⚖️⚖️ ART. XIII, SEC. 3, par.

1-2: Social Justice and

LABOR LAW & Human Rights
SOCIAL LEGISLATIONS The State shall:

Disclaimer: This Pre-week/LMT reviewer includes only a. Afford full protection to labor, local and overseas,
the most important topics to master, relevant Bar Chair's organized and unorganized
cases, and topics that have been previously and/or
frequently asked in past Bar exams. Please note that not b. Promote full employment and equality of employment
all topics under the 2024 syllabus are incorporated. opportunities for all.

This combined Pre-week/LMT encompasses information

accumulated over the past weeks. Should there be any
subsequent information or additional tips available after
the release of this Pre-week/LMT, an additional material
will be provided to you in a separate PDF file.

Without the illustrations, this Pre-week/LMT only

consists of 75 pages.
c. Guarantee the rights (also known as the “Cardinal
LEGEND Labor Rights”) of all workers to:

Asked in previous Bar Exam SeCoPeST-HuLiPa

a. Self-organization
Asked in previous Bar Exams b. Collective bargaining and negotiations
(More than once) c. Peaceful concerted activities
Tips d. Strike in accordance with law
e. Security of tenure,
✮ Justice MVL case
f. Humane conditions of work
g. A living wage;
I.FUNDAMENTAL PRINCIPLES AND CONCEPTS
h. To participate in policy and decision-making
processes affecting their rights and benefits as may
SOURCES OF LABOR LAWS be provided by law.
1. 1987 CONSTITUTION ART. III: Bill of Rights
ART. II: Declaration of Principles and State Policies a. Due Process (Section 1)

⚖️⚖️ The State shall: (WISER Full Enter) Note: Two-fold requirements for the lawful dismissal of an
employee by his employer (Twin Notice), is a statutory, not
a. Protect rights of workers and promote their welfare a Constitutional, requirement
[Sec. 18]
b. Provide incentives to needed investments [Sec. 20]
c. Promote social justice [Sec. 10]
d. Affirm labor as a primary social economic force [Sec.
18] b. Right to Assemble (Sec. 4)
e. Recognize the indispensable role of the private sector
[Sec. 20]
f. Promote full employment, a rising standard of living,
and an improved quality of life for all [Sec. 9]
g. Encourage private enterprise [Sec. 20.]

c. Right to Form Associations (Sec. 8)

Page | 1
 employers.

The State shall assure the rights of workers to:

SO-CoBa-SoT
d. Non-impairment of Contracts (Sec. 10)
A. Self-organization
B. Collective bargaining
C. Security of tenure

e. Just and humane conditions of work.

2. CIVIL CODE

Relations between labor and capital (Also known as B. ⚖️⚖️ Construction in favor of Labor (Art. 4)
the “Principle of Non-Oppression”)

C. Covered persons/Applicability (Art. 6)

GR: All workers

They are not merely contractual; they are impressed with XPN: The following are not covered by the LC:
public interest that labor contracts:
1. Corporate officers involved in intra-corporate disputes
1. Must yield to the common good under PD No. 902-A fall under the jurisdiction of
2. Are subject to special laws on Regular Courts in accordance with the Securities
a. Labor unions, Regulation Code (SRC).
b. Collective bargaining,
c. Strikes and lockouts, 2. Employees of GOCCs created by special or original
d. Closed shop, charter. Such employees are covered by the Civil
e. Wages, Service.
f. Working conditions,
g. Hours of labor; and 3. Local water districts
h. Similar subjects
Note: When NLRC jurisdiction is voluntarily invoked to
3. LABOR CODE secure affirmative relief, the party is estopped from
denying that very same jurisdiction.
A. ⚖️⚖️ Declaration of Basic Policy
4. (DOLE) ISSUANCES

It issues various issuances such as Department Orders

(DOs), Labor Advisory (LAs), and Memorandum Circulars
(MCs) that provide guidelines and regulations on labor
standards, occupational safety and health, and other
labor-related matters. These issuances are considered as
supplementary sources of labor law in the Philippines.

Article 3. The State shall: APER [SO-CoBa-SoT] Jus 5. JURISPRUDENCE

a. Afford protection to labor, Article 8, Civil Code. Judicial decisions applying or

b. Promote full employment, interpreting the laws or the Constitution shall form part of
c. Ensure equal work opportunities regardless of sex, the legal system of the Philippines.
race or creed, and
d. Regulate the relations between workers and
Page | 2
Various Jurisprudence on Labor Law: engaged in recruitment engaged in the
and placement of workers recruitment and
a. Validity of retrenchment and the computation of for a fee which is charged, placement of workers,
separation pay directly or indirectly, from locally or overseas,
b. Regularization of contractual employees the workers or employers without charging, directly
c. Validity of a company policy on early retirement or both or indirectly, any fee
d. Illegal dismissal and back wages
Requires a License Requires an Authority
e. An employment contract signed voluntarily and within
legal boundaries should be respected
REGULATORY AUTHORITIES

RECRUITMENT AND PLACEMENT OF WORKERS 1. Department of Migrant Workers (DMW)

The following agencies are consolidated into and
constituted as the DMW, which shall assume and perform
⚖️⚖️ "Recruitment and placement" refers to any
all their powers and functions:
act of canvassing, enlisting, transporting, contracting,
hiring, utilizing, or procuring (CETCHUP) workers, and
(a) The POEA
includes referrals, contract services, promising or
(b) The Office of the Undersecretary for Migrant
advertising for employment, locally or abroad, whether for
Workers’ Affairs (OUMWA) of the DFA
profit or not:
(c) All Philippine Overseas Labor Offices (POLO)
under the DOLE;
(d) The International Labor Affairs Bureau (ILAB)
under the DOLE;
(e) The National Reintegration Center for OFWs
(NRCO) under the OWWA;
(f) The National Maritime Polytechnic (NMP) under
the DOLE; and
Provided, That any person or entity which, in any manner, (g) The Office of the Social Welfare Attaché (OSWA)
offers or promises for a fee, employment to two or more under the DSWD.
persons shall be deemed engaged in recruitment and
placement. 2. Regulatory and Visitorial Powers of the Department
of Labor and Employment Secretary
“Worker” refers to any member of the labor force,
whether employed or unemployed ART. 33. Reports on Employment Status
"Seaman/seafarer" means any person employed in a Whenever the public interest requires, the Secretary of
vessel engaged in maritime navigation. Labor may direct all persons or entities within the
coverage of this Title to submit
"Overseas employment" means employment of a a report on the status of employment, including job
worker outside the Philippines. vacancies, details of job requisitions, separation from
jobs, wages, other terms and conditions and other
License v. Authority employment data.
License (LPEA) Authority (APRE)
Document issued by the Department of labor and ART. 36. Regulatory Power
Employment (DOLE)
Authorize an entity to Authorize an entity to The Secretary of Labor shall have the power to restrict
operate as a private operate as a private and regulate the recruitment and placement activities of
employment agency recruitment entity (PRE) all agencies within the coverage of this Title and is hereby
(PEA) authorized to issue orders and promulgate rules and
Authorizes PEA to collect PRE are not entitled to regulations to carry out the objectives and implement the
provisions of this Title
fees collect fees
ART. 37. Visitorial Power
Private employment agency (PEA) v. Private
recruitment Entity (PRE)
The Secretary of Labor or his duly authorized
PEA PRE representatives may, at any time, inspect the premises,
Any person or entity Any person or association books of accounts and records of any person or entity
Page | 3
covered by this Title, require it to submit reports regularly
on prescribed forms, and act on violation of any provisions 6. Law enforcers and any official and employee of the
of this Title. Department of Labor and Employment (DOLE).

REGULATION OF RECRUITMENT AND PLACEMENT 7. Sole proprietors of duly licensed agencies are
ACTIVITIES prohibited from securing another license to engage in
recruitment and placement
A. ⚖️⚖️ BAN ON DIRECT HIRING; EXCEPTIONS -
LABOR CODE, ART. 18 8. Sole proprietors, partnerships or corporations licensed
to engage in private recruitment and placement for local
employment are prohibited from engaging in job
contracting or subcontracting activities.

GR: No employer may hire a Filipino worker for overseas R.A. No. 8042, as amended by R.A. No. 10022, sec. 6
employment except through the Boards and entities (j);
authorized by the Secretary of Labor.
Special disqualification
XPNs: An officer or agent of a recruitment or placement agency
to become an officer or member of the Board of any
1. Members of the diplomatic corps corporation engaged in travel agency is disqualified to
2. International organizations engaged directly or indirectly in the management of travel
3. Heads of state and government officials with the rank agency;xxx
of at least deputy minister
4. Other employers as may be allowed by the Secretary Land-based Overseas Employment:
of Labor and Employment, such as:
a. Those provided in (1), (2), and (3) who bear a lesser
rank, if endorsed by the Philippine Overseas Labor
Office (POLO) or Head of Mission in the absence of the
POLO;
b. Professionals and skilled workers with duly a. Travel agencies and sales agencies of airline
executed/authenticated contracts containing terms companies;
and conditions over and above the standards set by b. Officers or members of the Board of any corporation or
the POEA. The number of professional and skilled partners in a partnership engaged
in the business of a travel agency;
B. ENTITIES AND PERSONS PROHIBITED FROM c. Corporations and partnerships, where any of its
RECRUITING officers, members of the board or partners is Also an
officer, member of the board or partner of a corporation or
For local employment: partnership engaged in the business of a travel agency;
d. Individuals, partners, officers or directors of an
1. Travel agencies and sales agencies of airline insurance company who make, propose or provide an
companies, whether for profit or not. [Art. 26] insurance contract under the compulsory insurance
coverage for agency-hired
2. Those who are convicted of illegal recruitment, Overseas Filipino Workers;
trafficking in persons, anti-child labor violation, or crimes e. Sole proprietors, partners or officers and members of
involving moral turpitude; the board with derogatory records,
such as, but not limited to the following:
3. Those against whom probable cause or prima facie
finding of guilt for illegal recruitment or other related cases 1. Those convicted, or against whom probable
exist particularly to owners or directors of agencies who cause or prima facie finding of guilt is determined
have committed illegal recruitment or other related cases. by a competent authority, for illegal recruitment, or
for other related crimes or offenses committed in
4. Those agencies whose licenses have been previously the course of, related to, or resulting from, illegal
revoked or cancelled by the Department under Sec. 54 of recruitment, or for crimes involving moral
these rules. turpitude;

5. Cooperatives whether registered or not under the 2. Those agencies whose licenses have been
Cooperative Act of the Philippines.
Page | 4
 revoked for violation of RA 8042 (Migrant Workers Who can suspend or cancel the license?
and Overseas Filipinos Act of 1995), as amended,
PD 442 (Labor Code of the Philippines), as
amended, and RA 9208 (Trafficking in Persons
Act of 2003), as amended, and their implementing
rules and regulations;
1. DOLE Secretary
3. Those agencies whose licenses have been 2. POEA Administrator (Now DMW Secretary)
cancelled, or those who, pursuant to the Order of
the Administrator, were included in the list of
persons with derogatory record for violation of E. PROHIBITED PRACTICES
recruitment laws and regulations; and
It shall likewise include the following prohibited acts
f. Any official or employee of the DOLE, POEA, OWWA, committed by any person whether or not a licensee or a
DFA, DOJ, DOH, BI, IC, NLRC, TESDA, CFO, NBI, PNP, holder of authority:
Civil Aviation Authority of the Philippines (CAAP), a. To charge or accept directly or indirectly any amount
international airport authorities, and other government greater than that specified in the schedule of allowable
agencies directly involved in the implementation of RA fees prescribed by the Secretary or to make a worker pay
8042, as amended, and/or any of his/her relatives within the recruiter or its agents or acknowledge any amount
the fourth civil degree of consanguinity or affinity. greater than that actually loaned or advanced to him;

b. To furnish or publish any false notice or information or

document in relation to recruitment or employment;
C. NON-TRANSFERABILITY OF LICENSE OR
AUTHORITY - LABOR CODE, ART. 29 c. To give any false notice, testimony, information or
document or commit any act of misrepresentation for the
No license or authority shall be used directly or indirectly purpose of securing a license or authority under the Labor
by any person other than the one in whose favor it was Code;
issued or at any place other than that stated in the license
or authority be transferred, conveyed or assigned to any d. To give any false notice, testimony, information or
other person or entity. document or commit any act of misrepresentation for the
purpose of documenting hired workers with the POEA,
Any transfer of business address, appointment or which include the act of reprocessing workers through a
designation of any agent or representative including the job order that pertains to non-existent work, work different
establishment of additional offices anywhere shall be from the actual overseas work, or work with a different
subject to the prior approval of the Department of Labor. employer whether registered or not with the POEA;

e. To induce or attempt to induce a worker already

D. ⚖️⚖️ SUSPENSION OR CANCELLATION OF
employed to quit his/her employment in
LICENSE OR AUTHORITY - LABOR CODE, ART. 35;
order to offer him another unless the transfer is designed
to liberate a worker from oppressive terms and conditions
The Secretary of Labor shall have the power to suspend of employment;
or cancel any license or authority to recruit employees for
overseas employment for:
f. To influence or attempt to influence any person or entity
not to employ any worker who has not applied for
a. violation of rules and regulations issued by the employment through his/her agency or who has formed,
Department of Labor, the Overseas Employment joined or supported, or has contacted or is supported by
Development Board, and the National Seamen Board any union or workers’ organization;
b. violation of the provisions of this and other applicable g. To engage in the recruitment or placement of workers
laws, General Orders and Letters of Instructions. [Art. 35] in jobs harmful to public health or morality or to the dignity
Acts prohibited under Art. 34 are grounds for suspension of the Republic of the Philippines as may be prohibited by
or cancellation of license. law or
duly constituted authority;
Note that these acts likewise constitute illegal recruitment
under RA 8042 as amended by h. To obstruct or attempt to obstruct inspection by the
RA 10022. Secretary or by his/her duly authorized representative;

Page | 5
 designated medical clinics, institutions, entities or
i. To fail to submit reports on the status of employment, persons, except in the case of a worker whose medical
placement vacancies, remittance of foreign exchange examination cost is shouldered by the principal;
earnings, separation from jobs, departures and such other
matters or information as may be required by the t. To impose a compulsory and exclusive arrangement
Secretary under penalty of law; whereby an Overseas Filipino Worker is required to
undergo training, seminar, instruction or schooling of any
j. To substitute or alter to the prejudice of the worker, kind only from specifically designated institutions, entities
employment contract approved and verified by the DOLE or persons, except for recommendatory trainings
from the time of actual signing thereof by the parties up to mandated by principals where the latter shoulder the cost
and including the period of the expiration of the same of such trainings;
without the approval of the DOLE;
u. For a suspended recruitment agency to engage in any
k. For an officer or agent of a recruitment or placement kind of recruitment activity including the processing of
agency to become an officer or member of the Board of pending workers’ applications; and
any corporation engaged in travel agency or insurance
agency or to be engaged directly or indirectly in the v. For a recruitment agency or a foreign
management of a travel agency or insurance agency; principal/employer to pass on to the Overseas Filipino
Worker or deduct from his/her salary the payment of the
l. To withhold or deny travel documents from applicant cost of insurance fees, premium
workers before departure for monetary or other insurance related charges, as provided under the
or financial considerations, or for any other reasons, other compulsory worker’s insurance Coverage.
than those authorized under the Labor Code and its
implementing rules and regulations; F. ⚖️⚖️ ILLEGAL RECRUITMENT

m. To fail to actually deploy a contracted worker without Illegal Recruitment of Migrant Workers
valid reason as determined by the DOLE;
Profit Immaterial
n. To fail to reimburse expenses incurred by the worker in
connection with his/her documentation and processing for Recruitment may be for profit or not. It is the lack of the
purposes of deployment, in cases where the deployment necessary license or authority, and not the fact of payment
does not actually take place without the worker's fault; that renders recruitment illegal.

o. To allow a non-Filipino citizen to head or manage a Elements and Types

recruitment agency;
Simple Illegal Recruitment
p. To arrange, facilitate or grant a loan to an Overseas
Filipino Worker with interest exceeding eight percent (8%) 1. Licensed or 1. Licensee/Holder of authority
per annum, which will be used for payment of legal and Authorized 2. Undertakes prohibited practices
allowable placement fees and make the migrant worker
issue, either personally or through a guarantor or 2.Unlicensed 1. Non-licensee/-holder of authority
accommodation party, postdated checks in relation to the or Unauthorized 2. Undertakes either:
said loan; a. Recruitment and placement
b. Prohibited practices/activities
q. To impose a compulsory and exclusive arrangement
whereby an Overseas Filipino Worker is required to avail Economic Sabotage
of a loan only from specifically designated institutions,
entities or persons; 3. In a large 1.Undertakes either:
scale a. Recruitment and placement
r. To refuse to condone or renegotiate a loan incurred by b. Prohibited practices/activities
an Overseas Filipino Worker after the latter’s employment
contract has been prematurely terminated through no fault 2. No valid license or an authority to
of his/her own; recruit and deploy workers, either
locally or overseas
s. To impose a compulsory and exclusive arrangement
whereby an Overseas Filipino Worker is required to 3. Committed against 3 or more
undergo health examinations only from specifically
Page | 6
 persons individually or as a group ⚖️⚖️ Illegal recruitment vs. Estafa

4. By a 1. Undertakes either:
syndicate a. recruitment and placement
b. Any of the prohibited practices

2. No valid license or authority to

recruit and deploy workers, either
locally or overseas
A person who commits illegal recruitment may be charged
3. Committed by a group of 3 or more
and convicted separately of illegal recruitment under the
persons conspiring and
Labor Code and estafa under Art. 315(2a), RPC.
confederating with one another
The offense of illegal recruitment is malum prohibitum
Illegal recruitment by a Syndicate where the criminal intent of the accused is not necessary
for conviction, while estafa is malum in se where the
criminal intent of the accused is crucial for conviction.
Conviction for offenses under the LC does not bar
conviction for offenses punishable by other laws.
Illegal recruitment is deemed committed by a syndicate if
carried out by a group of three (3) or more persons Conversely, conviction for estafa does not bar a conviction
conspiring and/or confederating with one another in for illegal recruitment. One's acquittal of the crime of
carrying out any unlawful or illegal transaction, enterprise estafa will not necessarily result in his acquittal of the
or scheme crime of illegal recruitment in large scale, and vice versa.

Large Scale Illegal Recruitment G. SOLIDARY LIABILITY OF LOCAL

RECRUITMENT AGENCY AND FOREIGN EMPLOYER

In case of a final and executory judgment against a foreign

employer/principal, it shall be automatically
disqualified, without further proceedings, from
Illegal recruitment is deemed committed in large scale if participating from recruiting and hiring Filipino workers
committed against three (3) or more persons until and unless it fully satisfies the judgment award.
individually or as a group.
Theory of Imputed Knowledge
Power of The SOLE or duly authorized representative
in Illegal Recruitment Cases

a. Cause the arrest and detention of such non-licensee or

non-holder of authority if after investigation it is
determined that his activities constitute a danger to
national security and public order or will lead to further
This is a doctrine in agency stating that the principal is
exploitation of job-seekers.
chargeable with and bound by the knowledge of or notice
to his agent received while the agent was acting as such.
b. Order the search of the office or premises and seizure
of documents, paraphernalia, properties and other
Notice to the agent is notice to the principal
implements used in illegal recruitment activities and
the closure of companies, establishments and entities
found to be engaged in the recruitment of workers for
overseas employment, without having been licensed or A local employment agency is considered the agent of the
authorized to do so. foreign employer, the principal. Knowledge of the former
of existing labor and social legislation in the Philippines in
binding on the latter. Notice to the former of any violation
thereof is notice to the latter.

However, notice to the principal is NOT notice to the

Page | 7
agent. Notice to the foreign employer, therefore, is not employment abroad;
notice to the local employment agency. 4. Foreign national who comes to the Philippines to
teach, present and/or conduct research studies in
H. TERMINATION OF CONTRACT OF MIGRANT universities and colleges as visiting, exchange or
WORKERS adjunct Professors under formal agreements between
the universities or colleges in the Philippines and
Trigger - In case of: foreign universities or colleges; or between the
Philippine government and foreign government:
a. Termination of overseas employment without just, provided that the exemption is on a reciprocal basis;
valid, or authorized cause as defined by law or contract, 5. Permanent Resident foreign nationals, probationary or
or temporary resident visa holders;
b. Any unauthorized deductions from the migrant worker’s 6. Refugees and stateless persons recognized by DOJ;
salary. and
7. All foreign nationals granted exemption by Law.
Effect: The worker shall be entitled to full reimbursement
of: Who are EXCLUDED from securing an Alien
Employment Permit
a. His placement fee and the deductions made with
interest at twelve percent (12%) per annum; AND 1. Members of the governing Board with voting rights only
b. His salaries for the unexpired portion of his employment and do not intervene in the management of the
contract (*or for three (3) months for every year of the corporation or in the day to day operation of the
unexpired term, whichever is less) enterprise.
2. President and Treasurer, who are part-owner of the
B. ⚖️ Employment of Non-Resident Aliens company.
3. Those providing Consultancy services who do not have
Who should apply for an Alien Employment Permit employers in the Philippines.
4. Intra corporate transferee who is a Manager, Executive
or Specialist
5. Contractual service supplier who is a Manager,
Executive, or Specialist
6. Representative of the Foreign Principal/Employer
assigned in the Office of Licensed Manning Agency
(OLMA) in accordance with the POEA law, rules and
regulations.

a. Any (non-resident) alien seeking admission to the

Philippines for employment purposes, and Requisites for exclusion
b. Any domestic or foreign employer who desires to
engage an alien for employment in the Philippines. Must be an Executive, Manager, or Specialist
Executive: primarily directs the management of the
Note: An alien cannot file a labor complaint without having organization and exercises wide latitude in decision
obtained an employment permit. making and receives only general supervision or direction
from higher level executives, the board of directors, or
Who are EXEMPTED from securing an Alien stockholders of the business; an executive would not
Employment Permit directly perform tasks related to the actual provision of the
service or services of the organization.
1. All members of the Diplomatic service and foreign
government Officials accredited by and with reciprocity
arrangement with the Philippine government;
2. Officers and staff of International organizations of
which the Philippine government is a member, and
their legitimate Spouses desiring to work in the
Philippines;
3. Owners and representatives of foreign principals
whose companies are accredited by the POEA, who
come to the Philippines for a limited period and solely
for the purpose of Interviewing Filipino applicants for
Page | 8
III.⚖️⚖️ EMPLOYER-EMPLOYEE RELATIONSHIP 3. the nature and degree of control exercised by the
employer;
A. ER-EE RELATIONSHIP 4. the worker's opportunity for profit and loss;
5. the amount of initiative, skill, judgment or foresight
1. TESTS TO DETERMINE EMPLOYER-EMPLOYEE required for the success of the claimed independent
RELATIONSHIP enterprise;
6. the permanency and duration of the relationship
A. Four-Fold Test between the worker and the employer; and
7. the degree of dependency of the worker upon the
Requisites: employer for his continued employment in that line of
business.

Economic Dependence

a. the selection and engagement of the employee; b. the

payment of wages;
c. the power of dismissal; and The proper standard of economic dependence is whether
d. the power to control the employee's conduct. the worker is dependent on the alleged employer for
his continued employment in that line of business.
Control Test (Most Important Test)
The benchmark of economic reality in analyzing possible
employment relationships for purposes of the Labor Code
ought to be the economic dependence of the worker on
his employer.

C. Two-Tiered Test

It involves:
Under the "control test," the employer is the person who 1. the putative employer's power to control the employee
has the power to control both the end achieved by his or with respect to the means and methods by which the
her employees, and the manner and means they use to work is to be accomplished; and
achieve that end.
2. the underlying economic realities of the activity or
relationship.
The Control Test refers merely to the existence of the
power and not to the actual exercise thereof. It is not This two-tiered test takes into consideration the totality of
essential for the employer to actually supervise the circumstances surrounding the true nature of the
performance of duties of the employee; it is enough that relationship between the parties.
the former has a right to wield the power. As such, proof
of the existence of such power is enough. This is appropriate in cases where there is no written
agreement or terms of reference to base the
B. Whole Economic Activity Test relationship on and due to the complexity of the
relationship based on the various positions and
The determination of the relationship between employer responsibilities given to the worker over the period of the
and employee depends upon the circumstances of the latter’s employment.
whole economic activity, such as:
In 2017, the petitioners (Lazada riders) discovered that
1. the extent to which the services performed are an
they had been removed from their usual routes and would
integral part of the employer's business;
no longer be assigned any schedules. This prompted
2. the extent of the worker's investment in equipment and
them to file a complaint against Lazada before the NLRC
facilities;
for illegal dismissal.
Page | 9
 Wyeth's business, which is developing and
The High Court applied a two-tiered test to determine manufacturing of milk products.
whether an employer-employee relationship existed
between Lazada and the petitioners: the four-fold test and 2 Categories of Regular Employees
the economic-dependence test.
First Category Second Category
When the control test is insufficient, the economic realities
Those who are engaged Those who have rendered
of the employment are considered to get a comprehensive
to perform activities which at least one year of service,
assessment of the classification of the worker and
are usually necessary or whether continuous or
determine if the employee is dependent on the employer
desirable in the usual broken, with respect to the
for his continued employment in that line of business.
business or trade of the activity in which they are
employer. employed.
In the case of the petitioners, the Court found that all
four factors in the four-fold test were present.
Test of Regularity
First, petitioners were directly employed by Lazada as
Nature of work Nature of Service
evidenced by the Contracts they signed.
When the employee has When the employee is
Second, as indicated in the Contract, they received their
been engaged to perform allowed to work beyond the
salaries from Lazada which paid each of them the amount
activities which are usually agreed period of
of P1,200.00 for each day of service.
necessary or desirable in probationary, project,
Third, Lazada had the power to dismiss the petitioners. In
the usual business or seasonal, casual, or fixed-
their contract, Lazada could immediately terminate the
trade of the employer.. term employment,
agreement if there was a breach of material provisions of
irrespective of whether it is
the Contract. just one day or more after
the lapse of such period.
Finally, Lazada had control over the means and methods
of the performance of the work of the petitioners, as
reflected in the way they carried out their work. Lazada b. Casual
required the accomplishment of a route sheet which kept
track of the arrival, departure, and unloading time of the
items.

2. ⚖️⚖️ KINDS OF EMPLOYMENT

a. Regular One engaged to perform a job, work or service that is

merely incidental to the business of the employer, and
Regular employees refer to those who have been such job, work or service is for a definite period made
engaged to perform activities which are usually known to the employee at the time of engagement.
necessary or desirable in the usual business or trade
of the employer BUT! Any employee who has rendered at least one (1)
year of service, whether such service is continuous or
broken, shall be considered a regular employee with
respect to the activity in which he is employed and his
employment shall continue while such activity exists.

Nature of work determines kind of employment

When not considered as “Necessary and Desirable in
the Usual Business or Trade”
What determines regularity or casualness is not the
To illustrate:
employment contract but the nature of the job. If the
job is usually necessary or desirable to the main business
AIMKO's janitorial/sanitation services cannot be deemed of the employer, then employment is regular
as necessary to Wyeth's business. It is a fact that all
businesses engaged in manufacturing would require their
c. Probationary
premises to be clean as this is only good manufacturing
practice. However, it does not make the
A probationary employee is one "who for a given period
janitorial/sanitation services essential elements of
of time (trial period), is being observed and evaluated to
Page | 10
determine whether or not he is qualified for permanent Other XPNs based on Jurisprudence
employment."
1. The nature of work requires a longer period (eg. part-
Probationary employment must have been expressly time faculty of educational institutions);
agreed upon; otherwise, the employment is considered
regular 2. A longer period is required and established by company
policy
Security of Tenure of Probationary Employees
3. Covered by an Apprenticeship or Learnership
Although probationary employees enjoy security of agreement stipulating a different period
tenure, they do not enjoy permanent status and thus may
be terminated on two grounds: 4. Voluntary agreement of parties;

1. Just cause; and 5. When the same is required by the nature of the work,
2. Failure to qualify as a regular employee in accordance e.g. the probationary period set for professors, instructors
with reasonable standards prescribed by the employer. and teachers is 3 consecutive years of satisfactory service
pursuant to DOLE Manual of Regulations for Private
Probationary employee may be dismissed before the end Schools.
of the probationary period. Termination, to be valid, must
be done before the lapse of the probationary period. Due d. Project
process should also be complied with.
One who is hired for carrying out a separate job, distinct
6 months Probationary Period from the other undertakings of the company, the scope
and duration of which has been determined and made
known to the employees at the time of employment.

Note: Absence of a definite duration of the project, the

employee is deemed to be regular
As a general rule, probationary employment shall not
exceed 6 months from the date the employee started Continuous rehiring of a project employee
working

The 6-month probationary period is reckoned from the

date of appointment up to the same calendar date of the Continuous rehiring of the employee may serve as a
6th month following. badge of regular employment when the activities
performed by the purported “project” employee are
To illustrate: necessary and indispensable to the usual business or
trade of the employer
Petitioner was hired on July 16, 2024 for a six-month
probationary contract; thus, her probation should last until Once a project or work-pool employee who has been:
January 16, 2025, the same calendar date of the 6th
month following July 16, 2024. (1) continuously, as opposed to intermittently, re-hired by
the same employer for the same tasks or nature of tasks;
When Probationary Employee Becomes a Regular and
Employee (Renewal of Contract)
(2) these tasks are vital, necessary and indispensable to
GR: When an employer renews a contract of employment the usual business or trade of the employer
after the lapse of the six-month probationary period, the
employee thereby becomes a regular employee. Then the employee must be deemed a regular
employee.
No employer is allowed to determine indefinitely the
fitness of its employees. Two (2) Types of Project Activities

XPN: Valid extension of the 6-month period after proper First Type Second Type
evaluation or a second chance to pass the standards of
the company. A particular job or A particular job or
undertaking that is within undertaking not within the
Page | 11
 temporarily laid off during off-season are not separated
the regular or usual regular business of the
from service in said period, but are merely considered on
business of the employer corporation, such a job or
leave until work resumes.
company, but which is undertaking must also be
distinct and separate, and identifiably separate and
They are considered regular and permanent employees.
identifiable as such, from distinct from the ordinary
The nature of their relationship is such that during off-
the other undertaking of the or regular business
season they are temporarily laid off but during summer
company; operations of the
season they are re-employed, or when their services may
employer.
be needed.
Coterminous
GR: To be considered seasonal employees, it is not
The services of project employees are coterminous with enough that work or services performed are seasonal in
the project and may be terminated upon the end or nature. The employees must have been employed only for
completion of that project for which they were hired. the duration of one season.

Other Indicators of Project Employment XPN: Although respondent constantly availed herself of
the petitioners’ services from year to year, it was clear
A. The duration of the specific/identified undertaking for from the facts therein that they were not in her regular
which the worker is engaged is reasonably determinable; employees. Petitioners therein performed different
phases of agricultural work in a given year. However,
B. Such duration, as well as the specific work/service to during that period, they were free to work for other farm
be performed, is defined in an employment agreement owners, and in fact they did.
and is made clear to the employee at the time of hiring;
In other words, they worked for respondent, but were
C. The work/service performed by the employee is in nevertheless free to contract their services with other farm
connection with the particular project/undertaking for owners. The Court was thus emphatic when it ruled that
which he is engaged; petitioners were mere project employees, who could be
hired by other farm owners.
D. The employee, while not employed and awaiting
engagement, is free to offer his service to any other f. Fixed-Term
employer;

E. The termination of his employment in the particular

project/undertaking is reported to the DOLE Regional A type of employment "embodied in a contract specifying
office having jurisdiction over the workplace within 30 that the services of the employee shall be engaged only
days following the date of his separation from work, for a definite period, the termination of which occurs
using the prescribed form on employees’ terminations. upon the expiration of said period irrespective of the
existence of just cause and regardless of the activity
Rationale: Prevent double or successive probation to the employee is called upon to perform."
circumvent the mandate of the law on regularization and
make it easier for them to dismiss their employees. Determining Factors of Fixed Term and Project
Employee
e. Seasonal
Fixed Term Project Employee

The determining factor is The determining factor is

the day certain agreed upon the activity to be
Seasonal employees or those who work or perform performed.
services which are seasonal in nature, and the
employment is for the duration of the season. Fixed Term v. Independent Contractor
Constant Rehiring Fixed Term Independent Contractor

Employees under fixed term No employer-employee

contracts cannot be exists between
independent contractors independent contractors
because in fixed-term and their principals; their
Seasonal workers who are constantly rehired and are only
Page | 12
 months.
contracts, an employer- contracts are governed by
employee relationship the law on contracts and
When the floating status lasts for more than six months,
exists other applicable law.
the employee may be considered to have been
constructively dismissed
Regular fixed-term employee
b. Employment Subject to a Suspensive Condition
Continuous renewal of an employee's contract without
interruption, maintaining the same position and duties, It refers to a type of employment arrangement where the
qualifies them as a regular employee, regardless of a effectiveness of the employment contract depends on the
fixed-term designation. The law allows regular employees occurrence of a specific condition. The employment
to have fixed-term contracts if freely negotiated by both relationship is suspended until the condition is met or
parties or requested by the employee for valid reasons fulfilled. If the condition is not satisfied, the employment
does not take effect.
No implied renewal
To illustrate:

If an employer's business operations are suspended for a

period not exceeding six months, the employment
Upon reaching the specified termination date, there's no relationship is deemed suspended. During this
implied renewal or extension of employment. This must suspension, the employee is not considered terminated,
be explicitly agreed upon by both parties and they are entitled to reinstatement once the employer
resumes operations within the six-month period.

