Sb Pw5 Labor

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PART ONE: PRELIMINARY PROVISIONS

CONSTITUTIONAL PROVISIONS ON LABORArticle II, Section 18

The State affirms labor as a primary social economic force. It shall protect the rights of workers and promotetheir welfare.

Article XIII, Section 3The State shall afford full protection to labor. (par. 1)It shall guarantee the rights of all workers to:

a. Self-organizationb. collectie bargaining and negotiationsc. peaceful concerted actiities including the right to strike in accordance with lawd. Security of tenuree. humane conditions of work

f. liing wageg. participate in policy and decision-making process affecting their rights and benefits as may be

proided by law. (par.2)The State shall promote the principle of shared responsibility between workers and employers. (par. 3)The State shall regulate the relations between workers and employers. (par. 4)

CONSTITUTIONAL PROVISIONS ON AGRARIAN REFORMArticle II, Section 21

The State shall promote comprehensie rural deelopment and agrarian reform.Article XIII, Section 4

The State shall! by law! undertake an agrarian reform program founded on the right of farmers and regularfarmworkers! who are landless! to own directly or collectiely the lands they till or! in the case of other farmworkers! toreceie a "ust share of the fruits thereof.###

CONSTRUCTION IN FAVOR OF LABORIn interpreting the $onstitution%s protection to labor and social "ustice proisions and the labor laws and rules

and regulations implementing the $onstitutional mandate! the S$ adopts the liberal approach which faors the e#erciseof labor rights.(Meralco vs. !"#, $.".o. %8%&3. 'l.12, 18)

&hile the $onstitution is committed to the policy of social "ustice and the protection of the working class! itshould not be supposed that eery labor dispute shall be automatically resoled in faor of labor. It is mandated thatthere be e'ual protection and respect not only the laborer%s side but also the management and(or employer%s side. Thelaw! in protecting the rights of the laborer! authorizes neither oppression nor self-destruction of the employer. (#olgate*al+olive *ilippines vs -ple, $.".o. %3&81. 'ne 3,188)

RULE-MAKING POWERIt is true that police power is the domain of the legislature! but it does not mean that such an authority may

not be lawfully delegated. The )abor $ode itself ests the *epartment of )abor and +mployment with rule-makingpowers in the enforcement whereof. (*AS/I vs 0rilon)

APPLICABILITY OF THE LABOR CODEThe )$ applies to all workers! whether agricultural or non-agricultural! including employees in a ,oernment

corporation incorporated under the $orporation $ode. ,oernment corporations created by special original charter aresub"ect to the $iil Serice )aw! while those corporations under the general corporation law are not within the coerageof the $iil Serice )aw! but are sub"ect to the proisions of )abor $ode.

PART II: LABOR STANDARDS

ILLEGAL RECRUITMENTIllegal recruitment shall mean any act of canassing! enlisting! contracting! transporting! utilizing! hiring or

procuring workers and includes referring! contract serices! promising or adertising for employment abroad! whether forprofit or not! when undertaken by a non-license or non-holder of authority contemplated under /rticle 01f of2residential *ecree 3o. 445! as amended! otherwise known as the )abor $ode of the 2hilippines: 2roided! that any suchnon-licensee or non-holder who! in any manner! offers or promises for a fee employment abroad to two or more personsshall be deemed so engaged. Illegal recruitment is deemed committed b a sndicateif carried out by a group of three1 or more persons conspiring or confederating with one another. It is deemed committed in large scaleif committedagainst three 1 or more persons indiidually or as a group. (*eople vs. 0o+inga #orrales ortna)

ILLEGALRECRUITMENT

REGULAR ECONOMICSABOTAGE

2rescriptie2eriod

6 years 57 years

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Imprisonment 2risionmayor

)ifeimprisonment

8ine 577T-677T 9ore than 677T-09

9a#imum penalty shall be imposed if the person illegally recruited is less than 0 years of age or committed by a non-licensee or non-holder of authority.

