Social Justice Definition (Memorize Calalang v.

Williams)

Social justice is neither communism, nor despotism, nor atomism, nor anarchy, but the
humanization of laws and the equalization of social and economic forces by the State so
that justice in its rational and objectively secular conception may at least be
approximated. Social justice means the promotion of the welfare of all the people, the
adoption by the Government of measures calculated to insure economic stability of all
the component elements of society, through the maintenance of a proper economic and
social equilibrium in the interrelations of the members of the community, constitutionally,
through the adoption of measures legally justifiable, or extra-constitutionally, through the
exercise of powers underlying the existence of all governments on the time-honored
principle of salus populi est suprema lex."

II. Fundamental Principles and Policies

a. Constitutional Provisions
Section 3, Article XIII (MEMORIZE)

SECTION 3. The State shall afford full protection to labor, local and overseas,
organized and unorganized, and promote full employment and equality of employment
opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and
negotiations, and peaceful concerted activities, including the right to strike in
accordance with law. They shall be entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate in policy and decision-making
processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and
employers and the preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster industrial
peace.

The State shall regulate the relations between workers and employers, recognizing the
right of labor to its just share in the fruits of production and the right of enterprises to
reasonable returns on investments, and to expansion and growth.

Sections 9-14, Article III (Familiarize)

SECTION 9. Private property shall not be taken for public use without just
compensation.

SECTION 10. No law impairing the obligation of contracts shall be passed.

SECTION 11. Free access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty.
SECTION 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the
free will shall be used against him. Secret detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as
well as compensation to and rehabilitation of victims of torture or similar practices, and
their families.

SECTION 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

SECTION 14. (1) No person shall be held to answer for a criminal offense without due
process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of evidence in his
behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is
unjustifiable.

Sections 18-20, Article III (Familiarize)

SECTION 18. (1) No person shall be detained solely by reason of his political beliefs
and aspirations.

(2) No involuntary servitude in any form shall exist except as a punishment for a crime
whereof the party shall have been duly convicted.

SECTION 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless, for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion perpetua.

(2) The employment of physical, psychological, or degrading punishment against any

prisoner or detainee or the use of substandard or inadequate penal facilities under
subhuman conditions shall be dealt with by law.

SECTION 20. No person shall be imprisoned for debt or non-payment of a poll tax.

III. Basic Rights of Workers

Basic Rights of Workers Guaranteed by the Constitution

1. Security of tenure
2. Living wage
3. Share in the fruits of production
4. Just and humane working conditions
5. Self-organization
6. Collective bargaining
7. Collective negotiations
8. Engage in peaceful concerted activities, including the right to strike
9. Participate in policy and decision making processes (1987 Constitution, Art. XIII,
Sec. 3).

IV. New Civil Code Provisions

Articles 19, 1700, 1702, 1704, 1710

Article 19. Every person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and good faith.

Article 1700. The relations between capital and labor are not merely contractual. They
are so impressed with public interest that labor contracts must yield to the common
good. Therefore, such contracts are subject to the special laws on labor unions,
collective bargaining, strikes and lockouts, closed shop, wages, working conditions,
hours of labor and similar subjects.

Article 1702. In case of doubt, all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for the laborer.

Article 1704. In collective bargaining, the labor union or members of the board or
committee signing the contract shall be liable for non-fulfillment thereof.
Article 1710. Dismissal of laborers shall be subject to the supervision of the
Government, under special laws.

V. Liberal Construction (including all the cases)

1. Marcopper mining Corporation v. NLRC, G.R. No. 103525 March 29, 1996

Facts: Marcopper Mining Corporation and NAMAWUMIF entered into a (CBA) effective
from May 1, 1984 until April 30, 1987. On July 25, 1986, prior to the expiration of the
aAgreement, the petitioner and private respondent executed a Memorandum of
Agreement wherein the terms of the CBA, specifically on matters of wage increase and
facilities allowance were modified. On June 1, 1987, Executive Order (E.O.) No. 178
was promulgated mandating the integration of the cost of living allowance under Wage
Orders Nos. 1, 2, 3, 5 and 6 into the basic wage of workers, its effectivity retroactive to
May 1, 1987.
Consequently, the basic wage rate of petitioner's laborers categorized as non-
agricultural workers was increased by P9.00 per day. Furthermore, the petitioner
implemented the second five percent (5%) wage increase due on the same date and
thereafter added the integrated COLA. However, the private respondent assailed the
manner in which the second wage increase was affected. It argued that the COLA
should first be integrated into the basic wage before the 5% wage increase is computed.

Issue: WON THE DOCTRINE OF LIBERAL INTERPRETATION IN FAVOR OF LABOR

IN CASE OF DOUBT is APPLICABLE TO THE INSTANT CASE. 

Held:
The petitioner misinterprets the declaration of the Labor Arbiter in the assailed decision
that "when the pendulum of judgment swings to and fro and the forces are equal on
both sides, the same must be stilled in favor of labor." While petitioner acknowledges
that all doubts in the interpretation of the Labor Code shall be resolved in favor of
labor, 20 it insists that what is involved here is the amended CBA which is essentially a
contract between private persons. What petitioner has lost sight of is the avowed policy
of the State, enshrined in our Constitution, to accord utmost protection and justice to
labor.
When conflicting interests of labor and capital are to be weighed on the scales of social
justice, the heavier influence of the latter should be counter-balanced by sympathy and
compassion the law must accord the underprivileged worker. Any doubt concerning the
rights of labor should be resolved in its favor pursuant to the social justice policy.

2. Centro Project Manpower Services, Inc. Naluis, G.R. No. 160123, June 17,
2015

Facts:
Centro Project engaged Naluis to work abroad as a plumber under (Pacific Micronesia)
The work was covered by the primary Employment Contract dated March 11, 1997,
whereby his employment would last for 12 months, and would commence upon his
arrival in Northern Marianas. On June 3, 1997, the Department of Labor and
Immigration of Northern Mariana Islands issued an Authorization for Entry (AE) in his
favor.
Naluis left for Northern Mariana on September 13, 1997, the date of his actual
deployment, and his employment continued until his repatriation to the Philippines on
June 3, 1998 allegedly due to the expiration of the employment contract. Not having
completed 12 months of work, he filed a complaint for illegal dismissal against Centro
Project.
Both the Labor Arbiter and the NLRC resolved the doubt in favor of the employer
However, the CA set aside their resolutions, and ruled to the contrary.
Issue:
WON the date contained in the AE issued by the Department of Labor and Immigration
of Northern Mariana Islands validly cut short Naluis' stay and thus justified the pre-
termination of his work?

Held:
No.
It appears that the (AE) issued by the Commonwealth of Northern Marianas Islands
does not limit the employee’s stay in the said country. The shows that the person to
whom it is issued should enter CNMI not later than May 13, 1998 as a general rule or, if
he is an employee, not later than 3 months from its issuance. The Court submit that an
authorization of entry is different from a limitation of stay in the country visited. The AE
clearly indicates that the date of May 13, 1998 refers to the expiration of the document
itself. Centro Project stretched its interpretation to bolster its contention that May 13,
1998 was the limit of stay for Naluis in Northern Marianas.
The burden of proof to show that the employment contract had been validly terminated
pertained to the employer. The employer must rely on the strength of its own evidence.
But Centro Project’s reliance on the AE limiting Naluis’ stay was unwarranted, and,
worse, it did not discharge its burden of proof as the employer to show that Naluis’
repatriation had been justified.

Article 4 of the Labor Code, as amended

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.

Article 1702 – New Civil Code

Article 1702. In case of doubt, all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for the laborer.
Article 10 – New Civil Code
Article 10. In case of doubt in the interpretation or application of laws, it is presumed
that the lawmaking body intended right and justice to prevail. (n)

VI. Applicability of the Labor Code to all workers

GR: All rights and benefits granted to workers under the LC shall apply alike to all
workers, whether agricultural or non-agricultural (LC, Art. 6).

EXCEPTIONS:

1. Government employees
2. Employees of government-owned and controlled corporations created by special or
original charter
3. Foreign governments
4. International agencies

NOTE: International organizations and intergovernmental bodies are not covered by the
Philippines Labor Laws. The remedy of the aggrieved employee is to file a complaint
before the Department of Foreign Affairs (DFA) (Duka,Labor Laws and Social
Legislation, A Barrister’s Companion, 2016, p. 18).

5. Corporate officers/ intra-corporate disputes which fall under P.D. 902-A and now fall
under the jurisdiction of the regular courts pursuant to the Securities Regulation Code.
6. Local water district except where NLRC’s jurisdiction is invoked.
7. As may otherwise be provided by the LC.