3. RELATED CONCEPTS
B. ⚖️⚖️ LEGITIMATE CONTRACTING VS.
⚖️⚖️ a. Floating Status LABOR-ONLY CONTRACTING

1. Legitimate Subcontracting (LS)

Elements

a. Distinct and independent business

Temporary “off-detail” or “floating status” is the period of

time when security guards are in between assignments
or when they are made to wait after being relieved from Contractor or subcontractor is engaged in a distinct and
a previous post until they are transferred to a new one. independent business and undertakes to perform the
job on its own responsibility, according to its own
“Floating status” occurs when a security agency's manner and method;
clients choose not to renew contracts, leaving fewer b. Substantial capital or investment
available positions than guards on the roster. It also
happens when contracts allow clients to request guard Contractor or subcontractor has substantial capital to
replacements without cause, leading to guards being carry out the job farmed out by the principal on his
placed on temporary "off-detail" if no posts are available. account, manner and method, investment in the form of
tools, equipment, machinery, premises, and
Guards in this situation do not receive salary or financial supervision (TEMPS);
assistance mandated by law. It's not considered
dismissal, as assignments depend on agency contracts
with third parties, provided it doesn't persist unreasonably

Floating Status should not be more than 6 months c. Free from control/direction of the principal

A security guard may be placed on "floating status" or In performing the work, contractor or subcontractor is free
"temporary off-detail" based on a valid exercise of from the control/direction of the principal in all matters
management prerogative for a period of no more than six regarding performance of the work except the result;

Page | 13
 ⚖️⚖️ There are three parties involved
d.Compliance with labor laws
Principal Contractor Contractor’s
Service Agreement ensures that employees of the Employee
contractor/subcontractor are given all the benefits and
rights they are entitled to under labor laws Any natural or Any person or entity Employee of
juridical entity, engaged in a the contractor
whether an legitimate hired to
employer or not, contracting or perform or
2. Labor Only Contracting (LOC)
who puts out or subcontracting complete a
farms out a job arrangement job or work
Elements
or work to a providing services farmed out by
contractor. for a specific job the principal.
or undertaking
farmed out by a
a. The contractor or subcontractor does not have principal under a
substantial capital, OR the contractor or subcontractor Service Agreement.
does not have investments in the form of tools,
equipment, machineries, work premises, supervision
(TEMPS), among others, AND Solidary liability of principal and contractor (Master
this)
b. The contractor's or subcontractor's employees
recruited and placed are performing activities which are
directly related to the main business operation of the
principal;

c. The contractor or subcontractor does not exercise the

right to control over the performance of the work of
the employee Every employer or indirect employer shall be held
responsible with his contractor for any violations of
labor laws. For purposes of determining the extent of
their civil liability, they shall be considered as direct
employers
Presumption of Labor-Only Contracting GR: An employer who enters into a contract with a
contractor for the performance of work for the employer,
Failure to register with the Regional Office of the does not thereby create an employer-employee
Department of Labor and Employment shall give rise to relationship between himself and the employees of the
the presumption that the contractor is engaged in labor- contractor.
only contracting
XPNs:
Trilateral Relationship (Master this)
Exceptions Effect

If the contractor fails to pay The employer who

“Trilateral relationship” refers to the relationship in a the wages of his employees contracted out the job to
contracting arrangement where there is the contractor becomes
jointly and severally
(1) A Service Contract for a specific job, work or service liable with his
between the principal and the contractor and contractor to the
(2) An employment contract between the contractor and employees of the latter
its employees. "to the extent of the work
performed under the
contract".

If there is labor-only The person or

Page | 14
 contracting intermediary is direction of the principal
considered "merely as in all matters connected
an agent of the with the performance of
employer", and the ER the work except as to the
himself is made by the results thereof
statute responsible to
the employees of the The employees recruited, The contractor or
"labor-only" contractor supplied or placed by such subcontractor carries on a
as if such employees contractor or subcontractor distinct and
had been directly are performing activities independent business.
employed by the which are directly related
employer. to the main business of
the principal.
Employer-employee relationship – deemed
established In labor-only contracting, the statute creates an employer-
employee relationship for a comprehensive purpose: to
The law itself establishes an employer-employee prevent a circumvention of labor laws. The contractor is
relationship between the employer and the job considered merely an agent of the principal employer and
contractor's employees to prevent any violation or the latter is responsible to the employees of the labor-only
circumvention of the Labor Code contractor as if such employees had been directly
employed by the principal employer. The principal
Labor Only Contracting (LOC) v. Legitimate employer therefore becomes solidarity liable with the
Subcontracting (LS) labor-only contractor for all the rightful claims of the
employees. With the finding that CBMI is a labor-only
LABOR-ONLY LEGITIMATE contractor, it is considered as a mere agent of PPI, which
CONTRACTING SUBCONTRACTING
in turn is deemed to be Conjusta l s employer (★G.r. No.
252720, August 22, 2022, as penned by Justice MVL).
It refers to a situation It refers to a situation
whereby the contractor or whereby a principal
Previous declarations that a company is an independent
subcontractor merely agrees to put out or farm
recruits, supplies or places out with a contractor or job contractor cannot validly be the basis in concluding its
workers to perform a job, subcontractor the status as such in another case involving a different
work or service for a performance or employee. The totality of the facts and surrounding
principal. completion of a specific circumstances, distinct in every case, must be assessed
job, work or service within in determining whether an entity is a legitimate job
a definite or contractor or a labor-only contractor (★G.r. No. 252720,
predetermined period, August 22, 2022, as penned by Justice MVL).’
regardless of whether
such job, work or service is Not all forms of contracting are prohibited. Contracting or
to be performed or subcontracting shall be legitimate if the contractor has
completed within or substantial capital and/or investment, among other things.
outside the premises of Furthermore, regular employees may only be terminated
the principal. for just or authorized cause. In distinguishing between
permissible job contracting and prohibited labor-only
It is considered as a It is considered as a contracting, the totality of the facts and the surrounding
prohibited arrangement. permissible circumstances of the case are to be considered (★G.r.
arrangement. No. 238289, January 20, 2021, as penned by Justice
MVL).
The contractor does NOT The contractor undertakes
exercise the right to control to perform the job, work or
over the performance of the service on its own
work of the contractual account and under its
employee. own responsibility
according to its own
manner and method, and
free from the control and IV. LABOR STANDARDS

Page | 15
 are employed or of a department or subdivision
A. Conditions of Employment thereof and to other officers or members of the
managerial staff. (Art. 82)
a. Coverage
2. One who is vested with the powers or
GR: Working Conditions and Rest Periods shall apply to prerogatives to lay down and execute
employees in all establishments and undertakings management policies and/or to hire, transfer,
whether for profit or not [Art. 82]. suspend, lay off, recall, discharge, assign or
discipline employees (Art. 219m).
Note: Article 82 applies to the whole of Title I. This
includes Service Incentive Leaves, which will be Characteristics of managerial employees
discussed in a separate section. (Sec. 2(b), Rule I, Book III, IRR)

⚖️⚖️ XPNs( those NOT covered by Title I): Managerial employees are exempted from the
coverage of Book III Articles 83 through 96 if they meet all
of the following conditions:

1. Their primary duty consists of the management of

the establishment in which they are employed or of a
department or subdivision thereof.

2. They customarily and regularly direct the work of two

or more employees therein.

1. Government employees (Art. 82; Art. 76) (XPN to XPN: 3. They have the authority to hire or fire employees of
Employees of GOCCs created under the Corporation lower rank; or their suggestions and
Code) recommendations as to hiring and firing and as to the
promotion or any other change of status of other
2. Managerial Employees (Art. 82) employees, are given particular weight.
3. Members of the managerial staff (Art. 82)
4. Field Personnel (Art. 82) Note: Managerial employees and managerial staff are
determined by their job description and not their job title
5. Domestic workers or kasambahay (Art. 141, RA 10361)
(XPN to XPN: Assignment in a Commercial, Industrial or 3. Members of the Managerial Staff (Supervisory
Agricultural Enterprise) Employees)

6. Members of the family of the employer who are Supervisory employees are those who, in the interest of
Dependent on him for Support (Art. 82); the employer, effectively recommend such managerial
actions if the exercise of such authority is not merely
7. Persons in the personal Service of another routinary or clerical in nature but requires the use of
independent judgment [Art. 219(m)].
8. Workers who are paid by Result as determined by
DOLE regulation (Art. 82). Managerial Staff is included as they are considered
managerial employees as well . Officers or members of a
1. Government Employees and GOCC employees managerial staff are also exempted if they perform the
Governed by Civil Service Rules. following duties and responsibilities:

XPN to the XPN: If the GOCC is created by the General 1. Their primary duty consists of the performance of work
Corporation Law, then the Labor Code applies. directly related to management policies of their employer;
2. Customarily and regularly exercise discretion and
2. Managerial Employees independent judgment;
3. Any of the following:
Two definitions of “managerial employee” in the Labor i. Regularly and directly assist a proprietor or a
Code: managerial employee whose primary duty consists of
the management of the establishment in which he is
1. One whose primary duty consists of the employed or subdivision thereof; OR
management of the establishment in which they ii. Execute under general supervision work along
Page | 16
 specialized or technical lines requiring special training, The definition of “Kasambahay” excludes:
experience, or knowledge; OR
iii. Execute, under general supervision, special 1. Any person who performs domestic work only
assignments and tasks; occasionally or sporadically and not on an occupational
4. Do not devote more than 20% of their hours worked in basis.
a work week to activities which are not directly and closely 2. Children who are under foster family arrangement, and
related to the performance of are provided access to education and given an allowance
the work described in paragraphs (1), (2) and (3) above. incidental to education
3. Service providers,
4. Field Personnel 4. Family drivers.

Field personnel are non-agricultural employees: Exclusivity of function required

1. Who regularly perform their duties away from the Note that the definition contemplates a domestic helper
principal or place ofbusiness or branch office of the who is employed in the employer’s home to minister
employer; and exclusively to the personal comfort and enjoyment of the
employer’s family.
2. Whose actual hours of work in the field cannot be
determined with reasonable certainty. [Art. 82] ⚖️⚖️ The following personnel are NOT domestic
employees:
Legal Test: Control & Supervision of employer

- If actual hours of work in the field can be determined with

reasonable certainty by the employer, that is, whether or
not the employee’s time and performance are constantly
supervised by the employer

-Sample: fishermen who, though they perform 1. House-help or laundry-women working in staffhouses
nonagricultural work away from petitioner’s business of a company, as well as drivers, houseboys, or gardeners
offices, are under the effective control and supervision of exclusively working in the company, the staffhouses and
petitioner through the vessel’s patron or master its premises.
throughout the duration of their engagement. Hence, the
fishermen are not “field personnel” 2. House-help doing chores for the employer's family,
while also fulfilling tasks connected with the employer's
5. Dependent Family Members business (bakery) such as cooking, filling orders, baking
orders, and other clerical work.
Workers who are family members of the employer, and
who are dependent on him for their support, are outside 7. Persons in the Personal Service of Another
the coverage of this Title on working conditions and rest
periods (Art. 82). Persons in the personal service of another IF and ONLY
IF they:
6. ⚖️⚖️ Domestic Helpers (Workers) a. Perform such services in the employer’s home
which are usually necessary or desirable for the
Domestic worker or “Kasambahay” refers to any person maintenance and enjoyment thereof; or
engaged in domestic work within an employment b. Minister to the personal comfort convenience or
relationship such as but not limited to the following: safety of the employer as well as the members of his
general househelp, nursemaid or “yaya”, cook, gardener employer’s household
or laundry person
8. ⚖️⚖️ Workers Paid by Result (pieceworkers)
"Domestic work" refers to work performed in or for a
household Workers who are paid by results are those whose output
rates are in accordance with the standards prescribed
"Household" refers to the immediate members of the under Sec. 8, Rule VII, Book Three of these regulations,
family or the occupants of the house who are directly and or where such rates have been fixed by the Secretary of
regularly provided services by the kasambahay. Labor and Employment in accordance with the aforesaid
Section.
Page | 17
 b. ⚖️⚖️ Hours of work
These include those who are paid on piece work, “takay,”
“pakiao” or task basis, and other non-time work Principles in determining hours worked

Workers under piece-rate employment have no fixed Hours worked shall include:
salaries and their compensation is computed on the basis
of accomplished tasks. 1. All time during which an employee is required to be on
duty or to be at a prescribed workplace; AND

2. All time during which an employee is suffered or

permitted to work [Art. 84].

When their work output might have been affected by the General principles in determining if time is
change in their specific work assignments, this does not considered as hours worked.
necessarily imply that any resulting reduction in pay is
tantamount to constructive dismissal. It is the prerogative
All hours are hours worked which the employee is
of the management to change their assignments or to
required to give their employer, regardless of whether or
transfer them
not such hours are spent in productive labor or involve
physical or mental exertion.
⚖️⚖️ Table of Benefits Payable
Benefit Unsupervised Supervised An employee need not leave the premises of the
workplace in order that their rest period shall not be
Applicable statutory YES YES counted, it being enough that they stop working, may rest
minimum wage completely and may leave their workplace to go
elsewhere, whether within or outside the premises of their
Night differential NO YES workplace

Service incentive leave NO YES If the work performed was necessary, or it benefited the
employer, or the employee could not abandon his work at
Holiday pay YES YES the end of his normal working hours because he had no
replacement, all time spent for such work shall be
13th month pay Yes, provided the worker has considered as hours worked, if the work was with the
rendered at least 1 month of knowledge of his employer or immediate supervisor
service during the calendar
year The time during which an employee is inactive by reason
of interruptions in his work beyond his control shall be
Other statutory NO YES considered working time either:
benefits
a. If the imminence of the resumption of work requires
the employee’s presence at the place of work, or
Not determinative of EER
b. If the interval is too brief to be utilized effectively and
gainfully in the employee’s own interest
Payment by result is not determinative of employer-
employee relationship. It is a method of compensation
Additional Notes
and does not define the essence of the relation. It is a
method of computing compensation, not a basis for
Rest periods of short duration during working hours shall
determining the existence or absence of employer-
be counted as hours worked [Art. 84]. HOWEVER, where
employee relationship
the exigencies of the service require that they work for six
(6) days or forty-eight (48) hours, they shall be entitled to
an additional compensation of at least thirty percent (30%)
of their regular wage for work on the sixth day.

Page | 18
 2. Meal periods
Attendance in lectures, meetings, and training periods
must necessarily beneficial to the employer.

1. ⚖️⚖️ Normal hours of work

GR: 8-Hour Labor Law

The normal hours of work of any employee shall not

exceed eight (8) hours a day
GR: 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-
Note: Art. 83 of the Labor Code only sets a maximum of off for their regular meals [Art. 85].
number of hours as "normal hours of work" but did not
prohibit work of less than eight hours XPN: Employees may be given a meal period of not less
than twenty (20) minutes provided that such shorter meal
XPN: Work Hours of Health Personnel period is credited as compensable hours worked of the
employee:
Health personnel in:
1. Where the work is non-manual work in nature or does
1. Cities and municipalities with a population of at least not involve strenuous physical exertion;
one million (1,000,000) OR 2. Where the establishment regularly operates not less
2. Hospitals and clinics with a bed capacity of at least one than sixteen (16) hours a day;
hundred (100) shall hold regular office hours for eight (8) 3. In case of actual or impending emergencies or there is
hours a day, for five (5) days a week, exclusive of time for urgent work to be performed on machineries, equipment
Meals HOWEVER, where the exigencies of the service or installations to avoid
require that they work for six (6) days or forty-eight (48) serious loss which the employer would otherwise suffer;
hours, they shall be entitled to an additional compensation OR
of at least thirty percent (30%) of their regular wage for 4. Where the work is necessary to prevent serious loss of
work on the sixth day. perishable goods

“Health personnel" shall include: The eight-hour work period does not include the meal
break. Employees are not prohibited from going out of
1. Resident physicians, nurses, nutritionists, dietitians, the premises as long as they return to their posts on
pharmacists, social workers, laboratory technicians, time. Nowhere in the law may it be inferred that
paramedical technicians, psychologists, midwives, employees must take their meals within the company
attendants and all other hospital or clinic personnel. [Art. premises
83]
2. Medical secretaries Compensability of meal periods

Validity of Built-in overtime GR: Meal periods are NOT compensable.

Composite or Package Pay NOT per se illegal; Conditions XPNs: It becomes compensable:
for Validity Composite or “package pay” or “all-inclusive
salary” is an arrangement where the employee’s salary 1. Where the lunch period or meal time is predominantly
includes the overtime pay. spent for the employer’s benefit.
In other words, the overtime pay is “built-in”.
2. Meal periods of 1 hour are deemed compensable when
Such arrangement is valid provided that: the employee is on continuous shift.

1. There is a clear written agreement knowingly and freely 3. Shortened meal period of less than 1 hour (say, 30
entered by the employee; and minutes) must be compensable.
2. The mathematical result shows that the agreed legal
wage rate and the overtime pay, computed separately, are Note: To shorten meal time to less than 20 minutes is not
equal to or higher than the separate amounts legally due. allowed. If the so-called meal time is less than 20
minutes, it becomes only a REST PERIOD and is
Page | 19
considered working time. In this case, the employer may extend the working
hours beyond the regular schedule on that day to
XPN to XPN: Shortened meal breaks upon the compensate for the loss of productive man-hours
employees’ request – NOT compensable. without being liable for overtime pay.

The employees themselves may request that the meal Note: The time during which an employee is inactive by
period be shortened so that they can leave work earlier reason of work interruptions beyond his control is
than the previously established schedule considered working time, either if the imminence of the
resumption of work requires the employee’s presence at
Conditions for shortened meal breaks upon the place of work or if the interval is too brief to be utilized
employee’s request effectively and gainfully in the employee’s own interest

1. The employees voluntarily agree in writing to a 4. ⚖️ Night-shift

shortened meal period of 30 minutes and are willing to
waive the overtime pay for such shortened meal period;

2. There will be no diminution whatsoever in the salary Night Shift Differential is the additional compensation of
and other fringe benefits of the employees existing before 10% of an employee’s regular wage for each hour of work
the effectivity of the shortened meal period; performed between 10pm and 6am. [Art. 86]
3. The work of the employees does not involve strenuous Illustration:
physical exertion and they are provided with adequate
“coffee breaks” in the morning and If an employee has a regular wage of P100 for each hour
afternoon; of work performed between 10PM and 6AM, he/she shall
be paid P110 per hour worked during such time interval.
4. The value of the benefits derived by the employees
from the proposed work arrangement is equal to or Coverage
commensurate with the compensation due them for the
shortened meal period as well as the overtime pay for 30 Aside from those enumerated under Art. 82 as excluded
minutes as determined by the employees concerned; from Title I: Working Conditions and Rest Periods, those
employed in retail and service establishments regularly
5. The overtime pay of the employees will become due employing not more than five (5) workers are also NOT
and demandable if ever they are permitted or made entitled to Night Shift differential
beyond 4:30 pm; and
Rest days (night-off)
6. The effectivity of the proposed working time
arrangement shall be of temporary duration as Night shift employees are entitled to a weekly night-off
determined by the Secretary of Labor (usually Saturday evening) or a weekly rest period of 24
hours beginning at the start of the night shift [See also Art.
3. Power interruptions or brownouts 20 minutes or 91].
less: Hours worked
Work on special days
Brownouts of short duration, but not exceeding 20
minutes, shall be treated as hours worked, whether used Night shift employees are also entitled to the premium pay
productively by the employees or not. on special days and holidays. These days are reckoned
as calendar days which start at midnight and end at the
More than 20 minutes – not hours worked IF: following midnight. The premium pay for the night shift
also starts or ends at midnight.
1. the employees can leave their workplace or go
elsewhere whether within or without the work premises; However, the employment contract, company policy or
OR CBA may provide that in the case of night shift workers,
days—including special days and regular holidays—
2. the employees can use the time effectively for their own shall begin on the night before a calendar day.
interest.

Validity of Extending Work Hours

Page | 20
5. ⚖️⚖️ Overtime work Note: 169% was derived by adding 39% (which is 30% of
130 or 1.3x.3 to 130%)
Overtime, defined
d. ⚖️Emergency overtime
Overtime compensation is additional pay for service or
work rendered or performed in excess of eight hours a day Any employee may be required by the employer to
by employees or laborers covered by the Eight-hour Labor perform overtime work in any of the following cases
Law
1. When the country is at war or when any other national
Rationale: There can be no other reason than that he is or local emergency has been declared by the National
made to work longer than what is commensurate with his Assembly or the Chief Executive;
agreed compensation for the statutorily fixed or voluntary
agreed hours of labor he is supposed to do 2. When it is necessary to prevent loss of life or property
or in case of imminent danger to public safety due to an
Computation of additional compensation actual or impending emergency in the locality caused by
serious accidents, fire, flood, typhoon, earthquake,
Base of Computation: epidemic, or other disaster or calamity;
Regular wage – means regular base pay.
3. When there is urgent work to be performed on
It includes the cash wage only without deduction on machines, installations, or equipment, in order to avoid
account of facilities provided by the employer (Art. 90). serious loss or damage to the employer or
some other cause of similar nature;
It excludes money received in different concepts, such as
Christmas bonus and other fringe benefits 4. When the work is necessary to prevent loss or damage
to perishable goods; and
BUT when the overtime work was performed on the
employee’s rest day or on special days or regular holidays 5. Where the completion or continuation of the work
(Art. 93 and 94), the premium pay, must be included in the started before the eighth hour is necessary to prevent
computation of the overtime pay serious obstruction or prejudice to the
business or operations of the employer.
Examples:
6. Where overtime work is necessary to avail of favorable
a. Overtime on a Regular Day (OTRD) weather or environmental conditions where performance
or quality of work is dependent thereon.
an additional compensation equivalent to his regular
wage plus at least twenty-five percent (25%) thereof [Art. Overtime, Principles
87]. 1. An employer cannot compel an employee to work
overtime
OTRD = Hourly wage x 125% x number of hours of OT
work Exception: Emergency overtime work

b. Work on Scheduled Rest Day (WRD) 2. GR: Additional compensation is demandable only if the
employer had knowledge and consented to the overtime
an additional compensation equivalent to 30% of the work rendered by the employee.
regular wage [Art. 93].
XPNs: Express approval by a superior NOT a requisite to
WRD = Regular Wage x 130% make overtime compensable:

c. Overtime on Scheduled Rest Day (OTSRD) a. If the work performed is necessary, or that it benefited
the company; or
additional compensation for work performed on Sunday
only when it is his established rest day [Art.93(a)]. b. That the employee could not abandon his work at the
end of his eight-hour work because there was no
OTSRD = Hourly Wage x 169% x number of hours of OT substitute ready to take his place
work

Page | 21
⚖️⚖️Overtime needs to be authorized by the Conditions for CWW
employer
1. Express and Voluntary Agreement of covered
Note: However, the Court has also ruled that a claim for employees
overtime pay is NOT justified in the absence of a written
authority to render overtime after office hours during
Sundays and holidays.
The CWW scheme is undertaken as a result of an express
Daily time records cannot prove the performance of and voluntary agreement of majority of the covered
overtime work if the same had no prior authorization by employees or their duly authorized representatives. This
the management. agreement may be expressed through collective
bargaining or other legitimate workplace mechanisms of
3. Compensation for work rendered in excess of the 8 participation such as labor management councils,
normal working hours in a day: employee assemblies or referenda.
a. For ordinary days, additional 25% of the basic 2. Certification from OSHS for industries dealing in
hourly rate. hazardous substances and noise exposure
b. For rest day/special day/holiday, additional
30% of the basic hourly rate. In firms using substances, chemicals and processes or
operating under conditions where there are airborne
4. A given day is considered an ordinary day, unless it is contaminants, human carcinogens or noise prolonged
a rest day. exposure to which may pose hazards to employees’
health and safety, there must be a certification from an
5. Undertime does NOT offset overtime. Undertime work accredited health and safety organization or practitioner
on any particular day shall not be offset by overtime work from the firm’s safety committee that work beyond eight
on any other day. Permission given to the employee to go hours is within threshold limits or tolerable levels of
on leave on some other day of the week shall NOT exempt exposure, as set in the OSHS.
the employer from paying the additional compensation
3. Notice to DOLE-RO

The employer shall notify DOLE, through the Regional

⚖️⚖️Prohibition against offsetting Office having jurisdiction over the workplace, of the
adoption of the CWW scheme.
Offsetting work on a regular day with work rendered on a
holiday or rest day is prohibited because such deprives
the employee of additional pay or premium
The notice shall be in DOLE CWW Report Form attached
6. ⚖️⚖️Compressed work week
to this Advisory

Effects of CWW

1. Unless there is a more favorable practice existing in the

firm, work beyond eight hours will not be compensable by
A CWW refers to one where the normal workweek is overtime premium provided the total number of hours
reduced to less than 6 days but the total number of worked per day shall not exceed twelve (12) hours. In any
work hours of 48 hours per week shall remain. case, any work performed beyond 12 hours a day or 48
hours a week shall be subject to overtime premium.
Under the CWW scheme, the normal workday goes 2. Consistent with Art. 85, employees under a CWW
beyond eight hours but not exceed 12 hours, without the scheme are entitled to meal periods of not less than 60
corresponding overtime premium minutes. There shall be no impairment of the right of the
employees to rest days as well as to holiday pay, rest day
In excess of such, the employer is obliged to pay the pay or leaves in accordance with law or applicable
worker the overtime premium. collective bargaining agreement or company practice.

3. Adoption of the CWW scheme shall in no case result in

diminution of existing benefits. Reversion to the normal
Page | 22
eighthour workday shall not constitute a diminution of Telecommuting refers to a work from an alternative
benefits. workplace with the use of telecommunications and/or
computer technologies.
7. Flexible work arrangement (DOLE D.A. No. 02-04)
Section 4, Telecommuting Program
Flexible work arrangements refer to alternative work
modes or schedules other than the traditional workhours, An employer in private sector may offer a telecommuting
workdays, and workweeks. program to its employees on a voluntary bases, and upon
such terms and conditions as they may mutually agree
Adoption of flexible work arrangements is considered as upon:
a better alternative than the outright termination of the
services of the employees or the total closure of the Provided, that such terms and conditions shall not be less
establishment. than the minimum labor standards set by law, and shall
include compensable work hours, minimum number of
The following are the flexible work arrangements which work hours, overtime, rest days, and entitlement to leave
may be considered, among others: benefits.

1. Compressed Workweek (See page 45) In all cases, the employer shall provide the telecommuting
employee with relevant written information in order to
2. Reduction of Workdays refers to one where the adequately apprise the individual of the terms and
normal workdays per week are reduced but should not conditions of the telecommuting program, and the
last for more than six months. responsibilities of employee.

3. Rotation of Workers refers to one where the Section 5, Fair Treatment

employees are rotated or alternately provided work within
the workweek. The employer shall ensure that the telecommuting
employee are given the same treatment as that of
4. Forced Leave refers to one where the employees are comparable employees are given the same treatment as
required to go on leave for several days or weeks utilizing that of comparable employees working at the time
their leave credits if there are any. employer's premises.

5. Broken-time schedule refers to one where the work All telecommuting employee shall:
schedule is not continuous but the work-hours within the
day or week remain. (a) Receive a rate of pay, including overtime and night
shift differential, and other similar monetary benefits not
6. Flexi-holidays schedule refers to one where the lower than those provided in applicable laws, and
employees agree to avail the holidays at some other days collective bargaining agreements.
provided there is no diminution of existing benefits as a
result of such arrangement. (b) Have the right to rest periods, regular holidays, and
special nonworking days.

Mitigate Loss of Income of Employees (c) Have the same or equivalent workload and
performance standards as those of comparable workerat
Under these flexible work arrangements, the employers the employer's premises.
and the employees are encouraged to explore alternative
schemes under an agreement and company policy or (d) Have the same access to training and career
practice in order to cushion an mitigate the effect of the development opportunities as those of comparable
loss of income of the employees. workers at the employer's premises, and be subject to the
same appraisal policies covering these workers.
R.A. No. 11165, secs. 3-5
(e) Receive appropriate training on the technical
Section 3, Telecommuting Defined equipment at their disposal, and the characteristics and
conditions of telecommuting.

(f) Have the same collectible rights as the workers at the

employer's premises, and shall not be barred from
communicating with workers' representatives.
Page | 23
The employer shall also ensure that measures are taken c. Lectures, meetings, trainings
to prevent the telecommuting employee from being
isolated from the rest of the working community in the Attendance at lectures, meetings, training programs, and
company by giving the telecommuting employee the other similar activities shall NOT be counted as working
opportunity to meet with colleagues on a regular basis, time if ALL of the following conditions are met:
and opportunity to meet with colleagues on a regular
basis, and allowing access to company information. 1. Attendance is outside of the employee’s regular
working hours;
8. Non-compensable hours 2. Attendance is in fact voluntary; and
3. The employee does not perform any productive work
a. Idle time during such attendance

The idle time that an employee may spend for resting and Notes:
dining which he may leave the spot or place of work
though not the premises of his employer, is not counted 1. Attendance in lectures, meetings, and training periods
as working time only where the work is broken or is not sanctioned or required by the employer are considered
continuous hours worked.
2. Attendance in CBA negotiations or grievance meeting
A laborer need not leave the premises of the factory, shop is compensable hours worked provided that such is
or boat in order that his period of rest shall not be counted, stipulated in the CBA.
it being enough that he "cease to work", may rest 3. Attendance in hearings in cases filed by the employee
completely and leave or may leave at his will the spot is NOT compensable hours worked.
where he actually stays while working, to go somewhere
else, whether within or outside the premises of said 4. Participation in strikes is NOT compensable working
factory, shop or boat. If these requisites are complied with, time.
the period of such rest shall not be counted
Attendance in lectures, meetings, and training periods
b. Travel time must necessarily beneficial to the employer. [Sec. 6(c),
Rule I, IRR]
Travel time Travel from home to work – An employee who
travels from home before his regular workday and returns d. Commuting time
to his home at the end of the workday is engaged in
ordinary home-towork travel which is NOT considered Employees performing tasks during their commute which
hours worked, EXCEPT: are not merely incidental to the employee’s job, and are
1. When called to travel during emergency; primarily for the benefit of the employer (such as a
2. When travel is done through a conveyance company driver performing a carpool service for
furnished by the employer; coworkers according to an agreement with the company),
3. Travel is done under vexing and dangerous are entitled to overtime pay
circumstances;
4. Travel is done under the supervision and control of d. Waiting time
the employer.
Rest period – short duration or “coffee break”
Travel that is all in the day’s work – Time spent by an 1. Rest periods of short duration during working hours
employee in travel from jobsite to jobsite during the shall be counted as hours worked.
workday, must be counted as hours worked. Where an 2. Rest periods or coffee breaks running from five (5) to
employee is required to report at a meeting place to twenty (20) minutes shall be considered as compensable
receive instructions or to perform other work there, the working time
travel from the designated place to the workplace is part
of the day’s work. e. ⚖️⚖️On call
Travel away from home – Travel that keeps an employee Compensable work time, if employee is:
away from home overnight is travel away from home. 1. Required to remain on call in the employer’s premises
Travel away from home is worktime when it cuts across or so close thereto
the employee’s workday. The time is hours worked not 2. That he cannot use the time effectively and gainfully for
only on regular working hours but also during the his own purpose shall be considered as working while on
corresponding hours on nonworking days.
Page | 24
call.
(130%) x day
(130%) 130% is the
Note: An employee who is not required to leave word at
OT rate
his home or with company officials where he may be
reached is NOT working while on call.
3. Rest periods

Computation of Additional Compensation

(Rates only)
It shall be the duty of every employer, whether operating
For work in excess of eight (8) hours for profit or not, to provide each of this employees a rest
period of not less than twenty-four (24) consecutive hours
Ordinary (Number of 125% is the after every six (6) consecutive normal work days [Art. 91
working day hours of OT OT rate (a)].
work) x
(Regular
Hourly rate) Preference of the employee
x (125%) The employer shall determine and schedule the weekly
rest day of his employees subject to collective bargaining
Scheduled (Number of 130% is the agreement and to such rules and regulations as the
rest day or hours of OT hourly rate on Secretary of Labor and Employment may provide.
special day work) x special days
(Regular 130% is the However, the employer shall respect the preference of
Hourly rate) OT rate on employees as to their weekly rest day when such
x (130%) x special days preference is based on religious grounds [Art. 94 (b)].
(130%)
The employee shall make known his preference to the
Special day (Number of 150% is the employer in writing at least seven days before the desired
falling on a hours of OT work) hourly rate onany effectivity of the initial rest day so preferred.
scheduled x special
rest day (Regular holiday/ When the choice of the employee as to his rest day based
Hourly rate) special day on religious grounds will inevitably result in serious
x (150%) x falling on prejudice or obstruction to the operations and the
(130%) scheduled rest employer cannot normally be expected to resort to other
day measures, the employer may so schedule the weekly rest
130% is the day of his choice for at least two days in a month [Rule III,
hourly rate on Sec. 4].
special days
⚖️⚖️COMPULSORY WORK ON REST DAY
Regular (Number of 200% is the
holiday hours OT hourly rate on The employer may require his employees to work on any
work) x holidays day:
(Regular 130% is the
Hourly rate) OT rate 1. In case of actual or impending emergencies caused by
x (200%) x serious accident, fire, flood, typhoon, earthquake,
(130%) epidemic or other disaster or calamity to prevent loss of
life and property, or imminentdanger to public safety;

2. In cases of urgent work to be performed on the

machinery, equipment, or installation, to avoid serious
Regular (Number of 200% is the loss which the employer would otherwise suffer;
holiday hours OT hourly rate on
falling on a work) x holidays 3. In the event of abnormal pressure of work due to
scheduled (Regular 130% is the special circumstances, where the employer cannot
rest day Hourly rate) rate on ordinarily be expected to resort to other measures;
x (200%) x scheduled rest 4. To prevent loss or damage to perishable goods;

Page | 25
5. Where the nature of the work requires continuous Article, the employer shall pay such higher rate. [Art. 93
operations and the stoppage of work may result in (d)]
irreparable injury or loss to the employer; and
The employer and his employees or their representatives
6. Under other circumstances analogous or similar to the are not prevented from entering into any agreement with
foregoing as determined by the Secretary of Labor and terms more favorable to the employees. [Sec. 9, Rule
Employment [Art. 92]. II,Book III, IRR]

Rest Periods, Principles Nothing in this rule shall justify an employer in reducing
the compensation of his employees for the unworked
1. Rest day of not less than 24 consecutive hours after 6 Sundays, holidays, or other rest days, which are
consecutive days of work. considered paid off days or holidays by agreement or
2. No work, no pay principle applies. practice subsisting upon the effectivity of the Code
3. If an employee works on his designated rest day, he is
entitled to a premium pay.
4. Premium pay is additional 30% of the basic pay.
5. Employer selects the rest day of his employees
6. However, employer must consider the religious reasons
for the choice of a rest day.

