Labor Law Finals (Buyco)

1. Distinction between “license” and “authority” in the matter of recruitment and placement of workers

Art. 13. Definitions."License" means a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency."Authority" means a document issued by the Department of Labor authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity.

2. Remaining jurisdiction of the POEA

Art. 20. National Seamen Board. (POEA has taken over the functions of NSB)The Board shall have original and exclusive jurisdiction over all matters or cases including money claims, involving employer-employee relations, arising out of or by virtue of any law or contracts involving Filipino seamen for overseas employment. The decisions of the Board shall be appealable to the National Labor Relations Commission upon the same grounds provided in Article 223 hereof. The decisions of the National Labor Relations Commission shall be final and unappealable.

3. The meaning of the ban on the direct hiring and the exceptions thereto

Art. 18. Ban on direct-hiring. No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. Direct-hiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor is exempted from this provision.

4. Minimum employment conditions on overseas employment contracts

POEA Rules and Regulations Governing Overseas Minimum provisions of employment contracts:1. Guaranteed wages for regular work hours and overtime pay, which shall not be lower than the prescribed minimum wage in the host country or not lower than the appropriate minimum wage standards set forth in a bilateral agreement or international convention, if applicable, or not lower than the minimum wage in the country, whichever is highest; 2. Free transportation to and from the worksite, or offsetting benefit; 3. Free food and accommodation, or offsetting benefit; 4. Just/authorized causes for termination of the contract or of the services of the workers taking into consideration the customs, traditions, mores, practices, company policies and the labor laws and social legislations of the host country;

5. Nationality requirements in putting up of employment agencies

Art. 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.

6. Prohibited acts in recruitment and placement of workers

Art. 34. Prohibited practices. 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;

2) To furnish or publish any false notice or information or document in relation to recruitment or employment;

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.

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;

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;

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;

7) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives;

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.

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;

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; and

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.

7. What is illegal recruitment; its consequence

Art. 38. Illegal recruitment.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. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

Art. 39. Penalties.The penalty of life imprisonment and a fine of One Hundred Thousand Pesos (P1000,000.00) shall be imposed

8. Requirements for hiring of apprentices

Art. 59. Qualifications of apprentice. To qualify as an apprentice, a person shall:1) Be at least fourteen (14) years of age;2) Possess vocational aptitude and capacity for appropriate tests; and3) Possess the ability to comprehend and follow oral and written instructions.

Trade and industry associations may recommend to the Secretary of Labor appropriate educational requirements for different occupations.

9. Requirements for hiring of learners

Art. 74. When learners may be hired. Learners may be employed when (1) no experienced workers are available, (2) the employment of learners is necessary to prevent curtailment of employment opportunities, (3) and the employment does not create unfair competition in terms of labor costs or impair or lower working standards.

10. What is meant by equal opportunity for disabled persons

Discrimination on Employment. — No entity, whether public or private, shall discriminate against a qualified disabled person by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

11. Coverage of Book 3 Title 1 of the Labor Code (on working conditions, Article 82)

Art. 82. Coverage. The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations.

12. Meaning of “managerial employees”

"Managerial employees" refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff.

13. Meaning of “field personnel”

"Field personnel" shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

14. Four-fold test in determining existence of employer-employee relationship

Court decisions has given guidelines in determining the existence of employer-employee relationship by applying the four-fold test:

(a) The selection and engagement of the employee(b) The payment of wages(c) The power of dismissal; and

(d) The employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished. The “control test” is the most important element.

15. Meaning of piece rate workers; what are the minimum legal benefits due them; what are the conditions or requisites for their entitlement of these benefits

Piece-rate workers are those who are paid on the basis of the number of units produced rather than on the time spent in production.

DOLE Handbook on Worker’s Statutory Monetary BenefitsAll workers paid by result, including those who are paid on piecework, takay, pakyaw or task basis, shall receive not less than the prescribed wage rates per eight (8) hours of work a day, or a proportion thereof for working less than eight (8) hours.

Where the covered employee is paid on piece-rate basis, his/her holiday pay shall not be less than his/her average daily earnings for the last seven (7) actual work days preceding the regular holiday; provided, however, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate.