PREMATURE TERMINATION OF CONTRACT UNDER R.A. 8042

Illegally dismissed employees are entitled to full reimbursement of his placement fee with interest at 05; perannum 2) for three 1 months for eery year of the une#pired termicever is less.

?oweer! S$ clarified in the case ofMarsa+an Manning Agenc vs. !"# ($.".o. 12%1. Ag.2, 1)that /plain reading of section 07 clearly reeals that the choice of which amount to award an illegally dismissed =$&! i.e.whether his salaries for the une#pired portion of his employment contract or 1 months% salary for eery year of theune#pired term whicheer is less! comes into play -!5 en te e+plo+ent contract concerned as a ter+ of atleast 1 ear or +ore. This is eident from the words for eery year of the une#pired term which follows the salaries ## # for three months. -6/7 /ffectivit date is 'l 1, 1.

SOLIDARY LIABILITY OF PRINCIPAL/EMPLOYER AND AGENCY

e'uires *=)+ approal for alidity 3ot re'uired

E#HAUSTION OF ADM. REMEDIES IN CASE OF BREACH OF CONTRACT2recondition for filing action 3ot re'uired

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HOLIDAYSSINGLE HOLIDAY RULEproided that the employee:

worked!was on leae with pay! orwas on authorized absence on te da prior to te reglar olida.

SUCCESSIVE HOLIDAY RULEthe employee must be present the day before the scheduled regular holiday to be entitled to compensation tobothC otherwise! he must work on the first holiday to be entitled to holiday pay on the second regular holiday.

(Sec.10, Rule IV, Book III, Implementing Rules)DOUBLE HOLIDAY RULEIf unworked:

577; of the basic wage.3D: to gie employee only 077; would reduce the number of holidays under *= 3o. 1.

If worked177; of the basic wage.

PAYMENT OF WAGES THROUGH ATM MACHINES RE$UISITES:The /T9 system of payment is with the ritten consentof the employees concerned.The employees are gien reasonable ti+e to itdratheir wages from the bank facility which time! if done

during working hours! shall be considered compensable hours worked.The system shall allow workers to receive teir ages itin te period or fre;enc and in te a+ont

prescribed b te !abor #ode.There is a bank or /T9 facility within a radis of 1est periods of short duration during working hoursC9eal period of less than twenty57 minutes! since it becomes only a rest period and is thus considered as work timeThe reasonable time to withdraw their wages from the bank facility if done during working hours! if payment of

wages is through banks! /T9 or by check.

FACILITIES VS. SUPPLEMENTSFACILITIES SUPPLEMENTS

items of e#pense necessary for the laborer%s andhis family%s e#istence and subsistence

constitute e#tra remuneration or special priilegesor benefits gien to or receied by the laborersoer and aboe their ordinary earnings wages

2art of the wage Independent of the wage

*eductible from the wage not wage deductible

LEGAL RE$UIREMENTS BEFORE FACILITIES CAN BE DEDUCTED FROM WAGES

2roof must be shown that such facilities are customarily furnished by the tradeC

The proision of deductible facilities must be oluntarily accepted in writing by the employeeC andThe facilities must be charged at fair and reasonable alue.

DIFFERENCES AMONG %&'AN ORDINARY EMPLOYER-EMPLOYEE RELATIONSHIP %2' INDEPENDENT (OB CONTRACTING/SUBCONTRACTING %)' PRIVATE RECRUITMENT AND PLACEMENT AGENCY %4' LABOR-ONLY CONTRACTING

In an ordinare+ploer sbcontracting,there are three parties inoled: The principal who decides to farm out a"ob or serice to a subcontractorC the "ob contractor or subcontractor which has the capacity to independently undertakethe performance of the "ob or sericeC and the employees engaged by the "ob contractor or subcontractor to accomplishthe "ob or serice.