4. Holidays Holiday pay is a one-day pay given by law to an

employee, even if he does not work on a regular holiday.
Article 94, Right to holiday pay This gift of a day’s pay is limited to each of the 12 regular
holidays .
(a) Every worker shall be paid his regular daily wage
during regular holidays, except in retail and service Note: Art. 94 (c), was superseded by E.O. 203, which was
establishment regularly employing less than ten workers; subsequently amended by RA 9177, 9256, 9492, and
9849. The current state of the law is discussed below.
(b) The employer may require an employee to work on
any holiday but such employee shall be paid a ⚖️⚖️Coverage
compensation equivalent to twice his regular rate
GR: All employees (Art. 94(a); Rule IV, Sec. 1)
Compensation on rest day/Sunday/holiday
XPNs:
Except those employees referred to under Sec. 2, Rule I, a. Those of the government and any of the political
Book III: subdivision, including government-owned and controlled
corporation;
1. An employee who is made or permitted to work on his b. Those of retail and service establishments regularly
scheduled rest day shall be paid with an additional employing less than 10 workers;
compensation of at least 30% of his regular wage. c. Domestic helpers and persons in the personal service
of another;
2. An employee shall be entitled to such additional d. Managerial employees and officers or members of the
compensation for work performed on a Sunday only when managerial staff as defined in Book III;
it is his established rest day. e. Field personnel and other employees whose time and
performance is unsupervised by the employer including
3. An employee shall be paid an additional compensation those who are engaged on task or contract basis, purely
of at least 30% of his regular wage for work performed on commission basis, or those who are paid a fixed amount
Sundays and holidays, where the nature of the work of the for performing work irrespective of the time consumed in
employee is such that he has no regular work days and the performance thereof
no regular rest days can be scheduled. [Sec. 7, Rule III,
Book III, IRR] List of Regular holidays

CBA on higher premium pay/ Rate Adjustments 1. New Year’s Day – Jan. 1
2. Maundy Thursday – Movable date
Where the collective bargaining agreement or other 3. Good Friday – Movable date
applicable employment contract stipulates the payment of 4. Araw ng Kagitingan – Monday nearest Apr. 9
a higher premium pay than that prescribed under this 5. Labor Day – Monday nearest May 1
Page | 26
 6. Independence Day – Monday nearest June 12 Double Holiday Rule for Monthly-paid employees
7. Eid’l Fitr – Movable date
8. Eid’l Adha – Movable date
9. National Heroes Day – Last Monday of August
10. Bonifacio Day – Monday nearest Nov. 30
11. Christmas Day – Dec. 25 For covered employees whose monthly salaries are
12. Rizal Day – Monday nearest Dec. 30 computed based on 365 days and for those other
employees who are paid using factor 314, or 262, or any
Special (Non-Working Days) other factor which already considers the payment for the
11 (now 12) regular holidays, NO additional payment is
RA 9492 and RA 10966 provide for the observance of the due them
following special holidays:
Successive holiday pay
1. Ninoy Aquino Day – Monday nearest Aug. 21
2. All Saints Day – Nov. 1 According to IRR, Rule IV, Sec. 10, an employee is
3. Immaculate Conception of Mary (RA 10966) – Dec. entitled to holiday pay for both days, IF:
8 1. He is present on day immediately preceding
4. Last day of the year – Dec. 31 first holiday; or
2. He works on first holiday, which entitles him to
Note: Proclamation 269 fixed the data for the observance pay on second holiday.
of the regular and special holidays including additional
special holidays for 2018 and 2019 Where the day immediately preceding the holiday is a
non-working day in the establishment or the scheduled
Notes: rest day of the employee, he shall not be deemed to be
on leave of absence on that day, in which case he shall
be entitled to the holiday pay if he worked on the day
1. Id-ul-Fitr (Eid’l Fitr) and Id-ul-Adha (Eid’l Adha) have
immediately preceding the non-working day or rest day
been added to the list of national legal holidays (RA
[Sec. 6, Rule IV, Book III, IRR].
9849).
Divisors
2. There should be no distinction between Muslims &
non-Muslims as regards to the payment of benefits for
Muslim holidays. Wages & other emoluments granted The divisor assumes an important role in determining
by law to the workingman are determined on the basis whether or not holiday pay is already computed.
of the criteria laid down by laws, and not on worker’s
faith. 1. Monthly paid employees are not entitled to the holiday
pay if their total annual income is divided by 365 days
Holiday pay computation resulting in a wage which is beyond the minimum wage
per day because they are considered paid everyday of the
year including holidays, rest days, and other non-working
An employer may require an employee to work on a
days.
regular holiday but such employee shall be paid a
compensation equivalent to twice his regular rate. If an
employee is required to work on a special holiday, the 2. As a general rule, for a company with a 6- day working
additional compensation should be 30% of his regular schedule, the divisor 313 already means that the legal
rate. holidays are included in the monthly pay of the employee.
The divisor is arrived at by
subtracting all Sundays from the total number of calendar
A special working holiday is considered an ordinary
days in a year.
working day, so there is no premium pay.
Double holiday pay According to “DOLE Explanatory
Bulletin on Worker’s Entitlement to Holiday Pay on 9 April 3. As a general rule for a company with a 5-day working
1993,” if two holidays fall on the same day: schedule, the divisor 277 means that the holiday pay is
already included in the monthly salary of the employee.
1. If unworked, 200% of basic wage.
An increase in the divisor that results in the prejudice of
2. If worked, 300% of basic wage [Azucena].
the employees is a violation of the proscription against
non-diminution of benefits under Sec. 100 of the Labor
Code. Such increases should only be used for
computations which would be advantageous to the
Page | 27
employer (i.e. deduction for absences) and not for holidays falling within the periods shall be compensated
computations which would diminish the existing benefits
of the employees (i.e., overtime pay, holiday pay and 2. The regular holiday during the cessation of operation of
leave conversions) an enterprise due to business reverses as authorized by
the Secretary of Labor may not be paid by the employer
Sundays [Sec. 7, Rule IV, Book III, IRR].

1. When a holiday falls on a Sunday, the following An employee is entitled to holiday pay for the regular
Monday will not be considered a holiday unless a holidays falling within the period in cases of temporary
proclamation says so. shutdowns or cessation of work, when:

2. A legal holiday falling on a Sunday does not create a. An annual inventory; or

a legal obligation to pay extra, aside from the usual b. Repair or cleaning of machineries and equipment is
holiday pay, to monthly-paid employees undertaken.
The employer may not pay his employees for the regular
No provision of law requires any employer to make holidays during the suspension of work if: the cessation of
adjustments in the monthly salary rate set by him to take operation is due to business reverses, and is authorized
account of legal holidays falling on Sundays in a given by the Secretary of Labor.
year, otherwise to reckon a year at more than 365 day
Teachers, Piece Workers, Seafarers, Seasonal
Workers, Etc.
Non-working/scheduled rest day
1. Private school teachers, including faculty members of
Where the day immediately preceding the holiday is a colleges and universities, may not be paid for the regular
non-working day in the establishment or the scheduled holidays during semestral vacations.
rest day of the employee, he shall not be deemed to be
on leave of absence on that day, in which case he shall They shall, however, be paid for the regular holidays
be entitled to the holiday pay if he worked on the day during Christmas vacation;
immediately preceding the non-working day or rest day
[Sec. 6(c), Rule IV, Book III, IRR]. 2. Where a covered employee, is paid by results or output,
such as payment on piece work, his holiday pay shall not
To illustrate: be less than his average daily earnings for the last seven
(7) actual working days preceding the regular holiday;
If a holiday falls on Monday, and Sunday is a non-working Provided, However, that in no case shall the holiday pay
day in the establishment or is the scheduled rest day of be less than the applicable statutory minimum wage rate.
the employee, the employee shall be entitled to holiday
pay if he worked on Saturday (which is the day 3. Seasonal workers may not be paid the required holiday
immediately preceding Sunday, the nonworking day or pay during off-season when they are not at work.
rest day).
4. Workers who have no regular working days shall be
Right to holiday pay in case of absences entitled to the benefits

If an employee is on leave of absence with pay on the day a. Holiday Pay of Hourly-Paid Faculty Members
immediately preceding a regular holiday, he is entitled to
holiday pay [Sec. 6(a), Rule IV, Book III, IRR]. Not Entitled to: Regular Holiday Pay Entitled to: Regular
hourly rate on days declared as special holidays or for
If an employee is on leave of absence without pay on the some reason classes are called off or shortened for the
day immediately preceding a regular holiday, he is not hours they are supposed to have taught, whether
entitled to holiday pay unless he works on such regular extensions of class days be ordered or not; in case of
holiday [Sec. 6(a), Rule IV, Book III, IRR]. extensions said faculty members shall likewise be paid
their hourly rates should they teach during said
In case of temporary cessation of work extensions.

1. In cases of temporary or periodic shutdown and 1. They are not entitled to payment of holiday pay
temporary cessation of work of an establishment, as when because they are paid only for work actually done. Since
a yearly inventory or when the repair or cleaning of regular holidays are known to both the school and faculty
machineries and equipment is undertaken, the regular members as “no class day”; certainly the latter do not
Page | 28
expect payment for said unworked holidays.
XPNs:
2. They are entitled to their hourly rate on days declared
as special holidays. When a special public holiday is 1. Those of the government and any of the political
declared, the faculty member paid by the hour is deprived subdivision, including government-owned and controlled
of expected income, and it does not matter that the school corporations;
calendar is extended in view of the days or hours lost, for 2. Managerial employees as defined in Book III;
their income that could be earned from other sources is 3. Househelpers and persons in the personal service of
lost during the extended days. another;
4. Workers who are paid by results, including those who
3. Similarly, when classes are called off or shortened on are paid on piece rate, takay, pakyaw, or task basis, and
account of typhoons, floods, rallies, and the like, these other noontime work, if their output rates are in
faculty members must likewise be paid, whether or not accordance with the standards prescribed in the
extensions are ordered. regulations, or where such rates
have been fixed by the Secretary of Labor and
b. Piece workers Employment;
5. Field personnel, if they regularly perform their duties
The philosophy underlying the exclusion of piece workers away from the principal or branch office or place of
from the 8-hour law is that said workers are paid business of the ER and whose actual hours of work in the
depending upon the work they do irrespective of the field cannot be determined with reasonable certainty.
amount of time employed in doing said work
Premium pay rates
c. Seafarers
WHEN WORK PREMIUM
PERFORMED PAY

On scheduled rest day 130% of

regular wage
Any hours of work or duty including hours of watch-
keeping performed by the seafarer on designated rest
On Sunday ONLY IF this is 130% of
days and holidays shall be paid rest day or holiday pay
the ESTABLISHED rest day regular wage
(Sec. 11.C, Standard Terms and Conditions Governing
the Employment of Filipino Seafarers on Board Ocean-
On Sunday and holidays, 130% of
Going Vessels).
when no regular work and regular wage
restdays
d. Seasonal workers
Seasonal workers who do not work during off-season are On any special 130% of
not entitled to pay for the regular holidays occurring during holiday/special regular wage
their offseason. Workers assigned to “skeleton crews” that day
work during the off-season have the right to be paid on
regular holidays falling in that duration. On any special holiday/ 150% of
special day falling on regular wage
⚖️⚖️PREMIUM PAY scheduled rest day

On a regular holiday falling 260% of

on regular wage
a rest day

Premium pay refers to the additional compensation for Work on a Sunday or holiday which is also a
work performed within 8 hours on non-work days, such as scheduled rest day
rest days and special days.
All establishments and enterprises may operate or open
Coverage (Sec. 7, Rule III, Book III, IRR) for business on Sundays and holidays provided that the
employees are given the weekly rest day and the benefits
GR: All employees as provided in this Rule

Page | 29
SERVICE CHARGES based on actual hours or days of work or service
rendered, among the covered employees, including those
Coverage already receiving the benefit of sharing in the service
charges
Employers
The shares shall be distributed to employees not less than
This rule shall apply only to establishments which collect once every 2 weeks or twice a month at intervals not
service charges such as: exceeding 16 days

1. Hotels, restaurants, lodging houses, night clubs, Notes:

cocktail lounge, massage clinics, bars, casinos and 1. The P2,000.00 salary ceiling for entitlement thereto is
gambling houses; no longer applicable.
2. Similar enterprises including those entities operating
primarily as private subsidiaries of the Government 2. [The employees’] right to their shares in the service
(Sec.1, DO 206-19, IRR of RA11360). charges collected by [the employer] is distinct and
separate from their right to ECOLA; gratification by the
Employees [employer] of one does not result in the satisfaction of the
other
⚖️⚖️GR: Shall apply to ALL employees of covered
employers: Service charge not included in determining compliance
with minimum wageIn the event that the minimum wage is
1. Regardless of their positions, designations, or increased by law or wage order, service charges paid to
employment status, and the covered employees shall not be considered in
2. Irrespective of the method by which their wages are determining the covered establishment’s compliance with
paid the increased minimum wage. [Sec. 5, DO 206-19, IRR of
RA11360]
XPN: Managerial employees refer to any person vested
with powers or prerogatives to LEx DHARTS RP: The old formula for sharing stated in Art. 96 of the Labor
Code, which prescribes 85% of the service charge for all
covered employees and 15% for management, has now
been abrogated by RA 11360.

In Relation to Collective Bargaining Agreements and

Employer-Employee Agreements

Nothing in the Rules shall prevent the employer and

employee from entering into any agreement with terms
more favorable to the employees than those granted
therein, or be used to diminish any benefit granted to the
employees under existing laws, agreement AND voluntary
employer practice

The rule is without prejudice to existing, future collective

bargaining agreements

Service Charge, Principles

1. Lay down and execute management policies or
2. Hire, transfer, suspend, pay-off, recall, discharge,
assign or discipline employees or to effectively
recommend such managerial actions

Distribution

As amended by RA 11360 Pursuant to the 2019 1. Service charges must be pooled;

amendments to Art. 96, all service charges collected by 2. Where a restaurant or similar establishment does not
hotels, shall be distributed completely and equallyamong collect service charges but has a practice or policy of
the covered workers except managerial employees, monitoring and pooling tips given voluntarily by its
Page | 30
customers to its employees, the pooled tips should be health at work. Employers must inform workers about
monitored, accounted for and distributed in the same workplace hazards, provide access to training and
manner as the services charges education on various safety aspects, including chemical,
electrical, mechanical, and ergonomic safety.
3. The amount collected shall be distributed completely
and equally among the covered workers; 4. Workers' Right to Refuse Unsafe Work (Sec. 6)

4. It shall be given twice a month with intervals of not more Workers have the right to refuse unsafe work without
than 16 days; facing threats or reprisals from employers. If the
Department of Labor and Employment (DOLE)
6. Payment of service charges will not be considered determines the existence of an imminent danger situation
in compliance with any increase in the minimum not addressed by the employer, the worker can refuse to
wage by law or wage order. work until corrective actions are taken.
7.
6. ⚖️⚖️Occupational Safety and Health 5. Workers' Right to Personal Protective Equipment
Standards Law - R.A. No. 11058, secs. 4-6, 8 and 12 (PPE) (Sec. 8)

1. Covered Workplaces (Sec. 3(c)): Employers, contractors, or subcontractors must furnish

workers with necessary PPE free of charge, including
equipment for eyes, face, hands, feet, lifelines, safety
belts, gas masks, and protective shields. The cost of PPE
is considered part of the safety and health program, a
separate pay item as specified in Section 20 of the Act (RA
11508).

Covered workplaces encompass establishments,

projects, sites, and other work areas where compliance B. ⚖️⚖️Wages
with the provisions of the Act is necessary. The
determination of covered workplaces is based on factors
Wages
such as the number of employees, nature of operations,
and the risk or hazard involved in the business, as
decided by the Secretary of Labor and Employment.

2. Duties of Employers, Workers, and Other Persons It is the remuneration or earnings, however designated,
(Sec. 4): 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, payable
a. Employers, contractors, subcontractors, and
by an employer to an employee under a written or
supervisors must provide a hazard-free work
unwritten contract of employment for work done or to be
environment, offer comprehensive safety instructions,
done, or for services rendered or to be rendered (Art.
inform workers of hazards, use approved equipment,
97(f)).
comply with OSH standards, involve workers in safety
programs, and provide emergency measures.
1. Components and Exclusions
b. Workers must adhere to safety standards, use
provided safety devices, follow safety instructions, and Coverage/Exclusions
report hazards to supervisors.
According to Article 97(f), the term "wage" encompasses
c. All individuals visiting or conducting business in a the fair and reasonable value of facilities provided by the
workplace must comply with OSH regulations. employer to the employee. Conversely, allowances are
excluded from the computation of basic salary or wage,
as established in the case of Cebu Institute of Technology
d. When multiple undertakings occur simultaneously in
v. Ople, G.R. No. L-58870 (1987).
one workplace, collaboration in applying OSH standards
is mandatory.
Fair and Reasonable Value Clarification
3. Workers' Right to Know (Sec. 5)
It's essential to note that the fair and reasonable value of
facilities, as stipulated by Article 97(f), should not include
This section guarantees workers the right to safety and
Page | 31
any profit to the employer or any affiliated individual. ⚖️⚖️Facilities

Applicability Facilities vs. Supplements

Exclusions from the Labor Code Title on Wages: Facilities Supplements

1. Farm Tenancy or Leasehold: This exemption applies to Includes articles or services Refers to extra
individuals engaged in farm tenancy or leasehold for the benefit of the remuneration or special
arrangements. employee or his family; benefits or articles or
services or tools of the
trade given to or received
2. Household or Domestic Helpers: Included within this
by laborers over and
category are household staff, family drivers, and
above their ordinary
individuals providing personal services to others. EXCLUDES tools of the
earning or wages
trade or articles or service
3. Homeworkers Engaged in Needlework: Workers primarily for the benefit of
engaged in needlework from home fall under this the ER
exemption.
Primarily for the benefit of Primarily for the benefit or
4. Workers in Registered Cottage Industries: Employees the employee and his family, convenience of the
working in registered cottage industries who conduct their for their existence and Employer.
activities from home are exempted. subsistence

5. Workers in Registered Cooperatives: Workers in

Criterion:
registered cooperatives can be exempted from the Labor
Code Title on Wages if recommended by the Bureau of
In determining whether a privilege is a facility, the criterion
Cooperative Development and approved by the Secretary
is not so much its kind but the PURPOSE for which it is
of Labor.
given
Note: Workers in registered barangay micro-business
Purpose Test:
enterprises are solely exempted from the Minimum Wage
Law but not from the Labor Code Title on Wages, as
outlined in RA 9178. Under this test, if a benefit or privilege granted to the
employee is clearly for the employer’s convenience, it will
NOT be considered as a facility but a supplement. If it is
Wage vs. Salary
primarily for the employee’s gain, then the benefit is a
facility; if its provision is mainly for the employer’s
Wages and salary are in essence synonymous [Songco v.
advantage, then it is a supplement
NLRC, G.R. No. L50999 (1990)].
Requirements for Deducting Value of Facilities:
There are slight differences:
Wage Salary Mere availment is not sufficient to allow deductions from
employees’ wages. Before the value of facilities can be
Paid for skilled or Paid to white collar deducted from the employees’ wages, the following
unskilled manual labor workers and denote requisites must all be attendant:
a higher grade of
employment a. Proof must be shown that such facilities are
customarily furnished by the trade;
Not subject to Subject to execution, b. The provision of deductible facilities must be
execution, garnishment or voluntarily accepted in writing by the employee; and
garnishment or attachment [Gaa v. c. Facilities must be charged at reasonable value
attachment except for CA, G.R. No. L44169
debts related to (1985)]. “Customary” means long-established and constant
necessities [Art. 1708]. practice connoting regularity

Computation:

Value of Facilities = Cost of Operation and maintenance

Page | 32
+ Adequate depreciation + reasonable allowance (not
more than 5.5% interest on the depreciated amount of Note: The law distinguishes managerial employees from
capital invested by the employer) rank-and-file employees; hence, managerial employees
are not legally entitled to 13th-month pay.
If the fair rental value is lower than the computed value,
the fair rental value will be used Exempted Employers:

Supplements a. Government, its political subdivisions, including

(see previous table under b. Facilities) GOCCs except those operating essentially as private
subsidiaries of the Government;
⚖️⚖️ Bonus
b. Employers already paying their employees a 13th-
month pay or more in a calendar year or its equivalent at
the time of this issuance;
GR: A bonus is an act of gratuity on the part of the
employer, and is a management prerogative which cannot c. Employers of those who are paid on purely commission,
be forced upon the employer boundary or task basis and those who are paid a fixed
amount for performing specific work, irrespective of the
XPN: A bonus may become demandable and enforceable time consumed in the performance thereof (except those
under the following circumstances: workers who are paid on a piece-rate basis, in which case
their employer shall grant them 13th-month pay).
1. Express Stipulation: When it was promised by the
employer and expressly agreed upon by the parties (such Notes: “Equivalent” of a 13th-month pay includes:
as in an employment contract or CBA) ;
a. Christmas bonus, mid-year bonus, cash bonuses;
2. Company Practice: When it is a fixed amount and has b. Other payments amounting to not less than 1/12 of the
been a long and regular practice on the part of the basic salary.
employer. [American Wire and Cable Union v. American
Wire, G.R. No. 155059, April 29, 2005] But shall not include cash and stock dividends, cost of
living allowances and all other allowances regularly
3. Compensation: If it is an additional compensation enjoyed by the employee, as well as non-monetary
which the employer promised and agreed to give without benefits.
any conditions imposed for its payment, such as success
of business or greater production or output, then it is part Workers paid on a piece-rate basis – paid a standard
of the wage. amount for every piece or unit of work produced that is
more or less regularly replicated, without regard to the
Note: If the amount of bonus is dependent upon the time spent in producing the same. Their employer shall
realization of profits, the bonus is not demandable and grant them 13th-month pay.
enforceable. Also, forfeiture of Bonus In consonance with
existing company policy, a bonus may be forfeited as a Minimum Amount: 1/12 of the total basic salary earned by
disciplinary measure an employee within a calendar year.

⚖️⚖️13th Month Pay Base Amount:

GR: Basic salary shall include:

a. Cost of living allowances (COLA) integrated into the

basic salary of a covered employee pursuant to EO 178.
b. All remunerations or earnings paid by this employer for
services rendered.
Coverage
Excluding the allowances and monetary benefits which
GR: All employers are hereby required to pay all their rank are not considered or integrated as part of the regular or
and file employees a 13th-month pay not later than Dec basic salary, such as the cash equivalent of:
24 of every year, provided that they have worked for at 1. Unused vacation and sick leave credits,
least one (1) month during a calendar year [Memorandum 2. Overtime,
Order No. 28]. 3. Premium,
Page | 33
4. Night differential, d. Private School Teachers: Private school teachers,
5. Holiday pay, and including faculty members of universities and colleges,
6. Cost-of-living allowances. are entitled to the required 13th month pay, regardless of
the number of months they teach or are paid within a year,
XPN: A company practice favorable to the employees had if they have rendered service for at least one (1) month
indeed been established if for a considerable length of within a year.
time, the employer had freely, voluntarily and continuously
included in the computation of its employees' thirteenth Overload pay is not included in the computation for 13th-
month pay, the payments for sick, vacation and maternity month pay; overload is not overtime as it is additional work
leaves, premiums for work done on rest days and special done within the normal shift [Letran Calamba Faculty v.
holidays, and pay for regular holidays. Thus, the NLRC, G.R. No. 156225 (2008)].
payments made pursuant thereto, ripened into benefits
enjoyed by the employees, and any benefit and e. Resigned or Separated Employee: An Employee who
supplement being enjoyed by them cannot be reduced, has resigned or whose services were terminated at any
diminished, discontinued or eliminated by the employer time before the time for payment of the 13th month pay is
entitled to this monetary benefit in proportion to the length
Time of payment of time he worked during the year, reckoned from the time
he started working during the calendar year up to the time
GR: Paid not later than Dec 24 of each year. of his resignation or termination from service.

XPN: ER may give to his employees half (½) of the f. Terminated Employees: The payment of the 13th
required 13th Month Pay before the opening of the regular month pay may be demanded by the employee upon the
school year and the other half on or before the 24th of cessation of employer-employee relationship [Archilles
December every year. The frequency of payment of this Manufacturing Corp. v. NLRC, G.R. No. 107225 (1995)].
monetary benefit may be the subject of agreement
between the employer and the recognized CBA of the Additional Rules
employees. a. Commissions: If the commissions may be properly
considered part of the basic salary, then they should be
Rationale behind 13th Month Pay included. If they are not an integral part of the basic salary,
then they should be excluded [Phil. Duplicators Inc. v.
a. To further protect the level of real wages from the NLRC, G.R. No. 110068 (1995)].
ravage of worldwide inflation;
b. There had been no increase in the legal minimum wage b. Substitute Payment not allowed: Benefits in the form
rates since 1970; of food or free electricity, assuming they were given, were
c. The Christmas season is an opportune time for society not a proper substitute for the 13th month pay required by
to show its concern for the plight of the working masses law. Neither may year-end rewards for loyalty and service
so they may properly celebrate Christmas and New Year. be considered in lieu of 13th month pay [Framanlis Farms,
Inc. v. MOLE, G.R. No. 72616-17 (1989)].
13th Month Pay in Special Cases
c. Wage Difference: The difference between the
a. Paid by Results: Employees who are paid on a piece- minimum wage and the actual salary received by the
work basis are, by law, entitled to the 13th Month Pay. Employee cannot be deemed as his 13th month pay as
such difference is not equivalent to or of the same import
b. Fixed or Guaranteed Wage: Employees who are paid as the said benefit contemplated by law [JPL Marketing
a fixed or guaranteed wage plus commission are entitled Promotions v. CA, G.R. No. 151966 (2005)].
to 13th month pay (not purely commission); the basis for
computation shall be both their fixed or guaranteed wage d. 14th Month Pay is not mandated: Employers already
and commission. paying their employees a 13th month pay or its equivalent
are not covered by this Decree [Kamaya Point Hotel v.
c. Those with Multiple Employers: Government NLRC, G.R. No. 75289 (1989)].
Employees working part-time in a private enterprise,
including private educational institutions, as well as e. Non-inclusion in regular wage: The mandated 13th
Employees working in two or more private firms, whether month pay need not be credited as part of the regular
on full or part-time bases, are entitled to the required 13th wage of employees for purposes of determining overtime
Month Pay from all their private Employers regardless of and premium pays, fringe benefits insurance fund, Social
their total earnings from each or all their employers. Security, Medicare, and private retirement plans.
Commissions vis-à-vis 13th month pay
Page | 34
 the presumption is that
⚖️⚖️ The Rule on Productivity Bonuses these employees perform equal work. [International
School Alliance of Educators v. Hon. Quisumbing, G.R.
No. 128845 (2000)]

c. Fair Wage for Fair Work

GR: The age-old rule governing the relation between

“Productivity bonuses” have no clear direct or
labor and capital or management and employee is that a
necessary relation to the amount of work actually done by
"fair day's wage for a fair day's labor." It is hardly fair or
each individual employee. If an employer cannot be
just for an employee or laborer to fight or litigate against
compelled to pay a productivity bonus to its employees, it
his employer on the employer's time. [Sugue v. Triumph
should follow that such productivity bonus, when given,
International, G.R. No. 164804 (2009)]
should not be deemed to fall within the “basic salary” of
employees when the time comes to compute their 13th
month pay
XPN: When the laborer was able, willing, and ready to
work but was illegally locked out, suspended, or
The sales commission earned by the salesmen who make
dismissed, or otherwise illegally prevented from working
or close a sale constitute part of the compensation or
[Sugue v Triumph International, supra].
remuneration paid to salesmen for serving as salesmen,
and hence as part of the “wage” or salary of petitioner’s
salesmen. The sale commissions were an integral part of d. ⚖️⚖️ Non-Diminution of Benefits
the basic salary structure used as the base amount for the
computation of 13th month pay The non-diminution rule applies only if the benefit is based
on an express policy, a written contract, or has ripened
CBA vis-à-vis 13th month pay into a practice. To be considered a company practice, the
benefit must be consistently and deliberately granted by
P.D. No. 851 is specific and mandatory. However, if the the employer over a long period of time. The burden to
employers actually grant such 13th month pay in the establish it rests with the employee (★G.r. No. 200010,
monetary benefits provided for in the CBA, they could be August 27, 2020, as penned by Justice MVL).
exempted from the operation of the decree. To be
exempted, there must be actual payment It refers to the prohibition against employers from
eliminating or reducing the benefits received by their
Effect of Deficiency in 13th month pay employees. Here are the key points:

An employer who pays less than 1/12th of the employees’ 1987 Constitution
basic salary as their 13th month pay is only required to
pay the difference [Revised Rules]. Employees have a vested right over existing benefits
voluntarily granted by their employer. Any benefit or
2. PRINCIPLES supplement enjoyed by employees cannot be diminished,
discontinued, or eliminated by the employer.
a. No Work, No Pay
This principle is founded on the constitutional mandate to
protect workers’ rights, promote their welfare, and
provide full protection.
GR: If there is no work performed by the employee, there
can be no wage or pay.
Article 4 of the Labor Code reinforces this by stating that
XPN: Unless the laborer was able, willing and ready to doubts in the implementation and interpretation of the
work but was prevented by management or was illegally code shall be resolved in favor of labor.
locked out, suspended or dismissed
Article 100 of the Labor Code
b. Equal Pay for Equal Work
The Labor Code ensures that benefits enjoyed at the time
Employees working in the Philippines, if they are of the Labor Code’s promulgation cannot be reduced or
performing similar functions and responsibilities under eliminated.
similar working conditions, should be paid equally. If an
employer accords employees the same position and rank,
Page | 35
As such, no wage order issued by any regional board shall b. Negotiated benefits
provide for wage rates lower than the statutory minimum c. Reclassification of Positions – e.g., loss of some
wage rates prescribed by Congress (Art. 127, as benefits by promotion.
amended by RA 6727). d. Contingent or Conditional Benefits – the rule does not
apply to a benefit whose grant depends on the existence
⚖️⚖️ Requisites of certain conditions, so that the benefit is not demandable
if those preconditions are absent.
If the following are met, then the employer cannot
remove or reduce benefits (Vergara Jr. v. Coca-Cola Benefits initiated through negotiation between Employee
Bottlers Phils, G.R. No. 176985 (2013): and Employer, e.g., CBA, can only be eliminated or
diminished bilaterally.
1. Ripened company policy
3. Payment of Wages

Form of payment
GR: : Legal Tender Only.

