar Examinations

KokoBar 2019 Labor Law: Atty. Voltaire Duano 10

 Leaves provided by law

Republic Act No. 8187 known as "Paternity Leave Act of 1996" Conditions to

entitlement of paternity leave benefits: A married male employee shall be entitled to paternity benefits

provided that: a. he is an employee at the time of delivery of his child; b. he is cohabiting with his spouse at

the time she gives birth or suffers a miscarriage. c. he has applied for paternity leave in accordance with

Section 4 hereof; and d. his wife has given birth or suffered a miscarriage. (Section 3, Revised

Implementing Rules and Regulations of Republic Act No. 8187 for the Private Sector)

Parental Leave for Solo Parents under Republic Act No. 8972 Solo Parent is any

individual who falls under any of the following categories:

1. A woman who gives birth as a result of rape and other crimes against chastity even without a

final conviction of the offender, provided that mother keeps and raises the child.

2. Parent left solo or alone with the responsibility of parenthood due to the following circumstances:

a. to death of spouse; b. while the spouse is detained or is serving sentence for a criminal conviction for at

least one (1) year; c. due to physical and/or mental incapacity of spouse as certified by a public medical

practitioner; d. due to legal separation or de facto separation from spouse for at least one (1) year, as long

as he/she is entrusted with the custody of the children; e. due to declaration of nullity or annulment of

marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the

children; f. due to abandonment of spouse for at least one (1) year; 3. Unmarried mother/father who has

preferred to keep and rear her/his child/children instead of having others care for them or give them up to a

welfare institution.

4. Any other person who solely provides parental care and support to a child or children.

5. Any family member who assumes the responsibility of head of family as a result of the death,

abandonment, disappearance or prolonged absence of the parents or solo parent.

Conditions for Entitlement of Parental Leave: A solo parent shall be entitled to parental leave provided that:

(a) He/She has rendered at least one (1) year of service whether continuous or broken at the time of the

affectivity of the Act; (b) He/She has notified his/her employer of the availment thereof within a reasonable

time period; and (c) He/She has presented a Solo Parent Identification Card to his/her employer. (Section

19, Rules and Regulations Implementing Republic Act 8972)

Leave for Victims of VAWC under Republic Act 9262

2011 Bar Examinations

KokoBar 2019 Labor Law: Atty. Voltaire Duano 11

 Ten-day paid leave in addition to other leave benefits At any time during the application of any

protection order, investigation, prosecution and/or trial of the criminal case, a victim of VAWC who is

employed shall be entitled to a paid leave of up to ten (10) days in addition to other paid leaves under the

Labor Code and Civil Service Rules and Regulations and other existing laws and company policies,

extendible when the necessity arises as specified in the protection order. The Punong Barangay/kagawad

or prosecutor or the Clerk of Court, as the case may be, shall issue a certification at no cost to the woman

that such an action is pending, and this is all that is required for the employer to comply with the 10-day

paid leave. (Section 42, Rule VI, The Rules and Regulations Implementing the Anti-Violence Against

Women and Their Children Act of 2004”)

Non-elimination or diminution rule

Requisites of diminution of benefits In Vergara, Jr. v. Coca-Cola Bottlers Philippines,

Inc., G.R. No. 176985, April 1, 2013, it was held: “There is diminution of benefits when the following

requisites are present: (1) the grant or benefit is founded on a policy or has ripened into a practice over a

long period of time; (2) the practice is consistent and deliberate; (3) the practice is not due to error in the

construction or application of a doubtful or difficult question of law; and (4) the diminution or discontinuance

is done unilaterally by the employer.” (Supreme Steel Corporation v. Nagkakaisang Manggagawa ng

Supreme Independent Union (NMS-IND-APL), G.R. No. 185556, March 28, 2011, 646 SCRA 501, 527

cited in Vergara, Jr. v. Coca-Cola Bottlers Philippines, Inc., G.R. No. 176985, April 1, 2013)