* Test to Determine the Applicability of the LC to GOCC; ‘Original Charter or

Manner of Creation Test’
When a GOCC is created by a special charter, it is subject to the provisions of the Civil
Service Law while those incorporated under the general Corporation Law is subject to
the provisions of the Labor Code (PNOC-EDC v. Legardo, GR No. 58494, 5 July 1989).

Doctrine of Management Prerogatives (INCLUDING ALL CASES)

GR: An employer is free to regulate, according to his own discretion and judgment, all
aspects of employment, including:
1. Hiring;
2. Work assignments;
3. Working methods, time, place and manner of work;
4. Tools to be used;
5. Processes to be followed;
6. Supervision of workers;
7. Working regulations;
8. Transfer of employees;
9. Work supervision;
10. Layoff of workers; and
11. Discipline, dismissal and recall of workers

* So long as the company’s prerogatives are exercised in good faith for the
advancement of the employer’s interest and not for the purpose of defeating or
circumventing the rights of the employees under special laws or under valid
agreements, the SC will uphold them .

Exceptions/ Limitations

XPN: Otherwise limited by law, contract, and principles of fair play and justice.

VII. Managerial/ Supervisory/ Rank-and-File Employees (MEMORIZE)

Managerial Employees

Managerial employee refers to those who are vested with power to lay down and
execute management policies and/or to hire, transfer, suspend, lay-off, recall,
discharge, assign or discipline employees

Supervisory Employees

Supervisory employees are those who, in the interest of the employer, effectively
recommend such managerial actions if the exercise of such authority is not merely
routinary or clerical in nature but requires the use of independent judgment.

Rank-and-file Employees

All employees not falling within the definition of managerial or supervisory employees
are considered rank-and-file employees.

VIII. Right to Security of Tenure

No worker shall be dismissed except for a just or authorized cause provided by law and
after due process(LC, Art. 294, as renumbered).

The policy of the State is to assure the right of workers to security of tenure
(1987 Constitution, Art. XIII, Sec. 3).
The guaranty is an act of social justice.

Security of Tenure is the right not to be removed from one’s job without valid cause and
valid procedure. It extends to regular as well as nonregular employment.
IX. Recruitment/ Placement
Article 13 (b) of the Labor Code
"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.

Name Hire and Direct Hire

Name hires

Individual workers who are able to secure contracts for overseas employment
opportunities with employers without the assistance or participation of any agency.

Direct Hiring

It is when an employer hires a Filipino worker for overseas employment without going
through the POEA or entities authorized by the SLE.

Employment of Non-Resident Aliens

An employment permit may be issued to:

1. a non-resident alien; or
2. the applicant employer after a determination of the non-availability of a person in
the Philippines who is competent, able and willing at the time of application to
perform the services for which the alien is desired.

NOTE: For an enterprise registered in preferred areas of investments, said permit may
be issued upon recommendation of the Government agency charged with the
supervision of said registered enterprise

Persons Required to Obtain Employment Permit

GR: All non-resident foreign nationals who intend to engage in gainful employment in
the Philippines and any domestic or foreign employer who desires to engage an alien
for employment in the Philippines.

Study requirements before an alien is allowed to work in the country (permit,

finding that there is no available Filipino who is equally competent, able and
willing

Persons DISQUALIFIED to participate in recruitment and placement:

Prohibited Practices (Articles 34 & 38 of the Labor Code, as amended and Section
6 of the Migrants Workers Act a.k.a. RA No. 8042 (Illegal Recruitment) –
(MEMORIZE)

ART. 34. Prohibited practices. - It shall be unlawful for any individual, entity, licensee, or
holder of authority:
(a) To charge or accept, directly or indirectly, any amount greater than that specified in
the schedule of allowable fees prescribed by the Secretary of Labor, or to make a
worker pay any amount greater than that actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in relation to
recruitment or employment;
(c) To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under this Code.
(d) To induce or attempt to induce a worker already employed to quit his employment in
order to offer him to another unless the transfer is designed to liberate the worker from
oppressive terms and conditions of employment;
(e) To influence or to attempt to influence any person or entity not to employ any worker
who has not applied for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health
or morality or to the dignity of the Republic of the Philippines; 
(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly
authorized representatives;

ART. 38. Illegal recruitment. - (a) Any recruitment activities, including the prohibited
practices enumerated under Article 34 of this Code, to be undertaken by non-licensees
or non-holders of authority, shall be deemed illegal and punishable under Article 39 of
this Code. The Department of Labor and Employment or any law enforcement officer
may initiate complaints under this Article.
(h) To fail to file reports on the status of employment, placement vacancies, remittance
of foreign exchange earnings, separation from jobs, departures and such other matters
or information as may be required by the Secretary of Labor.
(i) To substitute or alter employment contracts approved and verified by the Department
of Labor from the time of actual signing thereof by the parties up to and including the
periods of expiration of the same without the approval of the Secretary of Labor;
(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;
and
(k) To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations other than those authorized under this Code and
its implementing rules and regulations.

SECTION 6:
It shall be unlawful for any individual, entity, licensee, or holder of authority:

1. To charge or accept, directly or indirectly, any amount greater than that specified
in the schedule of allowable fees prescribed by the Secretary of Labor, or to
make a worker pay any amount greater than that actually received by him as a
loan or advance (Overcharging);
2. To furnish or publish any false notice or information or document in relation to
recruitment or employment (False Notice);
3. To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under this
Code (Misrepresentation to Secure License);
4. To induce or attempt to induce a worker already employed to quit his
employment in order to offer him to another unless the transfer is designed to
liberate the worker from oppressive terms and conditions of employment
(Inducing Worker to Quit);

5. To influence or to attempt to influence any person or entity not to employ any

worker who has not applied for employment through his agency (Inducement not
to Employ);
6. To engage in the recruitment or placement of workers in jobs harmful to public
health or morality or to the dignity of the Republic of the Philippines (Recruitment
for Harmful Jobs);
7. To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his
duly authorized representatives (Obstructing Inspection);
8. To fail to file reports on the status of employment, placement vacancies,
remittance of foreign exchange earnings, separation from jobs, departures and
such other matters or information as may be required by the Secretary of Labor
(Nonsubmission of Reports);
9. To substitute or alter employment contracts approved and verified by the
Department of Labor from the time of actual signing thereof by the parties up to
and including the periods of expiration of the same without the approval of the
Secretary of Labor (Contract Substitution);
10. To become an officer or member of the Board of any corporation engaged in
travel agency or to be engaged directly or indirectly in the management of a
travel agency (Involvement in Travel Agency);
11. To withhold or deny travel documents from applicant workers before departure
for monetary or financial considerations other than those authorized under this
Code and its implementing rules and regulations (Withholding of Documents)
(LC, Art. 34).
12. Failure to actually deploy a contracted worker without valid reason as determined
by the Department of Labor and Employment (Failure to Deploy);

13. Failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the worker's fault. Illegal
 recruitment when committed by a syndicate or in large scale shall be considered
an offense involving economic sabotage (Failure to Reimburse); and
14. Allowing a non-Filipino citizen to head or manage a licensed recruitment/manning
agency (Non-Filipino Manager) (as amended by RA 10022).

Persons PROHIBITED FROM ENGAGING IN RECRUITMENT & PLACEMENT OF

MIGRANT WORKERS
-officials of DOLE, POEA, OWWA, DFA and other officials involved in the
implementation of RA No. 8042
-relatives of these officials within the 4th civil degree of consanguinity or affinity
(RA No. 8042)

1. Travel agencies and sales agencies of airline companies(LC, Art. 26);

2. Officers or members of the board of any corporation or members in a partnership

engaged in the business of a travel agency;

3. Corporations and partnerships, when any of its officers, members of the board or
partners, is also an officer, member of the board or partner of a corporation or
partnership engaged in the business of a travel agency;
4. Persons, partnerships or corporations which have derogatory records, such as
but not limited to those:
a. Certified to have derogatory record or information by the NBI or by the Anti-
Illegal Recruitment Branch of the POEA;
b. Against whom probable cause or prima facie finding of guilt for illegal
recruitment or other related cases exists;
c. Convicted for illegal recruitment or other related cases and/or crimes involving
moral turpitude; and
d. Agencies whose licenses have been previously revoked or cancelled by the
POEA for violation of R.A. 8042, P.D. 442 as amended and their IRRs.

5. Any official or employee of the DOLE, POEA, OWWA, DFA and other
government agencies directly involved in the implementation of R.A. 8042 and/or
any of his/her relatives within the 4th civil degree of consanguinity or affinity; and
6. Persons or partners, officers and directors of corporations whose licenses have
been previously cancelled or revoked for violation of recruitment laws (Sec. 2,
Rule I, 2002 Rules and Regulations on the Recruitment and Employment of
Land-Based Workers).

License/ Authority – (MEMORIZE the distinction)

License vs. Authority

The business of recruitment and replacement is regulated by law by requiring them to
obtain license and authority.