Benefits payable to Piece-Rate Workers1) The applicable statutory minimum daily rate2) Yearly service incentive leave of five days with pay3) Night-Shift Differential pay4) Holiday pay5) Meal and rest periods6) Overtime pay (conditional, when a DOLE Order was issued prescribing their output rates,

daily earnings must amount to the applicable statutory minimum daily wage.)7) Premium pay (ibid)8) 13th-month pay9) Other benefits granted by law, by individual or collective agreement or company policy or

practice.

16. Labor only contracting; concept; when does it exist; the salient provisions of DO No. 18-02

Art. 106. Contractor or subcontractor.

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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.

Department Order 18-ASection 6. Prohibition against 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 of control over the performance of the work of the employee.

17. Legitimate job contracting, when does it exist; what are the requisites

There is "job contracting" where (1) the contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and (2) the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of his business. (Baguio, et al., 202 SCRA 1565 [1991].)

Section 4. Legitimate contracting or subcontracting. Contracting or subcontracting shall be legitimate if all the following circumstances concur: 

(a) The contractor must be registered in accordance with these Rules and carries a distinct and independent business and undertakes to perform the job, work or service on its own responsibility, according to its own manner and method, and free from control and direction of the principal in all matters connected with the performance of the work except as to the results thereof; (b) The contractor has substantial capital and/or investment; and (c) The Service Agreement ensures compliance with all the rights and benefits under Labor Laws. 

18. Who are the parties to a job or labor contracting arrangement; what are their respective legal obligations

“Principal” refers to any employer, whether a person or entity, including government agencies and government-owned and controlled-corporations, who/which puts out or farms out a job, service or work to a contractor. 

“Contractor” refers to any person or entity, including a cooperative, engaged in a legitimate contracting or subcontracting arrangement providing either services, skilled workers, temporary workers, or a combination of services to a principal under a Service Agreement. 

“Contractor’s employee” includes one employed by a contractor to perform or complete a job, work, or service pursuant to a Service Agreement with a principal. It shall also refer to regular employees of the contractor whose functions are not dependent on the performance or completion of a specific job, work or service within a definite period of time, i.e., administrative staff. 

19. What is the meaning of “hours worked”? What activities are deemed included in this concept?

Art. 84. Hours worked. Hours worked shall include (a) all time during which an employee is required to be on duty or to be at a prescribed workplace; and (b) all time during which an employee is suffered or permitted to work.Rest periods of short duration during working hours shall be counted as hours worked.

20. Treatment of “meal time”

Art. 85. Meal periods. Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals.

21. Overtime premiums and rates; what is the compensation base for computation of the overtime pays and premiums

Art. 87. Overtime work. Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof. Work performed beyond eight hours on a holiday or rest day shall be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof.

22. Compressed work week; what are the consequences; what are the requisites for validity

A valid waiver of overtime pay is the compressed workweek. According to Department Advisory No. 02, Series of 2004, the normal number of workdays per week shall be six or a total of forty-eight (48) hours based on the normal workday of eight hours, except those firms whose normal workweek is five days or forty hours a week. Instead of working six days a week, the employees will regularly be working only for; say, five days, but each workday exceeds eight hours because of the work hours taken from the sixth day. For the hours exceeding eight in a workday, the employees waive their overtime pay because, in return, they will no longer incur transport and other expenses on a sixth day. Also, they save time that they can devote to the family or other endeavors.

Such arrangement is legally allowed on condition that it is freely agreed upon between the employer and the majority of the employees. Further, the arrangement should not diminish the employees’ monthly or daily pay or their established employment benefits. Moreover, DOLE’s Department Advisory No. 02-04 provides that the extended workday in CWW should not exceed twelve (12) hours. Work exceeding 12 hours in a day or 48 hours in a week should be considered overtime. Should the work shift revert to eight hours, the reversion shall not constitute a diminution of benefits.

23. Offsetting of overtime and undertime

Art. 88. Undertime not offset by overtime. Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter.

24. Work on a rest day; when can it be required; what are the consequences

Art. 92. When employer may require work on a rest day. The employer may require his employees to work on any day:

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; and6) Under other circumstances analogous or similar to the foregoing as determined by

the Secretary of Labor and Employment.