2014, 2013, 2012, 2011, 2009, 2004, 2002, 2001, 200, 1997 and 1994 Bar Examinations

Articles 106-109 of the Labor Code

The conditions for legitimate job contracting or subcontracting In Norkis Trading

Corporation v. Buenavista, G. R. No. 182018, October 10, 2012, the conditions for legitimate job

contracting or subcontracting laid down by the Supreme Court are as follows: These differentiate it from

permissible or legitimate job contracting or subcontracting, which refers to an arrangement whereby a

principal agrees to put out or farm out with the contractor or subcontractor the performance or completion

of a specific job, work, or service within a definite or predetermined period, regardless of whether such job,

work, or service is to be performed or completed within or outside the premises of the principal. A person is

considered engaged in legitimate job contracting or subcontracting if the following conditions concur: (a)

the contractor carries on a distinct and independent business and partakes the contract work on his

account under his own responsibility according to his own manner and method, free from the control and

KokoBar 2019 Labor Law: Atty. Voltaire Duano 12

direction of his employer or principal in all matters connected with the performance of his work except as to

the results thereof; (b) the contractor has substantial capital or investment; and (c) the agreement between

the principal and the contractor or subcontractor assures the contractual employees’ entitlement to all labor

and occupational safety and health standards, free exercise of the right to self-organization, security of

tenure, and social welfare benefits. (Babas v. Lorenzo Shipping Corporation, G.R. No. 186091,

December 15, 2010, 638 SCRA 735, 745-746, citing Vinoya v. NLRC, 381 Phil. 460, 472-473; 324

SCRA 469, 478-479 [2000]).

Prohibitions on Labor-only Contracting Labor-only contracting is hereby declared

prohibited. For this purpose, labor only contracting shall refer to an arrangement where: (a) The contractor

does not have substantial capital or investments in the form of tools, equipment, machineries, work

premises, among others, and the employees recruited and placed are performing activities which are

usually necessary or desirable to the operation of the company, or directly related to the main business of

the principal within a definite or predetermined period, regardless of whether such job, work or service is to

be performed or completed within or outside the premises of the principal; or (b) The contractor does not

exercise the right to control over the performance of the work of the employee. (Section 6, D.O. No. 18-A

Series of 2011)

Solidary liability in labor-only contracting and job-contracting, distinguished

The case of Vigilla v. Philippine College of Criminology, Inc. G. R. No. 200094, June 10, 2013,

also gave the distinctions between solidary liability in legitimate job contracting and in labor-only

contracting. The case of San Miguel Corporation v. MAERC Integrated Services, Inc., 453 Phil. 543

(2003) also recognized this solidary liability between a labor-only contractor and the employer. In the said

case, this Court gave the distinctions between solidary liability in legitimate job contracting and in labor-

only contracting, to wit:

In legitimate job contracting, the law creates an employer-employee relationship for a limited

purpose, i.e., to ensure that the employees are paid their wages. The principal employer becomes

jointly and severally liable with the job contractor only for the payment of the employees' wages

whenever the contractor fails to pay the same. Other than that, the principal employer is not

responsible for any claim made by the employees. On the other hand, in labor-only contracting, the

statute creates an employer-employee relationship for a comprehensive purpose: to prevent a

circumvention of labor laws. The contractor is considered merely an agent of the principal employer

and the latter is responsible to the employees of the labor-only contractor as if such employees had

been directly employed by the principal employer. The principal employer therefore becomes

KokoBar 2019 Labor Law: Atty. Voltaire Duano 13

 solidarily liable with the labor-only contractor for all the rightful claims of the employees. (Id. at 566-

567) [Emphases supplied; Citations omitted]

2012, 2009, 2008, 2006, 2002, 1997 Bar Examinations: Wage Distortion

Procedure to resolve wage distortion

Where wage distortion arises from the implementation of wage increase it involves jurisdiction and

remedy for its correction. The procedures to be followed are:

1. Jurisdiction and remedy to correct wage distortion in case there is a CBA: Where the

application of any prescribed wage increase by virtue of a law or wage order issued by any Regional Board

results in distortions of the wage structure within an establishment, the employer and the union shall

negotiate to correct the distortions. Any dispute arising from wage distortions shall be resolved through the

grievance procedure under their collective bargaining agreement and, if it remains unresolved, through

voluntary arbitration. Unless otherwise agreed by the parties in writing, such dispute shall be decided by

the voluntary arbitrators within ten (10) calendar days from the time said dispute was referred to voluntary

arbitration. (fourth paragraph, Article 124, as amended by Republic Act No. 6727, June 9, 1989) 2.