In "ob contracting or subcontracting! the four-fold test of employer-employee relationship should be satisfied bythe contractor or subcontractor in relation to the employee it engages to accomplish the contracted or subcontracted "obor serice. If the four-fold test is satisfied not by the "ob contractor or subcontractor but by the principal! the principalthen becomes the employer of the employees engaged to accomplish the "ob or serice. &hat e#ists is not "obcontracting or subcontracting but a direct employer-employee relationship between the principal and the employees and

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the "ob contractor becomes merely the agent of the principal or the subcontractor! the agent of his contractor! as thecase may be.

$ontracting or subcontracting shall be legitimate if the following conditions concur: *The contractor orsubcontractor carries on a distinct and independent business and undertakes to perform the "ob! work or serice on itsown account and under its own responsibility! according to its own manner and method! and free from the control anddirection of the principal in all matters connected with the performance of the work e#cept as to the results thereofC+The contractor or subcontractor has substantial capital or inestmentC and , The agreement between the principaland the contractor or subcontractor assures the contractual employees entitlement to all occupational safety and healthstandards! free e#ercise of the right to self organization! security of tenure! and social and welfare benefits.

&hile a "ob contractor or subcontractor directly undertakes a specific "ob or serice for a principal! and for thispurpose employs its own workers! a private recrit+ent or place+ent agenccannot be a subcontractor. It simplyrecruits workers for the purpose of placing them with another employer so that the workers recruited will not becomethe 2>2/Es employees. /nd while a "ob contractor or subcontractor does not need authority from the *=)+ to undertake asubcontracted "ob or serice! a 2>2/ needs an authority or license from *=)+ to legally undertake recruitment andplacement actiities.

9eanwhile! there is labor


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STIPULATION AGAINST MARRIAGE %ART. &)'

It shall be unlawful for an employer:to re'uire as a condition for employment or continuation of employment that a woman employee shall not get

married!to stipulate e#pressly or tacitly that upon getting married a woman employee shall be deemed resigned or

separated!to actually dismiss! discharge! discriminate or otherwise pre"udice a woman employee merely by reason of her

marriage.

/rticle 01A is not intended to apply only to women employed in ordinary occupations! or it should haecategorically e#pressed so. The sweeping intendment of the law! be it on special or ordinary occupations! is reflected inthe whole te#t and supported by /rticle 016 that speaks of nondiscrimination on the employment of women. (#ladinede #astro Bialcita, et al. vs. *A!).

CLASSIFICATION OF CERTAIN WOMEN WORKERS


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NLRC DIVISION-riginal and e=clsive7

0. $ases certified to it for compulsory arbitration by the Secretary of )abor under /rt. 5A1 K CERTIFIED $/S+SC5. IN(UNCTION $/S+S under /rt. 50 and 5A4C /3*1. CONTEMPT $/S+S

/=clsive appellate7$ases DECIDED BY LABOR ARBITERSunder /rt 50Gb of the )abor $ode and Sec 07 >/ 7059igrant &orkers /ctC

and$ases DECIDED BY THE REGIONAL OFFICES OF DOLE IN THE E#ERCISE OF ITS AD(UDICATORY FUNCTION under

/rt 05@ of the )abor $ode oer monetary claims of workers amounting to not more that 26!777.77

BUREAU OF LABOR RELATIONS-riginal and e=clsive

INTRA- union conflictsINTER- union conflictsall DISPUTES GRIEVANCES OR PROBLEMSARISING FROM OR AFFECTING LABOR MANAGEMENT RELATIONS IN

ALL WORKPLACES WHETHER AGRICULTURAL OR NON-AGRICULTURAL.

N3: The parties may howeer! by agreement! settle their differences by submitting their case to a oluntaryarbitrator rather than taking the case to the D)>.

NATIONAL CONCILIATION AND MEDIATION BOARD(!sor!ed t"e concili#tion, medi#tion #nd volunt#r$ #r!itr#tion functions of t"e B%R.)

nctions78ormulate policies! etc. pertaining to effectie mediation and conciliation of labor disputes.2erform preentie mediation and conciliation functions$oordinate and maintain linkages with other sectors or institutions concerned with matters relatie to the

preention and settlement of labor disputes.8ormulate policies! etc! pertaining to the promotion of cooperatie and non-adersarial schemes! grieance

handling! oluntary arbitration and other oluntary modes of dispute settlement./dminister oluntary arbitration program2roide counseling and preentie mediation assistancemonitor and e#ercise technical superision oer Doard programs implemented in the regional offices.2erform such other functions as may be proided by law or assigned by the Secretary of )abor.