Art. 93. Compensation for rest day, Sunday or holiday work.1) Where an employee is made or permitted to work on his scheduled rest day, he shall

be paid an additional compensation of at least thirty per cent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day.

2) When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage for work performed on Sundays and holidays.

3) Work performed on any special holiday shall be paid an additional compensation of at least thirty percent (30%) of the regular wage of the employee. Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage.

4) Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate.

25. Holiday pay; who are the employees entitled; how do we compute the pay; what are the legal holidays? Holiday pay of monthly paid employees

Art. 94. Right to holiday pay.1) Every worker shall be paid his regular daily wage during regular holidays , except in

retail and service establishments regularly employing less than ten (10) workers;2) The employer may require an employee to work on any holiday but such employee

shall be paid a compensation equivalent to twice his regular rate; and3) As used in this Article, "holiday" includes: New Year’s Day, Maundy Thursday, Good

Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of December and the day designated by law for holding a general election.

Presidential Decree 1083Article 169. Official Muslim holidays. The following are hereby recognized as legal Muslim holidays:

1) 'Amun Jadid (New Year), which falls on the first day of the first lunar month of Muharram;2) Maulid-un-Nabi (Birthday of the Prophet Muhammad), which falls on the twelfth day of the

third lunar month of Rabi-ul-Awwal;3) Lailatul Isra Wal Mi'raj (Nocturnal Journey and Ascension of the Prophet Muhammad),

which falls on the twenty-seventh day of the seventh lunar month of Rajab;4) 'Id-ul-Fitr (Hari Raya Pausa), which falls on the first day of the tenth lunar month of

Shawwal, commemorating the end of the fasting season; and5) 'Id-ul-Adha (Hari Raja Haji), which falls on the tenth day of the twelfth lunar month of Dhu

1-Hijja.

26. Service incentive leave; who are the employees entitled; when is this convertible to cash? How do we compute?

Art. 95. Right to service incentive leave.1) Every employee who has rendered at least one year of service shall be entitled to a

yearly service incentive leave of five days with pay.

2) This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labor and Employment after considering the viability or financial condition of such establishment.

3) The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action.

Meaning of “one year of service” The phrase “one year of service” of the employee means service within twelve (12) months, whether continuous or broken, reckoned from the date the employee started working. The period includes authorized absences, unworked weekly rest days, and paid regular holidays. If through individual or collective agreement, company practice or policy, the period of the working days is less than twelve (12) months, said period shall be considered as one year for the purpose of determining the entitlement to the service incentive leave.

Usage/Conversion to Cash The service incentive leave may be used for sick and vacation leave purposes. The unused service incentive leave is commutable to its money equivalent at the end of the year. In computing, the basis shall be the salary rate at the date of conversion. The use and conversion of this benefit may be on a pro rata basis.

27. Wages; commissions – When is it a wage and when is it not. Inclusion of commission in the computation of salary related benefits

"Wage" paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor and Employment, of board, lodging, or other facilities customarily furnished by the employer to the employee. "Fair and reasonable value" shall not include any profit to the employer, or to any person affiliated with the employer.

28. The prohibition on non-diminution of benefits, what is the rule?

The principle of non-diminution of benefits states that: “any benefit and supplement being enjoyed by employees cannot be reduced, diminished, discontinued or eliminated by the employer.”

In employment setting, the principle of non-diminution of benefits finds application when a change initiated by the employer to existing company policies, specially matters concerning employee benefits, results in reduction, diminution or withdrawal of some or all of the benefits already enjoyed by the employees. For example, if the employees of a certain company is traditionally granted 14th month pay, and the employer subsequently withdrew such benefit, or reduced its amount, the reduction or withdrawal is objectionable on the ground that it would result to diminution of benefits.

To ripen into benefits, the following requisites must concur:

1) It should have been practiced over a long period of time; and

2) It must be shown to have been consistent and deliberate.

Art. 100. Prohibition against elimination or diminution of benefits. Nothing in this Book shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code.