Jurisdiction and remedy to correct wage distortion in case there is no CBA/recognized labor

unions: In cases where there are no collective agreements or recognized labor unions, the employers and

workers shall endeavor to correct such distortions. Any dispute arising therefrom shall be settled through

the National Conciliation and Mediation Board and, if it remains unresolved after ten (10) calendar days of

conciliation, shall be referred to the appropriate branch of the National Labor Relations Commission

(NLRC). It shall be mandatory for the NLRC to conduct continuous hearings and decide the dispute within

twenty (20) calendar days from the time said dispute is submitted for compulsory arbitration. (fifth

paragraph, Article 124, as amended by Republic Act No. 6727, June 9, 1989)

2008, 1999 and 1997 Bar Examinations: Classification of certain women workers

Status of women workers in certain work places: 1. Any woman who is permitted or suffered to

work with or without compensation, in any night club, cocktail lounge, beer house, massage clinic, bar or

similar establishments; 2. 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 establishments for purposes of labor and social legislation. (Article 136, Labor Code)

2012, 2007, 2006, 2004, and 2002 Bar Examinations

KokoBar 2019 Labor Law: Atty. Voltaire Duano 14

 Amendment to Article 137 (a) of the Labor Code Section 2. Section 12 of the same Act,

as amended, is hereby further amended to read as follows: “Sec. 12. 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 child’s

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

child’s 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;“(b) The employer shall institute measures to prevent the child’s 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.

“In the above-exceptional cases where any such child may be employed, the employer shall first secure,

before engaging such child, a work permit from the Department of Labor and Employment which shall

ensure observance of the above requirements.

“For purposes of this Article, the term “child” shall apply to all persons under eighteen (18) years of age.”

“Sec. 12-D. Prohibition Against Worst Forms of Child Labor. – No child shall be engaged in the worst

forms of child labor. The phrase “worst forms of child labor” shall refer to any of the following:

“(1) All forms of slavery, as defined under the “Anti-trafficking in Persons Act of 2003″, or practices similar

to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory

labor, including recruitment of children for use in armed conflict; or “(2) The use, procuring, offering or

exposing of a child for prostitution, for the production of pornography or for pornographic performances; or

“(3) The use, procuring or offering of a child for illegal or illicit activities, including the production and

trafficking of dangerous drugs and volatile substances prohibited under existing laws; or “(4) Work which,

by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the

health, safety or morals of children, such that it: “a) Debases, degrades or demeans the intrinsic worth and

dignity of a child as a human being; or “b) Exposes the child to physical, emotional or sexual abuse, or is

KokoBar 2019 Labor Law: Atty. Voltaire Duano 15

found to be highly stressful psychologically or may prejudice morals; or “c) Is performed underground,

underwater or at dangerous heights; or “d) Involves the use of dangerous machinery, equipment and tools

such as power-driven or explosive power-actuated tools; or “e) Exposes the child to physical danger such

as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires

the manual transport of heavy loads; or “f) Is performed in an unhealthy environment exposing the child to

hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation,

fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or

vibrations; or “g) Is performed under particularly difficult conditions; or “h) Exposes the child to biological

agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or “i) Involves the

manufacture or handling of explosives and other pyrotechnic products.”

Section 5. Section 14 of the same Act is hereby amended to read as follows:

“Sec. 14. Prohibition on the Employment of Children in Certain Advertisements. – No child shall be

employed as a model in any advertisement directly or indirectly promoting alcoholic beverages,

intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography.”