Benefit is founded on a policy which has ripened into a XPN: Check/Money Order if customary OR necessary
practice over a long period. due to special circumstances, as specified by the
Secretary of Labor or the Collective Bargaining
Agreement (CBA).

Forms Not Allowed:

1. Promissory Notes.
2. Practice is consistent and deliberate. 2. Vouchers.
3. Tokens.
4. Tickets.
5. Chits.
6. Any other form alleged to represent legal tender, even
if expressly requested by the employee
3. Not due to error in the construction or application
When Payment Through Check, Postal Orders, or Money
of a doubtful or difficult question of law
Orders is Allowed:

a. When payment is customary (as of the date of the

Labor Code's effectivity).
b. When stipulated in a collective agreement.
c. When the following conditions are met:

4. The diminution or discontinuance is done unilaterally 1. Bank/Facility for encashment is within a 1-km
by the employer. radius from the workplace.
2. Employer did not receive any pecuniary benefit
from the arrangement.
3. Employees are given reasonable time during
banking hours to withdraw their wages (compensable
hours if during working hours).
4. Payment by check is with the written consent of the
concerned employees, in the absence of a CBA

When not applicable: At least one of the requisites is

absent.

a. Mistake in the application of the law

Page | 36
Time of payment massage clinics, dance halls, or places where gambling
activities occur, except in cases where employees work in
TIME OF PAYMENT
such establishments.
Frequency At least once every 2
Conditions for ATM Payment:
weeks or 2x per month
1. Written Consent: Employees must provide written
Intervals Must not be more than 16
consent for wage payment through an ATM system.
day

Force Majeure or Valid excuse for delayed 2. Reasonable Time for Withdrawal: Employees should
circumstances payment be given reasonable time to withdraw their wages from the
beyond ER’s control banking facility, and such time spent may be considered
BUT ER must pay compensable hours if during work hours.
immediately after
cessation and not less 3. Compliance with Legal Requirements: The system
than once a month must allow workers to receive their wages within the
period and frequency provided by law.
Tasks which cannot Payments should be
be completed in 2 made with intervals not 4. Accessibility: A bank or ATM facility must be available
week more than 16 days, in within a 1km radius from the place of work.
proportion to work
completed 5. Record Keeping: Upon request, employers must issue
a record of payment of wages, benefits, and deductions
Final settlement is made upon for a specific period.
completion of the work
6. No Additional Expenses: There should be no
additional expenses incurred by employees, and their
Place of payment benefits and privileges should not be diminished.

GR: Shall be made at or near the place of undertaking 7. Employer Responsibility: Employers shall assume
(workplace). responsibility in case of non-compliance with wage
protection provisions under the arrangement.
XPNs:
Person to Pay
1. Deterioration of Peace and Order Conditions or
Emergencies: In cases of deteriorating peace and order GR: Wages shall be paid directly to the employee.
or during emergencies such as fires, floods, or epidemics,
payment may be made at an alternate location for the XPNs:
safety and convenience of employees. 1. Payment to Family Member: Payment may be made to
a member of the employee's family if authorized in writing
2. Free Transportation Provided: If employers offer free by the employee.
transportation to and from the workplace, wages may be
paid at a designated location along the transportation 2. Payment to a Third Person: Payment to a third person
route. is permitted if authorized by law or by the employee
concerned, such as for insurance premiums or union
3. Analogous Circumstances: dues.

Under circumstances analogous to deteriorating peace 3. Payment to Heirs: In case of the employee's death,
and order or emergencies, payment may occur at a wages may be paid to heirs without the need for intestate
different location. However, the time spent by employees proceedings, provided specific conditions are met.
in collecting their wages should be considered
compensable hours worked. 4. Legal Precedent: Payment to the leader of an
organized group of workers does not violate the rule on
Prohibition direct payment, provided it is done in accordance with
labor regulations and the consent of the affected
Payment of wages is prohibited in certain establishments employees [Bermiso v. Escano, G.R. No. L-11606 (1959)].
such as bars, nightclubs, drinking establishments, This allows flexibility in payment arrangements within
Page | 37
organized labor structures.
It is unlawful for an employer to discriminate (e.g. to refuse
4. Prohibitions Regarding Wages to pay or reduce the wages and benefits, discharge)
against any employee who has filed any complaint or
Against interference in disposal of wages instituted any proceeding under Title II of the LC.

Against false reporting

Includes forcing, obliging, or compelling(FOC) employees
It is unlawful for any person to make a statement, report
to purchase merchandise, commodities or other property
or record filed or kept pursuant to the LC knowing it to be
from any other person.
false in any material respect.
Against wage deduction
5. ⚖️⚖️WAGE DISTORTION
GR: No employer, in his own behalf or in behalf of any
person, shall make any deduction from the wages of his
employees.

XPNs:
1. where the worker is insured with his consent, and Wage distortion/rectification refers to a circumstance
the deduction is to recompense the employer for the arising from an increase in prescribed wage rates that
premium paid leads to the elimination or significant reduction of
2. for union dues intentional quantitative differences in salary rates among
3. where the employer is authorized by law or different employee groups within an establishment. This
regulations issued by SOLE situation effectively erases the distinctions embedded in
Against requirements to make deposits for loss or the wage structure, which are typically based on factors
damage (Arts. 114-115) such as skills, length of service, or other logical
differentiators [Art. 124].
GR: No employer shall require his worker to make
deposits from which deductions shall be made for the Elements of Wage Distortion:
reimbursement of loss of or damage to tools, materials, or
equipment supplied by employer 1. Existing Hierarchy of Positions: The establishment
maintains a structured hierarchy of positions, each
XPN: When the employer is engaged in a business where associated with corresponding salary rates.
the practice of making deductions or deposits is a
recognized one, or is necessary or desirable as 2. Significant Change in Lower Pay Class: A notable
determined by SOLE. increase occurs in the salary rate of a lower pay class
without a corresponding raise in the salary rate of a higher
Note: No deduction from the deposits of an employee for one. This change is typically caused by a wage order
the actual amount of the loss or damage shall be made
unless the employee has been heard thereon, and his 3. Elimination of Distinction: The wage adjustment leads
responsibility has been clearly shown. to the elimination of the distinction between the affected
pay levels.
Against withholding of wage
4. Existence of Distortion in the Same Region: The
It is unlawful for any person to withhold any amount from distortion must occur within the same region of the country
the wages of a worker or induce him to give up any part
of his wages by force, stealth, intimidation, threat or any Note: the implementation of wage orders in one region but
other means without his consent. not in others does not inherently result in wage distortion.
Also, wage distortion can only arise when the wage
Against deduction to ensure employment adjustment is mandated by a wage order and not by
management prerogative.
It is unlawful to make any deduction from the wages of
any employee for the benefit of the employer as
consideration of promise for employment or retention.

Against retaliatory measures

Page | 38
Methods of Fixing Wage Distortion 6. Minimum Wage
FLOOR WAGE SALARY CEILING
"Statutory minimum wage" is the lowest wage fixed by
law that an employer can pay his workers.
What it does

Adds to previous minimum All wages under a certain

wage wage increases to that Payment of statutory minimum wage is mandatory. Lack
wage of funds is not a valid defense from paying the statutory
minimum wage, which is a mandatory statutory obligation.
Example
Payment by hours worked: The minimum wage rates for
P456 + P100 = P556 All wages under P456 agricultural and non-agricultural employees and workers
must be increased to P556 in each and every region of the country shall be those
prescribed by the Regional Tripartite Wages and
Productivity Boards. [Art. 99]
How to Resolve Wage Distortion [Art. 124]
Payment by results or output:
A. For Organized Establishments
1. Employer and the union shall negotiate to correct the
a. On petition of any interested party, or upon its initiative,
distortions.
the Department of Labor shall use all available devices,
2. Disputes shall be resolved through the grievance
including the use of time and motion studies and
procedure.
consultation with representatives of employers’ and
3. If still unresolved, voluntary arbitration. workers’ organizations, to determine whether the
employees in any industry or enterprise are being
Note: Grievance Procedure (under the CBA) → if compensated in accordance with the minimum wage
unresolved, VOLUNTARY arbitration requirements of this Rule.
B. For unorganized establishments b. The basis for the establishment of rates for piece,
output, or contract work shall be the performance of an
1. Employers (ERs) and Employees (Ees) shall strive to ordinary worker of minimum skill or ability.
rectify any distortions.
c. An ordinary worker of minimum skill or ability is the
2. Disputes shall initially be addressed through the average worker of the lowest producing group
National Conciliation and Mediation Board. representing 50% of the total number of employees
engaged in similar employment in a particular
3. If disputes remain unresolved after 10 calendar days of establishment, excluding learners, apprentices and
conciliation, they shall be referred to the appropriate handicapped workers employed therein.
branch of the National Labor Relations Commission
(NLRC) for compulsory arbitration. d. Where the output rates established by the employer do
not conform with the standards prescribed herein, or with
4. Both the employer and employee are prohibited from the rates prescribed by the DOLE in an appropriate order,
resorting to economic weapons. the employees shall be entitled to the difference between
the amount to which they are entitled to receive under
5. Employers are barred from declaring a lock-out, while such prescribed standards or rates and that actually paid
employees are prohibited from declaring a strike, as the them by the employer
law mandates a procedure for settlement.
C. LEAVES
6. The maintenance of salary or wage differentials is not
mandated [National Federation of Labor v. NLRC, G.R. 1. ⚖️⚖️SERVICE INCENTIVE LEAVES
No. 103586 (1994)].

If disputes persist even after the intervention of the

National Conciliation and Mediation Board, they are Coverage:
subject to COMPULSORY arbitration by the NLRC. 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

Page | 39
 The cause of action to claim his SIL pay accrues from the
SIL DOES NOT apply to the following employees: moment the employer refuses to remunerate its monetary
equivalent.
a. Those of the government and any of its political
subdivisions, including GOCCs 2. If the employee wishes to accumulate his leave credits
b. Domestic helpers and persons in the personal and opts for its commutation upon his resignation or
service of another; separation from employment: The cause of action to claim
c. Managerial employees as defined in Book III of this the whole amount of his accumulated SIL shall arise when
Code; the employer fails to pay such amount at the time of his
d. Field personnel and other employees whose resignation or separation from employment.
performance is unsupervised by the employer
including those who are engaged on task or contract
basis, purely commission basis, or those who are paid 2. LEAVES UNDER SPECIAL LAWS
a fixed amount for performing work irrespective of the
time consumed in the performance thereof; A. ⚖️⚖️ EXPANDED MATERNITY LEAVE - R.A. NO.
e. Those who are already enjoying the benefit herein 11210
provided;
f. Those enjoying vacation leave with pay of at least 5
days;
g. Those employed in establishments regularly
employing less than 10 employees

⚖️Piece-rate employees are entitled to service incentive Maternity leave of 105 days with full pay, with an option
leave pay provided that they are supervised. If they are to extend for an additional 30 days without pay.
unsupervised, they are not entitled to SIL.
Coverage:
Teachers of private school on contract basis are entitled
to service incentive leave. Every female worker in government and the private
sector, including those in the informal economy,
Meaning of "1 year of service": regardless of civil status or the legitimacy of her child, is
GR: "At least one year service" shall mean service for entitled to the maternity leave benefits.
NOT LESS than 12 months, whether continuous or
broken, reckoned from the date the employee started This is applicable to pregnancy and miscarriage, or
working, including authorized absences and paid regular emergency termination of pregnancy, regardless of
holidays. frequency of birth

XPN: Service for LESS than 12 months is counted as "at Note: As per amendment, maternity benefit is no longer
least one year service" when: limited to 4 deliveries.

1. The working days of the establishment, as a Maternity leave for female workers in the private
matter of practice or policy, is less than 12 sector, Requisites:
months; or
2. The employment contract provides working a) Contribution: The female worker must have paid at
days that are less than 12 months least 3 monthly contributions in the 12-month period
immediately preceding the semester of her childbirth,
Commutable nature of benefit: miscarriage, or emergency termination of pregnancy. In
determining the female member’s entitlement to the
The service incentive leave shall be commutable to its benefit, the SSS shall consider only those contributions
money equivalent if not used or exhausted at the end of paid prior to the semester of contingency; and
the year.
b) Notice: The female worker shall have notified her
When Entitled EE’s Cause of Action Accrues: employer of her pregnancy and the probable date of her
childbirth, which notice shall be transmitted to the SSS in
1. If the employee did not make use of said leave credits accordance with the rules and regulations it may provide
but instead chose to avail of its commutation into money:
Maternity leave benefit after termination of
Page | 40
employment possible
Allocation of maternity leave credits:
GR: Maternity leave with full pay shall be granted even if
the childbirth, miscarriage, or emergency termination of A female worker entitled to maternity leave benefits may,
pregnancy occurs not more than 15 calendar days after at her option, allocate up to 7 days of said benefits to the
the termination of an employee’s service. child’s father, whether or not the father is married to the
mother.
XPN: When the employment of the pregnant woman
worker has been terminated without just cause, the The allocated benefit granted to the child’s father is over
employer must pay her the full amount equivalent to her and above the paternity benefits provided under RA
salary for 105 days for childbirth and 60 days for 8187 (Paternity Leave Act).
miscarriage and emergency termination of pregnancy
based on her full pay, in addition to the other applicable In case of death, absence, or incapacity of the child’s
daily cash maternity benefits that she should have father, the female worker may allocate to an alternate
received had her employment not been illegally caregiver who may be:
terminated
1. A relative within the 4th degree of consanguinity; or
Benefit received:
2. The current partner, regardless of sexual orientation
A daily maternity benefit equivalent to 100% of her or gender identity, of the female worker sharing the
average daily salary credit for: same household.

105 days in cases of live childbirth The option to allocate maternity leave credits shall not be
60 days in cases of miscarriage or emergency applicable in cases of miscarriage or emergency
termination of pregnancy. termination of pregnancy

The maternity leave can be credited as combinations of Death or permanent incapacity:

prenatal and postnatal leave as long as it does not exceed
105 days or 60 days as the case may be. In no case shall
postnatal care be less than 60 days

In case the employee qualifies as a solo parent, the

employee shall be paid an additional maternity benefit of
15 days.
If the female worker dies or becomes permanently
Extended maternity leave option, requisite notice: incapacitated, the balance of her maternity leave benefits
shall accrue to the child’s father or to a qualified alternate
In cases of live childbirth, an additional maternity leave of caregiver subject to the following conditions:
30 days, without pay, can be availed of, at the option of
the female worker, provided that the employer shall be 1. That the maternity leave benefits have not yet been
given notice. commuted to cash, if applicable; and
GR: Due notice must be in writing must be given at least 2. That a certified true copy of the death certificate or
45 days before the end of the female worker’s maternity medical certificate or abstract is provided to the
leave. employers of both the female worker and the child’s
father or alternate caregiver.

In case the maternity leave benefits have already been

paid to the female worker in full, the child’s father or
XPN: No prior notice shall be necessary in the event of a
alternate caregiver shall be entitled to enjoy the remaining
medical emergency, but subsequent notice shall be given
unexpired leave credits of the female worker, if any.
to the employer.
The period of extended maternity leave without pay shall
Provided that, such leave without pay shall not be
not be considered a gap in the service.
considered a gap in the service of the child’s father or
alternate caregiver.
Under RA 11210, the limitation as to the number of
availments has been lifted.
Page | 41
Other conditions: Usage of the leave shall be after the delivery, without
prejudice to an employer’s policy of allowing the employee
Employer shall advance the full payment subject to to avail of the benefit before or during the delivery,
reimbursement by the SSS within 30 days from filing of provided that the total number of days shall not be more
leave application than 7 days for each covered delivery

SSS shall immediately reimburse the employer the Conditions for entitlement:
maternity benefits advanced to the employed female
member, only to the extent of 100% of her average daily a. He is married;
salary credit for 105 days, 120 days or 60 days, as the b. He is an employee at the time of the delivery of his child
case may be, upon receipt of satisfactory and legal proof c. He is cohabiting with his spouse at the time that she
of such payment gives birth or suffers a miscarriage
d. He has applied for paternity leave with his ER within a
Availment shall be a bar to the recovery of sickness reasonable period of time from the expected date of
benefits provided under RA 1161 (Social Security Law) for delivery by his pregnant spouse, or within such period as
the same period for which daily maternity benefits have may be provided by company rules and regulations, or by
been received CBA; and,
e. His wife has given birth or suffered a miscarriage.
Sanction: That if an employee should give birth or suffer In case of miscarriage, prior application for paternity leave
miscarriage or emergency termination of pregnancy shall not be required.

Without the required contributions having been remitted Non-conversion to cash:

for her by her employer to the SSS, or Without the SSS
having been previously notified by the ER of time of the In the event that the paternity leave is not availed of, it
pregnancy. shall not be convertible to cash and shall not be
cumulative [Sec. 7, IRR, RA 8187].
The employer shall pay to the SSS damages equivalent
to the benefits which said employee would otherwise have Crediting of existing benefits:
been entitled to [Sec. 5, RA 11210].
a. If the existing paternity leave benefit under the CBA,
B. ⚖️⚖️PATERNITY LEAVE contract, or company policy is greater than 7 calendar
days as provided for in RA 8187, the greater benefit shall
prevail.
b. If the existing paternity leave benefit is less than that
Leave of 7 calendar days with full pay for every married provided in RA 8187, the ER shall adjust the existing
male employee in the private and public sectors benefit to cover the difference

Coverage and Purpose: Where a company policy, contract, or CBA provides for an
emergency or contingency leave without specific
Paternity leave is granted to all married male employees provisions on paternity leave, the ER shall grant to the
in the private and public sectors, regardless of their employee 7 calendar days of paternity leave
employment status (e.g. probationary, regular,
contractual, project basis). C. ⚖️SOLO PARENT LEAVE

The purpose of this benefit is to allow the husband to lend

support to his wife during her period of recovery and/or in
nursing her newborn child [Sec. 3, RA 8187].
Parental leave for solo parents
It shall apply to the first 4 deliveries of the employee’s
lawful wife with whom he is cohabiting.
Leave benefits granted to a solo parent to enable him/her
to perform parental duties and responsibilities where
physical presence is required

Page | 42
Coverage:

Any solo parent or individual who is left alone with the

responsibility of parenthood due to:
Availment:
1. Giving birth as a result of rape or other crimes against
chastity even without a final conviction of the offender: The parental leave is in addition to leave privileges under
Provided, That the mother keeps and raises the child; existing laws with full pay, consisting of basic salary and
mandatory allowances. It shall not be more than seven (7)
2. Death of spouse; working days every year

3. Spouse is detained or is serving sentence for a criminal Grant of Flexible Work Schedule:
conviction for at least one (1) year;
The employer shall provide for a flexible working schedule
4. Physical and/or mental incapacity of spouse as certified for solo parents: Provided, That the same shall not affect
by a public medical practitioner; individual and company productivity: Provided, further,
that any employer may request exemption from the above
5. Legal separation or de facto separation from spouse for requirements from the DOLE on certain meritorious
at least one (1) year: Provided, that he/she is entrusted grounds
with the custody of the children;
Protection against Work Discrimination:
6. Declaration of nullity or annulment of marriage as
decreed by a court or by a church: Provided, that he/she No employer shall discriminate against any solo parent
is entrusted with the custody of the children; employee with respect to terms and conditions of
employment on account of his/her status. [Sec. 7, RA
7. Abandonment of spouse for at least one (1) year; 8972]

8. Unmarried father/mother who has preferred to keep d. Gynecological Leave

and rear his/her child/children, instead of having others (R.A. No. 9710 (Magna Carta for Women)
care for them or give them up to a welfare institution;

9. Any other person who solely provides parental care and

support to a child or children: Provided, that he/she is duly
licensed as a foster parent by the Department of Social A female employee’s leave entitlement of two (2) months
Welfare and Development (DSWD) or duly appointed with full pay from her employer based on her gross
legal guardian by the court; and monthly compensation following surgery caused by
gynecological disorders, provided that she has rendered
10. Any family member who assumes the responsibility of continuous aggregate employment service of at least six
head of family as a result of the death, abandonment, (6) months for the last 12 months.
disappearance, or prolonged absence of the parents or
solo parent for at least one (1) year Gynecological Disorders:
Conditions for Entitlement: Disorders that would require surgical procedures such as,
but not limited to:
A solo parent employee shall be entitled to the parental
leave under the following conditions: 1. Dilatation and curettage;
1. He/she has rendered at least one (1) year of 2. Those involving female reproductive organs such as
service, whether continuous or broken; the vagina, cervix, uterus, fallopian tubes, ovaries,
2. He/she has notified his/her employer that he/she breast, adnexa, and pelvic floor, as certified by a
will avail himself/herself of it, within a reasonable competent physician;
period of time; and
3. He/she has presented to his/her employer a Solo 3. Hysterectomy, ovariectomy, and mastectomy.
Parent Identification Card, which may be obtained
from the DSWD office of the city or municipality where
he/she resides

Page | 43
Competent Physician:
Special Leave Benefit vis-à-vis SSS Sickness Benefit:
A medical doctor preferably specializing in gynecological
disorders or is in the position to determine the period of The SLB is different from the SSS sickness benefit. The
recuperation of the woman employee. former is granted by the employer in accordance with RA
9710.
Conditions for Entitlement:
It is granted to a woman employee who has undergone
Any female employee, regardless of age and civil status, surgery due to a gynecological disorder. The SSS
shall be entitled to a special leave benefit, provided she sickness benefit, on the other hand, is administered and
has complied with the following conditions: given by the SSS in accordance with RA 1161 as
amended by RA 8282
a. She has rendered at least 6 months continuous
aggregate employment service for the last 12 months E. BATTERED WOMAN LEAVE - R.A. NO. 9262
prior to surgery;
b. She has filed an application for special leave Victims of any of the acts covered by VAWC shall be
c. She has undergone surgery due to gynecological entitled to take a paid leave of absence up to ten (10) days
disorders as certified by a competent physician in addition to other paid leaves under the Labor Code and
Civil Service Rules and Regulations, extendible when the
Application for Special Leave Before Surgery: necessity arises as specified in the protection order [Sec.
43, RA 9262].
The employee shall file her application for leave with her
employer within a reasonable period of time from the When availed of:
expected date of surgery, or within such period as may be
provided by company rules and regulations or by CBA. A victim leave may be availed of at any time during the
application of any protection order, investigation,
Application for Special Leave After Surgery: prosecution, and/or trial of the criminal case

Prior application for leave shall not be necessary in cases Requirement:

requiring emergency surgical procedures, provided that
the employer shall be notified verbally or in written form In order to be entitled to the leave benefit, the only
within a reasonable period of time and provided further requirement is for the victim-employee to present to her
that after the surgery or appropriate recuperating period, employer a certification from the barangay chairman
the female employee shall immediately file her application (Punong Barangay) or barangay councilor (barangay
using the prescribed form kagawad) or prosecutor or the Clerk of Court, as the case
may be, that an action relative to the matter is pending
Period of Entitlement:
The usage of the ten-day leave shall be at the option of
The 2 months special leave is the maximum period of the woman employee. In the event that the leave benefit
leave with pay that a woman employee may avail of under is not availed of, it shall not be convertible into cash and
RA 9710. shall not be cumulative

For purposes of determining the period of leave with pay When denied; employer’s liability:
that will be allowed to a female employee, the certification
of a competent physician as to the required period of The employer/agency head who denies the application for
recuperation shall be controlling leave, and who shall prejudice the victim-survivor or any
person for assisting a co-employee who is a victim-
Availment: survivor under the Act shall be held liable for
discrimination and violation of R.A 9262
The special leave shall be granted to the qualified
employee after she has undergone surgery Compassionate Leaves:

Frequency of Availment: There is no enabling law that provides for bereavement

leave in the Philippines. However, bereavement leaves
A woman employee can avail of the SLB for every and other similar leaves may be granted as company
instance of surgery due to a gynecological disorder for a practice or through a collective bargaining agreement.
maximum total period of 2 months per year
Page | 44
 discrimination in all matters relating to marriage and family
D. ⚖️⚖️SPECIAL GROUPS OF EMPLOYEES relations, including the right to choose freely a spouse and
to enter into marriage only with their free and full consent.
1. WOMEN
Bona fide occupational qualification as an exception:
Discrimination:
While a marriage or no-marriage qualification may be
It shall be unlawful for any employer to discriminate justified as a "bona fide occupational qualification," the
against any woman employee with respect to terms and employer must prove two factors necessitating its
conditions of employment solely on account of her sex. imposition, viz:
The following are acts of discrimination:
1. That the employment qualification is reasonably related
a. Payment of a lesser compensation, including wage, to the essential operation of the job involved; and
salary, or other form of remuneration and fringe benefits,
to a female employee as against a male employee, for 2. That there is a factual basis for believing that all or
work of equal value; and substantially all persons meeting the qualification would
be unable to properly perform the duties of the job.
b. Favoring a male employee over a female employee
with respect to promotion, training opportunities, study, Prohibited Acts:
and scholarship grants solely on account of their sexes
1. Discharge to prevent the enjoyment of benefits.
The Magna Carta of Women provides that the State:
To deny any woman employee the benefits or to discharge
any woman employed by him for the purpose of
preventing her from enjoying any of the benefits provided
under the LC
1. Condemns discrimination against women in all its forms
2. Pursues by all appropriate means and without delay the 2. Discharge on account of pregnancy.
policy of eliminating discrimination against women in
keeping with the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) and
other international instruments consistent with Philippine To discharge such a woman on account of her pregnancy,
law. while on leave or in confinement due to her pregnancy
3. Shall accord women the rights, protection, and
opportunities available to every member of society
3. Discharge or refusal of admission to work.
4. Shall take steps to review and, when necessary, amend
and/or repeal existing laws that are discriminatory to
To discharge or refuse the admission of such a woman
women within three (3) years from the effectivity of this Act
upon returning to her work for fear that she may again be
pregnant
Stipulation Against Marriage:
4. Discharge on account of testimony.
It shall be unlawful for an employer to:

1. Require as a condition of employment or continuation

of employment that a woman employee shall not get
married, or
To discharge any woman or child or any other employee
2. Stipulate expressly or tacitly that upon getting married for having filed a complaint or having testified or being
a woman employee shall be deemed resigned or about to testify under the LC
separated or
5. Expulsion of Women faculty/female student due to
3. Actually dismiss, discharge, discriminate or otherwise pregnancy outside of marriage
prejudice a woman employee merely by reason of her
marriage. Expulsion and non-readmission of women faculty due to
pregnancy outside of marriage shall be outlawed. No
The Magna Carta of Women protects women against school shall turn out or refuse admission to a female

Page | 45
student solely on the account of her having contracted The phrase "worst forms of child labor" shall refer to any
pregnancy outside of marriage during her term in school of the following:
[Sec. 13(c), RA 9710].
1. All forms of slavery, as defined under the "Anti-
trafficking in Persons Act of 2003", or practices similar to
slavery such as sale and trafficking of children, debt
bondage and serfdom and forced or compulsory labor,
2. MINORS - R.A. NO. 7610, AS AMENDED BY including recruitment of children for use in armed conflict;
R.A. NO. 9231 or

Child labor vs. working child 2. The use, procuring, offering or exposing of a child for
prostitution, for the production of pornography or for
CHILD LABOR WORKING CHILD pornographic performances; or
Refers to any work or Refers to any child
3. The use, procuring or offering of a child for illegal or
economic activity performed engaged as follows:
illicit activities, including the production and trafficking of
by a child that subjects
dangerous drugs and volatile substances prohibited under
him/her to any form of 1. when the child is below existing laws; or
exploitation or is harmful to eighteen (18) years of
his/her health and safety or age, in work or economic
4. Work which, by its nature or the circumstances in which
physical, mental or activity that is not child
it is carried out, is hazardous or likely to be harmful to the
psychosocial development labor as defined in the
health, safety or morals of children, such that it:
immediately preceding
subparagraph; and
a. Debases, degrades or demeans the intrinsic worth
and dignity of a child as a human being; or
2. when the child is below
fifteen (15) years of age, in
b. Exposes the child to physical, emotional or sexual
work where he/she is
abuse, or is found to be highly stressful
directly under the
psychologically or may prejudice morals; or
responsibility of his/her
parents or legal guardian
c. Is performed underground, underwater or at
and where only members
dangerous heights; or
of the child‘s family are
employed; or in public
entertainment or d. Involves the use of dangerous machinery,
information equipment and tools such as power-driven or explosive
power-actuated tools; or

e. Exposes the child to physical danger such as, but

Allowed working hours and industries of a working not limited to the dangerous feats of balancing,
child physical strength or contortion, or which requires the
manual transport of heavy loads; or
AGE BRACKET DAILY WEEKLY
MAX MAX
f. Is performed in an unhealthy environment exposing
the child to hazardous working conditions, elements,
Below 15 y/o 4 hrs 20 hrs
substances, co-agents or
15 to below 18 y/o 8 hrs 40 hrs processes involving ionizing, radiation, fire, flammable
substances, noxious components and the like, or to
extreme temperatures, noise levels, or vibrations; or
Prohibited acts
g. Is performed under particularly difficult conditions; or

h. Exposes the child to biological agents such as

bacteria, fungi, viruses, protozoans, nematodes and
other parasites; or i. Involves the manufacture or
handling of explosives and other pyrotechnic products.
No child shall be engaged in the worst forms of child labor. 5. No child shall be employed as a model in any
Page | 46
advertisement directly or indirectly promoting alcoholic Within one year from the effectivity of RA 10361, and
beverages, intoxicating drinks, tobacco and its periodically thereafter, the Regional Board shall review,
byproducts, gambling or any form of violence or and if proper, determine and adjust the minimum wage
pornography. rates of domestic workers.

Prohibited Hazardous Workplaces Standard of Treatment

1. Mining and Quarrying; The employer or any member of the household shall not
2. Construction; subject a domestic worker or “kasambahay” to any kind of
3. Transportation and Storage; abuse nor inflict any form of physical violence or
4. Water Supply; Sewerage, Waste Management and harassment or any act tending to degrade the dignity of a
Remediation Activities; domestic worker [Sec. 5, RA 10361].
5. Forestry and Logging;
6. Fishing and Aquaculture; Board, Lodging, and Medical Attendance
7. Hunting, Trapping and Related Service Activities;
8. Security and Investigation; The employer shall provide for the basic necessities of the
9. Manufacturing of alcoholic beverages, tobacco, domestic worker to include:
pyrotechnics,weapons, rubber, plastic or chemical
products; 1. At least three adequate meals a day
10. Certain Farming and Animal Produce Activities 2. Humane sleeping arrangements that ensure safety
3. Appropriate rest and assistance in case of illnesses and
3. ⚖️⚖️KASAMBAHAYS - R.A. NO. 10361 injuries sustained during service without loss of benefits
Access to Outside Communication
Domestic work refers to work performed in or for a
household or households The employer shall grant the domestic worker access to
outside communication during free time: Provided, That in
case of an emergency, access to communication shall be
granted even during work time
Household refers to the immediate members of the family Education and Training
or the occupants of the house that are directly provided
services by the domestic worker. [Sec 4(f), RA 10361]
The employer shall afford the domestic worker the
opportunity to finish basic education and may allow
Domestic worker or “Kasambahay” refers to any access to alternative learning systems and, as far as
person engaged in domestic work within an employment practicable, higher education or technical and vocational
relationship such as, but not limited to, the following: training
general househelp, nursemaid or “yaya”, cook,
gardener, or laundry person.
Social and Other Benefits
The term domestic worker or “kasambahay” excludes
A domestic worker who has rendered at least one (1)
any person who performs domestic work only
month of service shall be covered by the Social Security
occasionally or sporadically and not on an occupational
System (SSS), the Philippine Health Insurance
basis. (Sec.4(d), RA 10361)
Corporation (PhilHealth), and the Home Development
Mutual Fund or Pag-IBIG, and shall be entitled to all the
Note: IRR, Sec. 2 does not include family drivers. benefits in accordance with the pertinent provisions
provided by law.
Minimum wage
Leave Benefits
The minimum wage of domestic workers shall not be less
than the following: A domestic worker who has rendered at least one (1) year
of service shall be entitled to an annual service incentive
a. P2,500 a month for those employed in NCR leave of five (5) days with pay
b. P2,000 a month for those employed in chartered
cities and first-class municipalities Rest Periods:
c. P1,500 a month for those employed in other Daily Rest Period: 8 hours
municipalities Weekly Rest Period: at least 24 consecutive hours.