LICENSE AUTHORITY
A document issued by DOLE A document issued by the DOLE authorizing a
authorizing a person or entity to person or association to engage in recruitment
operate a private employment and placement activities as a private recruitment
agency. entity.

NOTE: When one is given a license, one is also authorized to collect fees. Unlike a
license, an authority does not entitle a private recruitment entity to collect fees

Illegal Recruitment/ Estafa (MEMORIZE)

Illegal recruitment and estafa cases may be filed simultaneously or separately. The filing
of charges for illegal recruitment does not bar the filing of estafa, and vice versa.

ILLEGAL RECRUITMENT ESTAFA

Malum in se
Malum prohibitum

It is not required that it be shown that the

recruiter wrongfully represented himself as a
licensed recruiter Accused defrauded another by abuse
of confidence, or means of deceit
NOTE: It is enough that the victims were
deceived as they relied on the misrepresentation by NOTE: It is essential that the false
and scheme that caused them to entrust their statement or fraudulent representation
money in exchange of what they later constitutes the very cause or the only
discovered was a vain hope of obtaining motive which induces the complainant
employment abroad. to part with the thing of value.

Theory of Imputed Knowledge (Sunace v. NRC, GR no. 161757, January 25, 2006)
A rule in insurance law that any information material to the transaction, either
possessed by the agent at the time of the transaction or acquired by him before its
completion, is deemed to be the knowledge of the principal, at least so far as the
transaction is concerned, even though in fact the knowledge is not communicated to the
principal at all.

The Theory of Imputed Knowledge teaches that the knowledge of the agent is
knowledge of the principal (Sunace International Management Services, Inc. vs. NLRC,
et al., GR 161757, January 25, 2006).

X. Four (4)-Fold Tests in Determining Employer-Employee Relationship

(MEMORIZE)

Factors determining the existence of an employer-employee relationship

The four–fold test (indicia of determination):

1. Selection and engagement of the employee;
2. Payment of wages;
3. Power of dismissal; and
4. Power of control (1 Azucena, 2016 p. 189)

XI. Classification/ Kinds of Employees

Regular Employees

Types of regular employment

1. As to nature of work – An employment shall be deemed to be regular where the

Ee has been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the Er, the provisions of written
agreements to the contrary notwithstanding and regardless of the oral
agreements of the parties (IRR, Book VI, Rule I, Sec. 5 [a]).
2. As to length of service – Any Ee who has rendered at least one (1) year of
service, whether such service is continuous or broken, shall be considered a
regular Ee with respect to the activity in which he is employed and his
employment shall continue while such activity exists (IRR, Book VI, Rule I, Sec. 5
[b]).

Probationary Employees including teachers (reasonable standards & notice

requirements test to determine whether the project employee is deemed a regular
employment: reasonable connection with the business & repeated rehiring for a
long period of time)

Probationary employment

Employment where the Ee, upon his engagement:

1. Is made to undergo a trial period
2. During which the Er determines his fitness to qualify for regular employment,
3. Based on reasonable standards made known to the Ee at the time of engagement
(IRR, Book VI, Rule I, Sec 6).
NOTE: In all cases involving employees engaged on probationary basis, 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

Rules on probationary employment

1. Er shall make known to the Ee at the time he is hired, the standards by which he
will qualify as a regular Ee;
2. Probationary employment must have been expressly agreed upon; without such
explicit agreement, the employment is considered regular;
3. An Ee allowed to continue work after the probationary period shall be considered
a regular Ee;

During the probationary period, the Ee enjoys security of tenure; his services can only
be terminated for just or authorized causes.

Project Employees (contract, definite period)

Project employment is employment that has been fixed for:

1. Specific undertaking – a specific project or undertaking the completion; or

2. Time-bound – termination of which has been determined at the time of
engagement of the Ee (IRR, Book VI, Rule I, Sec. 5[a]).

The period is not the determining factor, so that even if the period is more than 1 year,
the Ee does not necessarily become regular.

NOTE: Where the employment of a project Ee is extended long after the supposed
project has been finished, the Ees are removed from the scope of project Ees and
considered as regular Ees.

Repeated hiring on a project-to-project basis is considered necessary and desirable to

the business of the Er. The Ee is deemed regular (Maraguinot v. NLRC, G.R. No.
120969, July 22, 1998).

Seasonal Employees
Seasonal employment

Employment where the job, work or service to be performed is seasonal in nature and
the employment is for the duration of the season [IRR, Book VI, Rule I, Sec.5 (a)].

An employment arrangement where an Ee is engaged to work during a particular

season on an activity that is usually necessary or desirable in the usual business or
trade of the Er.
NOTE: For Seasonal Ees, their employment legally ends upon completion of the project
or the season. The termination of their employment cannot and should not constitute an
illegal dismissal (Mercado v. NLRC, G.R. No. 79869, September 5, 1991).

One year duration on the job is pertinent in deciding whether a casual Ee has become
regular or not, but it is not pertinent to a Seasonal or Project Ee. Passage of time does
not make a seasonal worker regular or permanent (Mercado v. NLRC, G.R. No. 78969,
September 5, 1991).

During off-season, the relationship of Er-Ee is not severed; the Seasonal Ee is merely
considered on LOA without pay. Seasonal workers who are repeatedly engaged from
season to season performing the same tasks are deemed to have acquired regular
employment (Hacienda Fatima v. National Federation of Sugarcane Workers-Food and
General Trade, G.R. No. 149440, January 28, 2003).

Casual Employees
Casual employment

It is an employment where the Ee is engaged in an activity which is not usually

necessary or desirable in the usual business or trade of the Er, provided: such
employment is neither Project nor Seasonal (LC, Art. 281). He performs only an
incidental job in relation to the principal activity of the Er.

XII. Tests in Determining Regular Employment

Tests to determine regular employment

1. The primary standard of determining regular employment is the reasonable

connection between the particular activity performed by the Ee to the usual trade or
business of the Er. The test is whether the former is usually necessary or desirable in
the usual business or trade of the Er (De Leon v. NLRC, G.R. No. 70705, August 21,
1989).

NOTE: The connection can be determined by considering the nature of the work
performed and its relation to the scheme of the particular business or trade in its entirety
(Highway Copra Traders v. NLRC, G.R. No. 108889, July 30, 1998).

Also, the performance of a job for at least a year is sufficient evidence of the job’s
necessity if not indispensability to the business. This is the rule even if its performance
is not continuous and merely intermittent. The employment is considered regular, but
only with respect to such activity and while such activity exists (Universal Robina Corp.
v. Catapang, G.R. No. 164736, October 14, 2005).
2. The status of regular employment attaches to the casual Ee on the day immediately
after the end of his first year of service. The law does not provide the qualification that
the Ee must first be issued a regular appointment or must first be formally declared as
such before he can acquire a regular status (Aurora Land Projects Corp. v. NLRC, G.R.
No. 114733, January 2, 1997).

NOTE: Seafarers cannot be considered as regular Ees. The contract which they sign
every time they are hired governs their employment. Their employment is terminated
when the contract expires. Their employment is fixed for a certain period of time
(Ravago v. Esso Eastern Maritime Ltd., G.R. No. 158324, March 15, 2005).

XIII. Conditions of Employment

GR: Applicability to all workers
Exceptions: (MEMORIZE)

GR: Title I, Book III of the Labor Code dealing with hours of work, weekly rest periods,
holidays, service incentive leaves and service charges, covers all employees in all
establishments, whether for profit or not (LC, Art. 82).

XPN:

1. Government employees
2. Field personnel
3. Managerial employees
4. Officers and members of the managerial staff
5. Members of the family of the employer who are dependent on him for support
6. Workers paid by results (Secs. 1 and 2, Rule I, Book III, Rules Implementing the
Labor Code.)
7. Persons in the personal service of another; and
8. Domestic helpers

The aforementioned employees are not entitled to overtime pay, premium pay for rest
days and holidays, night shift differential pay, holiday pay, service incentive leave and
service charges (Poquiz, 2012, p. 171).

Hours of Work
Travel Time – when compensable & not compensable

1. Travel from home to work

GR: Normal travel from home to work is not working time.

XPNs:

a. Emergency call outside his regular working hours where he is required to travel to his
regular place of business or some other work site.
b. Done through a conveyance provided by the Er.
c. Done under the supervision and control of the Er.
d. Done under vexing and dangerous circumstance.

2. Travel that is all in a day’s work – time spent in travel as part of the Ees principal
activity

e.g. travel from job site to job site during the work day, must be counted as working
hours.

3. Travel away from home

GR:

1. Travel that requires an overnight stay on the part of the Ee when it cuts across
the Ees workday is clearly working time.
2. The time is not only hours worked on regular workdays but also during
corresponding working hours on non- working days. Outside of these regular
working hours, travel away from home is not considered working time.

XPN: During meal period or when Ee is permitted to sleep in adequate facilities

furnished by the Er.