2012, 2001, 2009, 2000 and 1998: Republic Act No. 10361 ("Domestic Workers Act" or "Batas

Kasambahay")

Coverage Apply to all parties to an employment contract for the services of the following

Kasambahay, whether on a live-in or live-out arrangement, such as but not limited to: (a) General

househelp;(b) Yaya;(c) Cook; (d) Gardener; (e) Laundry person; or (f) Any person who regularly performs

domestic work in one household on an occupational basis. (Section 2, Rule I, Implementing Rules and

Regulations of Republic Act 10361)

Those not covered The following are not covered: (a) Service providers;(b) Family drivers; (c)

Children under foster family arrangement; and (d) Any other person who performs work occasionally or

sporadically and not on an occupational basis. (Section 2, Rule I, Implementing Rules and Regulations

of Republic Act 10361)

Definition of Terms as provided under RA 10361 (c) Domestic work refers to work

performed in or for a household or households. (f) Household refers to the immediate members of the

family or the occupants of the house that are directly provided services by the domestic worker. (Section

4, Article I, Republic Act No. 10361)

KokoBar 2019 Labor Law: Atty. Voltaire Duano 16

2013 Bar Examination: 120 day rule vs. 240 day rule involving seafarers disability benefits

Basis to pursue an action for total and permanent disability benefits

In Veritas Maritime Corporation v. Gepanaga, Jr., G.R. No. 206285, February 4, 2015, it was

ruled: The Court has held that a seafarer may have basis to pursue an action for total and permanent

disability benefits, if any of the following conditions is present: (a) The company-designated physician

failed to issue a declaration as to his fitness to engage in sea duty or disability even after the lapse of the

120-day period and there is no indication that further medical treatment would address his temporary total

disability, hence, justify an extension of the period to 240 days; (b) 240 days had lapsed without any

certification issued by the company designated physician; (c) The company-designated physician

declared that he is fit for sea duty within the 120-day or 240-day period, as the case may be, but his

physician of choice and the doctor chosen under Section 20-B(3) of the POEA-SEC are of a

contrary opinion; (d) The company-designated physician acknowledged that he is partially permanently

disabled but other doctors who he consulted, on his own and jointly with his employer, believed that his

disability is not only permanent but total as well; (e) The company-designated physician recognized that

he is totally and permanently disabled but there is a dispute on the disability grading; (f) The company-

designated physician determined that his medical condition is not compensable or work-related under the

POEA-SEC but his doctor-of-choice and the third doctor selected under Section 20-B(3) of the POEA-SEC

found otherwise and declared him unfit to work; (g) The company-designated physician declared him

totally and permanently disabled but the employer refuses to pay him the corresponding benefits; and (h)

The company-designated physician declared him partially and permanently disabled within the 120-day or

240-day period but he remains incapacitated to perform his usual sea duties after the lapse of said periods.

(C.F. Sharp Crew Management, Inc. v. Taok, G.R. No. 193679, July 18, 2012, 677 SCRA 296, 315)

Anti-Age Discrimination in Employment Act (RA 10911)

Republic Act No. 10911 known as the Anti-Age Discrimination in Employment Act provides for the

Prohibition of Discrimination in Employment on Account of Age. Thus:

(a) It shall be unlawful for an employer to: (1) Print or publish, or cause to be printed or published, in

any form of media, including the internet, any notice of advertisement relating to employment suggesting

preferences, limitations, specifications, and discrimination based on age; (2) Require the declaration of age

or birth date during the application process; (3) Decline any employment application because of the

individual's age; (4) Discriminate against an individual in terms of compensation, terms and conditions or

privileges of employment on account of such individual's age; (5) Deny any employee's or worker's

KokoBar 2019 Labor Law: Atty. Voltaire Duano 17

promotion or opportunity for training because of age; (6) Forcibly lay off an employee or worker because of

old age; or (7) Impose early retirement on the basis of such employee's or worker's age.