Page | 47
 The employer and employee may agree to: Note: No employer shall pay the wages of a domestic
worker by means of promissory notes, vouchers,
a. Offsetting a day of absence with a particular rest coupons, tokens, tickets, chits, or any object other than
day; the cash wage as provided for under this Act [Sec. 25, RA
b. Waiving a particular rest day in return for an 10361].
equivalent daily rate of pay;
c. Accumulating rest days not exceeding 5 days; or Payslip
d. Other similar arrangements

Pre-Employment Requirement
The employer shall at all times provide the domestic
Prior to the execution of the employment contract, the worker with a copy of the pay slip containing the amount
employer may require the following from the domestic paid in cash every pay day, and indicating all deductions
worker: made, if any. The copies of the pay slip shall be kept by
the employer for a period of three (3) years

a. Medical certificate or a health certificate issued by a Assignment to Non-household Work:

local government health officer;
b. Barangay and police clearance; No domestic worker shall be assigned to work in a
c. National Bureau of Investigation (NBI) clearance; commercial, industrial, or agricultural enterprise at a wage
and rate lower than that provided for agricultural or
d. Duly authenticated birth certificate or if not available, nonagricultural workers. In such cases, the domestic
any other document showing the age of the domestic worker shall be paid the applicable minimum wage [Sec.
worker such as voter’s identification card, baptismal 22, RA 10361].
record, or passport.
Extent of Duty:
However, (a), (b), (c), and (d) shall be standard
requirements when the employment of the domestic The domestic worker and the employer may mutually
worker is facilitated through the PEA. The cost of the agree for the former to temporarily perform a task that is
foregoing shall be borne by the prospective employer or outside the latter’s household for the benefit of another
agency, as the case may be. [Sec. 12, RA 10361] household.

Pre-Employment Prohibition Provided:

The following shall be unlawful: 1. Any liability that will be incurred by the domestic worker
on account of such arrangement shall be borne by the
1. Charging any share in the recruitment or finder’s original employer.
fees against the domestic worker by a private 2. Such work performed outside the household shall
employment agency or third party. entitle the domestic worker to an additional payment of not
less than the existing minimum wage rate of a domestic
2. Requiring a domestic worker to make deposits from worker.
which deductions shall be made for the reimbursement 3. It shall be unlawful for the original employer to charge
of loss or damage to tools, materials, furniture, and any amount from the said household where the service of
equipment in the household. the domestic worker was temporarily performed

3. Placing the domestic worker under debt by the Employment Age of Domestic Workers:
employer or any person acting on behalf of the
employer It is unlawful to employ any person below fifteen (15)
years of age as a domestic worker
Time and Manner of Payment of Wages
Persons between 15-18 years old should only be
1. Directly to the domestic worker in cash employed in non-hazardous work
2. At least once a month
3. With no deductions from the wages other than that Daily Rest Period: Aggregate of eight (8) hours per day
which is mandated by law, unless allowed by the domestic
worker through a written consent

Page | 48
Employment Certification: employer shall issue the domestic worker within five (5)
days from request a certificate of employment indicating
The employer shall give the househelper a written the nature, duration of the service and work performance
statement of the nature and duration of the service and [Sec. 35, RA 10361].
his or her work performance as househelper upon
severance. Unjust dismissal
Termination
Neither the domestic worker nor the employer may
a) Initiated by the domestic worker terminate the contract before the expiration of the term
except for grounds provided in Secs. 33 and 34 of RA
The domestic worker may terminate the employment 10361.
relationship at any time before the expiration of the
employment contract for any of the following causes: If the domestic worker is unjustly dismissed, the domestic
worker shall be paid the compensation already earned
1. Verbal or emotional abuse of the domestic worker plus the equivalent of 15 days work by way of indemnity
by the employer or any member of the household;
2. Inhuman treatment including physical abuse of the Leaving without justifiable reason by the domestic
domestic worker by the employer or any member of the worker
household;
3. Commission of a crime or offense against the a. Any unpaid salary due not exceeding the equivalent 15
domestic worker by the employer or any member of the days work shall be forfeited AND
household;
4. Violation by the employer of the terms and b. The employer may recover from the domestic worker
conditions of the employment contract and other the costs incurred related to the deployment expenses, if
standards set forth under this law; any: Provided, that the service has been terminated within
5. Any disease prejudicial to the health of the domestic 6 months from the domestic worker’s employment
worker, the employer, or member/s of the household;
and Notice to end the working relationship
6. Other causes analogous to the foregoing
If the duration of the domestic service is not determined
b) Initiated by the employer either in stipulation or by the nature of the service, the
employer or the domestic worker may give notice to end
An employer may terminate the services of the domestic the working relationship five (5) days before the intended
worker at any time before the expiration of the contract, termination of the service.
for any of the following causes:
The domestic worker and the employer may mutually
1. Misconduct or willful disobedience by the domestic agree upon written notice to preterminate the contract of
worker of the lawful order of the employer in employment to end the employment relationship [Sec. 32,
connection with the former’s work; RA 10361].
2. Gross or habitual neglect or inefficiency by the
domestic worker in the performance of duties; 4. HOMEWORKERS
3. Fraud or willful breach of the trust reposed by the
employer on the domestic worker; Distribution of Homework
4. Commission of a crime or offense by the domestic
worker against the person of the employer or any For purposes of this Chapter, the "employer" of
immediate member of the employer’s family; homeworkers includes any person, natural or artificial
5. Violation by the domestic worker of the terms and who, for his account or benefit, or on behalf of any person
conditions of the employment contract and other residing outside the country, directly or indirectly, or
standards set forth under this law; through an employee, agent contractor, subcontractor or
6. Any disease prejudicial to the health of the domestic any other person:
worker, the employer, or member/s of the household;
and 1. Delivers, or causes to be delivered, any goods, articles
7. Other causes analogous to the foregoing or materials to be processed or fabricated in or about a
home and thereafter to be returned or to be disposed of
Employment Certification or distributed in accordance with his directions; or

Upon the severance of the employment relationship, the 2. Sells any goods, articles or materials to be processed
Page | 49
or fabricated in or about a home and then rebuys them Mandatory facilities for Night Workers
after such processing or fabrication, either by himself or
through some Mandatory facilities shall be made available for workers
other person. performing night work, which include the following:

Rights and benefits 1. Suitable first-aid and emergency facilities;

2. Lactation station in required companies pursuant to RA
1. Right to form, join or assist organizations 10028;
2. Right to acquire legal personality and the rights and 3. Separate toilet facilities for men & women
privileges granted by law to legitimate labor organizations 4. Facility for eating w/ potable drinking water;
upon issuance of the certification of registration 5. AND
3. Immediate payment upon employer's receipt of finished 6. Facilities for transportation and/or properly ventilated
goods or articles temporary sleeping or resting quarters, separate for male
4. SSS, MEDICARE and ECC premium contributions and female workers, shall be provided except where any
shall be deducted from their pay and shall be remitted by of the ff. circumstances is present:
ER/contractor/subcontractor to the SSS
a. There is an existing company guideline, practice or
Employer liability policy, CBA, or any similar agreement providing for an
equivalent or superior benefit; or
1. Employer may require homeworker to redo work
improperly executed without additional pay b. Start or end of the night work does NOT fall within
12 mn - 5 am; or
2. Employer need not pay homeworker for any work done
on goods or articles not returned due to homeworker’s c. Workplace is located in an area that is accessible 24
fault hours to public transportation; or

3. If subcontractor/contractor fails to pay homeworker, d. Number of employees does NOT exceed a specified
employer is jointly and severally liable with the former to number as may be provided for by the SOLE in
the homeworker for his/her wage subsequent issuances [Art. 156, as amended by RA
10151; Sec. 4, Rule XV, Book III, IRR, through D.O.
4. Employer shall assist the homeworkers in the No. 119-12]
maintenance of basic safe and healthful working
conditions at the homeworkers’ place of work 6. ⚖️⚖️ APPRENTICES AND LEARNERS -

5. Night Workers
Learner Apprentice

Nature Trains in a semi- Trains in a highly

skilled job; technical job.

Period 3 months Not less than three

Any employed person whose work requires performance (3) months but not
of a substantial number of hours of night work which more than six (6)
exceed a specified limit. months, as a rule.

This limit shall be fixed by the Secretary of Labor after Commitme There is a No such
consulting the workers’ representatives/labor nt commitment to commitment.
organizations and employers to employ employ the learner
as a regular
employee if he so
desires, upon the
completion
Any employed person whose work covers the period from of the
10:00 pm to 6:00 am the following morning, provided that
learnership
the worker performs no less than 7 consecutive hours of
work. Necessity TESDA approval Prior approval
of is not necessary, by TESDA
Page | 50
 TESDA Approval required
TESDA only TESDA is required.
approval inspection is
An apprenticeship program should first be approved by
required
the TESDA before an apprentice may be hired, otherwise
the person hired will be considered a regular employee.
Deductibilit No provision Expenses of
y for training are
Expiration of Apprenticeship Contract; Prohibition
of deductibility deductible
against Second Apprenticeship
expenses of expenses from income
tax.
With the expiration of the first agreement and the retention
Compensat of the employees, the employer had, to all intents and
Has Generally
ion purposes, recognized the completion of their training and
compensation compensated
their acquisition of a regular employee status. To foist
which may be at which may be at least
upon them the second apprenticeship agreement for a
least75% of the 75% of the minimum
second skill which was not even mentioned in the
minimum wage wage; But
agreement itself, is a violation of the Labor Code's
may be
implementing rules and is an act manifestly unfair to the
uncompensated if
employees, to say the least
DOLE authorizes
such as when
LEARNERSHIP
apprenticeship is part
of OJT required by
schools.

APPRENTICESHIP
“Learners” are persons hired as trainees in semi-skilled
and other industrial occupations which are non-
apprenticeable and which may be learned through
practical training on the job in a relatively short period of
time which shall not exceed three (3) months
"Apprenticeship" means practical training on the job
supplemented by related theoretical Instruction. Learnership Agreement

An "apprentice" is a worker who is covered by a written Any employer desiring to employ learners shall enter into
apprenticeship agreement with an individual employer. a learnership agreement with them, which agreement
[Art. 57, Labor Code] shall include:

Contents of Apprenticeship Agreements a. The names and addresses of the learners;

1. Apprenticeship agreements, including wage rates of b. The duration of the learnership period, which shall
apprentices, shall conform to the rules issued by the not exceed three (3) months;
Minister of Labor and Employment.
c. The wages or salary rates of the learners which shall
2. The period of apprenticeship shall not exceed six begin at not less than seventy-five percent (75%) of the
months. applicable minimum wage; and

3. Apprenticeship agreements providing for wage rates d. A commitment to employ the learners if they so
below the legal minimum wage, which in no case shall desire, as regular employees upon completion of the
start below 75 per cent of the applicable minimum wage, learnership. All learners who have been allowed or
may be entered into only in accordance suffered to work during the first two (2) months shall be
withapprenticeship programs duly approved by the deemed regular employees if training is terminated by
Minister of Labor and Employment. the employer before the end of the stipulated period
through no fault of the learners.
4. The Ministry shall develop standard model programs of
apprenticeship. [Article 61, Labor Code] The learnership agreement shall be subject to inspection
by the Secretary of Labor and Employment or his duly
authorized representative.

Page | 51
 (a) Magna Carta for Disabled Persons (RA7277)
7. ⚖️⚖️PERSONS WITH DISABILITIES
Acts of Discrimination:

1. Limiting, segregating or classifying a disabled job

applicant in such a manner that adversely affects his work
1. Disabled persons are those suffering from restriction opportunities;
or different abilities, as a result of a mental, physical 2. Using qualification standards, employment tests or
or sensory impairment, to perform an activity in the other selection criteria that screen out or tend to screen
manner or within the range considered normal for a out a disabled person unless such standards, tests or
human being other selection criteria are shown to be jobrelated for the
position in question and are consistent with business
2. Impairment is any loss, diminution or aberration of necessity;
psychological, physiological, or anatomical structure 3. Utilizing standards, criteria, or methods of
or function (Sec. 4(b), RA 7277). administration that:

3. Disability shall mean a. have the effect of discrimination on the basis of

disability; or
(1) a physical or mental impairment that substantially b. perpetuate the discrimination of others who are
limits one or more psychological, physiological or subject to common administrative control.
anatomical function of an individual or activities of such
individual; 4. Providing less compensation, such as salary, wage or
(2) a record of such an impairment; other forms of remuneration and fringe benefits, to a
(3) being regarded as having such an impairment qualified disabled employee, by reason of his disability,
than the amount to which a non-disabled person
4. Handicap refers to a disadvantage for a given performing the same work is entitled;
individual, resulting from an impairment or a disability, that
limits or prevents the function or activity, that is considered 5. Favoring a non-disabled employee over a qualified
normal given the age and sex of the individual [Sec. 4(d), disabled employee with respect to promotion, training
RA 7277]. opportunities, study and scholarship grants, solely on
account of the latter's disability;
Coverage
6. Re-assigning or transferring a disabled employee to a
RA 7277 covers all disabled persons and, to the extent job or position he cannot perform by reason of his
herein provided, departments, offices and agencies of the disability;
National Government or nongovernment organizations
involved in the attainment of the objectives of this Act 7. Dismissing or terminating the services of a disabled
[Sec. 3, RA 7227]. employee by reason of his disability unless the employer
can prove that he impairs the satisfactory performance of
Discrimination the work involved to the prejudice of the business entity:
Provided, however, that the employer first sought to
provide reasonable accommodations for disabled
persons;

8. Failing to select or administer in the most effective

No entity, whether public or private, shall discriminate
manner employment tests which accurately reflect the
against a qualified disabled person by reason of disability skills, aptitude or other factor of the disabled applicant or
in regard to: employee that
such tests purports to measure, rather than the impaired
1. Job application procedures sensory, manual or speaking skills of such applicant or
2. The hiring, promotion, or discharge of employees employee, if any; and
3. Employee compensation 9. Excluding disabled persons from membership in labor
4. Job training unions or similar organizations
5. Other terms, conditions, and privileges of employment.

Page | 52
Mental Health Act (RA 11036)
1. Private entities that improve or modify their physical
Discrimination, defined facilities in order to provide reasonable
accommodation for disabled persons;
2. Does NOT apply to improvements or modifications
or facilities required under BP 344

For establishments giving discounts – may claim such

Discrimination refers to any distinction, exclusion or discounts as tax deductions based on the net cost of the
restriction which has the purpose or effect of nullifying the goods sold on services rendered:
recognition, enjoyment or exercise, on an equal basis with
others, of all human rights and fundamental freedoms in 1. The cost of the discount shall be allowed as
the political, economic, social cultural, civil or any other deduction from gross income for the same taxable year
field. It includes all forms of discrimination, including that the discount is granted
denial of reasonable accommodation. Special measure 2. The total amount of the claimed tax deduction net of
solely to protect the rights or secure the advancement of VAT if applicable, shall be included in their gross sales
persons with decision-making impairment capacity shall receipts for tax purposes and shall be
not be deemed to be discriminatory subject to proper documentation and to the provisions
of the National Internal Revenue Code, as amended
Duties and Responsibilities of the Department of
Labor and Employment (DOLE) and the Civil Service E. ⚖️⚖️SEXUAL HARASSMENT IN THE WORK
Commission (CSC) ENVIRONMENT (R.A. NO. 7877); SAFE SPACES ACT
(R.A. NO. 11313, ARTICLE IV)
The DOLE and CSC shall:

a. Develop guidelines and standards on appropriate and

evidence-based mental health programs for the
workplace as described in this Act; and
b. Develop policies that promote mental health in the Safe Spaces Act (R.A. No. 11313)
workplace and address stigma and discrimination
suffered by people with mental health conditions Gender-Based Sexual Harassment in the Workplace
includes the following:
Mental Health Promotion and Policies in the
Workplace.

Employers shall develop appropriate policies and

programs on mental health issues, correct the stigma and
discrimination associated with mental conditions, identify
and provide support for individuals with mental health a. An act or series of acts involving any unwelcome
conditions to treatment and psychosocial support. sexual advances, requests or demand for sexual
favors or any act of sexual nature, whether done
Incentives for Employers For employment of disabled verbally, physically or through the use of technology
persons such as text messaging or electronic mail or through
any other forms of information and communication
Additional deduction, from their gross income, systems, that has or could have a detrimental effect on
equivalent to 25% of the total amount paid as the conditions of an individual's employment or
salaries and wages to disabled persons: education, job performance or opportunities;
1. Private entities that employ disabled persons either
as regular EEs, apprentice or learner;
2. Provided such entities present proof as certified by
the DOLE and the DOH

For construction of disabled-friendly facilities –

additional deduction from their net taxable income, b. A conduct of sexual nature and other conduct-based on
equivalent to 50% of the direct costs of the improvement sex affecting the dignity of a person, which is
or modifications: unwelcome, unreasonable, and offensive to the recipient,

Page | 53
whether done verbally, physically or through the use individual’s age;
of technology such as text messaging or electronic
mail or through any other forms of information and 4. Discriminate against an individual in terms of
communication systems; compensation, terms and conditions or privileges of
employment on account of such individual’s age;

5. Deny any employee’s or worker’s promotion or

opportunity for training because of age;
c. A conduct that is unwelcome and pervasive and
creates an Intimidating, Hostile or Humiliating 6. Forcibly lay off an employee or worker because of
environment for the recipient: old age; or

7. Impose early retirement on the basis of such

employee’s or worker’s age.

b. It shall be unlawful for a labor contractor or

Provided that, the crime of gender-based sexual subcontractor, if any, to refuse to refer for employment or
harassment may also be committed between peers and otherwise discriminate against any individual because of
those committed to a superior officer by a subordinate, such person’s age.
or to a teacher by a student, or to a trainer by a trainee;
and c. It shall be unlawful for a labor organization to:

Information and communication system 1. Deny membership to any individual because of

such individual’s age;
It refers to a system for generating, sending, receiving, 2. Exclude from its membership any individual
storing or otherwise processing electronic data because of such individual’s age; or
messages or electronic documents and includes the 3. Cause or attempt to cause an employer to
computer system or other similar devices by or in which discriminate against an individual in violation of
data are recorded or stored and any procedure related to this Act.
the recording or storage of electronic data messages or
electronic documents. d. It shall be unlawful for a publisher to print or publish any
notice of advertisement relating to employment
F. ⚖️⚖️Discriminatory Practices suggesting preferences, limitations, specifications, and
1. Age - R.A. No. 10911 discrimination based on age. (Sec. 5, RA 10911)

As provided under the Anti-Age Discrimination in Exceptions

Employment Act or RA 10911, the prohibition on
discrimination in employment on account of age shall It shall NOT be unlawful for an employer to set age
apply to any employer, labor contractors or limitations in employment if:
subcontractors, if any, and labor organizations.
a. Age is a bona fide occupational qualification
Prohibition of Discrimination in Employment on reasonably necessary in the normal operation of a
Account of Age particular business or where the differentiation is based
on reasonable factors other than age;
a. It shall be unlawful for an employer to:
b. The intent is to observe the terms of a bona fide
1. Print or publish, or cause to be printed or published, seniority system that is not intended to evade the purpose
in any form of media, including the internet, any notice of this Act;
of advertisement relating to employment suggesting
preferences, limitations, specifications, and c. The intent is to observe the terms of a bona fide
discrimination based on age; employee retirement or a voluntary early retirement plan
consistent with the purpose of this Act: Provided, That
2. Require the declaration of age or birth date during such retirement or voluntary retirement plan is in
the application process; accordance with the Labor Code, as amended, and other
related laws; or
3. Decline any employment application because of the
d. The action is duly certified by the Secretary of Labor
Page | 54
and Employment in accordance with the purpose of this
work without under the applicable laws.
Act. (Sec. 6, RA 10911)
appropriate medical
evaluation and
2. GENDER AND MARITAL STATUS - R.A. NO.
counseling.
9710

"Discrimination Against Women"

5. SOLO PARENTS - R.A. NO. 8972, AS
It refers to any gender-based distinction, exclusion, or AMENDED BY R.A. NO. 11861, SEC. 7
restriction which has the effect or purpose of impairing or
nullifying the recognition, enjoyment, or exercise by No employer shall discriminate against any solo parent
women, irrespective of their marital status, on a basis of employee with respect to terms and conditions of
equality of men and women, of human rights and employment on account of his or her status.
fundamental freedoms in the political, economic, social,
cultural, civil, or any other field. Employers may enter into agreements with their solo
parent employees for a telecommuting program, as
It includes any act or omission, including by law; policy, provided in Republic Act No. 11165, otherwise known as
administrative measure, or practice, that directly or the "Telecommuting Act”.
indirectly excludes or restricts women in the recognition
and promotion of their rights and their access to and 6. PERSONS WITH DISABILITY - R.A. NO. 7277,
enjoyment of opportunities, benefits, or privileges. AS AMENDED

3. PREGNANCY Disabled Persons are those suffering from restriction of

different abilities, as a result of a mental, physical or
SEC. 23c. Prohibited Acts sensory impairment, to perform an activity in the manner
or within the range considered normal for a human being
The following acts are prohibited:
Impairment is any loss, diminution or aberration of
Any employer who shall suggest, require, unduly psychological, physiological, or anatomical structure of
influence or cause any applicant for employment or an function.
employee to submit himself/herself to sterilization, use
any modern methods of family planning, or not use Handicap refers to a disadvantage for a given individual
such methods as a condition for employment, resulting from an impairment or a disability, that limits or
continued employment, promotion or the provision of prevents the functions or activity that is considered normal
employment benefits. given the age and sex of the individual. (Sec. 4, RA 7277)

Further, pregnancy or the number of children shall not be Health Condition (RA 7277 or the Magna Carta for
a ground for non-hiring or termination from employment. Disabled Persons)

The Magna Carta for disabled persons ensures equal

4. ILLNESS - DOLE D.A. NO. 05-10; DOLE D.O. opportunities for disabled persons and prohibits
NO. 73-05 discrimination against them.
DOLE D.A. No. 05-10 DOLE D.O. No. 73-05
Equal Opportunity for Employment

No disabled individuals shall face employment

Workers shall not be DOLE D.O. No. 73-05
discrimination. A qualified disabled employee must
discriminated against, prohibits discrimination
receive equal terms, compensation, privileges, benefits,
from pre to post- against workers who have
and allowances as an able-bodied counterpart.
employment, including or have had tuberculosis.
hiring, promotion or
assignment, because of Additionally, five percent (5%) of casual, emergency, and
Further, medical
their Hepatitis B status. contractual positions in specific government departments
examination results should
and agencies involved in social development must be
not be used to deny
reserved for disabled persons(Title II, Chapter 1, Sec. 5,
Individuals found to be employment when the
RA 7277).
Hepatitis B positive shall denial of employment would
not be declared unfit to constitute discrimination

Page | 55
 GR: Premium payments or contributions shall be
Discrimination on Employment shouldered by the employer.

No entity, whether public or private, shall discriminate XPNs: If the domestic worker is receiving a wage of Five
against a qualified disabled person by reason of disability thousand pesos (P5,000.00) and above per month, the
in regard to job application procedures, the hiring, domestic worker shall pay the proportionate share in the
promotion, or discharge of employees, employee premium payments or contributions, as provided by law.
compensation, job training, and other terms, conditions,
and privileges of employment. Note: The domestic worker shall be entitled to all other
benefits under existing laws. (Sec. 30, Kasambahay Law)

V. SOCIAL WELFARE BENEFITS b. Self-employed

A. ⚖️⚖️SSS Law (R.A. No. 8282, as amended by Coverage in the SSS shall be compulsory upon such
R.A. No. 11199) self-employed persons as may be determined by the
Commission under such rules and regulations as it may
prescribe, including, but not limited to the following:

a) All self-employed professionals

b) Partners and single proprietors of businesses
R.A. No. 8282 has been expressly repealed by R.A. No.
11199, also known as the "Social Security Act of 2018," c) Actors and actresses, directors, scriptwriters, and
signed into law by President Duterte on February 7, 2019. news correspondents
Additionally, Republic Act No. 1161 and all other laws d) Professional athletes, coaches, trainers, and
inconsistent with R.A. No. 11199 are repealed, modified, jockeys e. Individual farmers and fishermen
or amended accordingly. It is clarified that no individual
shall acquire vested property rights by virtue of this Act c. Covered Employees with Private Benefit Plans

By law, the SSS is required to create a provident fund d. Overseas Filipino Workers (OFW)
using voluntary contributions from employers, employees, Coverage in the SSS shall be compulsory upon all sea-
self-employed individuals, and voluntary members, along based and land-based OFWs as defined under R.A. No.
with their earnings. This fund is intended to provide 8042 or the Migrant Workers and Overseas Filipinos Act
benefits to members or their beneficiaries of 1995 as amended [by R.A. No. 10022], provided they
are not over sixty (60) years of age (par 1., Sec 9-B, [a])

COVERAGE (COMPULSORY AND VOLUNTARY) Note: The DFA, the DOLE and the SSS shall ensure
compulsory coverage of OFWs through bilateral social
A. Compulsory security and labor agreements and other measures for
enforcement (Sec. 9-B, [e])
a. Employees And Their Employers
B. Voluntary

Voluntary SSS Coverage

The following may be covered by the SSS on a voluntary

Coverage in the SSS shall be compulsory upon all basis:
employees including domestic workers or “kasambahays”
not over sixty (60) years of age (up to the day of his/her a. A spouse of a member who devotes full time to
60th birthday) and their employers. (Sec. 1, Rule 13, IRR) managing the household and family affairs, but does not
engage in other vocation or employment which is subject
Note: A domestic worker who has rendered at least one to compulsory or mandatory coverage
(1) month of service shall be covered by the Social
Security System (SSS), the Philippine Health Insurance b. An OFW upon the termination of his/her employment
Corporation (PhilHealth), and the Home Development overseas;
Mutual Fund or Pag-IBIG, and shall be entitled to all the
benefits in accordance with the pertinent provisions c. A covered employee who was separated from
provided by law. employment who continues to pay his/her contributions;

Page | 56
d. A self-employed member who realizes no income in any
effect on the first day of his
given month who continues to pay his/her contributions.
operation or on the first
day he hires employee/s.
e. Filipino permanent migrants, including Filipino
The employer is given only
immigrants, permanent residents and naturalized citizens
30 days from the date of
of their host countries may be covered by the SSS on a
employment of the
voluntary basis (Sec. 9-B(g)) A voluntary member (VM)
employee to report the
shall pay his/her contribution in accordance with the
person for coverage to the
guidelines on payment deadline applicable to self-
SSS.
employed members
2. Employee 2. Separated member
Exclusions
Compulsory coverage of On the month he/she
A. Excluded employers the employee shall take resumed payment of
effect on the first day of contribution.
The government and any of its political subdivisions, his/her employment.
branches or instrumentalities, including corporations (Sec. 10)
owned or controlled by the Government
B. Excluded employees 3. Self-employed 3. Land-based OFWS
1. Services where there is no employer-employee Compulsory coverage of Voluntary coverage of land-
relationship in accordance with existing labor laws, rules, the self-employed person based overseas Filipinos
regulations and jurisprudence; shall take effect upon shall take effect on the
his/her registration with applicable month and year
2. Service performed in the employ of the Philippine the SSS. Registration of the first contribution
Government or instrumentality or agency thereof; shall mean payment of payment.
first contribution
3. Service performed in the employ of a foreign
government or international organization, or their wholly- OFWs
owned instrumentality: they may however enter into an
agreement with the Philippine Government for the i. A sea-based OFW shall
inclusion of such employees in the SSS except those take effect on the first day
already covered by their respective civil service retirement of his/her employment;
systems.
ii. A land-based OFW
4. Such other services performed by temporary and other covered shall take effect
employees which may be excluded by regulation of the based on the provisions of
Commission. Employees of bona fide independent the Agreement and its
contractors shall not be deemed employees of the implementing
employer engaging the service of said contractors. (8(j), arrangement;
R.A. No. 11199)
Iii. Land-based OFW not
Note: Upon separation from employment, an employee's covered shall take effect
employer contributions and obligation to pay cease, but on the applicable month
the employee retains credit for contributions paid on their and year of the first
behalf. They remain entitled to benefits under RA No. contribution payment.
11199 and have the option to continue paying
contributions to maintain full benefit rights.
2. ⚖️⚖️DEPENDENTS AND BENEFICIARIES
Effective Date of Coverage
1. Primary
Compulsory Coverage Voluntary Coverage
a. Dependent spouse – until remarriage [see above];
1. Employer 1.Non-working spouse
b. Dependent children (legitimate, legitimated, legally
adopted, and illegitimate) ; illegitimate children are
Compulsory coverage of Upon first payment of
entitled only to 50% of the share of legitimate children
the employer shall take contribution
unless there are no legitimate children, in which case,
Page | 57
 they get 100%. employed, and who is not continuing contributions
independently, he is entitled to a lump sum equal to his
2. Secondary total contributions paid.

a. Shall only receive when the primary beneficiaries Lump Sum Alternative
are absent
b. Dependent parents Member may opt to receive his/her first 18 monthly
pensions in lump sum but such is discounted at a
preferential rate of interest.

3. Others 4. Permanent disability benefits

a. Shall only receive when the primary and secondary Eligibility requirement
beneficiaries are absent
b. Any other person designated by member as his/her 1. 36 monthly contributions prior to the semester of
secondary beneficiary. disability; same as death benefit; the only difference is that
the pension is paid directly to the member.
Benefits
2. In case the permanently disabled member dies, it would
1. Monthly Pension be given the same treatment as a retiree dying.
2. Dependents’ Pension
3. Retirement benefits 3. For permanent partial disability, the pension is not
lifetime. (e.g. loss of thumb entitles member to only 10
Eligibility requirements months of pension, while loss of arm 50 months).