Meal Period - when compensable & not compensable

Duration

Every Er shall give his Ees not less than 60 minutes or 1 hour time-off for regular meals
(LC, Art. 85).

As a general rule, employees are entitled to at least one hour time-off for regular meals
which can be taken inside or outside company premises. For a full one-hour
undisturbed lunch break, the employees can freely and effectively use this hour not only
for eating but also for their rest and comfort which are conducive to more efficiency and
better performance in their work. Since the employees are no longer required to work
during this one-hour lunch break, there is no more need for them to be compensated for
this period (Sime Darby Pilipinas, Inc. v. NLRC, G.R. No. 119205).

Non- Compensability of The Meal Period

It is not compensable during a time-off. Ee must be completely relieved from duty.

Compensable Meal Period

It is compensable where the lunch period or meal time:

1. Is predominantly spent for the Er’s benefit; or

2. When it is less than 60 minutes.
Waiting Time - when compensable & not compensable

It shall be considered as working time if:

1. Waiting is an integral part of this work;
2. The employee is required or engaged by the employer to wait; or
3. When employee is required to remain on call in the employer’s premises or so close
thereto that he cannot use the time effectively and gainfully for his own purpose (IRR,
Book III, Rule I, Sec. 5).

NOTE: An employee who is not required to leave word at his home or with company
officials where he may be reached is not working while on call (IRR, Book III, Rule I,
Sec. 5(b)).

The controlling factor is whether waiting time spent in idleness is so spent

predominantly for the employer’s benefit or for the employee’s.

OVERTIME – rates of additional compensation

Overtime pay is the additional compensation of at least 25% on the regular wage for the
service or work rendered or performed in excess of 8 hours a day by employees or
labourers in employment covered by the Eight-hour Labor Law (LC, Art. 87).

When employees may be required to work overtime. (MEMORIZE)

GR: An Ee may not be compelled to render OT work; OT work is voluntary.

XPNs: Compulsory OT work in any of the following situations:

1. When the country is at war or when any other national or local emergency has
been declared by Congress or the Chief Executive;
2. When overtime work is necessary to prevent loss of life or property, or in case of
imminent danger to public safety due to actual or impending emergency in the
locality caused by serious accident, fire, floods, typhoons, earthquake, epidemic
or other disaster or calamities;
3. When there is urgent work to be performed on machines, installations, or
equipment, in order to avoid serious loss or damage to the employer or some
other causes of similar nature;
4. When the work is necessary to prevent loss or damage to perishable goods;
5. When the completion or continuation of work started before the 8th hour is
necessary to prevent serious obstruction or prejudice to the business or
operations of the employer; or
 6. When overtime work is necessary to avail of favorable weather or environmental
conditions where performance or quality of work is dependent thereon (LC, IRR,
Sec. 10; Art. 89).

Nightshift Differentials (time paid and rate)

An employee shall be paid night shift differential of no less than ten percent (10%) of his
regular wage for each hour of work performed between 10:00 PM and 6:00 AM (Sec. 2,
Rule II, Book III, Rules Implementing the Labor Code).

WAGES
Concept of Living Wage

The living wage is the “benchmark wage level” that allows a worker to support his or

her family's basic needs and that would enable them to have decent living. such as
shelter, food and other necessities.

Prohibitions

Non-Interference in Disposal of Wages

Employer shall not limit or interfere with the freedom of any employee to dispose of his
wages. He shall not force, compel or oblige his Ees to purchase merchandise,
commodities or other property from any other person, or otherwise make use of any
store services of such employer or any other person (LC, Art. 112).

Art. 1705. The laborer's wages shall be paid in legal currency.

Art. 1706. Withholding of the wages, except for a debt due, shall not be made by the
employer.

Art. 1707. The laborer's wages shall be a lien on the goods manufactured or the work
done.

Art. 1708. The laborer's wages shall not be subject to execution or attachment, except
for debts incurred for food, shelter, clothing and medical attendance.

Art. 1709. The employer shall neither seize nor retain any tool or other articles
belonging to the laborer.
Deductions
Wage Deduction

GR: No employer, in his own behalf or in behalf of any person, shall make any
deduction from the wages of his employees (LC, Art. 113).

XPNs:

1. Where the worker is insured with his consent by the employer; and,
2. For union dues, in cases where the right of the worker or his union to check off
has been recognized by the employer or authorized in writing by the individual
worker concerned (LC, Art. 113).

NOTE: Art. 241(o) of the LC provides that special assessments may be validly checked-
off provided that there is an individual written authorization duly signed by every
employee.

3. In cases where the employer is authorized by law or regulations issued by the SLE:

1. Deductions for value of meals and facilities freely agreed upon (1 Azucena, 2016,
p. 411);
2. In case where the employee is indebted to the employer where such
indebtedness has become due and demandable (NCC, Art. 1706);
3. In court awards, wages may be subject of execution or attachment, but only for
debts incurred for food, shelter, clothing, and medical attendance (NCC, Art.
1703);
4. Taxes withheld pursuant to the Tax Code;
5. Salary deduction of a member of a legally established cooperative (R.A. 6938;
LC, Art. 59);
6. Deductions for SSS, PhilHealth and Pag- ibig premiums;
7. Deductions for loss or damage (LC, Art. 114);
8. Deductions made with the written authorization of the Ee for payment to a third
person (IRR, Book III, Rule VIII, Sec 13);
9. Deductions as disciplinary measures for habitual tardiness (Opinion dated March
10, 1975 of the Labor Secretary);
10. Agency fees (LC, Art. 248[e])

The law prohibits the employer from making deductions from the wages of an
employee. The evil sought to be prevented is to forestall the commission of unwarranted
practices of employers by making unnecessary deductions without employee's
knowledge or authorization (Galvadores v Trajano, 144 SCRA 138).
Difference between wage and salary

WAGE SALARY
(Gaa v.CA, G.R. No. 44169, 3 Dec. 1985)
Compensation for manual labor (skilled or Paid to “white collared workers” and
unskilled) also known as “blue collared denotes a higher degree of employment
workers,” paid at stated times and measured or a superior grade of services and
by the day, week, month or season. implies a position or office.
Suggestive of a larger and more
Considerable pay for a lower and less
permanent or fixed compensation for
responsible character of employment.
more important service.
GR: Not subject to execution
Subject to execution.
XPN: Debts incurred for food, shelter, clothing
and medical attendance.

WAGE DISTORTION (DEFINITION MEMORIZE)

A situation where an increase in wage results in the elimination or severe contraction of
intentional quantitative differences in wage or salary rates between and among- the
employee-groups in an establishment as to effectively obliterate the distinctions
embodied in such wage structure based on skills, length of service or other logical
bases of differentiation (LC, Art. 124).

Remedies (in organized and unorganized establishment)

PAGE 67 GN

Difference between Facilities and Supplements (MEMORIZE)

BASIS FACILITIES SUPPLEMENT

Inclusion Forms part of the wage Independent of wage
Deduction Deductible from wage Not wage deductible
To whose For the benefit of the worker and his Granted for the convenience of
benefit family. the Er.

HOLIDAY PAY (rates and rules of entitlements in cases of absences with pay or
without pay)

Holiday Pay is a one-day pay given by law to an employee even if he does not work on
a regular holiday(1 Azucena, 2016, p. 277).
The payment of the regular daily wage for any unworked regular holiday (Handbook on
Workers’ Statutory Monetary Benefits, Bureau of Working Conditions, 2016).

It is a premium given to Ees pursuant to the law

Work on a + 30% premium even if he has not been suffered to work on a
scheduled rest pay of 100% of regular holiday. It is limited to the 12 regular
day the daily basic holidays, also called legal holidays listed by law.
wage (IRR, Book The Ee should not have been absent without
III, Rule III, Sec. 7) pay on the working day proceeding the regular
holiday.
Work performed + 30% premium
OVERTIME
on Sundays and PAYof
pay RATES
100% RW
Holidays by an Ee (IRR, Book III,
During
who hasanoregular Additional
Rule III, Sec. 7)
working day
regular workdays compensation of
and rest days 25% of the
regular wage
Work on a + 30% premium
During
Sunday a holiday Rateof
pay of100%
the first
RW8
or
(If rest day
Ee’s scheduled hoursBook
(IRR, worked
III, on
rest day) plus at least 30%
Rule III, Sec. 7)
of the regular
Work performed wage
1st (RW):
8 hrs: + 30%
on any Special If done
PP on a RW
of 100%
Holiday specialofholiday
Excess 8 hrs: +
OR rest
30% of day:
hourly
30% on
rate of 130% of
said date
RW No. 10,
(M.C.
If doneofon
Series a
2004).
special holiday
Work performed AND
1st 8 rest
hrs: +day:
50%
on a Special 30% of 150%
Premium payofof
Holiday and same RW daily basic
the
day is the If done
rate on a
of 100%
scheduled rest Excess ofholiday:
regular 8 hrs:+
day 30% of
30% of200%
hourlyof
RW on said date
rate
(M.C. No. 10,
INSTANCES SeriesOF
RATES of 2004).
ADDITIONAL
Rates of Compensation For Rest Day, Sunday
Work performed COMPENSATIO
Ee is only
or Holiday Work
on a Special N entitled to his
Working Holiday basic rate. No PP
is required.
Reason: Work
performed is
considered work
on ordinary
working days
(IRR, Book III,
Rule III, Sec. 7)
Formula to Compute Wage on Holidays (M.C. No. 10, Series of 2004)
1. Regular Holiday
a. If it is employee’s regular workday
i. unworked- 100%
ii. worked
1. 1st 8 hours- 200%
2. Excess of 8 hours- 200%, plus 30% of hourly rate on said day.
b. If it is employee’s rest day
i. unworked- 100%
ii. worked
1. 1st 8 hours- 200%, plus 30% of 200%
2. Excess of 8 hours- 230%, plus 30% of hourly rate on said day