Art. 127. Non-diminution of benefits. No wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. (As amended by Republic Act No. 6727, June 9, 1989)

29. What are the exceptions to the rule against non-diminution of benefits

1) If it is not an established practice.2) There was an erroneous payment made due to a mistake in application of a doubtful or

difficult question of law.3) Negotiated benefits between employee and employer such as those contained in CBA.4) Reimbursement benefits. (i.e. per diem)5) Elimination of an existing benefit in exchange for an equal or better one.6) Reclassification of Position or Promotion.7) Contingent or Conditional Benefits. (i.e. Bonus)

30. 13th month pay; conditions for eligibility; how is this computed; what are legally mandated to be included in the computation

DOLE Labor Advisory No. 12-13“Basic Salary” shall include all remunerations or earnings paid by an employer to an employee for services rendered but may not include cost-of-living allowances, profit-sharing payments, cash equivalent of unused vacation and sick leave credits, overtime pay, premium pay, night shift differential, holiday pay, and all allowances and monetary benefits which are not considered, or integrated as part of the regular or basic salary of the employee.

CoverageRank-and-file employees in the private sector shall be entitled to 13th month pay regardless of their position, designation, or employment status, and irrespective of the method by which their wages are paid, provided that they have worked for at least one month during the calendar year.

Amount of 13th Month PayThe minimum 13th month pay required by law shall not be less than one-twelfth (1/12) of the total basic salary earned by an employee within a calendar year.

31. Workers paid by results; what are the other fringe benefits legally due them; what are the requisites for entitlement

Benefits Payable to Workers paid by Results1) The applicable statutory minimum daily rate2) Yearly service incentive leave of five days with pay3) Night-Shift Differential pay4) Holiday pay5) Meal and rest periods6) Overtime pay (conditional, when a DOLE Order was issued prescribing their output rates,

daily earnings must amount to the applicable statutory minimum daily wage.)7) Premium pay (ibid)8) 13th-month pay9) Other benefits granted by law, by individual or collective agreement or company policy or

practice.

32. Who is an indirect employer? What is the scope and extent of its liability under the law?

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. 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.

33. Rights of contractual employees

1) Safe and healthful working conditions2) Labor Standards such as service incentive leave, rest days, OT pay, holiday pay, 13th

month pay and separation pay3) Social security and welfare benefits4) Self-organizations, collective bargaining and peaceful concerted action.5) Security of tenure

34. Workers preference in case of bankruptcy

Art. 110. Worker preference in case of bankruptcy. In the event of bankruptcy or liquidation of an employer’s business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid. (As amended by Section 1, Republic Act No. 6715, March 21, 1989)

35. Deductions from wages (what can be legally deducted); What are the requisites for deduction if any

Art. 113. Wage deduction. No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except:

1) In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;

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; and

3) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.

36. Requisites for the issuance of a wage order

Art. 123. Wage Order. Whenever conditions in the region so warrant, the Regional Board shall investigate and study all pertinent facts; and based on the standards and criteria herein prescribed, shall proceed to determine whether a Wage Order should be issued. Any such Wage Order shall take effect after fifteen (15) days from its complete publication in at least one (1) newspaper of general circulation in the region.In the performance of its wage-determining functions, the Regional Board shall conduct public hearings/consultations, giving notices to employees’ and employers’ groups, provincial, city and municipal officials and other interested parties.

Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the Commission within ten (10) calendar days from the publication of such order. It shall be

mandatory for the Commission to decide such appeal within sixty (60) calendar days from the filing thereof.

The filing of the appeal does not stay the order unless the person appealing such order shall file with the Commission, an undertaking with a surety or sureties satisfactory to the Commission for the payment to the employees affected by the order of the corresponding increase, in the event such order is affirmed. (As amended by Republic Act No. 6727, June 9, 1989)

37. Wage distortion: Conditions for it to exist; what are the requisites; how is it corrected?

Art. 124. Standards/Criteria for minimum wage fixing.

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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.

For salary distortion to exist, the law does not require full elimination of salary differences; a sever contraction is enough. “Severe,” of course, is relative, to be assessed justly and failry in the light of differing circumstances. (Azucena)

38. Visitorial and Enforcement power of the Secretary of Labor; what are covered in the exercise of this power; what are the limitations

These two complementary powers to administer and to enforce the law are conferred by the Labor Code of the Philippines, as amended, on the Secretary of Labor and Employment or his duly authorized representatives, i.e., the DOLE Regional Directors.