1. 120 monthly contributions; It shall be paid in lump sum if the period is less than 12
2. Age months.
a. 65 years old; or
b. a member who has reached 60 years may also avail 4. For multiple partial disabilities, they shall be additive
if he is already separated from employment or has when related or deteriorating – the percentage shall be
ceased to be self- employed. equal to the number of months the partial disability is
entitled to, divided by 75 months.
Note: Entitlement to monthly pension from retirement until
death. The monthly pension shall be suspended upon the Lump Sum Eligibility
re-employment or resumption of self-employment of a
retired member who is less t-han sixty-five (65) years old. A member who has not paid at least 36 monthly
contributions
In Case of Death of SSS Member
Lump Sum Alternative

A member is entitled to a lump sum benefit equivalent to

the monthly pension times the number of monthly
1. His/her primary beneficiaries as of the date of his/her
contributions paid to the SSS or twelve (12) times the
retirement shall be entitled to receive the monthly
monthly pension, whichever is higher.
pension; or
Note: A member who –
2. If he/she has no primary beneficiaries AND he/she dies
1. has received a lump sum benefit; and
within sixty (60) months from the start of his/her monthly
2. is reemployed or has resumed self- employment not
pension, his/her secondary beneficiaries shall be entitled
earlier than one (1) year from the date of his disability
to a lump sum benefit equivalent to the total monthly
shall again be subject to compulsory coverage and
pensions corresponding to the balance of the five-year
shall be considered a new member.
guaranteed period, excluding the dependents’ pension.
5. Death benefits
Lump Sum Eligibility
Eligibility requirement
A 60 year old member with less than 120 monthly
contributions who is no longer employed or self-
1. 36 monthly contributions prior to the semester of death.
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 DEPENDENTS AND BENEFICIARIES
2. Benefit – monthly pension to primary or a lump sum
benefit equivalent to thirty-six (36) times the monthly Primary
pension secondary beneficiaries.
1. Dependent spouse – until remarriage;
3. To those ineligible – lump sum benefit which shall be 2. Dependent children (legitimate, legitimated, legally
the higher between the two: adopted, and illegitimate) – but RA 8291 does not
distinguish share of legitimate and illegitimate children.
a. (monthly pension) x 12; or
b.(monthly pension) x (# of monthly contributions) Secondary

6. Funeral benefits (P12,000 in cash or in kind, upon Shall only receive when the primary beneficiaries are
death of member)) absent:

8. Sickness benefits
1. Dependent parents
Eligibility requirements and other conditions 2. Legitimate descendants, subject to the restrictions on
dependent children.
1. Inability to work due to sickness or injury
2. Confined for at least 4 days either in a hospital or
elsewhere with SSS approval; BENEFITS
3. At least 3 months of contributions in the 12 month
period immediately before the semester of sickness or (1) Computation of Service
injury has been paid; (2) Monthly Pension
4. All company sick leaves with pay for the current year (3) Retirement Benefits
have been used up;
5. Maximum of 120 days per 1 calendar year (i.e Eligibility requirements
maximum permissible for the same sickness and
confinement is 240 days for 2 consecutive years); 6. The 1. At least 15 years of service;
employer has been notified, or, if a separated, voluntary 2. At least 60 years of age; and
or self-employed member, the SSS directly notified within 3. Not receiving pension benefit from permanent total
5 days of confinement; disability.
7. Notice to employer or SSS not needed when
confinement is in a hospital; notice to employer not Note: Retirement is compulsory for employees 65 years
required as well when Employee became sick or injured of age who have rendered at least 15 years of service; if
while working or within premises of the employer. employee has less than 15 years of service, he may be
allowed to continue in accordance with civil service laws.
(Sec. 13)
B. ⚖️⚖️GSIS LAW (R.A. NO. 8291)
Choice between
COVERAGE
1. 60 x (basic monthly pension) lump sum payment at the
All public sector employees below the compulsory time of retirement plus basic monthly pension payable
retirement age of 65, irrespective of employment status. monthly for life after expiry of the 5-year guaranteed
period which is already covered by the lump sum; or
EXCLUSIONS FROM COVERAGE
1. AFP and PNP; 2. Cash payment equivalent to 18 x (basic monthly
2. Members of the Judiciary and Constitutional pension) plus monthly pension for life immediately but
Commissions who are covered ONLY by life insurance as with no 5-year guarantee.
they have separate retirement schemes;
3. Contractual employees with no employer-employee Note: Subject to periodic adjustment.
relationship with the agency they serve.
(4) Disability Benefits
A. Permanent
B. Total
C. Partial

Page | 59
 moves from one system (SSS or GSIS) to the other. It
(5) Death benefits applies to cases where an employee switches from
private employment to government service or vice versa.
When a GSIS member dies, the primary beneficiaries are
entitled to only one of the following: Coverage

1. Survivorship pension The law applies to all worker-members of GSIS and/or

SSS who transfer from one sector to another. It allows
a. If he was in the service when he died; or them to retain membership in both systems.
b. Even if separated from the service, he has at least 3
years of service and has paid 36 monthly contributions Limited Portability Scheme
within the 5 years immediately preceding death; or
c. Even if separated from the service, he has paid 180 RA 7699 enables private sector employees who move to
monthly contributions prior to death. government service (or vice versa) to combine their years
of service and contributions from SSS or GSIS. This
2. Survivorship pension plus cash payment of 100% ave. combination helps satisfy the required years of service for
monthly compensation for every year of service (pension entitlement to benefits under applicable laws.
plus total contributions made)
Totalization
a. If he was in the service when he died; and
b. With 3 years of service. It involves adding up creditable services or contributions
from both systems. If a worker doesn’t qualify for benefits
3. Cash payment equivalent to 100% ave. monthly under SSS or GSIS individually, totalization can enhance
compensation for each year of service he paid their chances of benefit eligibility.
contributions or P12,000 whichever is higher
Note: RA 7699 aims to create a unified social security
a. With 3 years of service; and system by facilitating the transfer of benefits across
b. He has failed to qualify in the prior 2 schemes. sectors

(6)_Funeral Benefits
D. ⚖️⚖️DISABILITY AND DEATH BENEFITS
The amount shall be fixed by GSIS rules and regulations
a. Labor Code
Who are entitled:
Under the Labor Code, employees' compensation (EC)
1. Active member; benefits are granted to employees or their dependents for
2. Member separated from service but still entitled to work connected disability or death, or those resulting from
funeral benefit; accident arising out of and in the course of employment.
3. Pensioner; [Art. 166, LC in rel. to Sec. 1, Rule III, IRR] Types of
4. Retiree who at the time of retirement was of disability
pensionable age but opted to retire under RA
1616. 1. Temporary Total Disability (Art. 197)
2. Permanent Total Disability (Art. 198)
(7) Loan Benefits 3. Permanent Partial Disability (Art. 199)

C. LIMITED PORTABILITY LAW (R.A. NO. 7699) Disability Benefits Disability does not refer to the injury nor
to the pain and suffering it has occasioned, but to the loss
Republic Act No. 7699, also known as the Limited and impairment of earning capacity.
Portability Law, addresses the transfer of funds and
benefits for workers who shift between the Social Security There is disability when there is a loss or diminution of
System (SSS) and the Government Service Insurance earning power because of actual absence from work due
System (GSIS). to injury or illness arising out of and in the course of
employment.
Portability

It refers to transferring funds and benefits when a worker

Page | 60
 Disability Type Definition Period of Entitlement

Temporary A total disability is temporary if as a The employee is entitled to the benefit from the day of the
Total Disability result of the injury or sickness – start of the disability. It shall not be paid longer than 120
(TTD) consecutive days except where such injury or sickness
The employee is unable to perform still requires medical attendance beyond 120 days but not
to exceed 240 days from onset of disability.
any gainful occupation for a
continuous period not exceeding 120
When after the period of temporary total disability had
days. ceased, an employee was found to be suffering from a
permanent partial disability, he was entitled to an award
based upon partial disability permanent in character.
Permanent A disability is total and permanent if as
Total Disability a result of the injury or sickness – 2. Permanent Total Disability
(PTD)
The employee is unable to perform A disability is total and permanent if as a result of the injury
any gainful occupation for a or sickness the employee is unable to perform any gainful
continuous period exceeding 120 occupation for a continuous period exceeding 120 days.
days. (Arts. 198 in rel. to Sec. 2(b), Rule VII)

The test of whether or not an employee suffers from

‘permanent total disability’ is a showing of the capacity of
Permanent A disability is partial and permanent if the employee to continue performing his work
Partial as a result of the injury or sickness – notwithstanding the disability he incurred.
Disability
(PPD) The employee suffers a permanent It does not mean an absolute helplessness but rather an
partial loss of the use of any part of incapacity to perform gainful work which is expected to be
his body. permanent.

The Labor Code enumerates six instances considered to

1. Temporary Total Disability be a permanent total disability:

A total disability is temporary if as a result of the injury or 1. Temporary total disability lasting continuously for
sickness, the employee is unable to perform any gainful more than one hundred twenty days, except as
occupation for a continuous period not exceeding 120 otherwise provided for in the Rules;
days 2. Complete loss of sight of both eyes;
3. Loss of two limbs at or above the ankle or wrist;
The object of the law in allowing compensation during 4. Permanent complete paralysis of two limbs;
temporary disability is to compensate the laborer or 5. Brain injury resulting in incurable imbecility or
employee for what he might have earned during the insanity; and
period of the treatment of his injury. 6. Such cases as determined by the Medical Director
of the System and approved by the Commission. (Art.
197 (c))
Amount of benefit
Amount of Benefit
An employee suffering from temporary total disability shall
be paid by the System an equivalent of ninety percent The employee suffering from a permanent total disability
(90%) of the average salary credit, provided: shall be entitled to an amount equivalent to the monthly
income benefit, plus ten percent thereof for each
1. The daily income benefit is not less than Ten (10) dependent child, but not exceeding five, beginning with
pesos nor more than Ninety (90) pesos, nor paid for a the youngest and without substitution: Provided, That the
continuous period longer than 120 days. (Art. 197) monthly income benefit shall be the new amount of the
monthly benefit for all covered pensioners. (Art. 198)
2. The monthly income benefit shall be suspended if
the employee fails to submit a monthly medical report
certified by its attending physician (Art.194)
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 medical examination by a company- designated physician
Period of Entitlement within three (3) working days upon his return.

An employee with permanent total disability shall be XPN: When the seafarer is physically incapacitated to do
entitled to receive benefits monthly for five (5) years. so. In which case, a written notice to the agency within the
However, Art. 198(b) provides that the benefits may be same period is deemed as compliance.
suspended if the employee is gainfully employed, or
recovers from his permanent total disability, or fails to Mandatory reporting requirement
present himself for examination at least once a year.

3. Permanent Partial Disability

In the course of the treatment, the seafarer shall also
A disability is partial and permanent if as a result of the report regularly to the company designated physician
injury or sickness the employee suffers a permanent specifically on the dates as prescribed by the company-
partial loss of the use of any part of his body. (Art. 199 in designated physician and agreed to by the seafarer.
rel. to Sec. 2(c), Rule VII, Amended Rules on Employees’
Compensation). Effect of non-compliance

The object of the law in granting compensation for a Failure of the seafarer to comply with the mandatory
permanent partial disability is to compensate the injured reporting requirement shall result in his forfeiture of the
laborer or employee for the actual and permanent loss of right to claim the above benefits.
a member of the body, or the use thereof. (Cañete v.
Insular Lumber Co., 61 Phil. 592 (1935)) Occupational Diseases (Section 32-A)

For an occupational disease and the resulting disability or

death to be compensable, all of the following conditions
must be satisfied:
E. ⚖️⚖️ CLAIMS OF SEAFARERS; 2010
STANDARD TERMS AND CONDITIONS GOVERNING
THE OVERSEAS EMPLOYMENT OF FILIPINO
SEAFARERS ON-BOARD OCEAN-GOING SHIPS

1. The seafarer's work must involve the risks described

herein;

2. The disease was contracted as a result of the seafarer's

As part of a seafarer's deployment for overseas work, he exposure to the described risks;
and the vessel owner or its representative local manning
agency are required to execute the POEA- SEC. 3. The disease was contracted within a period of
Containing the standard terms and conditions of exposure and under such other factors necessary to
seafarers' employment, the POEA-SEC is deemed contract it; and
included in their contracts of employment in foreign
ocean-going vessels. (Sharpe Sea Personnel Inc. v. 4. There was no notorious negligence on the part of the
Mabunay, G.R. No. 206113 (2017) seafarer.
Post-employment medical examination The disease is considered as occupational when
contracted under working conditions involving the risks
described.

Note: Those illnesses not listed in Sec. 32 are disputably

presumed as work-related.

Guidelines For The Claim Of Permanent Total

GR: The seafarer shall submit himself/herself to a post- Disability Benefits
Page | 62
 using the medical findings he had gathered during his
The employer must compensate the seafarer for his/her treatment of the seafarer. A bare claim that the illness is
permanent total or partial disability as finally determined not work-related, or that the seafarer is fit for sea duties is
by the company-designated physician. insufficient (★G.r. No. 228550, July 28, 2021, as penned
by Justice MVL).
⚖️⚖️ The following guidelines shall govern seafarers'
claims for permanent and total disability benefits: It bears emphasis that the company physician's
assessment must be complete and definite for the
1. The company-designated physician must issue a purpose of ascertaining the degree of the seafarer's
medical assessment (MA) on the seafarer's disability disability benefits. The assessment must truly reflect the
within a period of 120 days from the time the seafarer extent of the sickness or injuries of the seafarer and his or
reported to him; her capacity to resume work as such (★G.r. No. 228550,
July 28, 2021, as penned by Justice MVL).
2. If the company-designated physician fails to give
his/her assessment within the period of 120 days, without
any justifiable reason, then the seafarer's disability 3rd Physician; When Mandatory
becomes permanent and total;

1. There is a valid and timely assessment by the

company-designated physician and;

2. The appointed doctor of the seafarer refuted such

assessment.

3. If the company-designated physician fails to give Under Sec. 20(A)(3) of the 2010 POEA-SEC, if a doctor
his/her assessment within the period of 120 days with a appointed by the seafarer disagrees with the assessment,
sufficient justification (e.g. seafarer required further a 3rd doctor may be agreed jointly between the employer
medical treatment or seafarer was uncooperative), then and the seafarer, whose decision shall be FINAL AND
the period of diagnosis and treatment shall be extended BINDING on both parties.
to 240 days.
Failure to comply with the requirement of referral to a
third-party physician is tantamount to violation of the
POEA-SEC, and without a binding third-party opinion, the
findings of the company-designated physician shall
prevail over the assessment made by the seafarer's
doctor (★G.r. No. 207507, February 17, 2021, as
penned by Justice MVL).

Compensation and Benefits

The employer has the burden to prove that the company-
designated physician has sufficient justification to extend
No compensation and benefits shall be payable in respect
the period; and
of any injury, incapacity, disability or death of the seafarer
resulting from his willful or criminal act or intentional
4. If the company-designated physician still fails to give
breach of his duties, provided however, that the
his medical assessment within the extended period of 240
employer can prove that such injury, incapacity, disability
days, then the seafarer's disability becomes permanent
or death is directly attributable to the seafarer. (Sec. 20,
and total, regardless of any justification.
D, POEA-SEC)

A seafarer may claim disability benefits arising from (1) an

injury or illness that manifests, or is discovered during the
term of the seafarer's contract, which is usually while the
seafarer is still on board the vessel; or (2) an illness that
What the POEA Standard Employment Contract requires manifests, or is discovered after the contract, which is
is for the company physician to justify the assessment when the seafarer has disembarked from the vessel. If the
Page | 63
illness or injury falls under the first scenario, the procedure Bona Fide Occupational Qualification (BFOQ)
as to how the seafarer can legally demand and claim A BFOQ allows employers to limit employment in certain
disability benefits from the employer/manning agency jobs based on sex, religion, or national origin if these
under Section 20 (a) of the 2010 POEA-SEC applies characteristics are actual qualifications for performing the
(✮G.r. No. 230919 and 230932, January 20, 2021, as job.
penned by Justice MVL).
Concept of BFOQ
Section 20(e) of the 2010 POEA-SEC applies if: (1) the
seafarer has a pre-existing illness, (2) intentionally It recognizes that certain positions may inherently require
conceals it, and (3) the concealed illness has a causal specific attributes related to sex, religion, or nationality.
connection with the current disability. Although Section
20(e) did not specifically mention that the concealed Tests for Justification
illness or injury must be related to the seafarer's present
illness or injury, the concealment must be fraudulent 1. The employer must show a rational connection
coupled with an intent to deceive and profit from that between the standard and job performance.
deception. Thus, the unrelatedness between the prior 2. The standard must be reasonably necessary for
illness and the present medical condition negates intent accomplishing work-related purposes.
to profit from the concealment. The reasonable 3. The standard must be reasonably necessary to
interpretation of Section 20(e) is that the employer should achieve legitimate work-related goals.
not be held liable for disability arising from the concealed
illness or injury (★G.r. No. 242928, June 27, 2022, as In the case of Yrasuegi v. Philippine Airlines, Inc. (G.R.
penned by Justice MVL). No. 168081, 17 October 2008), the Philippine Supreme
Court upheld the concept of BFOQ. It emphasized that
Prescription of claims employers can limit employment based on sex, religion,
or national origin if these characteristics are essential for
All claims arising from this contract shall be made within performing the job.
three (3) years from the date the cause of action arises,
otherwise the same shall be barred. B. PRODUCTIVITY STANDARDS

An employer is entitled to impose productivity standards

VI. ⚖️⚖️MANAGEMENT PREROGATIVE for its workers, and in fact, non-compliance may be visited
with a penalty even more severe than demotion.
Every employer has the inherent right to regulate,
according to his own discretion and judgment, all aspects
of employment, including hiring, work assignments, The employer has the prerogative to prescribe the
working methods, the time, place and manner of work, standards of productivity which may be used as:
work supervision, transfer of employees, lay-off of
workers, and discipline, dismissal, and recall of 1. Incentive scheme
employees. (Rural Bank of Cantilan, Inc. v. Julve, G.R.
No. 169750, 27 February 2007) Employees who surpass the productivity standards or
quota are usually given additional benefits; and
A. OCCUPATIONAL QUALIFICATIONS
2. Disciplinary scheme
Occupational Qualifications refer to specific
requirements or qualifications that are legitimately Employees may be sanctioned or dismissed for failure to
necessary for performing a particular job. These meet the productivity standards or quota. (Chan, Bar
qualifications are based on the nature of the work and are Reviewer on Labor Law, 2019, p. 807)
essential for the efficient and safe execution of job
responsibilities. Gross inefficiency justifies employee dismissal. Schools
have the prerogative to establish high efficiency standards
for teachers to uphold quality education, aligned with
constitutional mandates. Courts uphold reasonable
Page | 64
standards set by schools. In this case, evidence c. When the grant is mandated by law
demonstrates failure to meet prescribed performance
standards, warranting valid termination (International XPN TO XPN: Bonus is not demandable when
School Manila vs. International School Alliance of employer can no longer afford to pay
Educators, G.R. No. 167286, February 5, 2014).
An employer cannot be forced to distribute bonuses which
C. CHANGE OF WORKING HOURS it can no longer afford to pay. To hold otherwise would be
to penalize the employer for his past generosity.
Management retains the prerogative, whenever
exigencies of the service so require, to change the No company is obligated to provide extra benefits beyond
working hours of its employees. So long as such legal mandates during times of economic challenges
prerogative is exercised in good faith for the advancement
of the employer's interest and not for the purpose of G. CLEARANCE PROCESS
defeating or circumventing the rights of the employees
under special laws or under valid agreements, this Court Clearance process is a requirement imposed by the
will uphold such exercise management on an employee to settle all debts and
obligations, including return of Company properties or
D. TRANSFER OF EMPLOYEES documents, to be cleared of any accountability and be
issued a clearance document.
Employees do not possess a vested right in their position
under the security of tenure. Employers retain the H. POST-EMPLOYMENT RESTRICTIONS
prerogative to change assignments or transfer employees
based on business needs The employer may insist on an agreement with the
employee, for certain restrictions to take effect after the
E. DISCIPLINE OF EMPLOYEES termination of the employer-employee relationship.

In general, management has the prerogative to discipline The following stipulations in an employment contract are
its employees and to impose appropriate penalties on illustrative of the prohibitions normally agreed upon by the
erring workers pursuant to company rules and employer and the employee:
regulations."
1. Non-Compete Clause;
Specific provision on the application of company rules in 2. Confidentiality and Non-Disclosure Clause;
disciplinary actions is paramount over the general 3. Non-Solicitation Clause;
provision on grievance procedures 4. Non-Recruitment or Anti-Piracy Clause; and
5. Inventions Assignment Clause (Intellectual Property
F. ⚖️⚖️ GRANT OF BONUSES AND OTHER Clause)
BENEFITS
A post-retirement competitive employment restriction is
GR: Bonus is not a demandable and enforceable designed to protect the employer against competition by
obligation former employees who may retire and obtain retirement
or pension benefits and, at the same time, engage in
The grant of a bonus is basically a management competitive employment
prerogative which cannot be forced upon the employer
who may not be obliged to assume the onerous burden of VII. ⚖️⚖️ POST-EMPLOYMENT
granting bonuses or other benefits aside from the
employee's basic salaries or wages. A. TERMINATION OF EMPLOYMENT BY
EMPLOYER
XPN: When Demandable

A bonus, however, becomes a demandable or

enforceable obligation when:

a. it is made part of the wage or salary or compensation

of the employee.
b. It is stipulated in the collective bargaining agreement
or those granted as company practice are
demandable.
Page | 65
Just Causes Authorized Causes with due process notified.

1. Serious Misconduct or 1. Installation of Labor-

Willful Disobedience Saving Devices
(Insubordination) 1. JUST CAUSES
2. Redundancy
2. Gross & Habitual Neglect 1. Serious Misconduct or Willful Disobedience
of Duties 3. Retrenchment or
Downsizing to prevent Elements
3. Fraud/Willful Breach of losses or the closing or
Trust cessation of operation of 1. The employee's conduct must be serious — of such
the establishment grave and aggravated character and not merely trivial
4. Commission of A Crime or unimportant.
4. Closures or Cessation
5. Analogous cases of Operations of 2. The misconduct must be related to the performance
establishment or of the employee's duties showing him to be unfit to
undertaking not due to continue working for the employer.
serious business losses or
financial reverses 3. The act or conduct must have been performed with
wrongful intent.
5. Disease and whose
continued employment is Immoral Conduct
prohibited by law or is
prejudicial to his health as
well as to the health of his
co-employee

Article 297 Article 298 and 299 It is the conduct which is so willful, flagrant, or shameless
as to show indifference to the opinion of good and
Dismissal or discharge Separation respectable members of the community. Furthermore,
such conduct must not only be immoral, but grossly
GR: Employer is not liable GR: Employer is required immoral. It must be so corrupt as to constitute a criminal
for employee’s separation by law to provide act, or so unprincipled as to be reprehensible to a high
pay. separation pay to the degree or committed under such scandalous or revolting
employee. circumstances as to shock the common sense of decency
XPN: Based on
compassion financial XPN: Closure or cessation Open and Willful Disobedience (Insubordination)
assistance may be given to of operation due to serious
a deserving dismissed business losses duly
employee. proved.

Procedure: Procedure:

Twin-Notice Rule Written notice to DOLE

and the employee at least
For willful disobedience to be a valid cause for dismissal,
First notice, informing 30 days before the
these two elements must concur: 1. the employee's
alleged acts/omissions; employee’s separation.
assailed conduct must have been willful or intentional, the
willfulness being characterized by "a wrongful and
Second notice, stating the perverse attitude"; and 2. the order violated must have
decision to dismiss
been reasonable, lawful, made known to the employee,
employment and findings
and must pertain to the duties which he had been
engaged to discharge.
Effectivity: Effectivity:
2. Gross & Habitual Neglect of Duties
Determined by the At least 30 days after the
employer after compliance employee AND DOLE is

Page | 66
 Gross Negligence Habitual Neglect
Furthermore, since fraud implies willfulness or wrongful
act intent, the innocent nondisclosure of facts by the
Extreme lack of care in the Repeated failure to
employee to the employer will not constitute a just cause
performance of one’s perform one’s duties for a
for the dismissal.
duties. It involves acting or period of time.
failing to act willfully and
Loss of Trust and Confidence
intentionally, with conscious
indifference to the potential
consequences for others. Applies only to:

(1) employees occupying positions of trust and

3. Fraud/Willful Breach of Trust confidence, the managerial employees; and

Fraud and willful neglect of duties imply bad faith on the (2) employees who are routinely charged with the care
part of the employee in failing to perform his job to the and custody of the employer's money or property
detriment of the employer and the latter's business. which may include rank-and-file employees e.g., cashiers,
auditors, property custodians
Forms of Neglect of Duty:
OR
1. Abandonment
Those who, in the normal routine exercise of their
Abandonment of employment is "the deliberate and functions, regularly handle significant amounts of
unjustified refusal of an employee to resume his money or property.
employment."
Loss of Trust and Confidence as a just cause, requires
Abandonment occurs when an employee fails to report for an underlying act, deed or conduct from which a
work without valid reason, coupled with a clear intention reasonable belief of untrustworthiness might be inferred.
to sever the employer-employee relationship. It is
important to note that abandonment cannot coexist with a
claim for constructive dismissal RANK-AND-FILE MANAGERIAL
PERSONNEL EMPLOYEE
2. Tardiness and Absenteeism
To be a ground for valid To be a ground for valid
dismissal, requires proof of dismissal, it is sufficient
involvement in the alleged that there is some basis for
events in question. such loss of confidence,
such as when the
Mere uncorroborated employer has reasonable
assertion and accusations ground to believe that the
3. Poor Performance by the employer will not be employee concerned is
sufficient. (Bravo vs. Urios responsible for the
College, G.R. No.198066, purported misconduct,
June 7, 2017) and the nature of his
participation therein
renders him unworthy of
the trust and confidence
demanded by his position.
4. Dishonesty and Loss of Confidence
4. Commission of A Crime

Elements:
The fraud must be committed against the employer or
representative in connection with the employee’s work. 1. There must be an act or omission punishable/prohibited
by law;
Thus, the fraud committed against third persons not in 2. The act or omission was committed by the employee
connection with his work, and which does not in any way against the person of his employer, against any immediate
involve his employer, is not a ground for dismissal. member of the employer’s family, against the employer's
Page | 67
duly authorized representative. (DOLE No. 147 s. 2015) industrial depression or seasonal fluctuations or during
lulls over shortage of materials.
5. Analogous cases
It is a reduction in manpower, a measure utilized by an
"Attitude problem" constitutes just cause for termination employer to minimize business losses incurred in the
as it disrupts workplace harmony and hampers operation of its business. (Flight Attendants and Stewards
organizational efficiency. An employee who cannot Association of the Philippines v. Philippine Airlines, Inc.,
collaborate with colleagues adversely impacts company G.R. Nos. 178083 & A.M. No. 11-10-1-SC, March 13,
operations, necessitating management intervention to 2018)
safeguard the organization. Personal conflicts between
employees and management disrupt the peace within the “Last One Hired is the First One Fired" Policy
company (Heavylift Manila vs. CA, G.R. No. 154410,
October 20, 2005). GR: This rule applies only to cases of labor-saving
devices, redundancy and retrenchment.
Immediate Family Members
XPNs:
The immediate members of the family referred to are
limited to spouse, ascendants, descendants, or legitimate, 1. When an employee volunteers to be separated from
natural, or adopted brothers or sisters of the employer or employment
of his relative by affinity in the same degrees, and those 2. Determination of the Employees to be Retrenched Is in
by consanguinity within the fourth civil degree. Accord with the CBA
(Subsection 2, Art. 11, RPC)
4. Closures or Cessation of Operations of
2. AUTHORIZED CAUSES establishment or undertaking not due to serious
business losses or financial reverses
1. Installation of Labor-Saving Devices
Elements:

1. There must be a decision to close or cease

The right to reduce personnel should, of course, not be operation of the enterprise by the management;
abused. It should not be made a pretext for easing out 2. The decision was made in good faith;
laborers on account of their union activities. But neither 3. There is no other option available to the employer
should it be denied when it is shows that they are not except to close or cease operations.
discharging their duties in a manner consistent with good
discipline and the efficient operation of an industrial Right to Close Whether Losing or Not – not due to
enterprise. (Philippine Sheet Metal Workers’ Union vs. serious business losses or financial reverses
CIR, G.R. No. L-2028, April 28, 1949)
If the business is not losing but its owner, for reasons of
2. Redundancy his own, wants to get out of the business, he in good faith
can lawfully do so anytime. Just as no law forces anyone
to go into business, no law compels anybody to stay in
business. But the employees should be paid the
severance pay
Redundancy exists when the service of an employee is in
excess of what is reasonably demanded by the actual No Separation Pay in Case of Closure Because of
requirements of the business. (Ilaw at Buklod ng Serious Business Losses
Manggagawa sa General Milling Corp. v. General Milling Article 298 of the Labor Code considers closure of
Corp., G.R. No. 216787 , February 15, 2022) business as an authorized cause for the dismissal of
employees, whether or not the closure is due to
3. Retrenchment or Downsizing to prevent losses or serious business losses.
the closing or cessation of operation of the
establishment However, if the closure is not due to serious business
losses, the employer is required to pay its employees
Retrenchment or downsizing is a mode of terminating separation pay equivalent to one (1) month pay or at least
employment initiated by the employer through no fault of one-half (1/2) month pay for every year of service,
the employee and without prejudice to the latter, resorted whichever is higher.
to by management during periods of business recession,
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5. Disease and whose continued employment is
prohibited by law or is prejudicial to his health as well a) ⚖️⚖️ Twin-Notice Requirement
as to the health of his co-employee
For Termination of Employment Based On Just
An employer may terminate the services of an employee: Causes As Defined In Article 282 Of The Labor Code:

1. who has been found to be suffering from any disease The rudimentary requirements of due process require that
and whose continued employment is prohibited by law or an employer dismissing an employee must furnish the
is prejudicial to his health as well as to the health of his latter with 2 written notices before the termination of
co-employees. employment can be effected:

2. To be a valid ground for termination, there must be a A. FIRST NOTICE

certification by a competent public authority that the
disease is of such nature or at such stage that it cannot The first notice apprises the employee of the particular
be cured within a period of six (6) months even with acts or omissions for which the dismissal is sought.
proper medical treatment.
1. Specific Causes or
Medical Certificate grounds for termination
2. Detailed narration of
A medical certificate issued by the company’s own facts that will serve as
physician is not a certificate by “competent public health the basis for the charge
authority.” 3. Directive that the EE is
given the opportunity to
3. DUE PROCESS REQUIREMENTS - LABOR submit a written
CODE, ART. 292 (B); DOLE D.O. NO. 147-15 explanation within
reasonable period.
Substantive due process which means the employee's
dismissal is justified (lawful and valid).
B. SECOND NOTICE
Procedural due process which requires ample
opportunity for the worker to explain his side before he is The second notice informs the employee of the
dismissed. employer’s decision to dismiss him or her.

Note: Absence of substantive due process makes the 1. All Circumstances

dismissal illegal, while absence of procedural due involving the charge
process, although similarly illegal, does not invalidate against the EE
the dismissal but makes the employer liable for which are
nominal damages. (Azucena, 2021) Considered.
2. Grounds have been
Despite having a just cause for dismissal, non-adherence Established to justify the
to proper procedural requirements entitles defendant to severance of the
nominal damages of P30,OOO.OO according to employment.
prevailing jurisprudence (★G.r. No. 234725, September
16, 2020, as penned by Justice MVL). Hearing

Take note: A formal hearing or conference becomes mandatory only

when requested by the employee in writing or substantial
evidentiary disputes exist or a company rule or practice
requires it, or when similar circumstances justify it. The
"ample opportunity to be heard" standard in the Labor
Code prevails over the "hearing or conference"
requirement in the implementing rules and regulations
(Perez vs. Philippine Telegraph and Telephone, Co., G.R.
No. 152048, April 7, 2009).

Page | 69
Hearing; When not required
Article 116, LC. It is unlawful for an employer to withhold
1. If the employee has admitted his guilt. any payment of wages without the worker's consent. The
2. Termination justified by any of the authorized causes employer is obliged to pay salaries on time as agreed
under Art. 298. upon in the employment contract.
3. Termination initiated by the employee (Art. 300, Labor
Code, as amended). b. Abandonment
4. Termination of the probationary period of employment
(Art. 281, Labor Code as amended). It is the deliberate and unjustified refusal of an
5. Suspension of employment relationship resulting from employee to resume his employment. It is a
bona fide suspension of operation (Art. 301, Labor Code form of neglect of duty.
as amended).
6. In case of project employment, termination upon Requisites
completion of the project or phase thereof for which the
employee is hired 1. Failure to report for work or absence without valid or
justifiable reason, and
B. TERMINATION OF EMPLOYMENT BY EMPLOYEE
2. Clear intention to sever the employer-employee
a. ⚖️⚖️Resignation vs. Constructive Dismissal relationship

The burden to prove whether the employee abandoned

Resignation Constructive his work rests on the employer.
Dismissal
Absence must be accompanied by overt acts unerringly
pointing to the fact that the employee simply does not
want to work anymore
The voluntary act of an
employee who is in a C. Preventive Suspension
situation where one Quitting or cessation of
believes that personal work because Preventive suspension is a disciplinary measure
reasons cannot be continued employment (Management Prerogative) for the protection of the
sacrificed in favor of the is rendered impossible, company's property pending investigation of any alleged
exigency of the service, unreasonable or malfeasance or misfeasance committed by the employee.
and one has no other unlikely; when there is a The employer may place the worker concerned under
choice but to dissociate demotion in rank or a preventive suspension if his continued employment poses
oneself from diminution of pay and a serious and imminent threat to the life or property of the
employment. other benefits. employer or of his co-workers.

It is a formal The imposition of preventive suspension must be done

pronouncement or reasonably, in good faith, and in a manner not
relinquishment of an otherwise intended to defeat or circumvent the rights
office, with the intention of the employee under special laws and valid agreements.
of relinquishing the
office accompanied by Preventive suspension, while not a penalty, is
the act of implemented to safeguard the employer's or co-
relinquishment. workers' life or property pending investigation of
alleged employee infractions. However, its imposition
should be exercised cautiously, considering that
Unlawful Withholding of Employee Salary employees forego their salaries and benefits during
Constitutes Constructive Dismissal suspension.

The SC ruled that although management prerogative Note: Period of Suspension No preventive suspension
refers to 'the right to regulate all aspects of employment,' shall last longer than thirty (30) days.
it cannot be understood to include the right to temporarily
withhold salary/wages without the consent of the
employee. To sanction such an interpretation would be
contrary to Article 116 of the Labor Code.
Page | 70
D. Reliefs from Illegal Dismissal herein (Art. 229).