For declared Special Holidays such as Special Non Working Day, Special Public Holiday,
Special National Holiday in addition to the 3 nationwide special (nonworking) days

a. If it is employee’s regular workday

i. unworked- no pay unless there is a favourable company policy, practice or CBA granting
payment of wages on special days even if unworked.
ii. worked
1. 1st 8 hours- plus 30% of daily wage rate of 100%
2. Excess of 8 hours- Hourly rate of the basic daily wage x 130% x 130% x no. of hours
worked.
b. If it is employee’s rest day and worked
i. 1st 8 hours- 150%
ii. Excess of 8 hours- Hourly rate of the basic daily wage x 150% x 130% x no. of hours
worked.

PAGE 43 GN

REST DAY PAY (rates)

GR: Employees may not be compelled to work on this day
EXCEPTIONS: (MEMORIZE)

Right to weekly rest day (WRD)

Every Er shall give his Ees a rest period of not less than 24 consecutive hours after
every 6 consecutive normal work days (IRR, Book III, Rule III, Sec. 3).

Rest day not necessarily Sunday or holiday

All establishments and enterprises may operate or open for business on Sundays and
holidays provided that the employees are given the weekly rest day and the benefits
provided under the law (Sec. 2, Rule III, Book III).

GR: The Ee cannot be compelled by the Er to work on his rest day.

XPNs:

1. In case of actual or impending emergencies caused by serious accident, fire,

flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss
of life and property, or imminent danger to public safety;
2. In cases of urgent work to be performed on the machinery, equipment, or
installation, to avoid serious loss which the employer would otherwise suffer;
3. In the event of abnormal pressure of work due to special circumstances, where
the employer cannot ordinarily be expected to resort to other measures;
4. To prevent loss or damage to perishable goods;
5. Where the nature of the work requires continuous operations and the stoppage of
work may result in irreparable injury or loss to the employer; and
6. Under other circumstances analogous or similar to the foregoing as determined
by the Secretary of Labor and Employment (LC, Art. 92).

Service Incentive Leave Pay (Autobus v. Bautista, G.R. No. 156367, May 16, 2005)

Service Incentive Leave (SIL)

It is 5-days leave with pay for every Ee who has rendered at least 1 year of service
whether continuous or broken.

PAGE 68 GN

SERVICE CHARGE - (RA No. 11360 August 7, 2018)

These are charges collected by hotels, restaurants and similar establishments at the
rate of 85% for covered Ees equally distributed among them, and 15% for the
management to answer for losses and breakages.

XIV. Articles 106-109 of the Labor Code, as amended (IMPORTANT)

ART. 106. Contractor or subcontractor. - Whenever an employer enters into a contract

with another person for the performance of the former’s work, the employees of the
contractor and of the latter’s subcontractor, if any, shall be paid in accordance with
the provisions of this Code.
In the event that the contractor or subcontractor fails to pay the wages of his employees
in accordance with this Code, the employer shall be jointly and severally liable with his
contractor or subcontractor to such employees to the extent of the work performed
under the contract, in the same manner and extent that he is liable to employees
directly employed by him. 
The Secretary of Labor and Employment may, by appropriate regulations, restrict or
prohibit the contracting-out of labor to protect the rights of workers established under
this Code. In so prohibiting or restricting, he may make appropriate distinctions
between labor-only contracting and job contracting as well as differentiations within
these types of contracting and determine who among the parties involved shall be
considered the employer for purposes of this Code, to prevent any violation or
circumvention of any provision of this Code.
There is "labor-only" contracting where the person supplying workers to an employer
does not have substantial capital or investment in the form of tools, equipment,
machineries, work premises, among others, and the workers recruited and placed by
such person are performing activities which are directly related to the principal business
of such employer. In such cases, the person or intermediary shall be considered merely
as an agent of the employer who shall be responsible to the workers in the same
manner and extent as if the latter were directly employed by him.
ART. 107. Indirect employer. - The provisions of the immediately preceding article shall
likewise apply to any person, partnership, association or corporation which, not being an
employer, contracts with an independent contractor for the performance of any work,
task, job or project.
ART. 108. Posting of bond. - An employer or indirect employer may require the
contractor or subcontractor to furnish a bond equal to the cost of labor under contract,
on condition that the bond will answer for the wages due the employees should the
contractor or subcontractor, as the case may be, fail to pay the same.
ART. 109. Solidary liability. - The provisions of existing laws to the contrary
notwithstanding, every employer or indirect employer shall be held responsible with his
contractor or subcontractor for any violation of any provision of this Code. For purposes
of determining the extent of their civil liability under this Chapter, they shall be
considered as direct employers.

Permissible Job Contracting

Elements of job contracting

A person is considered engaged in legitimate job contracting or subcontracting if the

following conditions concur:

1. The contractor or subcontractor carries on a distinct and independent business

and undertakes to perform the job, work or service on its own account and under
its own responsibility according to its own manner and method, and free from the
control and direction of the principal in all matters connected with the
performance of the work except as to the results thereof;
2. The contractor or subcontractor has substantial capital or investment; and

3. The Service Agreement ensures compliance with all the rights and benefits for all
the employees of the contractor or subcontractor under the labor laws (D.O. No.
174, Sec. 8, s. 2017).
Elements of labor-only contracting
Essential Elements of Labor-Only Contracting

1. The contractor or subcontractor does not have substantial capital or investment

to actually perform the job, work or service under its own account and
responsibility; and
2. The employees recruited, supplied or placed by such contractor or subcontractor
are performing activities which are directly related to the main business of the
principal (Sasan v. NLRC, G.R. No. 176240, October 17, 2008).
3. Control over the manner or method of doing the work characterizes employment. In contrast, control
only of the desired result of the work often indicates a contracting arrangement

Confirming Elements

To have labor-only contracting, the essential element of supplying workers to another is not enough. To it
must be added either one of two confirming elements:

One. Lack of substantial capital or investment and performance of activities directly related or usually
necessary or desirable to the principal’s main business; or

Two. The contractor does not exercise control over the performance of the employees

Job Contracting vs.

Labor-only
Contracting

Job Contracting Labor-only

Contracting

The er/principal is The er/principal is

merely an indirect treated as direct
employer, by employer of the
operation of law, of contractor’s
his contractor’s employees in all
employees. instances. (contractor
= agent of the
employer)

the law creates an er- the statute creates an

ee relationship for a er-ee relationship for
limited purpose. a comprehensive
purpose.

The principal becomes The principal becomes

solidarily liable. The solidarily liable with
liability however does the contractor not
not extend to the only for unpaid wages
payment of but also for all the
backwages or rightful claims of the
separation pay of employees under the
employees who are Labor Code and
illegally dismissed. ancillary laws.
Allowed by law Prohibited by law
Presence of Absence of
substantial capital or substantial capital or
investment. investment.

D.O. 174 (read)

D.O. 18 as amended (read and familiarize)

Cases:
Alilin Et Al. v. Petron Corporation, G.R. No. 177592, June 9, 2014

Allied Banking Corporation v. Calumpang, G.R. No. 219435, January 17, 2018

FACTS:

Petitioner Allied Banking Corporation and Race Cleaners, Inc. entered into a Service
Agreement whereby RCI will provide Allied with messengerial, janitorial,
communication, and maintenance services.

On Sept. 28, 2003, respondent Reynold Calumpang was hired as a janitor by RCI and
was assigned at the bank’s Tanjay City Branch.

Petitioner observed that whenever respondent went out on errands, it takes a long time
for him to return to the branch. It was eventually discovered that during these times,
respondent was also plying his pedicab and ferrying passengers. The Bank Manager also
found out that respondent has been borrowing money from several clients of the branch.
He was then told by the Bank Manager that his services was no longer needed.