(b) It shall be unlawful for a labor contractor or subcontractor, if any, to refuse to refer for employment

or otherwise discriminate against any individual because of such person's age.

(c) It shall be unlawful for a labor organization to: (1) Deny membership to any individual because of

such individual's age; (2) Exclude from its membership any individual because of such individual's age; or

(3) Cause or attempt to cause an employer to discriminate against an individual in violation of this Act.

(d) It shall be unlawful for a publisher to print or publish any notice of advertisement relating to

employment suggesting preferences, limitations, specifications, and discrimination based on age. (Section

5, RA 10911)

It also provides for the following exceptions: It shall not be unlawful for an employer, to set age

limitations in employment if: (a) Age is a bona fide occupational qualification reasonably necessary in the

normal operation of a particular business or where the differentiation is based on reasonable factors other

than age; (b) The intent is to observe the terms of a bona fide seniority system that is not intended to

evade the purpose of this Act; (c) The intent is to observe the terms of a bona fide employee retirement or

a voluntary early retirement plan consistent with the purpose of this Act: Provided, That such retirement or

voluntary retirement plan is in accordance with the Labor Code, as amended, and other related laws; or (d)

The action is duly certified by the Secretary of Labor and Employment in accordance with the purpose of

this Act. (Section 6, RA 10911)

Acceptance of letter of appointment (employment) does not mean that the employee agreed to

be bound by the retirement plan

The acceptance of letter of appointment (employment) does not mean that the employee agreed to

be bound by the retirement plan. This was ruled by the Supreme Court in the En Banc case of Laya, Jr. v.

Philippine Veteran’s Bank, G. R. No. 205813, January 10, 2018 where the Supreme Court gave the

following ratiocinations as follows:

a. The mere mention of the retirement plan in the letter of appointment did not sufficiently

inform the petitioner of the contents or details of the retirement program. To construe as

acquiesced to be retired from the petitioner's acceptance of his appointment is not be warranted.

This is because retirement should be the result of the bilateral act of both the employer and the

employee based on their voluntary agreement that the employee agrees to sever his employment

KokoBar 2019 Labor Law: Atty. Voltaire Duano 18

 upon reaching a certain age.(Robina Farms Cebu v. Villa, G.R. No. 175869, April 18, 2016; Paz

v. Northern Tobacco Redrying, Co., Inc., G.R. No. 199554, February 18, 2015, 751 SCRA 99,

114)

b. Petitioner’s implied knowledge, regardless of duration, did not equate to the voluntary

acceptance required by law in granting an early retirement age option to the employee. The law

demanded more than a passive acquiescence on the part of the employee, considering that his

early retirement age option involved conceding the constitutional right to security of tenure.

(Cercado v. Uniprom, Inc., G.R. No. 188154, October 13, 2010, 633 SCRA 281, 289)

c. The Supreme Court cited Cercado v. Uniprom, Inc., by underscoring the character of the

employee's consent in agreeing to the early retirement policy of the employer, as follows:

Acceptance by the employees of an early retirement age option must be explicit, voluntary, free,

and uncompelled. while an employer may unilaterally retire an employee earlier than the legally

permissible ages under the labor code, this prerogative must be exercised pursuant to a mutually

instituted early retirement plan. in other words, only the implementation and execution of the option

may be unilateral, but not the adoption and institution of the retirement plan containing such option.

For the option to be valid, the retirement plan containing it must be voluntarily assented to by the

employees or at least by a majority of them through a bargaining representative.