In cases of regular employment, the employer shall not Options Given to Employers
terminate the services of an employee except for a just or
authorized cause. a. Actually reinstate the dismissed employees
or,
An employee who is unjustly dismissed from work shall b. Constructively reinstate them in the payroll.
be entitled to reinstatement without loss of seniority rights Either way, this must be done immediately upon the filing
and other privileges and to his full backwages, inclusive of their appeal, without need of any executory writ. If the
of allowances, and to his other benefits or their monetary order of reinstatement of the Labor Arbiter is reversed on
equivalent computed from the time his compensation was appeal, it is obligatory on the part of the employer to
withheld from him up to the time of his actual reinstate and pay the wages of the dismissed employee
reinstatement. during the period of appeal until reversal by the higher
court.
⚖️⚖️Reliefs from Illegal Dismissal
The Labor Arbiter's order of reinstatement is immediately
1. Reinstatement executory and the employer has to either re-admit them
to work under the same terms and conditions prevailing
Reinstatement means restoration to a state or condition prior to their dismissal, or to reinstate them in the payroll,
from which one had been removed or separated. The and that failing to exercise the options in the alternative,
person reinstated assumes the position he had occupied employer must pay the employee's salaries
prior to his dismissal.
No refund doctrine
GR: Reinstatement and backwages
XPNs: An employee cannot be compelled to reimburse the
a. Separation pay salaries and wages he received during the pendency of
b. Closure of business his appeal, notwithstanding the reversal by the NLRC of
c. Economic business conditions the LA's order of reinstatement.
d. Employee’s unsuitability
e. Employee’s retirement/ overage
f. Antipathy and antagonism E. BACKWAGES
g. Job with a totally different nature
h. Long passage of time They are:
i. Inimical to the employer's interest
j. When supervening facts have transpired which make 1. Earnings lost by a worker due to his illegal dismissal;
execution on that score unjust or inequitable or, to an 2. A form of relief that restores the income lost by reason
increasing extent of such unlawful dismissal;
3. In the nature of a command to the employer to make a
Prescription Period public reparation for illegally dismissing an employee.
4. It is not private compensation or damages;
An action for reinstatement by reason of illegal dismissal 5. Nor is it a redress of a private right.
is one based on an injury, which may be brought within 4
years from the time of dismissal Effect of failure to order backwages

In any event, the decision of the Labor Arbiter reinstating A “plain error” which may be rectified, even if employee
a dismissed or separated employee, insofar as the did not bring an appeal regarding the matter.
reinstatement aspect is concerned, shall immediately be
executory, pending appeal: Extent of Entitlement

The employee shall either be admitted back to work GR: An illegally dismissed employee is entitled to full
under the same terms and conditions prevailing prior backwages.
to his dismissal or separation or, at the option of the
employer, merely reinstated in the payroll. XPNs:

Effect of Bond: The posting of a bond by the employer 1. The Court awarded limited backwages where the
shall not stay the execution for reinstatement provided employee was illegally dismissed but the employer was

Page | 71
found to be in good faith.
2. Delay of the EE in filing the case for illegal dismissal COVERAGE
Computation of Backwages
Cause for Termination Entitlement

Full backwages means exactly that, i.e., without Art. 288: Termination by None
deducting from backwages the earnings derived Employer
elsewhere by the concerned employee during the period
of his illegal dismissal. a. Serious misconduct or willful
disobedience of lawful orders
The formula of awarding reasonable net backwages b. Gross and habitual
without deduction or qualification relieves the employees neglect of duties
c. Fraud or willful breach of trust
from proving or disproving their earnings during their lay-
d. Commission of a crime
off and the employers from submitting counterproofs, and
against employer or immediate
obviates the twin evils of: member of his
family or representative
1. Idleness on the part of the employee who would e. Analogous causes
"with folded arms, remain inactive in the expectation
that a windfall would come to him"; and Art. 289: Installation of Equivalent to at
labor-saving devices or least 1 month pay
2. Attrition and protracted delay in satisfying such redundanc or 1 month pay for every
award on the part of unscrupulous employers who year of
service, whichever
have seized upon the further proceedings to determine
is higher
the actual earnings of the wrongfully dismissed or laid-
off employees Art. 289: Retrenchment to Equivalent to at
prevent losses or closure least 1 month pay
The salary base properly used should be the basic salary or cessations of perations or ½ month pay for every
rate at the time of dismissal plus the regular allowances; of establishments or undertaking year of
allowances include: not due to service*, whichever is
serious business losses or higher
1. Emergency cost of living allowances (ECOLA), financial reverses
transportation allowances, 13th month pay.
Art. 290: Disease when Equivalent to at
2. Also included are vacation leaves, service incentive
continued employment is least 1 month pay or ½
leaves, and sick leaves. prohibited by law or is month pay for every year of
prejudicial to his health or service*, whichever is
Note: Inflation does not apply. The effects of extraordinary health of co-employees higher
inflation are not to be applied without an official
declaration thereof by competent authorities. Note:
When the EE is suffering from a
Note that according to Nacar v. Gallery Frames, when the disease not curable within a
judgment of the court awarding a sum of money becomes period of six (6) months and
final and executory, the rate of legal interest …. shall be his/her continued employment is
prejudicial to his/her health or to
6% per annum from such finality until its satisfaction, this
the health of his/her
interim period being deemed to be by then an equivalent coemployees [Art. 299]
to a forbearance of credit

F. ⚖️⚖️SEPARATION PAY Art. 291: Termination by None

employee whether with or
without just cause

*A fraction of at least 6 months shall be

considered 1 whole year

Separation pay is defined as the amount that an Exceptions: Considerations of equity

employee receives at the time of his severance from the
service and is designed to provide the employee with the
An employee who voluntarily resigns is not entitled to
wherewithal during the period that he is looking for
separation pay unless stipulated in the employment
another employment.
Page | 72
contract, or the collective bargaining agreement, or is
sanctioned by established practice or policy of the In cases of unlawful withholding of wages: the culpable
employer. party may be assessed attorney’s fees.

Note: Lack of service assignment of security guard for a Amount: equivalent to 10% of the amount of
continuous period of six (6) months. In no case will an wages recovered.
employee get less than one (1) month separation pay if
the separation is due to the above stated causes. It shall be unlawful for any person to demand or accept,
in any judicial or administrative proceedings for the
One-Month Pay per Year of Service recovery of wages, attorney’s fees which exceed 10%
percent of the amount of wages recovered. (Art. 111,
An employee is entitled to separation pay equivalent to CC)
his/her one-month pay for every year of service, a fraction
of at least 6 months being considered as one whole year, GR: attorney's fees and expenses of litigation, other than
if his/her separation from service is due to any of the judicial costs, cannot be recovered
following:
XPN: stipulation to the contrary in actions for the
1. Installation by employer of laborsaving devices; recovery of wages of household helpers, laborers and
2. Redundancy, as when the position of the employee has skilled workers
been found to be excessive or unnecessary in the
operation of the enterprise; ⚖️⚖️Doctrine of Strained Relations
3. Impossible reinstatement of the employee to his/her
former position or to a substantially equivalent position for
reasons not attributable to the fault of the employer
4. Lack of service assignment of security guard by reason
of age.
Under the doctrine of strained relations, when there is no
Basis of Separation Pay
doubt that the relationship of employer to employee
is so strained and ruptured as to preclude a
The computation of separation pay of an employee shall
harmonious working relationship should reinstatement
be based on his/her latest salary rate. [DOLE
of the employee be decreed, the employee should be
Handbook on Workers’ Statutory Monetary Benefits, 2018
given separation pay so that he can be spared the agony
ed.] plus the regular allowance that the employee has
of having to work anew with the employer under an
been receiving
atmosphere of antipathy and antagonism and the
employee does not have to endure the continued services
When Non-taxable
of the employee in whom it has lost confidence.
In case of separation of an official or employee from the
The payment of separation pay is considered an
service of the employer due to death, sickness or other
acceptable alternative to reinstatement when the latter
physical disability or for any cause beyond the control of
option is no longer desirable or viable. On one hand, such
the said official or employee, any amount received by him
payment liberates the employee from what could be a
or by his heirs from the employer as a consequence of
highly oppressive work environment.
such separation shall likewise be exempt from tax.
I. DAMAGES
On the other hand, it releases the employer from the
grossly unpalatable obligation of maintaining in its employ
The employee is entitled to moral damages when the
a worker it could no longer trust
employer acted:
But strained relations must be demonstrated as a fact.
a. in bad faith or fraud;
This doctrine should not be used recklessly or applied
b. in a manner oppressive to labor; or in a manner
loosely nor be based on impression alone
contrary to morals, good customs, or public policy.
Liabilities of Corporate Officers
In labor cases, the court may award exemplary damages
"if the dismissal was effected in a wanton, oppressive or
Corporate officers and directors and partners solidarily
malevolent manner."
liable If the recruitment/placement agency is a juridical
being, the corporate officers and directors and partners as
Attorneys’ fees
Page | 73
the case may be, shall be joint and severally liable with
the corporation or partnership for the claims and Unless the parties provide for broader inclusions, the term
damages. one-half (1/2) month salary shall mean fifteen (15) days
plus one-twelfth (1/12) of the 13th month pay and the cash
Burden of Proof equivalent of not more than five (5) days of service
incentive leaves.
1. Existence of ER-EE Relationship: Employee
2. Fact of dismissal: Employee An underground mining employee upon reaching the age
3. Validity of Dismissal: Employer of fifty (50) years or more, but not beyond sixty (60) years
which is hereby declared the compulsory retirement age
i. EE has burden of proving fact of employment and of for underground mine workers, who has served at least
dismissal before a case for illegal dismissal can five (5) years as underground mine worker, may retire and
prosper, an employer-employee relationship shall be entitled to all the retirement benefits provided for
must first be established by the employee. in this Article.

The employee must first establish by substantial Retail, service and agricultural establishments or
evidence the fact of his dismissal from service. If there operations employing not more than ten (10) employees
is no dismissal, then there can be no question as to the or workers are exempted from the coverage of this
legality or illegality thereof. provision.

ii. ER has burden of proving valid dismissal Violation of this provision is hereby declared unlawful and
Unsubstantiated accusations or baseless conclusions subject to the penal provisions under Article 288 of this
of the employer are insufficient legal justifications to Code.
dismiss an employee. The unflinching rule in illegal
dismissal cases is that the employer bears the burden Nothing in this Article shall deprive any employee of
of proof. benefits to which he may be entitled under existing laws
or company policies or practices.
E. ⚖️RETIREMENT
VIII. LABOR RELATIONS

A. ⚖️⚖️ RIGHT TO SELF-ORGANIZATION

The right of government employees to self-organization is

not as extensive as in the right of private employees. The
Any employee may be retired upon reaching the law fixed the terms and conditions of government
retirement age established in the collective bargaining employment, and any contract that violates the law is void
agreement or other applicable employment contract. and cannot be a source of rights and obligations (✮G.r.
No. 207853, March 30, 2022, as penned by Justice
In case of retirement, the employee shall be entitled to MVL).
receive such retirement benefits as he may have earned
under existing laws and any collective bargaining 1. COVERAGE AND ELIGIBILITY FOR
agreement and other agreements: MEMBERSHIP; EXCEPTIONS
Provided, however, that an employee’s retirement A. Coverage
benefits under any collective bargaining and other
agreements shall not be less than those provided therein. All persons employed in commercial, industrial and
agricultural enterprises and in religious, charitable,
In the absence of a retirement plan or agreement medical, or educational institutions, whether operating for
providing for retirement benefits of employees in the profit or not, shall have the right to self-organization and
establishment, an employee upon reaching the age of to form, join, or assist labor organizations of their own
sixty (60) years or more, but not beyond sixty-five (65) choosing for purposes of collective bargaining. Ambulant,
years which is hereby declared the compulsory retirement intermittent and itinerant workers, self-employed people,
age, who has served at least five (5) years in the said rural workers and those without any definite employers
establishment, may retire and shall be entitled to may form labor organizations for their mutual aid and
retirement pay equivalent to at least one-half (1/2) month protection.
salary for every year of service, a fraction of at least six
(6) months being considered as one whole year.
Page | 74
Implications of the Right to Self- Organization
vi. Working children;
The right to self-organization carries with it the right to: vii. Homeworkers;
viii. Employees of cooperatives;

Employees who are also members of an electric

cooperative cannot form or join a union, regardless
of their level of participation or management
A. choose which union he would join involvement within the cooperative
B. cancel his union membership anytime
C. abstain from joining a union Employees who withdrew their membership from the
cooperative are not entitled to form or join a labor union
B and C are not absolute (Closed Shop arrangement) for the negotiations of a Collective Bargaining
Agreement.
Labor Organization
ix. Employees of legitimate contractors not with principal
A labor organization is defined as "any union or but with the contractor;
association of employees which exists in whole or in part x. Security Guards.
for the purpose of collective bargaining or of dealing with
employers concerning terms and conditions of Owner cannot bargain with himself
employment.
Members-consumers are not qualified to form, join or
A labor organization has two broad rights: assist labor organizations for purposes
1. to bargain collectively; and
2. to deal with the employer concerning terms and Public/Government Sector
conditions of employment
All rank-and-file employees of all branches, subdivisions,
B. Eligibility for membership instrumentalities, and agencies of government, including
GOCCs with original charters.
1. Persons Who May Join, Form, or Assist a Labor
Organization for the Purpose of Collective Bargaining Right of Supervisory Employees/ Frontline Managers
to Join a Union

Private Sector Who are Supervisory employees

i. All persons employed in commercial, industrial and

agricultural enterprises;
ii. Employees of GOCCs without original charters
established under the Corporation Code; They are those, who in the interest of the employer,
iii. Employees of religious, charitable, medical or effectively recommend such managerial actions if the
educational institutions, whether operating for profit or not; exercise of such authority is not merely routinary or
iv. Supervisory employees; clerical in nature but requires the use of independent
v. Alien employees; judgment

For an alien employee to exercise his right to self- Supervisory employees shall not be eligible for
organization, the following requisites must be complied membership in the collective bargaining unit of the
with: rank-and-file employees

a. He should have a valid working permit issued by Nevertheless, supervisory employees may join, assist or
the DOLE; and form (JAF) separate collective bargaining units and/or
legitimate labor organizations of their own.
b. He is a national of a country which grants the
same or similar rights to Filipino workers or which
has ratified either International Labor Organization
(ILO) Convention No. 87 or 98, as certified by the
Philippine DFA

Page | 75
 Recognition of the tenets of a sect should not infringe on
the basic right of self-organization granted by the
Constitution to workers, regardless of religious affiliation

Note: Religious objectors also have the right to vote in a

certification election

They cannot be compelled or coerced to join labor

Note: The employees so improperly included are unions
automatically deemed removed from the list of
members of said union. In other words, their removal from Religious objectors Members of said religious sects
the said list is by operation of law. (See topic on cannot be compelled or coerced to join labor unions even
Commingling or Mixed Membership) when said unions have closed shop agreements with the
employers; that in spite of any closed shop agreement,
Jurisprudence on Eligibility members of said religious sects cannot be refused
employment or dismissed from their jobs on the sole
1. Available only to persons who enjoy employee ground that they are not members of the collective
status. bargaining union.
2. The existence of employer- employee relationship is
a condition sine qua non for the exercise of the 2. Persons Not Allowed to Form, Join, or Assist Labor
constitutional rights to join or form labor organization. Organizations

The following are allowed to form labor organizations for Private Sector
their mutual aid and protection and other legitimate i. Managerial employees; and
purposes except collective bargaining: ii. Confidential employees

1. Ambulant workers;
2. intermittent and other workers; Public Sector
3. the self-employed; i. High-level employees whose functions are normally
4. rural workers and considered as policymaking or managerial or whose
5. those without any definite employers. duties are of a highly confidential nature;
ii. Members of the Armed Forces of the Philippines;
iii. Police officers;
Non-Employees are not entitled to join or form a labor iv. Firemen; and
organization for purposes of collective bargaining v. Jail guards

Note: Managerial employees are not eligible to join, assist

or form any labor organization

A managerial employee is one who is vested with

Rationale: They have no employers with whom they can powers or prerogatives to lay down and execute
collectively bargain. management policies and/or to hire, transfer, suspend,
layoff, recall, discharge, assign or discipline employees
Persons who are not employees of a company are not (Art. 219(m), Labor Code)
entitled to the constitutional right to join or form a labor
organization for purposes of collective bargaining. The Designation as "manager" does not ipso facto make him
question of whether ER-EE relationship exists is a a managerial employee. Designation should be
primordial consideration before extending labor benefits reconciled with the actual job description of the
under the workmen's compensation, social security, employee for it is the job description that determines
Medicare, termination pay and labor relations law. the nature of employment.

Freedom of Religion and the Right to self- 2. ⚖️⚖️ DOCTRINE OF NECESSARY

organization IMPLICATION (CONFIDENTIAL EMPLOYEES)

Freedom of Religion is superior to contract rights. While the Labor Code singles out managerial employees
as ineligible to join, assist or form (JAF) any labor
Religious objectors can form and join their own union
Page | 76
organization, under the doctrine of necessary implication, Tests to determine the appropriate bargaining unit
confidential employees are similarly disqualified. This
doctrine states that what is implied in a statute is as much 1. Community or mutuality of interest
a part thereof as that which is expressed 2. Will of the employees or “Globe Doctrine”
3. Collective bargaining history
Who are Confidential Employees 4. Similarity of employment status

The basic test of an asserted bargaining unit’s

acceptability is whether or not it is fundamentally the
combination which will best assure to all employees the
Those who: exercise of their collective bargaining rights.
1. Assist or act in a confidential capacity, in regard
2. To persons who formulate, determine, and Appropriate Bargaining Unit (ABU)
effectuate management policies.
It refers to a group of EEs of a given ER, comprised of all
Although Article 245 of the Labor Code limits the or less than all the entire body of EEs, which the collective
ineligibility to join, form and assist any labor organization interest of all the EEs, consistent with equity to the ER,
to managerial employees, jurisprudence has extended indicate to the best suited to serve the reciprocal rights
this prohibition to confidential employees or those who by and duties of the parties under the CB provisions of law.
reason of their positions or nature of work are required to
assist or act in a fiduciary manner to managerial “Appropriate”
employees and, hence, are likewise privy to sensitive
and highly confidential records. To be considered “appropriate”, it must effect a grouping
of EEs who have substantial, mutual interests in wages,
Confidential employees are excluded from rank-and-file hrs. Of work, working conditions and other subjects of
bargaining units due to similarities with managerial collective bargaining.
employees.
Bargaining Representative
An employee must assist or act in a confidential capacity
and obtain confidential information relating to labor The labor organization designated or selected by the
relations policies. majority of the employees in an appropriate collective
bargaining unit shall be the exclusive representative of the
3. ⚖️⚖️BARGAINING UNIT employees in such unit for the purpose of collective
bargaining (Art. 267, Labor Code).
Collective Bargaining
a. ⚖️⚖️ Commingling or Mixed Membership

To bargain collectively is a right given to a union once it

registers itself with the DOLE. Dealing with the employer,
on the other hand, is a generic description of interaction
between employer and employees concerning
grievances, wages, work hours and other terms and
conditions of employment, even if the employees' group
is not registered with the DOLE.

Bargaining Unit The inclusion of workers who are not part of the collective
bargaining unit (CBU) is called "commingling." Another
form of commingling is when supervisors are included in
It refers to a group of employees sharing mutual interests
a rank-and-file union.
within a given employer unit, comprised of all or less than
all of the entire body of employees in the employer unit or
any specific occupational or geographical grouping within
such employer unit.

Page | 77
Commingling of Supervisory and Rank-and-file percent (20%) of all the employees in the bargaining unit
Employees where it seeks to operate;

(d) If the applicant union has been in existence for one

or more years, copies of its annual financial reports; and

(e) Four copies of the constitution and by-laws of the

applicant union, minutes of its adoption or ratification, and
While there is a prohibition against the mingling of the list of the members who participated in it.
supervisory and rank-and-file employees in one labor
organization, the Labor Code does not provide for the Chartering and creation of a local chapter
other effects thereof. Thus, the Court said that after a
labor organization has been registered, it may exercise all A duly registered federation or national union may directly
the rights and privileges of a legitimate labor organization. create a local chapter by issuing a charter certificate
Any mingling between supervisory and rank-and-file indicating the establishment of the local chapter. The
employees in its membership cannot affect its legitimacy chapter shall acquire legal personality only for purposes
for that is not among the grounds for cancellation of its of filing a petition for certification election from the date it
registration, unless such mingling was brought about by was issued a charter certificate.
misrepresentation, false statement or fraud.
The chapter shall be entitled to all other rights and
Note: Commingling is NOT a ground for the cancellation privileges of a legitimate labor organization only upon the
of the registration of a union. The only effect is that said submission of the following documents in addition to its
employees (who are not supposed to be included) are, charter certificate:
ipso jure, excluded and deemed removed from the unit or
the list of union members. (a) The names of the chapter’s officers, their addresses,
and the principal office of the chapter; and
b. Inclusion as Members of Employees Outside
the Bargaining Unit (b) The chapter’s constitution and by-laws: Provided,
That where the chapter’s constitution and by-laws are the
Not a ground for cancellation same as that of the federation or the national union, this
fact shall be indicated accordingly.
The inclusion as union members of employees outside
the bargaining unit shall not be a ground for the The additional supporting requirements shall be certified
cancellation of the registration of the union. Said under oath by the secretary or treasurer of the chapter and
employees are automatically deemed removed from the attested by its president.
list of membership of said union.
Cancellation of registration (Art. 245)
4. ⚖️⚖️REGISTRATION OF UNIONS,
CHARTERING, CANCELLATION OF REGISTRATION The certificate of registration of any legitimate labor
organization, whether national or local, may be cancelled
A federation, national union or industry or trade union by the Bureau, after due hearing, only on the grounds
center or an independent union shall acquire legal specified in Article 239 hereof.
personality and shall be entitled to the rights and
privileges granted by law to legitimate labor organizations Grounds for cancellation of union registration (Art.
upon issuance of the certificate of registration based on 247)
the following requirements:
The following may constitute grounds for cancellation of
(a) Fifty pesos (P50.00) registration fee; union registration:

(b) The names of its officers, their addresses, the (a) Misrepresentation, false statement or fraud in
principal address of the labor organization, the minutes of connection with the adoption or ratification of the
the organizational meetings and the list of the workers constitution and by-laws or amendments thereto, the
who participated in such meetings; minutes of ratification, and the list of members who took
part in the ratification;
(c) In case the applicant is an independent union, the
names of all its members comprising at least twenty (b) Misrepresentation, false statements or fraud in
connection with the election of officers, minutes of the
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election of officers, and the list of voters; Validation conference
For this purpose, the employer or any representative of
(c) Voluntary dissolution by the members. the employer shall not be deemed a party-in-interest but
only as a by-stander to the process of certification.
5. SOLE AND EXCLUSIVE BARGAINING AGENT
(SEBA) If the requesting union or local fails to complete the
requirements for seba certification during the conference,
the request for seba certification shall be referred to the
election officer for the conduct of election pursuant to rule
of this rules.
Modes to Acquire Status
Action on the submission
A. Request for sole and exclusive bargaining agent If the regional director finds the requirements complete,
(SEBA) certification he/she shall issue during the conference a certification as
sole and exclusive bargaining agent enjoying the rights
Where to file and privileges of an exclusive bargaining agent of all the
employees in the covered bargaining unit.
Any legitimate labor organization may file a request for The regional director shall cause the posting of the seba
SEBA certification in the regional office which issued its certification for fifteen (15) consecutive days in at least
certificate of registration or certificate of creation of two (2) conspicuous places in the establishment or
chartered local. covered bargaining unit.

Action on the request Effect of certification

Within one (1) day from the submission of the request, the
regional director shall:

a. Determine whether the request is compliant with the Upon the issuance of the certification as sole and
preceding section and whether the bargaining unit sought exclusive bargaining agent (SEBA), the certified union or
to be represented is organized or not; and local shall enjoy all the rights and privileges of an
b. Request a copy of the payroll for purposes of seba exclusive bargaining agent of all the employees in the
certification pursuant to section 4 of this rule. covered bargaining unit.
If he/she finds it deficient, the regional drector shall advise Request for certification in unorganized
the requesting union or local to comply within ten (10) establishment with more than one (1) legitimate labor
days from notice. failure to comply within the prescribed organization
period shall be deemed withdrawal of the request for seba
certification. If the regional director finds the establishment
unorganized with more than one legitimate labor
Request for certification in unorganized organization, he/she shall refer the same to the election
establishment with only one (1) legitimate labor officer for the conduct of certification election.
organization; validation proceedings The certification election shall be conducted in
accordance with rule rx of this rules.
If the regional director finds the establishment
unorganized with only one legitimate labor organization: Request for certification in organized establishment
he/she shall call a conference within five (5) work days for
If the regional director finds the establishment organized,
the submission of the following:
he/she shall refer the same to the mediator-arbiter for the
a. the names of employees in the covered bargaining unit determination of the propriety of conducting a certification
who signify their support for the certification, provided that election in accordance with rules vill and ix of this rules.
said employees comprise at least majority of the number
of employees in the covered bargaining unit; and b,
certification under oath by the president of the requesting
union or local that all documents submitted are true and b. ⚖️⚖️Certification/Consent Election - DOLE D.O.
correct based on his/her personal knowledge. No. 40-03, Rules VII and VIII, as amended

The submission shall be presumed to be true and correct “Certification Election" or "Consent Election" refers to
unless contested under oath by any member of the the process of determining through secret ballot the sole
bargaining unit during the and exclusive representative of the employees in an
appropriate bargaining unit for purposes of collective
bargaining or negotiation. (DOLE D.O. No. 40-03[h])
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 Certification Election v. Union Election
Certification Election Consent Election Certification Election Union Election

Ordered by the department Voluntarily Agreed upon To determine the To elect union officers
by the parties, with or Exclusive Bargaining
without the intervention by Agent
the Department.
All members of the Only union members may
Appropriate Bargaining vote
Purpose Unit
The purpose of a certification election is precisely the
ascertainment of the wishes of the majority of the Who May Vote (Sec. 6, Rule IX, Book V, IRR)
employees in the appropriate bargaining unit: to be or
not to be represented by a labor organization, and in the All employees who are members of the appropriate
affirmative case, by which particular labor organization bargaining unit three (3) months prior to the filing of
the petition/request shall be eligible to vote.
Procedure
An employee who has been dismissed from work but
1. The parties may agree to hold a consent election has contested the legality of the dismissal in a forum
of appropriate jurisdiction at the time of the issuance of
a. Where no petition for certification election was filed; or the order for the conduct of a certification election shall
b. Where a petition for certification election had been filed, be considered a qualified voter, unless his/her
and upon the intercession of Med-Arbiter dismissal was declared valid in a final judgment at the time
of the conduct of the certification election.

2. Mediator-Arbiter shall call for the consent election, In case of disagreement over the voters’ list or over the
reflecting the parties’ agreement and the call in the eligibility of voters, all contested voters shall be allowed to
minutes of the conference. vote. But their votes shall be segregated and sealed in
individual envelopes.
Regional Director or authorized representative shall
determine the Election Officer by raffle in the presence of Who May File
representatives of the contending unions if they so desire. 1. Legitimate labor organization (Art. 219h)

3. First pre-election conference is scheduled within 2. Local/chapter that has been issued a charter certificate
ten (10) days from the date of the agreement
The chapter shall acquire legal personality only for
Note: Subsequent conferences may be called to expedite purposes of filing a petition for certification election from
and facilitate the holding of the consent election. the date it was issued a charter certificate
Petition For Cancellation of Union Registration does
not Suspend or Prevent Filing of Certification Election 3. National union or federation that has issued a charter
certificate to its local/chapter (in behalf of the latter)
A petition for cancellation of union registration shall not:
1. Suspend the proceedings for certification election; 4. A group of legitimate labor unions in a private
nor establishment organized for collective bargaining or for
2. Prevent the filing of a petition for certification election dealing with employers concerning terms and conditions
(Art. 246). of employment for their member unions or for participating
in the formulation of social and employment policies,
A certification election can be conducted despite standards and programs, registered with the BLR
pendency of a petition to cancel the union registration
certificate. For the fact is that at the time, the union, whose 5. Employer (when requested to bargain collectively and
registration certificate is sought to be canceled, filed its no existing CBA)
petition for certification, it still had the legal personality to
perform such act absent an order directing its cancellation Requisites

a. Employer is requested to bargain collectively; AND

b. No existing registered CBA in the unit
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Venue for Filing Petition

File with the Regional Office which issued the petitioning

union’s certificate of registration or certificate of creation It refers to an enterprise where there exists a recognized
of chartered local. or certified sole and exclusive bargaining agent (SEBA)

Filed in 1 Regional Filed in different Regional Procedure (Art. 268)

Office Offices
1. File a verified petition questioning the majority.
Automatically The Regional Office in 2. It must be filed within the 60-day period before
consolidated with which the petition was first expiration of CBA (freedom period).
MedArbiter] who first filed shall exclude all others; 3. Supported by written consent of at least 25% of ALL
acquired jurisdiction. [...] the latter shall indorse employees in the bargaining unit (substantial support).
the petition to the former for 4. Med-Arbiter shall automatically order an election.
consolidation.

Petition Must be Filed within the Freedom Period

Procedure
Freedom Period
I. Certification election in an unorganized
establishment Within the sixty (60)-day period before the expiration of
the collective bargaining agreement (Art. 271).
Unorganized establishment refers to an establishment
where there is no certified bargaining agent.
C. ⚖️BARS TO THE HOLDING OF
CERTIFICATION ELECTION
Procedure (Art. 269)

1. File a petition for certification election.

2. Upon filing of the petition, the MedArbiter shall
automatically conduct a certification election.

Filing of Petition is by a Legitimate Labor The certification shall bar the filing of a Petition for
Organization Certification Election (PCE) by any labor organization for
a period of one (1) year from the date of its issuance.
It cannot be filed by an unregistered labor organization.
Art. 251 enumerates the rights granted to a legitimate Upon expiration of this one-year period, any legitimate
labor organization and one of those rights is the right to labor organization may file a PCE in the same
be chosen as the exclusive bargaining representative. bargaining unit represented by the certified labor
This is one way the law encourages union registration. organization, unless a CBA between the employer and
the certified labor organization was executed and
Note: Art. 269 should be related to SEBA Certification. If registered with the Regional Office in accordance with
there are multiple LLOs in an unorganized establishment, Rule XVII.
Art. 269 applies.

If there is only one LLO in an unorganized establishment, Denial of the petition; Grounds
Rule VII on SEBA Certification applies. Under this rule,
when there is failure to complete requirements, the The Med-Arbiter may dismiss the petition on any of the
Regional Director will refer it to the Election Officer. following grounds:

II. Certification election in an organized a) The petitioner is not listed in the Department's registry
establishment of legitimate labor unions or that its legal personality
has been revoked or cancelled with finality in
Organized Establishment accordance with Rule XIV of these Rules;

b) The petition was filed before or after the freedom

period of a duly registered collective bargaining
Page | 81
 agreement; provided that the sixty-day period based there being a valid election, the Election Officer shall
on the original collective bargaining agreement shall transmit the records of the case to the Med-Arbiter who
not be affected by any amendment, extension or shall, within the same period from receipt of the minutes
renewal of the collective bargaining agreement; and results of election, issue an order proclaiming the
results of the election and certifying the union which
c) The petition was filed within one (1) year from entry of obtained a majority of the valid votes cast as the sole and
voluntary recognition or a valid certification, consent or exclusive bargaining agent in the subject bargaining unit,
run-off election and no appeal on the results of the under any of the following conditions:
certification, consent or run-off election is pending;
a) No protest was filed or, even if one was filed, the
d) A duly certified union has commenced and sustained same was not perfected within the five-day period for
negotiations with the employer in accordance with perfection of the protest;
Article 250 of the Labor Code within the one-year b) No challenge or eligibility issue was raised or,
period referred to in Section 14.c of this Rule, or there even if one was raised, the resolution of the same will
exists a bargaining deadlock which had been not materially change the results of the elections.
submitted to conciliation or arbitration or had become
the subject of a valid notice of strike or lockout to which The winning union shall have the rights, privileges and
an incumbent or certified bargaining agent is a party; obligations of a duly certified collective bargaining agent
from the time the certification is issued.
e) In case of an organized establishment, failure to submit
the twenty-five percent (25%) support requirement for “No Union”
the filing of the petition for certification election.
Where majority of the valid votes cast results in "No
D. ⚖️⚖️FAILURE OF ELECTION, RUN-OFF Union" obtaining the majority, the Med-Arbiter shall
ELECTION, RE-RUN ELECTION, FAILURE OF declare such fact in the order.
ELECTION

Failure of election

Where the number of votes cast in a certification or 1. Run-off Election

consent election is less than the majority of the number of When an election which provides for three (3) or more
eligible voters and there are no material challenged votes, choices results in none of the contending unions receiving
the Election Officer shall declare a failure of election in the a majority of the valid votes cast, and there are no
minutes of the election proceedings. objections or challenges which if sustained can materially
alter the results, the Election Officer shall motu proprio
Effect of failure of election conduct a run-off election within ten (10) days from the
close of the election proceedings between the labor
A failure of election shall not bar the filing of a motion for unions receiving the two highest number of votes;
the immediate holding of another certification or consent provided, that the total number of votes for all contending
election within six (6) months from date of declaration of unions is at least fifty (50%) percent of the number of
failure of election. votes cast.