Thereafter, respondent filed a complaint for illegal dismissal and underpayment of

wages against petitioner before the NLRC.

In his position paper, respondent asserted that the four-fold test of employer-employee
relationship is present between him and the bank. He averred that he was a regular
employee of the Bank assigned as a janitor of the branch with a salary P4,200 payable
every 15 days each month, and assigned such other tasks essential and necessary for the
Bank’s business.

He alleged that petitioner engaged his services and exercised direct control and
supervision over him, through the Branch Head, not only as to the result of his work but
also as to the means and methods by which the same was to be accomplished. As
regards the payment of salary, respondent claimed that it was the Branch that directly
paid his salaries and wages. As for the power of dismissal, respondent further alleged
that it was petitioner Bank, through its Branch Head, who terminated his services.
 Pettitioner denied the existence of any employer-employee relationship between itself
and respondent. It asserted that respondent was clearly an employee of RCI by virtue of
the Service Agreement which clearly indicated in Article XI thereof that there would be
no employer-employee relationship between RCI’s employees and the Bank. It further
averred that RCI is a qualified job contractor because of its capitalization and the fact
that it exercised control and supervision over its employees deployed at the branches of
the petitioner in accordance with Rule VIII-A, Sec. 4, pars. (d) & (e) of the Omnibus
Rules Implementing the Labor Code.

ISSUE:

1.       Whether RCI is a labor-only contractor

HELD:

Permissible job contracting or subcontracting has been distinguished from labor-only

contracting such that permissible job contracting or subcontracting refers to an
arrangement whereby a principal agrees to put out or farm out to a contractor 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, while labor-
only contracting, on the other hand, pertains to an arrangement where the contractor or
subcontractor merely recruits, supplies or places workers to perform a job, work or
service for a principal.

As a general rule, a contractor is presumed to be a labor-only contractor, unless such

contractor overcomes the burden of proving that it has the substantial capital,
investment, tools and the like.

In the present case, petitioner failed to establish that RCI is a legitimate labor contractor
as contemplated under the Labor Code. Except for the bare allegation of petitioner that
RCI had substantial capitalization, it presented no supporting evidence to show the
same. Aside from this, petitioner’s claim that RCI exercised control and supervision over
respondent is belied by the fact that petitioner admitted that its own Branch Manager
had informed respondent that his services would no longer be required at the Branch.
Moreover, respondent’s work is related to petitioner’s business and is characterized as
part of or in pursuit of its banking operations.

A finding that a contractor is a labor-only contractor, as opposed to permissible job

contracting, is equivalent to declaring that there is an employer-employee relationship
between the principal and the employees of the supposed contractor, and the labor-only
contractor is considered as a mere agent of the principal, the real employer.

In this case, petitioner bank is the principal employer and RCI is the labor-only
contractor. Accordingly, petitioner and RCI are solidarily liable for the rightful claims of
respondent.
(STUDY AND FAMILIARIZE)

XV. Article 128 of the Labor Code, as amended (Visitorial & Enforcement Power of
the DOLE) (IMPORTANT)

ADMINISTRATION AND ENFORCEMENT

ART. 128. Visitorial and enforcement power. - (a) The Secretary of Labor and
Employment or his duly authorized representatives, including labor regulation officers,
shall have access to employer’s records and premises at any time of the day or
night whenever work is being undertaken therein, and the right to copy therefrom, to
question any employee and investigate any fact, condition or matter which may be
necessary to determine violations or which may aid in the enforcement of this Code and
of any labor law, wage order or rules and regulations issued pursuant thereto.
(b) 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, the Secretary
of Labor and Employment or his duly authorized representatives shall have the power to
issue compliance orders to give effect to the labor standards provisions of this Code
and other labor legislation based on the findings of labor employment and enforcement
officers or industrial safety engineers made in the course of inspection. The Secretary or
his duly authorized representatives shall issue writs of execution to the appropriate
authority for the enforcement of their orders, except in cases where the employer
contests the findings of the labor employment and enforcement officer and raises issues
supported by documentary proofs which were not considered in the course of
inspection. (As amended by Republic Act No. 7730, June 2, 1994).
An order issued by the duly authorized representative of the Secretary of Labor and
Employment under this Article may be appealed to the latter. In case said order involves
a monetary award, an 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
Secretary of Labor and Employment in the amount equivalent to the monetary award in
the order appealed from. (As amended by Republic Act No. 7730, June 2,
1994). chanroblesvirtuallawlibrary
(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.
(d) It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise
render ineffective the orders of the Secretary of Labor and Employment or his duly
authorized representatives issued pursuant to the authority granted under this Article,
and no inferior court or entity shall issue temporary or permanent injunction or
restraining order or otherwise assume jurisdiction over any case involving the
enforcement orders issued in accordance with this Article.
(e) Any government employee found guilty of violation of, or abuse of authority, under
this Article shall, after appropriate administrative investigation, be subject to summary
dismissal from the service.
(f) The Secretary of Labor and Employment may, by appropriate regulations, require
employers to keep and maintain such employment records as may be necessary in aid
of his visitorial and enforcement powers under this Code.

Peoples Broadcasting Service (Bombo Radyo Phils., Inc.) v. The Secretary of

Labor, GR No. 179652, March 6, 2012

XVI. Expanded Maternity Law (basic benefits provided) Familiarize

XVII. Solo Parents’ Leave Benefits (study qualifications for entitlement)

Leave benefits granted to a solo parent to enable him/her to perform parental duties and
responsibilities - where physical presence is required.

In addition to leave privileges under existing laws, parental leave of not more than 7
working days every year shall be granted to any solo parent Ee who has rendered
service of at least 1 year (Sec. 8, RA 8972).

Conditions for entitlement of parental leave

1. He or she must fall among those referred to as a solo parent;

2. Must have the actual and physical custody of the child or children;
3. Must have at least rendered service of one year to his or her employer;
4. He or she must remain a solo parent;
5. He or she must have a SOLO PARENT ID issued by the DSWD; and
6. He must notify the employer of the availment thereof within reasonable period of
time.

XVIII. Paternity Leave (Familiarize)

Paternity leave
It refers to the benefits granted to a married male Ee allowing him not to report for work
for 7 days but continues to earn the compensation therefore, on the condition that his
spouse has delivered a child or suffered amiscarriage for purposes of enabling him to
effectively lend support to his wife in her period of recovery and/or in the nursing of the
newly-born child. In the event it is not availed of, such leave is not convertible to cash.

Concept of paternity leave benefits

Every married male Ee in the private and public sectors shall be entitled to a paternity
leave of 7 days with full pay for the first 4 deliveries of the legitimate spouse with whom
he is cohabiting.

Conditions for Entitlement To Paternity Leave

The male Ee is:

1. Legally married to, and is cohabiting with the woman who delivers the baby;
2. Ee of private or public sector;
3. Maybe availed of only for the first 4 deliveries of the legitimate spouse with whom
he is cohabiting; and
4. Notify his Er of the pregnancy of his legitimate spouse and the expected date of
such delivery

NOTE: Delivery shall include childbirth or any miscarriage.

Stipulations 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 (LC, Art. 134)

No-Spouse Employment Policy

It is a policy banning spouses from working in the same company. Generally, spouses
are allowed from working in the same company, provided it is not in the same
department, where there is direct supervision or control. In case spouses are in the
same department, one of them may be reassigned to another department.

1. Kasambahay Law (RA10361) – definition of kasambahay; jurisdiction

Kasambahay” refers to any person engaged in domestic work within an
employment relationship such as, but not limited to, the following: general
househelp, nursemaid or “yaya”, cook, gardener, or laundry person, but shall
 exclude any person who performs domestic work only occasionally or
sporadically and not on an occupational basis.

SETTLEMENT OF DISPUTES

SEC. 37. Mechanism for Settlement of Disputes. – All labor-related disputes shall be

elevated to the DOLE Regional Office having jurisdiction over the workplace without
prejudice to the filing of a civil or criminal action in appropriate cases. The DOLE
Regional Office shall exhaust all conciliation and mediation efforts before a decision
shall be rendered.

Ordinary crimes or offenses committed under the Revised Penal Code and other special
penal laws by either party shall be filed with the regular courts.

2. Apprentices and Learners

-Distinction; concept; requirements

Apprenticeship
It is practical training on the job supplemented by related theoretical instruction
involving a contract between an apprentice and an employer on an approved
apprenticeable occupation

Requisites for employment of apprentices

1. The employer should be engaged in a business that is considered a highly technical
industry;
2. The job which the apprentice will work on should be an apprenticeable occupation.
- It is no longer the SOLE, but the TESDA, who approves apprenticeable occupations
(Azucena, p. 134).

Apprentice
Any worker who is covered by a written apprenticeship agreement with an individual Er or
any of the entities recognized under the LC.