The visitorial grants to said DOLE officials, including labor and employment  officers, 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 there from such records, 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 the Labor Code and of any labor law, wage order or rules and regulations issued pursuant thereto (Art. 128 (a).

The enforcement power to issue compliance orders to give effect to the labor standards provisions of the Labor Code and other labor legislation based on the findings of labor and employment officers or industrial safety engineers made in the course of inspection, and to 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 and employment  officers and raises issues supported by documentary proofs which were not considered in the course of inspection." (Art. 128 (b). (DOLE Website)

39. Adjudicatory powers of the Regional Director; scope of the power; limitations of the power

The Regional Director (or a hearing officer) may entertain a complaint for recovery of wages or other monetary claim or benefit. This is subject to a number of requisites:

1) The complaint does not include a claim for reinstatement.2) The aggregate claim of EACH WORKER (complainant) does not exceed P5,000.00

including legal interest.3) The claim is presented by an employee or person in domestic or household services.

4) The claim arises from employer-employee relations.

40. Hiring of women; what are the protections extended by law to women workers

Art. 130. Nightwork prohibition. No woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation:

1) In any industrial undertaking or branch thereof between ten o’clock at night and six o’clock in the morning of the following day; or

2) In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and six o’clock in the morning of the following day; or

3) In any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours.

Art. 132. Facilities for women. The Secretary of Labor and Employment shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to:

1) Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency;

2) To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women;

3) To establish a nursery in a workplace for the benefit of the women employees therein; and

4) To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like.

41. What are the prohibited acts connected with the hiring of women workers

Art. 137. Prohibited acts.It shall be unlawful for any employer: 

1) To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code.

2) To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy;

3) To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.

42. What are the protections extended by law to minor workers

Art. 139. Minimum employable age.1) No child below fifteen (15) years of age shall be employed, except when he works

directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling.

2) Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations.

3) The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment.

43. Who are homeworkers? The Kasambahay Law. What are the rights of domestic workers?

Art. 155. Distribution of homework. For purposes of this Chapter, the "employer" of homeworkers includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, sub-contractor or any other person:

1) Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or

2) Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication, either by himself or through some other person.

Kasambahay LawArticle II – Rights and PrivilegesSEC. 5. Standard of Treatment. – The employer or any member of the household shall not subject a domestic worker or “kasambahay” to any kind of abuse nor inflict any form of physical violence or harassment or any act tending to degrade the dignity of a domestic worker.

SEC. 6. Board, Lodging and Medical Attendance. – The employer shall provide for the basic necessities of the domestic worker to include at least three (3) adequate meals a day and humane sleeping arrangements that ensure safety. The employer shall provide appropriate rest and assistance to the domestic worker in case of illnesses and injuries sustained during service without loss of benefits. At no instance shall the employer withdraw or hold in abeyance the provision of these basic necessities as punishment or disciplinary action to the domestic worker.

SEC. 7. Guarantee of Privacy. – Respect for the privacy of the domestic worker shall be guaranteed at all times and shall extend to all forms of communication and personal effects. This guarantee equally recognizes that the domestic worker is obliged to render satisfactory service at all times.

SEC. 8. Access to Outside Communication. – The employer shall grant the domestic worker access to outside communication during free time: Provided, That in case of emergency, access to communication shall be granted even during work time. Should the domestic worker make use of the employer’s telephone or other communication facilities, the costs shall be borne by the domestic worker, unless such charges are waived by the employer.

SEC. 9. Right to Education and Training. – The employer shall afford the domestic worker the opportunity to finish basic education and may allow access to alternative learning systems and, as far as practicable, higher education or technical and vocational training. The employer shall adjust the work schedule of the domestic worker to allow such access to education or training without hampering the services required by the employer.

SEC. 10. Prohibition Against Privileged Information. – All communication and information pertaining to the employer or members of the household shall be treated as privileged and confidential, and shall not be publicly disclosed by the domestic worker during and after employment. Such privileged information shall be inadmissible in evidence except when the suit

involves the employer or any member of the household in a crime against persons, property, personal liberty and security, and chastity.