The four-year prescriptive period for filing money claims under Article 306 [291] of the Labor

Code, applies to claims for backwages and damages due to illegal dismissal

In Ariola v. Pilipino Star Ngayon, G.R. No. 175689, Aug 13, 2014, it was ruled that this four-year

prescriptive period applies to claims for backwages, not the three-year prescriptive period under Article 291

of the Labor Code. A claim for backwages, according to this court, may be a money claim "by reason of its

practical effect." Legally, however, an award of backwages "is merely one of the reliefs which an illegally

dismissed employee prays the labor arbiter and the NLRC to render in his favor as a consequence of the

unlawful act committed by the employer." Though it results "in the enrichment of the individual [illegally

dismissed], the award of backwages is not in redress of a private right, but, rather, is in the nature of a

command upon the employer to make public reparation for his violation of the Labor Code." Actions for

damages due to illegal dismissal are likewise actions "upon an injury to the rights of the plaintiff." Article

1146 of the Civil Code of the Philippines, therefore, governs these actions

Whether a conduct is disgraceful or immoral involves a two-step process

KokoBar 2019 Labor Law: Atty. Voltaire Duano 19

 In Leus v. St. Scholastica's College Westgrove, G.R. No. 187226, January 28, 2015, the High

Court resolved the issue of whether an employee's conduct of having premarital relations with her

boyfriend and the resulting pregnancy out of wedlock constitute a disgraceful or immoral conduct. The High

Court explained that the determination of whether a conduct is disgraceful or immoral involves a two-step

process:

First, a consideration of the totality of the circumstances surrounding the conduct; and

Second, an assessment of the said circumstances vis-a-vis the prevailing norms of conduct, i.e.,

what the society generally considers moral and respectable.

Further, the High Court said that the standard of morality with which an act should be gauged is

public and secular morality and not religious. Whether a conduct is considered disgraceful or immoral

should be made in accordance with the prevailing norms of conduct, which, refer to those conducts which

are proscribed because they are detrimental to conditions upon which depend the existence and progress

of human society.

Based on the foregoing tests, the High Court explained that two things may be concluded from the

fact that an unmarried woman gives birth out of wedlock:

(1) if the father of the child is himself unmarried, the woman is not ordinarily administratively liable

for disgraceful and immoral conduct. It may be a not-so-ideal situation and may cause complications for

both mother and child but it does not give cause for administrative sanction. There is no law which

penalizes an unmarried mother under those circumstances by reason of her sexual conduct or proscribes

the consensual sexual activity between two unmarried persons. Neither does the situation contravene any

fundamental state policy as expressed in the Constitution, a document that accommodates various belief

systems irrespective of dogmatic origins.

(2) if the father of the child born out of wedlock is himself married to a woman other than the

mother, then there is a cause for administrative sanction against either the father or the mother. In such a

case, the "disgraceful and immoral conduct" consists of having extramarital relations with a married

person. The sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a

special contract of permanent union. Accordingly, judicial employees have been sanctioned for their

dalliances with married persons or for their own betrayals of the marital vow of fidelity.

Fixed-term employees; independent contractors; and regular employees

KokoBar 2019 Labor Law: Atty. Voltaire Duano 20

 Fuji Television Network, Inc. V. Espiritu, G.R. No. 204944-45, December 3, 2014, the Supreme

Court distinguished them as follows: In fixed-term contract the test in this kind of contract is not the

necessity and desirability of the employee’s activities, "but the day certain agreed upon by the parties for

the commencement and termination of the employment relationship."

For regular employees, the necessity and desirability of their work in the usual course of the employer’s

business are the determining factors. On the other hand, independent contractors do not have employer-

employee relationships with their principals.

Statutory pre-requisite to and a limitation on the power of SOLE under 128(b) is the existence

of employer-employee relationship

Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases

where the relationship of employer-employee still exists. (Art. 182[B], LC)

---------------------------------------------- END ---------------------------------------------------

THIS FREE LECTURE NOTES ARE

STRICTLY NOT FOR SALE AND IS AN
INTELLECTUAL PROPERTY OF THE
AUTHOR AND KOKOBAR 2019.

COPY, CITATION, OR DISTRIBUTION

OF THIS LECTURE NOTES OUTSIDE OF
KOKOBAR SHALL BE WITH THE
PERMISSION OF THE AUTHOR AND/OR
KOKOBAR.

KokoBar 2019 Labor Law: Atty. Voltaire Duano 21