GR: Apprenticeship programs shall be primarily voluntary.

XPNs: Compulsory Apprenticeship:

1. National security or economic development so demand, the President may require
compulsory training;
2. Services of foreign technicians are utilized by private companies in apprenticeable trades

Period of apprenticeship
Apprenticeship must not exceed 6 months.

Employment of learners
Learners may be employed when:
1. No experienced worker is available
2. It is necessary to prevent curtailment of employment opportunities; and
3. Employment does not create unfair competition in terms of labor costs or impair or
lower working standards.

Learnershi Learnership Apprenticeship

p vs.
Apprentic
eship (BAR
2017)
BASIS

Nature Training on the job Training in trades

in semi-skilled and which are
other industrial apprenticeable,
occupation or that is, practical
trades which are training on the job
non- supplemented by
apprenticeable and related theoretical
which may be instruction for
learned thru more than 3
practical training months.
on the job in a
relatively short
period of time.

Duration Max: 3 months Min: 3 months

of training Max: 6 months

Commit- With commitment No commitment

ment to to employ the to hire
employ learner as a regular
employee if he
desires upon
completion of
learnership

In case of Considered a Worker not

pre- regular employee considered as
terminatio if pre-termination regular
n of occurs after 2 employee.
contract months of training
and the dismissal
is without fault of
the Learner.

Coverage Semi- Highly technical

skilled/Industrial industries and
occupations only in industrial
occupation

List There is a list of No list

learnable trades by
TESDA

Written Requires Requires

agreement learnership apprenticeship
agreement agreement

3. Migrant Workers (definition; illegal dismissal)

- Reliefs to illegally dismissed OFW (Sameer Overseas Placement v.
Cabiles-payment of salaries covering the unexpired term of the
contract)

Overseas Filipino Worker (OFW) is a person who is to be engaged, is engaged or has been
engaged in a remunerated activity in a State of which he or she is not a citizen or on board a
vessel navigating the foreign seas other than a government ship used for military or non-
commercial purposes or on an installation located offshore or on the high seas [Sec. 1(jj), Rule
II, Omnibus Rules and Regulations Implementing Migrant Workers Act as amended by R.A.
10022 (2010)].

Relief of a Worker When Terminated Without Valid Cause

1. Full reimbursement of his placement fee with 12% interest per annum;
2. Plus salaries for the unexpired portion of his employment contract (R.A. 10022).

Q: Joy was deployed to work for Taiwan Wacoal, Co. Ltd. on June 26, 1997 for 1 year.
She alleged that Sameer Overseas Agency required her to pay a placement fee of P70,
000.00. On July 14, 1997, Mr. Huwang of Wacoal informed Joy, without prior notice,
that she was terminated and was given a salary from June 26 to July 14, 1997 only.
Joy filed a complaint for illegal dismissal with the NLRC. She asked for the return of
her placement fee, the withheld amount for repatriation costs, payment of her salary
for 23 months as well as moral and exemplary damages. The NLRC ruled that Joy was
illegally dismissed and awarded her three months’ worth of salary, the
reimbursement of the cost of her repatriation, and attorney’s fees. Should Joy be
awarded three months’ worth of salary and reimbursement of the cost of her
repatriation?
A: NO.Joy is entitled to her salary for the unexpired portion of her contract, in accordance
with Section 10 of Republic Act No. 8042. Since she started working on June 26, 1997 and
was terminated on July 14, 1997, Joy is entitled to her salary from July 15, 1997 to June 25,
1998. Furthermore, there is an implied stipulation in contracts between the placement
agency and the overseas worker that in case the overseas worker is adjudged as entitled to
reimbursement of his or her placement fees, the amount shall be subject to a 12% interest
per annum. This implied stipulation has the effect of removing awards for reimbursement
of placement fees from Circular No. 799’s coverage. However, if judgment did not become
final and executory before July 1, 2013 and there was no stipulation in the contract
providing for a different interest rate, other money claims under Section 10 of Republic Act
No. 8042 shall be subject to the 6% interest per annum in accordance with Circular No. 799
(Sameer v. Cabiles, G.R. No. 170139, Aug. 05, 2014).

4. Permanent and Total Disability Claims of Seafarers

-Rule on the medical assessments of company-designated
physicians, chosen doctor and third doctor.

It is true that the company-designated physician will have the first opportunity to
examine the seafarer and thereafter issue a certification as to the seafarer's medical
status. On the basis of the said certification, seafarers then would be initially informed if
they are entitled to disability benefits or not. Seafarers, however, are not precluded from
challenging the diagnosis of the company-designated physicians should they disagree.

Section 20(A) thereof states that should the seafarer's appointed doctor disagree with
the assessment, a third doctor may be agreed upon by the employer and the seafarer
and the latter's decision shall be final and binding between the parties. Undoubtedly,
seafarers have the option to seek another opinion from a physician of their choice and,
in case the latter's findings differ from that of the company-designated physician, the
conflicting findings shall be submitted to a third-party doctor, as mutually agreed upon
by the parties.

If nagdisagree yung seafarer sa assessment ng company designated physician, pwede siyang

magpa secpnd assessment sa doctor na pinili niya. Then kung may conflict sa assessment ng
dalawa, dapat kumuha siya ng thrid doctor na impartial to do another assessment. Required na
isignify niya yung intention niya na kukuha siya ng 3rd doctor, otherwise yung assessment ng
company designated physician yung magiging final assessment

5. Floating status of Security guards (when is it valid; when is it illegal)

It is lawful for a private security guard agency to place its security guard on a "floating status" if
it has no assignment to give to said security guards. But if the security guards are placed on a
"floating status" for more than 6 months, the security guards may consider themselves as having
been dismissed.
Floating Status
The floating status of an employee should last only for a legally prescribed period of time.
When that floating status of an employee lasts for more than six (6) months, he may be
considered to have been illegally dismissed from the service. Thus, he is entitled to the
corresponding benefits for his separation

6. Employment of Special Workers

7. Probationary employment (requisites)

- 6 months period; extension thereof

Instances when extension of probationary period is allowed

Extension is allowed only when:
1. Nature of the job requires extensive training; or
2. If it is a company policy that the period of probationary employment should be an
extended period.

NOTE: The extension of period should always be reasonable; Such that, the nature of the work
so requires and that it is the amount of time required for an ordinary worker to learn the job.

Instances when a probationary Ee is deemed to be a regular Ee

1. If he is allowed to work after a probationary period (LC, Art. 281).
2. If no standards, under which he will qualify as a regular Ee, are made known to him at
the time of his engagement (IRR, Book VI, Rule I, Sec. 6[d]).

8. Study and memorize the concepts, doctrines, principles we discussed

9. Project Employment (requisites to be valid)

Project employment

Project employment is employment that has been fixed for:

1. Specific undertaking – a specific project or undertaking the completion; or
2. Time-bound – termination of which has been determined at the time of engagement of the Ee (IRR, Book
VI, Rule I, Sec. 5[a]).

Requisites in determining whether an Ee is a project Ee

1. Designation of named Ees as “Project Ees”;
2. The project Ee was assigned to carry out a specific project or undertaking;
3. The duration and scope of which were specified at the time the Ee was engaged for that
project (Imbuido v. NLRC, G.R. No. 114734, May 31, 2000);
4. The Ee must have been dismissed every after completion of his project or phase;
5. Report to the DOLE of Ee’s dismissal on account of completion of contract(Policy Inst. No.
20; D.O. 19 [1997]).

no sep pay if valid dismissalGr: doctrine of comapssionate justice - the management should have
an attitude of tenderness towards the workers

Xpn: this doctrine will not apply in case of

1. Serious misconduct
2. Reflects an unkindly moral character
3. Gross and habitual misconduct
4. Dishonesty

CONSTRUCTIVE DISMISSAL
It occurs when there is cessation of work because continued employment is rendered impossible,
unreasonable, or unlikely as when there is a demotion in rank or diminution in pay or when a
clear discrimination, insensibility, or disdain by an Er becomes unbearable to the Ee leaving the
latter with no other option but to quit

SEXUAL HARASSMENT

Requisites:
1. Act is committed in a work, education, or training-related environment
2. The doer, the harasser, is any person who has authority, influence or moral ascendancy over another;
3. Doer demands or requests, or requires a sexual favor from the victim;
4. It does not matter whether such demand is accepted or not (RA 7877, Sec. 3).

Kinds:
1. Quid Pro Quo (this for that) – doer asks for something in exchange for something.
2. Hostile Environment

Beso-beso fashion
In the case of Aquino v. Acosta (A.M. No. CTA-01-1), the Supreme Court absolved from liability under sexual
harassment law the acts of Judge Acosta, in greeting complainant with a kiss on the cheek, in a ‘beso-beso’
fashion, where most of the kissing incidents were done on festive and special occasions. However, the Court
admonished Judge Acosta not to commit similar acts against complainant or other female employees of the
CTA, otherwise, his conduct may be construed as tainted with impropriety.