44. What is the meaning of “arising out of” or “in the course of employment” for the purposes of availment of sickness and injury benefits from the State Insurance Fund

“Arising out of” and “In the course of employment” are said to be separate tests which must be independently satisfied however it should not be forgotten that the basic concept of compensation is unitary, not dual, and is best expressed in the word, “work-connection.” (Azucena)

45. What are the other conditions or situations that are deemed included in the concept “arising out of” or in the “course of employment”

Injuries or death suffered by employees resulting from an accident while enroute to or coming from the workplace are compensable provided that the following conditions shall be established definitively:

1) The act of an employee, going to or coming from the workplace, must have been a continuing act, that is, an employee had not been diverted therefrom by any other activity, and he/she had not departed from his/her usual route to or from his/her workplace; and

2) In the case of an employee on special errand, the special errand must have been official and in connection with his/her work.

Other incidents of employment:1) Acts of personal ministration for the comfort or convenience of the employee2) Acts for the benefit of the employer3) Acts done to further the goodwill of the business4) Slight deviations from work, out of curiosity or otherwise (Friendster?)5) Acts in emergencies

46. What is security of tenure? Just causes and authorized causes for termination of employment

Art. 279. Security of tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21, 1989)

Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes:

1) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

2) Gross and habitual neglect by the employee of his duties;3) Fraud or willful breach by the employee of the trust reposed in him by his employer or

duly authorized representative;4) Commission of a crime or offense by the employee against the person of his employer or

any immediate member of his family or his duly authorized representatives; and5) Other causes analogous to the foregoing.

47. What are the cases that fall under the jurisdiction of the labor arbiter

Jurisdiction of Labor Arbiters

Original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or non-agricultural:

1) Unfair labor practice cases;2) Termination disputes;3) If accompanied with a claim for reinstatement, those cases that workers may file involving

wages, rates of pay, hours of work and other terms and conditions of employment; 4) Claims for actual, moral, exemplary and other forms of damages arising from employer-

employee relations;5) Cases arising from any violation of Article 264 of the Labor Code, as amended, including

questions involving the legality of strikes and lockouts;6) Except claims for employees compensation not included in the next succeesing

paragraph, social security, medicare, and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding Five Thousand Pesos (P5,000.00), whether or not accompanied with a claim for reinstatement;

7) Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to Republic Act No. 6727;

8) Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Article 227 of the Labor Code, as amended;    

9) Money claims arising out of 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 damages as provided by Section 10, Republic Act No. 8042, as amended by Republic Act No. 10022; and

10) Other cases as may be provided by law.

48. Who has jurisdiction over cases which involve complainants who are officers of the respondent employer

49. Labor case vs. Intra-corporate controversy

Jurisdiction should be determined by considering not only the status or relationship of the parties, but also of the nature of the question under controversy. This two-tier test was adopted in the case of Speed Distribution, Inc. vs. Court of Appeals: “To determine whether a case involves an intra-corporate controversy, and is to be heard and decided by the branches of the RTC specifically designated by the Court to try and decide such cases, two elements must concur:1. The status or relationship of the parties (relationship test); and2. The nature of the question that is subject of the controversy (nature of the controversy test).

The first element requires that the controversy must arise out of intra-corporate partnership relations between any or all of the parties and the corporation, partnership, or association of which they are stockholders, members, or associates, respectively; and between such corporation, partnership, or association and the State insofar as it concerns their individual franchises. The second element requires that the dispute among the parties be intrinsically connected with the regulation of the corporation. If the nature of the controversy involves matters that are purely civil in character, necessarily, the case does not involve an intra-corporate controversy. (Reyes vs. Zenith Insurance Corp., G.R. No. 165744, August 11, 2008, [Brion, J.])

50. Remedies against an adverse resolution of the Labor Arbiter; what are the requisites of these remedies

Article 221 of the Labor Code mandates that technical rules of evidence in courts of law shall not be controlling in any of the proceedings before the Commission or the Labor Arbiters. Further, the Commission is required to use every reasonable means to ascertain the facts without regard to technicalities or procedure. Technical rules may be relaxed to prevent miscarriage of justice.