GRIEVANCE MACHINERY0. Interpretation and implementation of $D/5. Interpretation and enforcement of company personnel policies

VOLUNTARY ARBITRATOR0. eised >ules of $ourt.

PROHIBITIONS ON CERTIFICATION ELECTIONS0. 0eadloc: bar rle. / petition for certification election cannot be entertained if! before the filing of the petition forcertification election! a bargaining deadlock to which an incumbent or certified bargaining agent is a party! had beensubmitted to conciliation or arbitration or had become the sub"ect of a alid notice of strike or lockout.5. -ne is not allowed to hold anelection contesting the ma"ority status of the incumbent union during the fie year term of the $D/ e#cept during thesi#ty day period immediately prior to the e#piration of the $D/.4. egotiation bar rle. / petition for certification election cannot be entertained if! before the filing of the petition

for certification election! the duly recognized or certified union has commenced negotiations with the employer inaccordance with /rt. 567 of the )abor $ode.

INSTANCES WHEN CERTIFICATION ELECTIONS ARE NOT SUSPENDED

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1. despite the petition for the cancellation of union registration (Association of #ort of Appeals /+ploees verreregional =ffice or the Dureau.

/ prescribed registration fee must be paid before the issuance of the certificate of registration

RE$UIREMENTS BEFORE A FEDERATION CAN BE ISSUED A CERTIFICATE OF REGISTRATION/side from the *99;,*;6! which must be accompanied with the re'uirements for registration of a labor registration!

the application should also be accompanied by the following:0. 2roof of *


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0. 8or registration of independent labor unions! chartered locals! worker%s associations shall be filed with the >egionaloffice where the applicant principally operates. It shall be processed by the )abor >elations *iision at the >egionaloffice.

5. /pplications for registration of federations! national unions or workers% associations operating in more than oneregion shall be filed with the bureau or the regional offices! but shall be processed by the bureau.

ULPTEST OF INTERFERENCE OR COERCION

&hether the employer has engaged in conduct which it may reasonably be said tends to interfere with the freee#ercise of the employeesE right and it is not necessary that there be direct eidence that any employee was in factintimidated or coerced by the statements of threats or the employer if there is a reasonable interference that the anti-union conduct of the employer does hae an aderse effect of self-organization and collectie bargaining.

SURFACE BARGAININGIt is defined as going through the motions of negotiating without any legal intent to reach an agreement.(St#nd#rd"#rtered !#nk mplo$ees *nion vs. onfesor, +une 1, -00)

BOULWARISMIt occurs when:a. the employer directly bargains with the employee disregarding the union.b. +mployer submits its proposals and adopts a take it or leae it stand. This is not negotiation because the take it or

leae it stand implies threat.

TOTALITY OF CONDUCT DOCTRINEThe letter! e#hibits / and D! should not be considered by themseles alone! but should be read in the light of thepreceding and subse'uent circumstances surrounding. The letter should be interpreted according to the totality ofconduct doctrine! whereby the culpability of an employer%s remarks were to be ealuated not only on the basis of theirimplicit implications! but were to be appraised against the background of and in con"unction with collateralcircumstances (6e Inslar !ife Assrance #o., !td., /+ploees Association


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COLLECTIVE BARGAINING

COLLECTIVE BARGAINING AGREEMENT %CBA'/ negotiated contract between a legitimate labor organization and the employer concerning:

a. wages!b. hours of work! andc. all other terms and conditions of employment in a bargaining unit! including mandatory proisions for

grieances and arbitration machineries.