Places where sexual harassment are committed

1. In a work-related or employment environment.

ELEMENTS:
a. The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued
employment of said individual, or in granting said
individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the
sexual favor results in limiting, segregating or classifying the employee which in a way would discriminate,
deprive or diminish employment opportunities or otherwise adversely affect said employee (Quid Pro Quo
Sexual Harassment);
b. The above acts would impair the employees’ rights or privileges under existing labor laws; or
c. The above acts would result in an intimidating, hostile, or offensive environment for the employee (Hostile
Environment Harassment).

2. In an education or training environment

ELEMENTS:
a. Sexual harassment is employed:
i. Against one who is under the care, custody or supervision of the offender;
ii. Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;
b. When sexual favor is made a condition to the giving of a passing grade, or the granting of honors and
scholarships, or the payment of a stipend, allowance or other benefits, privileges, or considerations; or
c. When sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or
apprentice.

Q: A Personnel Manager, while interviewing an attractive female applicant for employment, stared
directly at her for prolonged periods, albeit in a friendly manner. After the interview, the manager
accompanied the applicant to the door, shook her hand and patted her on the shoulder. He also asked
the applicant if he could invite her for dinner and dancing at some future time. Did the Personnel
Manager, by the above acts, commit Sexual Harassment? Reason. (2000 Bar Question)

A: YES. The Personnel Manager is in a position to grant or not to grant a favor (a job) to the applicant. Under
the circumstances, inviting the applicant for dinner or dancing creates a situation hostile or unfriendly to the
applicant's chances for a job if she turns down the invitation (R.A. No. 7877, Anti-Sexual Harassment Act, Sec. 3
[a] [3]).

Q: In the course of an interview, another female applicant inquired from the same Personnel Manager
if she had the physical attributes required for the position she applied for. The Personnel Manager
replied: "You will be more attractive if you will wear micro-mini dresses without the undergarments
that ladies normally wear." Did the Personnel Manager, by the above reply, commit an act of sexual
harassment? Reason.
A: YES. The remarks would result in an offensive or hostile environment for the employee. Moreover, the
remarks did not give due regard to the applicant’s feelings and it is a chauvinistic disdain of her honor,
justifying the finding of Sexual Harassment (Villarama v. NLRC, G.R. No. 106341, September 02, 1994).

Remedies of Ee in case of illegal dismissal

In case where the worker is illegally terminated, his remedies are:
1. Reinstatement without loss of seniority rights – Actual reinstatement or payroll reinstatement
2. Full backwages – Full backwages means no deduction
3. Separation pay in lieu of reinstatement
4. Damages, including Attorney’s fees
5. 6% legal interest on monetary award

Qualifications for entitlement to maternity benefit

1. She has paid at least 3 monthly contributions within the 12-month period immediately preceding the
semester of her childbirth or miscarriage.
2. She has given the required notification of her pregnancy through her Er if employed, or to the SSS if
separated, voluntary or self-employed member.

A, single, has been an active member of the Social Security System for the past 20 months. She became
pregnant out of wedlock and on her 7th month of pregnancy, she was informed that she would have to
deliver the baby through caesarean section because of some complications. Can A claim maternity
benefits? If yes, how many days can she go on maternity leave? If not, why is she not entitled? (2010
Bar)
A: YES. The SSS Law does not discriminate based on the civil status of a female member-employee. As long as
said female employee has paid at least three (3) monthly contributions in the 12-month period immediately
preceding the semester of her childbirth, she can avail of the maternity benefits under the law.
Since A gave birth through C-section, she is entitled to one hundred percent (100%) of her average salary
credit for seventy-eight (78) days, provided she notifies her employer of her pregnancy and the probable date
of her childbirth, among others (See Section 14-A, Rep. Act No. 8282). The same maternity benefits are
ensured by Sec. 22 (b)(2) of the Magna Carta of Women (Rep. Act No. 9710).

DIRECT HIRING

It is when an employer hires a Filipino worker for overseas employment without going through the POEA or
entities authorized by the SLE.

Ban on Direct Hiring

GR: An employer may only hire Filipino worker for overseas employment through POEA or entities
authorized by DOLE (LC, Art. 18).

XPNs: Direct hiring by:

1. International organizations
2. Name hires
3. Members of the diplomatic organizations
4. Other Ers as may be allowed by DOLE

Purposes of the Prohibition on Direct Hiring:

1. To ensure the best possible terms and conditions of employment for the worker.
2. To assure the foreign employer that he hires only qualified Filipino workers.
3. To ensure full regulation of employment in order to avoid exploitation.

Name hires
Individual workers who are able to secure contracts for overseas employment opportunities with employers
without the assistance or participation of any agency (Omnibus Rules and Regulations implementing the
Migrant Workers and Overseas Filipinos Act of 1995 as amended by R.A. 10022, Rule II).

NOTE: Name hires shall pass through the POEA for processing purposes and should be registered under
POEA for protection.

Rights and privileges of PWD

1. Equal opportunity for employment - No PWD shall be denied access to opportunities for suitable
employment. Five percent (5%) of all casual emergency and contractual positions in the DSWD, Health,
Education and other government agencies, offices or corporations engaged in social development shall be
reserved
for PWDs (Section 5, Chapter 1, Title II, RA 7277).
XPN: Bona Fide Occupational Qualification
2. Sheltered employment - The Government shall endeavour to provide them work if suitable employment for
disabled persons cannot be found through open employment
3. Apprenticeship - PWD may be hired as apprentices or learners if their disability is not such as to effectively
impede the performance of job operations in the particular occupations for which they are hired (LC, Art. 81).
4. Vocational rehabilitation - To develop the skills and potentials of disabled workers and enable them to
compete in the labor market
5. Vocational guidance and counselling

GR: Handicapped workers are entitled to not less than seventy-five percent (75%) of the applicable adjusted
minimum wage (Article 80, LC).
XPN: All qualified handicapped workers shall receive the full amount of the minimum wage rate prescribed
herein pursuant to RA 7277 (Wage Order No. NCR-18, Effective October 4, 2013).
NOTE: Generally, if a PWD is hired as an apprentice or learner, he shall be paid not less than seventy-five
percent (75%) of the applicable minimum wage.
XPN: If the PWD, however is hired as a learner and employed in piece or incentive-rate jobs during the
training period, he shall be paid one hundred percent (100%) of the applicable minimum wage (Chan, 2014).

PROHIBITIONS ON DISCRIMINATION AGAINST PERSONS WITH DISABILITY

The following constitutes acts of discrimination:
1. Limiting, segregating, or classifying a job applicant with disability in such a manner that adversely affects
his work opportunities;
2. GR: Using qualification standards, employment tests or other selection criteria that screen out or tend to
screen out a PWD;

XPN: Such standards, tests or other selection criteria are shown to be job-related for the position in question
and are consistent with business necessity

3. Utilizing standards, criteria, or methods of administration that:

a. Have the effect of discrimination on the basis of disability; or
b. Perpetuate the discrimination of others who are subject to common administrative control

4. Providing less compensation, by reason of his disability, that the amount to which a non-disabled person
performing the same work is entitled;
5. Favoring a non-disabled employee over a qualified employee with disability with respect to promotion,
training opportunities, study and scholarship grants, solely on account of the latter’s disability;
6. GR: Dismissing or terminating the services of an employee with disability by reason of his disability
XPN: The employer can prove that he impairs the satisfactory performance of the work involved to the
prejudice of the business entity; provided, however, that the employer first sought to provide reasonable
accommodations for persons with disability;
7. Failing to select or administer in the most effective manner employment tests which accurately reflect the
skills, aptitude or other factor of the applicant or employee with disability that such test purports to measure,
rather than the impaired sensory manual or speaking skills of such applicant or employee, in any; and
8. Excluding PWD from membership in labor unions or similar organizations (Section 32, Chapter I, Title III,
RA 7277).

Persons with
Disability vs.
Differently Abled

Persons with Differently Abled

Disability

Earning capacity is Refers to all suffering

impaired by age, or from restriction of
physical or mental different abilities as a
deficiency or injury. result of mental,
physical or sensory
impairment to
perform an activity in
the manner or within
range considered
normal for a human
 being.

Covers only workers. Covers all activities or

99ndeavours.

Basis: Basis: range of activity

loss/impairment of which is normal for a
earning capacity. human being.
Loss due to injury or Restriction due to
physical or mental impairment of
defect or age. mental/physical/
sensory defect.

If hired, entitled to If qualified, entitled to

75% of minimum all terms and
wage. conditions as qualified
able-bodied person.
Subject to definite
periods of
employment.

Employable only No restrictions on

when necessary to employment.
prevent curtailment of Must get equal
employment opportunity and no
opportunity. unfair competition.