They must not be allowed to stand in the way of equitably and completely resolving the rights and obligations of the parties. (Cañete vs. NLRC [G.R. No. 114161, 23 November 1995])

Grounds for Appeal 1) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter; 2) If the decision, order or award was secured through fraud or coercion, including graft and

corruption; 3) If made purely on questions of law; and 4) If serious errors in the findings of facts are raised which would cause grave or irreparable

damage or injury to the appellant.

51. Remedies against and adverse resolution of the Commission; what are the requisites of these remedies

The Court is of the considered opinion that ever since appeals from the NLRC to the Supreme Court were eliminated, the legislative intendment was that the special civil action of certiorari was and still is the proper vehicle for judicial review of decisions of the NLRC. The use of the word "appeal" in relation thereto and in the instances we have noted could have been a lapsus plumae because appeals by certiorari and the original action for certiorari are both modes of judicial review addressed to the appellate courts. The important distinction between them, however, and with which the Court is particularly concerned here is that the special civil action of certiorari is within the concurrent original jurisdiction of this Court and the Court of Appeals; whereas to indulge in the assumption that appeals by certiorari to the Supreme Court are allowed would not subserve, but would subvert, the intention of Congress as expressed in the sponsorship speech on Senate Bill No. 1495.Therefore, all references in the amended Section 9 of B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should hence forth be initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. (St. Martin Funeral Home vs. NLRC [G.R. No. 130866, 16 September 1998])

52. Execution of NLRC decisions; conflict between NLRC and RTC powers in case of executions of judgment

53. Jurisdiction of the Bureau of Labor Relations; jurisdiction of the National Conciliation and Mediation Board

Bureau of Labor RelationsThe Bureau of Labor Relations and the Labor Relations Divisions in the regional offices of the Department of Labor and Employment shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all inter-union and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces whether agricultural or non-agricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration.

National Conciliation and Mediation BoardThe NCMB, as a staff and line office, has the following functions:

1) Formulate policies, programs, standards, procedures, manuals of operations and guidelines pertaining to effective mediation and conciliation of all labor dispute.

2) Perform preventive mediation and conciliation functions.3) Coordinate and maintain linkages with other sectors of institutions, and other government

authorities concerned with matters relative to the prevention and settlement of labor disputes.

4) Formulates policies, plans, programs, standards, procedures, manuals of operations and guidelines pertaining to the promotion of cooperative and non-adversarial schemes,

grievance handling, voluntary arbitration and other voluntary modes of dispute settlement.

5) Administer the voluntary arbitration program; maintain/update a list of voluntary arbitrators, compile arbitration awards and decisions.

6) Provide counseling and preventive mediation assistance particularly in the administration of collective agreements.

7) Monitor and exercise technical supervision over the Board's programs being implemented in the regional offices; and

8) Perform such other functions as may be provided by law or assigned by the Secretary.

54. Meaning of contract bar rule

This rule simply provides that a petition for certification election or a motion for intervention can only be entertained within sixty days prior to the expiry date of an existing collective bargaining agreement. Otherwise put, the rule prohibits the filing of a petition for certification election during the existence of a collective bargaining agreement except within the freedom period, as it is called, when the said agreement is about to expire. The purpose, obviously, is to ensure stability in the relationships of the workers and the management by preventing frequent modifications of any collective bargaining agreement earlier entered into by them in good faith and for the stipulated original period. (ALU-TUCP v. Trajano, G.R. No. 77539, April 12, 1989, 172 SCRA 49, citing ATU v. Trajano, G.R. No. L-75321, 20 June 1988, 162 SCRA 318)

55. Requisites for registration of a labor organization

Art. 234. Requirements of registration. Any applicant labor organization, association or group of unions or workers shall acquire legal personality and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements.