(URISDICTIONAL PRECONDITIONS1. *-SS/SSI- - 69/ S6A6ES - MA'-"I65 representation by the employees% representatie in accordance

with any of the means of selection or designation proided for by the )abor $odeC2. proof ofMA'-"I65 "/*"/S/6A6I-$ertification of the D)> that the representatie of the employees in the

sole and e#clusie bargaining agent haing won in a certification electionC and3. a 0/MA0 6- A"$AIunder /rticle 567 a of the )abor $ode. (Hio: !o vs. !"#)

DURATION OF THE CBA:&ith respect to the =39=3"36*;6 *"93,! the same lasts for 6 years&ith respect to 13= 9=;";6"Meconomic proisionsN! the same may last for a ma#imum period of 1 years after

the e#ecution of the $D/

RETROACTIVITY OF CBA BENEFITS)abor laws are silent as to when an arbitral award in a labor dispute where the Secretary had assumed

"urisdiction by irtue of /rticle 5A1 g of the )abor $ode shall retroact. In general! a $D/ negotiated within si# monthsafter the e#piration of the e#isting $D/ retroacts to the day immediately following such date and if agreed thereafter!the effectiity depends on the agreement of the parties. =n the other hand! the law is silent as to the retroactiity of a$D/ arbitral award or that granted not by irtue of the mutual agreement of the parties but by interention of thegoernment. *espite the silence of the law! the $ourt rules herein that $D/ arbitral awards granted after si# months fromthe e#piration of the last $D/ shall retroact to such time agreed upon by both employer and the employees or theirunion. /bsent such an agreement as to retroactiity! the award shall retroact to the first day after the si#-month periodfollowing the e#piration of the last day of the $D/ should there be one. In the absence of a $D/! the SecretaryEsdetermination of the date of retroactiity as part of his discretionary powers oer arbitral awards shall controlM/"A!#- v. is+bing, $.". o. 12%8, ebrar 22, 2).

CERTIFICATION ELECTIONS

FOUR FACTORS IN DETERMINING THE APPROPRIATE BARGAINING UNIT:

the +H2>+SS &I)) => *+SI>+ of the employees ,lobe *octrineCthe desires of all the employees are releant to the determination of the appropriate bargaining unit. The releance

of the wishes of the employees concerning their inclusion or e#clusion from a proposed bargaining unit isinherent in the basic right to self organization

the S


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Theprocess whereby the 9ed-/rbiter directly certifies a labor organization of an appropriate bargaining unit ofa company after a showing that such petition is supported by at least a ma"ority of the employees in the bargaining unit.IT IS NO LONGER ALLOWED. %EO &&&'

VOLUNTARY RECOGNITIONThe process whereby the employer recognizes a labor organization as the e#clusie bargaining representatie of

the employees in the appropriate bargaining unit after a showing that the labor organization is supported by at least ama"ority of the employees in the bargaining unit.

RE-RUN VS. RUN-OFF ELECTIONS

RE ? RUN ELECTION RUN ? OFF ELECTION?eld in two instances:

if one choice receies a plurality of oteand the remaining choices results in atieC

if all choices receied the same number ofotesCIn both instances! the 3=


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$onfidential employees who are /)S= rank and file employees cannot form! "oin! or assist unions if they assist ina confidential capacity or hae access to the confidential matters of persons who e#ercise managerial functions in thefield of labor relations. Dy the ery nature of their functions! they assist and act in a confidential capacity to! or haeaccess to confidential matters of! persons who e#ercise managerial functions in the field of labor relations. /s such! therationale for the ineligibility of managerial employees to form! assist or "oin a labor union e'ually applies to them.

In lletin *blising #o., Inc. vs. 9on. Agsta SanceG,144 S#"A &28 ?18&@ the $ourt elaborated on therationale for such inhibition in that! if the managerial employees would belong to! or be affiliated with a estoration of the employee to the state from which he has been un"ustly remoed or separated without loss ofseniority rights and other priileges.

0. ACTUAL OR PHYSICAL REINSTATEMENT- the employee shall be admitted back to work

5. PAYROLL REINSTATEMENT- the employee is merely reinstated in the payroll.

KINDS OF EMPLOYMENT1. "/$E!A" /M*!-5M/6- one wherein an employee is engaged to perform actiities which are usually necessary ordesirable in the usual business or trade of the employer.

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2. #ASEA! /M*!-5M/6 K one wherein an employee is engaged to perform actiities which are not necessary ordesirable in the usual trade or business of the employer.

3. *"-'/#6 /M*!-5M/6


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0. SERIOUS INSULTby the employer or his representatie on the hour and person of the employeeC5. Inhuman and UNBEARABLE TREATMENTaccorded the employee by the employer or his representatieC1. $ommission of a CRIME OR OFFENSEby the employer or his representatie against the person of the employee

or any of the immediate members of his familyC and4. =ther causes ANALOGOUSto any of the foregoing.

DISMISSAL PRESENCE OF (UST/AUTHORIED CAUSE AND DUE PROCESS8our possible situations underAgabon vs. !"#, ove+ber 1%, 247

1. 0If dismissal is for a "ust(authorized cause and due process was obsered- dismissal is alid and employer will

not suffer any liability.2. 5If dismissal is without "ust(authorized cause but due process was obsered K dismissal is illegal! apply /rt 5G@regarding reinstatement and backwages.

3. 1If dismissal is without "ust(authorized cause and without due process- dismissal is illegal! apply /rt. 5G@regarding reinstatement and backwages.

4. 4 *ismissal is for "ust(authorized cause but due process was not obsered K *ismissal is alid. ?oweer!Sanctions must be imposed on the employer. Such sanctions! must be stiffer than that imposed in Cenpil.

/ 55.

EFFECTIVE DATE OF COVERAGE UNDER THE SSS0. E5973=: It shall take effect on the first day of his operation

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5. E59733: =n the day of his employment1. S3S =8 T?+ />9+* 8=>$+S /3*T?+ 232! sub"ect to the condition that they must settle first their financial obligations with the ,SIS and contractualswho hae no employer and employee relationship with the agencies they sere.

+H$+2T 8=> T?+ 9+9D+>S =8 T?+ JO /3* $=3STIT/ 5@0

CARL COVERAGE:>egardless of tenurial agreement and commodity produced! all public and priate agricultural lands as proided

in 2roc. 3o. 010 and += 55@! including other lands of the public domain suitable for agriculture.Specifically:0. /ll alienable and disposable lands of the public domain deoted to or suitable for agricultureC5. /ll lands of the public domain in e#cess to the specified limits as determined by $ongressC1. /ll lands owned by the ,oernment deoted to or suitable for agricultureC4. /ll priate lands deoted to or suitable for agriculture regardless of agricultural products raised or that can be

raised theron. Sec. 4! $/>)

DISTINCTIONS BETWEEN SHARE TENANCY AND LEASEHOLD TENANCY.In share tenancy! the tenant has physical possession of another%s land for the purpose of cultiating it! giing the

owner the share of the property! while in leasehold tenancy! the lessee pays the landowner a fi#ed rent for the use andcultiation of the land.

In share tenancy! the tenant has the option to shoulder any other items of production such as farm implements!while in leasehold tenancy! the lessee always shoulders all items of production e#cept the land.

In share tenancy! the tenant and landholder are co-managers of the farm holding! while in leasehold tenancy!the lessee is the sole manager.

In share tenancy! the tenant and the landholder diide the harest in proportion to their contributions. Inleasehold tenancy! the lessee gets the whole harestC he only has the mere obligation to pay the rental.

CHILD LABOR$hild laborers are persons aged !elow 1;! orfrom 1; to !elow 17 $e#rs! performing work or serice that is

hazardous or deleterious in nature! or e#ploitatie! or unsuperised by the child%s parent or guardian! or that interfereswith normal deelopment! or depries that child%s right to health and education.

?oweer! not all children who work are engaged in child labor. &ork performed by any person below 06 years of

age is not considered child labor if it falls under allowable situations under "epblic Act o. %&8. )ight work that isoccasional! legal and respects the child%s right to health and education is not child labor.

S93,;* T1*6" :A7. (. O">* B. L=36

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