1) Fifty pesos (P50.00) registration fee;2) The names of its officers, their addresses, the principal address of the labor

organization, the minutes of the organizational meetings and the list of the workers who participated in such meetings;

3) The names of all its members comprising at least twenty percent (20%) of all the employees in the bargaining unit where it seeks to operate; (As amended by Executive Order No. 111, December 24, 1986)

4) If the applicant union has been in existence for one or more years, copies of its annual financial reports; and

5) Four (4) copies of the constitution and by-laws of the applicant union, minutes of its adoption or ratification, and the list of the members who participated in it. (As amended by Batas Pambansa Bilang 130, August 21, 1981)

56. What determines an appropriate bargaining unit?

Factors to be considered in determining the appropriate bargaining unit:1) Will of the employees (Globe Doctrine); 2) Affinity and unit of employees' interest, such as substantial similarity of work and duties,

or similarity of compensation and working conditions; 3) Prior collective bargaining history; 4) Employment status, such as temporary, seasonal probationary employees; and5) Other factors: the history, extent and type of organization of employees in other plants of

the same employer, or other employers in the same industry; the skill, wages, work, and working conditions of the employees; the desires of the employees; the eligibility of the

employees for membership in the union or unions involved; and the relationship between the unit or units proposed and the employer's organization, management, and operation.

57. What is meant by a legitimate labor organization? What are the requisites?

"Legitimate labor organization" means any labor organization duly registered with the Department of Labor and Employment, and includes any branch or local thereof.

In PAFLU vs. Sec. of Labor, 27 SCRA 40, The SC had occasion to interpret Section 23 of R.A. No. 875 (Industrial Peace Act) requiring of labor unions registration by the Department of Labor in order to qualify as "LEGITIMATE LABOR ORGANIZATION," and the SC said:

The theory to the effect that Section 23 of Republic Act No. 875 unduly curtails the freedom of assembly and association guaranteed in the Bill of Rights is devoid of factual basis. The registration prescribed in paragraph (b) of said section 17 is not a limitation to the right of assembly or association, which may be exercised with or without said registration. The latter is merely a condition sine qua non for the acquisition of legal personality by labor organizations, associations or unions and the possession of the 'rights and privileges granted by law to legitimate labor organizations.' The Constitution does not guarantee these rights and privileges, much less said personality, which are mere statutory creations, for the possession and exercise of which registration is required to protect both labor and the public against abuses, fraud, or impostors who pose as organizers, although not truly accredited agents of the union they purport to represent. Such requirement is a valid exercise of the police power, because the activities in which labor organizations, associations and union or workers are engaged affect public interest, which should be protected.

58. What are the unfair labor practices that may be committed by an employer?

Art. 248. Unfair labor practices of employers. It shall be unlawful for an employer to commit any of the following unfair labor practice:

1) To interfere with, restrain or coerce employees in the exercise of their right to self-organization;

2) To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs;

3) To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization;

4) To initiate, dominate, assist or otherwise interfere with the formation or administration of any labor organization, including the giving of financial or other support to it or its organizers or supporters;

5) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;

6) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;

7) To violate the duty to bargain collectively as prescribed by this Code;8) To pay negotiation or attorney’s fees to the union or its officers or agents as part of

the settlement of any issue in collective bargaining or any other dispute; or9) To violate a collective bargaining agreement.The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)

59. What are the unfair labor practices that may be committed by a labor organization?

Art. 249. Unfair labor practices of labor organizations. It shall be unfair labor practice for a labor organization, its officers, agents or representatives:

1) To restrain or coerce employees in the exercise of their right to self-organization. However, a labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership;

2) To cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied or to terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members;

3) To violate the duty, or refuse to bargain collectively with the employer, provided it is the representative of the employees;

4) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not to be performed, including the demand for fee for union negotiations;

5) To ask for or accept negotiation or attorney’s fees from employers as part of the settlement of any issue in collective bargaining or any other dispute; or

6) To violate a collective bargaining agreement.The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Bilang 130, August 21, 1981)

60. The right to self-organization; employees covered;

Art. 243. Coverage and employees’ right to self-organization. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. (As amended by Batas Pambansa Bilang 70, May 1, 1980)

61. Distinction among managerial employees; supervisors; rank-and-file employees

1) "Managerial Employee" refers to an employee who is vested with power or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees;.

2) "Supervisory Employee" refers to an employee who, in the interest of the employer, effectively recommends managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment;

3) "Rank-and-file Employee" refers to an employee who does not fall under the definition of managerial and supervisory employee;

62. Requisites for representation cases in an organized and non-organized establishment