Action on the motion Note: "No Union" shall not be a choice in the run-off
election
Within twenty-four (24) hours from receipt of the motion,
the Election Officer shall immediately schedule the Notice of run-off elections shall be posted by the Election
conduct of another certification or consent election within Officer at least five (5) days before the actual date of run-
fifteen (15) days from receipt of the motion and cause the off election.
posting of the notice of certification election at least ten
(10) days prior to the scheduled date of election in two (2)
most conspicuous places in the establishment. The same Qualification of voters
guidelines and list of voters shall be used in the election.
The same voters' list used in the certification election shall
Proclamation and certification of the result of the be used in the run-off election. The ballots in the run-off
election (Section 20, Rule IX) election shall provide as choices the unions receiving the
highest and second highest number of the votes cast. The
Within twenty-four (24) hours from final canvass of votes, labor union receiving the greater number of valid votes
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cast shall be certified as the winner, subject to Section 20, election when the relationship of employer and employee
Rule IX – Proclamation and certification of the result of the does not exist between the company and the employees
election. sought to be represented by the petitioning union.

2. ⚖️⚖️Re-run Election 2. Lack of Legitimacy

Re-run election refers to an election conducted to break a An employer can validly oppose a petition for certification
tie between contending unions, including between “No election when the petitioning union is not a legitimate
Union” and one of the unions. It shall likewise refer to an labor organization because it is not listed in the Registry
election conducted after a failure of election has been of Legitimate Labor Unions or its registration has been
declared by the election officer and/or affirmed by the cancelled with finality.
election Mediator-Arbiter.
3. Inappropriate Bargaining Unit
Re-run Election v. Failure of Election
An employer can validly oppose a petition for certification
Re-run Election Failure of Election election when the bargaining unit sought to be
represented by the petitioning union is not an appropriate
There is a valid certification The number of votes cast bargaining unit.
election but because of in the certification or
certain circumstances, the consent election is less
4. Lack of 25% Consent
election is nullified and than the majority of the
another one is ordered to number of eligible voters
In an organized establishment, an employer can validly
truly reflect the will and and there are no
oppose a petition for certification election when the
sentiment of the electorate- challenged votes that
petition is not supported by the written consent of 25% of
employees in the choice of could materially change
the employees covered by the bargaining unit.
their bargaining the results thereof.
representative.
5. Election Year Bar and Certification Year Bar

6. ⚖️⚖️EMPLOYER AS A MERE BYSTANDER RULE An employer can validly oppose a petition for certification
election when the petition was filed within one(1) year
Bystander Rule from a valid certification election or from certification of a
union as bargaining unit.

6. Deadlock Bar and Contract Bar

An employer can validly oppose a petition for certification

election when there is a duly registered CBA, or when
GR: In certification election, the employer is a mere there is a bargaining deadlock that has been submitted to
bystander with no concomitant right to oppose the conciliation or arbitration or has become the subject of a
same. The employer has no standing to question the valid notice of strike or lockout. (Ungos, 2021)
election, which is the sole concern of the workers.
Contract bar rule- a certification election cannot be held
Note that the employer's participation in such proceedings if there is in force and effect a collective bargaining
shall be limited to: agreement that has been duly registered with the
Department of Labor and Employment except during the
1. being notified or informed of petitions of such nature; freedom period of such CBA which is the 60-day period
and prior to the expiry date of said CBA.
2. submitting the list of employees during the pre-election
conference should the Mediator-Arbiter act favorably on Deadlock bar rule- a certification election cannot be held
the petition. if a bargaining deadlock to which an incumbent or certified
bargaining agent is a party had been submitted to
conciliation or mediation or had become the subject of a
XPNs: valid notice of strike or lockout.
1. Lack of employer-employee relationship

An employer can validly oppose a petition for certification

Page | 83
Labor Organization v. Legitimate Labor Organization 1. Authorization by a written resolution of the
majority of all the members at the general
Labor Organization Legitimate Labor
Organization membership meeting called for the purpose;

Labor Organization Legitimate labor 2. Secretary's record of the minutes of the

means any union or organization means any meeting; and
association of employees labor organization duly
which exists in whole or in registered with the 3. Individual written authorization for check off
part for the purpose of Department of Labor and duly signed by the employees concerned. Clearly,
collective bargaining or of Employment, and attorney's fees may not be deducted or checked
dealing with employers includes any branch or off from any amount due to an employee without
concerning terms and local thereof. (Art. 219(h), his written consent. (Gabriel v. Secretary of Labor
conditions of employment Labor Code) and Employment)
(Art. 219(g), Labor Code)
⚖️ ⚖️ Individual Written Authorization, WHEN NOT
REQUIRED

Check Off, Assessment, and Agency Fees

All unions are authorized to collect reasonable amounts

of:

1. Membership fees;
2. Union dues;
3. Assessments;
4. Fines; a. Deductions for withholding Tax mandated under the
5.Contributions for labor education and research, mutual National Internal Revenue Code.
death and hospitalization benefits, welfare fund, strike
fund and credit and cooperative undertakings; and b. Deductions for fees for Mandatory activities such as
6. Agency fees. (Article 292(a), 259(e), Labor Code) labor relations seminars and labor education activities.

Check-Off c. Assessment from non-members of the bargaining agent

of “Agency fees” which should be equivalent to the dues
A check-off is a process or device whereby the employer, and other fees paid by members of the recognized
on agreement with the Union, recognized as the proper bargaining agent, if such non-members accept the
bargaining representative, or on prior authorization from benefits under the CBA. (Article 259(e), Labor Code, as
its employees, deducts union dues or agency fees from amended)
the latter's wages and remits them directly to the union.
The non-union employee's acceptance of benefits
Right to check-off, available only to the SEBA (sole resulting from a collective bargaining agreement justifies
and exclusive bargaining agent) the deduction of agency fees from his pay and the
union's entitlement thereto.
The minority union, not being the collective bargaining
agent, has no such right. The employer therefore is not In this aspect, the legal basis of the union's right to agency
under any legal obligation to check-off any union dues and fees is neither contractual nor statutory, but quasi-
assessments for the minority union. (Chan, 2019) contractual, deriving from the established principle that
non-union employees may not unjustly enrich
themselves by benefiting from employment conditions
⚖️ ⚖️ Requisites for validity of union dues and negotiated by the bargaining union. (Holy Cross of Davao
special assessments College, Inc. v. Joaquin, G.R. No. 110007, 1996)
No special assessment or other extraordinary fees may d. Deductions for withholding of Wages because of
be levied upon the members of a labor organization employee’s debt to the employer which is already due.
unless these 3 requisites are present:
e. Deductions made pursuant to a judgment against the
Page | 84
worker under circumstances where the wages may be the written notice upon the other party with a statement of
subject of Attachment or execution but only for debts its proposals; A demand to bargain should be in
incurred for food, clothing, shelter and medical writing.
attendance. (American President Lines v. Clave, 114 SCRA 866)

f. Deductions from wages ordered by the Court. b. Other party replies not later than 10 calendar days
from receipt of such notice;
g. Deductions authorized by law such as for premiums for
PhilHealth, SSS, PAG-IBIG, employees’ compensation c. If difference arises on the basis of the notice and reply,
and the like. (Id., p. 455-456) either party may request for a conference;

Authorization to effect a check-off of union dues is Conference shall begin no later than ten (10) calendar
coterminous with the union affiliation or membership of days from the date of request.
employees. (Holy Cross of Davao College, Inc. v. Joaquin,
G.R. No. 110007, October 18, 1996) d. If the dispute is not settled, the NCMB shall intervene
upon request of either or both parties or at its own
⚖️ ⚖️ Collective Bargaining initiative.

Collective Bargaining Agreement i. NCMB shall immediately call parties to

conciliation meetings.
A CBA refers to the negotiated contract between a duly ii. NCMB has the power to issue subpoena
certified SEBA of workers and the employer incorporating requiring attendance of the parties.
the agreement reached after negotiations with respect to iii. Duty of the parties to participate fully and
wages, hours of work, and all other terms and promptly in the conciliation meetings.
conditions of employment in the appropriate bargaining
unit, including mandatory provisions for grievances and e. During the conciliation proceedings, parties are
arbitration machineries. (Sec. 1(f), Rule II, NCMB Revised prohibited from doing any act which may disrupt or
Procedural Guidelines in the Conduct of Voluntary impede the early settlement of the dispute;
Arbitration Proceedings, October 15, 2014)
f. Board shall exert all efforts to settle disputes amicably
Essential Requisites of a CBA and encourage the parties to submit their case to a
voluntary arbitrator. (Labor Laws and Social Legislations,
1. Employer-employee relationship between the employer Duka, 2016, p. 548)
and the members of the bargaining unit being represented
by the bargaining agent;
2. Bargaining agent must have the majority support of the Duty to bargain collectively
members of the bargaining unit;
3. A lawful demand to bargain is made in accordance with The purpose of collective bargaining is the reaching of an
law. (Chan) agreement resulting in a contract binding on the parties;
however, the failure to reach an agreement after
Steps in collective bargaining negotiations continued for a reasonable period does
not, per se establish a lack of good faith.
a. Preliminary process;
b. Negotiation; Good faith or bad faith is an inference to be drawn from
c. Execution; the facts. To some degree, the question of good faith may
d. Publication; be a question of credibility. The effect of an employer's or
e. Ratification; a union's actions individually is not the test of good-faith
f. Registration; bargaining, but the impact of all such occasions or
g. Administration; and actions, considered as a whole, and the inferences
h. Interpretation and Enforcement fairly drawn therefrom. (Hongkong and Shanghai
Banking Corp. Employees Union vs. NLRC, G.R. No.
Procedure in Collective Bargaining 125038, November 6, 1997)

Procedure under Article 261 of the Labor Code Standards

a. Party desiring to negotiate an agreement shall serve a. The obligation to bargain collectively is mutual;
b. The parties are required to meet and confer
Page | 85
 promptly and expeditiously and in good faith; wage rates, paid vacations, pensions, health and welfare
c. The parties are required to bargain on a plans, and other fringe benefits. (No. 9, NCMB Primer on
reasonable terms and conditions of Grievance Settlement and Voluntary Arbitration)
employment;
d. They are required in good faith to negotiate an Non-Economic Provisions and Conditions
agreement;
e. They must execute a contract incorporating
the agreement reached by the parties. (PNEI v.
NLRC, 259 SCRA 161); and
f. The duty to bargain does not compel any party
to agree to a proposal or to make any concession
(Article 263, Labor Code)

Employer’s duty to bargain exists only with SEBA Non-economic provisions refer to those whose
monetary cost cannot be directly computed such as the
The duty to bargain collectively does not exist when the no-strike no-lockout, union security and check-off clauses,
majority status of the employees’ representative is not grievance procedures, etc. (No. 9, NCMB Primer on
established. The employer has no such duty to bargain Grievance Settlement and Voluntary Arbitration)
with the individual workers or with the minority union.
(Lakas ng Manggagawang Makabayan vs. Marcelo Mandatory Provisions in a Collective Bargaining
Enterprises, G.R. No. L-38258, November 19, 1982) Agreement

Two (2) Situations Contemplated when the duty to ⚖️ ⚖️ CBA – Law Between the Parties
bargain exist:
The terms and conditions of a collective bargaining
1. Duty to bargain collectively in the absence of contract constitute the law between the contracting
CBA (Art. 262, Labor Code); and parties.

2. Duty to bargain collectively when there is an Employees entitled to a CBA

existing CBA (Art. 264, Labor Code)
1. Members of the bargaining union;
GR: When there is a collective bargaining agreement, the 2. Non-member of the bargaining union but members of
duty to bargain collectively shall also mean that neither the bargaining unit;
party shall terminate nor modify such agreement 3. Members of minority union/s who paid agency fees to
during its lifetime. the bargaining union; and
4. Employees hired after the expiration of the CBA. (Bar
XPN: Either party can serve a written notice to Reviewer on Labor Law, Chan, 2019, p. 475)
terminate or modify the agreement at least sixty (60)
days prior to its expiration date. ⚖️ ⚖️ Mandatory provisions of CBA

a. Grievance Procedure

A grievance procedure is part of the continuous process

of collective bargaining. It is a mechanism for the
adjustment and resolution of grievance.
Economic Provisions and Conditions
The parties to a CBA shall include therein provisions that
will ensure the mutual observance of its terms and
conditions.

Grievance machinery intends to promote a friendly

dialogue between labor and management as a means of
maintaining industrial peace. (Master Iron Labor Union vs.
G.R. No. 92009, February 17, 1993)
Economic provisions refer to those that have direct and
measurable monetary cost consequences such as Note: A CBA will NOT be registered with the Department

Page | 86
of Labor and Employment if it does not contain a provision
on grievance procedure/machinery which is a “must” It is an expression of the firm commitment of the parties
provision required of all CBAs. thereto that, on the part of the union, it will not conduct
a strike during the effectivity of the CBA, and on the
“Grievance or Grievable Issue” part of the employer, it will not a stage a lockout
during the lifetime thereof. (Chan, 2017)
Any question raised by either employer or the union
regarding any of the following issues or controversies: A "no strike, no lock-out" provision in the CBA "may only
be invoked by an employer when the strike is economic
1. Interpretation or implementation of the CBA; in nature or one which is conducted to force wage or
2. Interpretation or enforcement of company personnel other agreements from the employer that are not
policies; mandated to be granted by law.

In order to be grievable, violations of a Collective It is not applicable when the strike is grounded on
Bargaining Agreement, except those which are gross in nfair labor practice. (Guagua National Colleges v.
character, shall no longer be treated as unfair labor Guagua National Colleges Faculty Labor Union, G.R. No.
practice and shall be resolved as grievances under the 204693, July 13, 2016)
Collective Bargaining Agreement. (UST Faculty Union vs.
UST, G.R. No. 203957, July 30, 2014). Effects of Non-Registration of the CBA

b. Voluntary Arbitration A CBA that is not registered as mandated by Art 237

remains valid and binding between the parties,
It refers to the mode of settling labor-management however, it may not be used to apply the contract bar
disputes by which the parties select a competent, trained rule as provided in Article 238 and prevent any legitimate
and impartial third person who shall decide on the merits labor union from filing a petition for certification election.
of the case and whose decision is final AND executory. (Duka, Labor Laws and Social Legislations, 2016, p. 556)

⚖️ ⚖️ Contract bar rule (reiterated)

Types of labor dispute submitted to voluntary
arbitration A certification election cannot be held if there is in force
and effect a collective bargaining agreement that has
The following are the two (2) types of labor disputes that been duly registered with the DOLE except during the
may be submitted to voluntary arbitration: freedom period of such CBA which is the 60-day period
prior to the expiry date of said CBA.
a. Rights disputes contemplated the existence of a CBA.
They include unresolved grievances arising from the CBA A Labor union may disaffiliate from the mother union to
interpretation or implementation including violations of the form a local or independent union only during the sixty
CBA, which are not gross in character and unresolved (60)-day freedom period immediately preceding the
grievances arising from personnel policy enforcement and expiration of the CBA.
interpretation, including disciplinary cases (Art. 274)
Disaffiliation may be carried out when there is a shift of
b. Interest disputes relate to disputes over the formation allegiance on the part of the majority of the members of
of a CBA or efforts to secure the same. They cover all the union. (Alliance of Nationalist and Genuine Labor
other disputes including unfair labor practices and Organization vs. Samahan ng mga Manggagawang
bargaining deadlocks (Art. 265) Nagkakaisa sa Manila Bay Spinning Mills at J.P. Coats,
G.R. No. 118562, July 05, 1996)
c. No Strike-No Lockout Clause
d. Labor Management Council

Workers shall have the right, subject to such rules and

regulations as the Secretary of Labor and Employment
may promulgate, to participate in policy and decision-
making processes of the establishment where they
are employed insofar as said processes will directly
affect their rights, benefits and welfare. For this
“No Strike, No Lockout” Clause in the Collective purpose, workers and employers may form labor
Bargaining Agreement (CBA) management councils. (Article 267, Labor Code)
Page | 87
An LMC, either as council or committee or cooperation The law authorizes the enforcement of union security
program, can serve as a forum where management and clauses, provided it is not characterized by
employees may air their concerns, short of collective arbitrariness and always with due process. In
bargaining. It is largely a communication mechanism for terminating the employment of an employee by enforcing
myriad purposes including prevention or resolution of the Union Security Clause, the employer needs only to
disputes. It can even act as a grievance machinery. determine and prove that:
(Azucena, Everyone’s Labor Code, 2021, p.333)
1. The union security clause is applicable
e. ⚖️ ⚖️ Freedom Period 2. The union is requesting for the enforcement of
the union security provision in the CBA
60-day Freedom Period 3. There is sufficient evidence to support the
union’s decision to expel the employee from the
union or company.

⚖️ ⚖️ Unfair Labor Practices (ULP)

The last sixty (60) days of the 5-year lifetime of a CBA

immediately prior to its expiration is called the “freedom 1. Violation of the Constitutional rights of the
period”. This is the time when the parties may terminate employees to self-organization.
or modify the terms and conditions of the CBA. 2. Inimical to the legitimate interests of both labor
and management.
No petition for certification election may be entertained if
filed outside the sixty-day period immediately before Concept of ULP
the expiration of the collective bargaining agreement.
Elements of ULP
Automatic Renewal Clause
1. There must be an employer-employee relationship
between the offender and offended party;

2. The act complained of must be expressly mentioned

and defined in the Labor Code as ULP;

3. The act complained of as ULP must have a proximate

The automatic renewal clause is deemed incorporated and casual connection with any of the following 3 rights:
in all CBA's. The automatic renewal clause mandates the
parties to keep the status quo and to continue in full force a. Exercise of the right to self-organization;
and effect the terms and conditions of the existing b. Exercise of the right to collective bargaining; or
agreement during the sixty-day period prior to the c. Compliance with the CBA
expiration of the old CBA and/or until a new agreement is
reached by the parties. 2 Aspects of ULP

The CBA shall remain effective and enforceable even 1. Civil aspect; and
after the expiration of the period fixed by the parties as 2. Criminal aspect
long as no new agreement is reached by them and no
petition for certification is filed. (Labor Laws and Social The civil aspect of ULP includes claims for actual, moral
Legislations, Duka, 2016, p. 561) and exemplary damages, attorney‘s fees and other
affirmative reliefs (Art. 258, Labor Code) Generally, these
g. Union Security Clause civil claims should be asserted in the labor case before
the Labor Arbiters who have original and exclusive
Enforcement of Union Security Clause in CBA jurisdiction over ULP cases. (Art. 224, Labor Code)
Page | 88
 To require as a condition of employment that a person or
The criminal aspect, on the other hand, can be an employee shall not join a Labor Organization or
committed by the agents and officers of the employer who shall withdraw from one to which he belongs.
participated, authorized and/or ratified the act.
c. Contracting out services
Kinds of ULP
1. Contracted-out services or functions are performed by
Acts violative of the Acts violative of the
union members; and
right of self-organization right to collective
2. Contracting out will interfere with, restrain, or coerce
bargaining
employees in the exercise of their right to self-
organization.
a. Interference, restraint, a. Violation of the duty to
and coercion Non-Union bargain
d. To Initiate, Dominate, Assist (IDA), or
(or Withdrawal from)
otherwise interfere with the formation or
Membership as Condition b. Negotiation of Attorney‘s
administration of any Labor Organizations,
for Employment Fees
including the giving of financial or other
support to it or its organizers or supporters.
b. Contracting Out to c. Violation of the CBA
Discourage Unionism
Company Dominated d. Failure to make a timely
Union reply to the proposals;
within ten (10) calendar
c. Discriminating to days (General Milling Corp.
encourage/ discourage vs. CA, GR No. 146728,
unionism February 11, 2004)
e. To discriminate in regard to wages, hours of
d. Retaliation for
work and other terms and conditions of
testimony against
employment in order to encourage or
employer
discourage membership in any Labor
Organization.
e. Exaction –
Featherbedding
f. To dismiss, discharge, or otherwise prejudice
or discriminate against an employee for
Parties who may be liable for ULP having given or being about to give testimony
– Includes not giving testimony
1. By Employers - Labor Code, art. 259
g. To violate the duty to bargain collectively.
a. To Interfere with, Restrain, or Coerce
employees in the exercise of their right to self- Collective bargaining does not end with the execution of
organization an agreement. Being a continuous process, the duty to
bargain necessarily imposes on the parties the obligation
to live up to the terms of such a collective bargaining
agreement if entered into, it is undeniable that non-
compliance therewith constitutes an unfair labor
practice. (Shell Oil Workers Union v. Shell Co., G.R. No.
L-28607 (1971)

Examples of refusal to bargain:

b. Yellow dog contract 1. Refusal to bargain when there is an unresolved

petition for union cancellation (Capitol Medical
Center v. Trajano)
2. Employer’s suspension of operations in order to
forestall a demand for collective bargaining (St.
John Colleges Inc. v. St. John Academy Faculty
and Employees Union)
3. The school's failure to timely respond to the
Page | 89
 union's proposals, offering a weak excuse that the b. Cause or attempt to cause an employer to
Board of Trustees hadn't met, indicates a lack of discriminate an employee;
sincere negotiation intent, constituting unfair labor
practice. (IMPLIED REFUSAL - Colegio de San c. Violate the duty or refuse to bargain collectively
Juan de Letran v. Association of Employees and with the employer;
Faculty of Letran)
d. An employer to pay or deliver any money or other
The following are not considered as Implied Refusal things of valve, in the nature of an exaction, for
services which are not performed or not to be
1. Adoption of an adamant bargaining position in good performed;
faith, particularly where the company is operating at a
loss; e. Asking or Accepting Negotiation and other
2. Refusal to bargain over demands for commission of Attorney's Fees from employers as part of the
unfair labor practices; settlement of any issue in collective bargaining or any
3. Refusal to bargain during period of illegal strike; 4. Not other dispute; or
initiating the bargaining;
5. Refusal to bargain where the union demands for f. Violation of a Collective Bargaining Agreement
recognition and bargaining within the year following a
certification election, and the clear choice is no union and ULP in Collective Bargaining
no ad interim significant change has taken place in the
unit; 1. Bargaining in bad faith
6. Refusal to bargain because the other party is making 2. Refusal to Bargain
unlawful bargaining demands. 3. Blue Sky Bargaining

h. To pay negotiation or attorney’s fees to the Unrealistic and unreasonable demands in

union or its officers or agent as part of the negotiations by either or both labor and
settlement of any issue in collective management, where neither concedes anything
bargaining or any other dispute. and demands the impossible. It actually is not
collective bargaining at all.
The settlement of bargaining issues must be made by fair
bargaining in good faith, and not through the payment of 4. Surface Bargaining
negotiation or attorney's fees which will ultimately lead to
sweetheart contracts.

A sweetheart contract is a contract made through.

collusion between management and labor
representatives which contains terms beneficial to
management and unfavorable to union workers.
Going through the motions of negotiating without any
legal intent to reach an agreement. It involves the
i. Flagrant or gross refusal to comply with the
question of whether or not the employer’s conduct
economic terms of the CBA
demonstrates an unwillingness to bargain in good faith or
is merely hard bargaining (Standard Chartered Bank
Totality of Conduct Doctrine Employees Union vs. Confesor, GR No. 114974, June 16,
2004)
⚖️ ⚖️ The OVERALL behavior and actions of an
employer are evaluated to determine if they have
engaged in ULP, rather than focusing on isolated 5. Sweetheart Contract
incidents or specific actions. It considers the
cumulative effect of various actions to identify patterns of
behavior that violates the workers’ rights or undermines
labor protection.

2. By Labor Organizations - Labor Code, art. 260

a. Restraint or Coerce employees in the exercise of

their right to self-organization;

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 6. Featherbedding A. ⚖️ ⚖️ Strikes

It is in nature of exaction, for services which are not Any temporary stoppage of work by the concerted action
performed or not to be performed, as when a union of the employees as a result of an industrial or labor
demands that the employer maintain personnel in excess dispute. (Art. 219(o), Labor Code)
of the latter’s requirements. It is an unfair labor practice of
the union through coercive means for exacting or It is the most powerful weapon of workers in coming to an
attempting to exact the employers for services not agreement with management as to the terms and
rendered or not intended to be rendered. conditions of employment. Premised on the concept of
economic war between labor and management, staging a
Peaceful Concerted Activities strike either gives life to or destroys the labor union and
its members, as well as affect management and its
A concerted activity is one undertaken by two or more members. (Ilagan v. Manila Electric Co., G.R. Nos.
employees to improve their terms and conditions of work. 211746 & 212077 (Notice), January 22, 2020)

Concerted activities must be in accordance with law. The Grounds:

strike is a powerful weapon of the working class. Thus, it 1. a bargaining deadlock (BD) in the course of
must be declared only after the most thoughtful collective bargaining, or
consultation among them, conducted in the only way 2. the conduct of unfair labor practice (ULP) by the
allowed; that is, peacefully, and in every case employer.
conformably to reasonable regulation.
Note: Only a certified or duly recognized bargaining
Any violation of the legal requirements and strictures representative may declare a strike in case of a
will render the strike illegal, to the detriment of the bargaining deadlock.
very workers it is supposed to protect. (Batangas
Laguna Tayabas Bus Co. v. NLRC, G.R. No. 101858 However, in cases of unfair labor practices, the strike
(1992). may be declared by any legitimate labor organization.
(Bigg's, Inc. v. Boncacas, G.R. Nos. 200487 & 200636,
Strikes, Picketing, and Lockouts March 6, 2019)

State Policy Mandatory procedural requirements (Art. 278)

Workers shall have the right to engage in concerted Since strikes affect not only the relationship between labor
activities for purposes of collective bargaining or for and management but also the general peace and
their mutual benefit and protection. progress of the community, the law has provided
limitations on the right to strike.
The right of legitimate labor organizations to strike and
picket and of employers to lockout, consistent with the Procedurally, for a strike to be valid, it must comply with
national interest, shall continue to be recognized and Article 278 of the Labor Code. These requirements are
respected. However, no labor union may strike and no mandatory, and the unions failure to comply renders the
employer may declare a lockout on grounds involving strike illegal. (Piñero vs. NLRC, G.R. No. 149610, August
inter-union and intra-union disputes. 20, 2004)

The following are the mandatory procedural

requirements:

1. Effort to bargain (for bargaining deadlock

strikes)
2. Filing and service of notice of strike
Page | 91
 3. Observance of cooling-off period constitution and by-laws, which may constitute union-
4. Notice of strike vote meeting to NCMB within busting, where the existence of the union is threatened,
24 hours before the strike vote (Sec. 10, Rule the 15-day cooling-off period shall not apply and the union
XXII, Book V, IRR) may take action immediately.
5. Strike vote
6. Strike vote report sent to NCMB There is union-busting when the existence of the union
7. Observance of the waiting period (7- day strike is threatened by the employer's act of dismissing the
ban) former's officers who have been duly-elected in
accordance with its constitution and by-laws.
1. Effort to bargain (for bargaining deadlock strikes)
Additional Requirements of Notice to Strike
No labor organization shall declare a strike without first
In case of Bargaining In case of ULP
having bargained collectively in accordance with Title VII
Deadlocks
of this Book. (Art. 279a).
1. Statement of unresolved 1. Statement of acts
In case of bargaining deadlocks, the notice shall, as issues in the bargaining complained of
far as practicable: negotiations 2. Efforts taken to resolve
2. Written proposals of the the dispute amicably.
a. Further state the unresolved issues in the union
bargaining negotiations; and 3. Counter-proposals of the
b. Be accompanied by the written proposals of the employer
union, the counter proposals of the employer and 4. Proof of a request for
the proof of a request for conference to settle conference to settle the
differences. differences.
2. Filing and service of notice of strike (Sec. 4, Rule XXII, Book V, IRR)
Ground: Ground: ULP Action on Notice
Bargaining
Deadlock 1. Upon receipt of a valid notice of strike or lockout, the
NCMB, through its Conciliator-Mediators, shall call the
Filed by The duly The duly
parties to a conference the soonest possible time in order
certified or certified or
to actively assist them to explore all possibilities for
recognized recognized
amicable settlement.
bargaining bargaining
agent may file a agent, or in the
2. The Conciliator-Mediator may suggest/offer proposals
notice of strike absence of such
as an alternative avenue for the resolution of their
agent, any
disagreement/conflict which may not necessarily bind the
legitimate labor
parties.
organization in
behalf of its
3. If conciliation/mediation fails, the parties shall be
members may
encouraged to submit their dispute for voluntary
file a notice of
arbitration.
strike

Filed with DOLE DOLE 3. Observance of cooling-off period

When At least 30 days The period of Cooling-off periods

before the notice shall be
intended date of 15 days before
the strike the intended
date of the
strike

Note: In case of dismissal from employment of union

officers duly elected in accordance with the union
Page | 92
Purpose of Cooling-Off Period separate requirement from the cooling-off period. The
latter cannot be substituted for the former and vice-versa.
The purpose of the cooling-off period is to provide an
Note: The cooling-off period and the 7-day period are
opportunity for mediation and conciliation. mutually exclusive. Thus, in the case of Capitol Medical
Center v. NLRC (G.R. No. 147080 (2005), the Court held
During the cooling-off period, it shall be the duty of the that when the strike vote is conducted within the cooling-
DOLEbto exert all efforts at mediation and conciliation off period, the 7-day requirement shall be counted from
to effect a voluntary settlement. the day following the expiration of the cooling off period.

Strike Area
Bargaining Deadlock 30 days
The establishment, warehouse, depots, plants or offices,
ULP 15 days including the sites or premises unused as runaway shops
(no union-busting) of the employer struck against, as well as the immediate
vicinity actually used by picketing strikers in moving to and
ULP NO COOLING-OFF PERIOD from before all points of entrance to and exit said
(with union-busting)
establishment (Art. 219(s), Labor Code, as amended)

Strike-breaker
Should the dispute remain unsettled until the lapse of the
requisite number of days from the mandatory filing of the Any person who obstructs, impedes, or interferes with by
force, violence, coercion, threats or intimidation any
notice, the labor union may strike or the employer may peaceful picketing affecting wages, hours or conditions
declare a lockout. (Art. 278e). work or in the exercise of the right to self-organization or
collective bargaining, also called a “scab” (Art. 219(r),
Labor Code, as amended)
4. Notice of strike vote meeting to National
Not Valid Grounds for a Strike
Conciliation and Mediation Board (NCMB) within 24
hours before the strike vote (Sec. 10, Rule XXII, Book
V, IRR) 1. Violations of CBAs (except those that are gross in
character);
2. Inter-union and internal union disputes
5. Strike vote 3. Issues brought to voluntary or compulsory arbitration;
4. Legislated wage orders; and e. Labor standard cases
A decision to declare a lockout must be approved by a
majority of the board of directors of the corporation Good faith Strike
or association or of the partners in a partnership,
obtained by secret ballot in a meeting called for that GR: A strike based on a non-strikeable ground is an
purpose. (Art. 278(f), Labor Code, as amended) illegal strike.; a strike grounded on ULP is illegal if no
such acts actually exist.
6. Strike vote report sent to NCMB
XPN: Even if no ULP acts are committed by the employer,
In every case, the union or the employer shall furnish the if the employees believe in good faith that ULP acts
Department the results of the voting at least 7 days exist so as to constitute a valid ground to strike, then
before the intended strike or lockout, subject to the the strike held pursuant to such belief may be legal.
cooling-off period herein provided. (Art. 278f) (NUWHRAIN v. NLRC, G.R. No. 125561, 1998)

7. Observance of the waiting period (7- day strike ban) Note: A mere claim of good faith would not justify the
holding of a strike under the aforesaid exception as, in
addition thereto, the circumstances must have warranted
Strike Ban
such belief. It is, therefore, not enough that the union
believed that the employer committed acts of ULP when
the circumstances clearly negate even a prima facie
showing to sustain such belief. (Interwood Employees
Assoc. v. Int’l Hardwood, G.R. No. L-7409, 1956)
The 7-day waiting period or strike ban is a distinct and
Page | 93
A good faith strike must still comply with the proper personnel of the New Armed Forces of the Philippines or
procedural requirements. Without proper notice and a the Integrated National Police, or armed person, shall
strike vote, even if the union believes the company is bring in, introduce or escort in any manner, any individual
engaging in unfair labor practices, the strike is illegal. who seeks to replace strikers in entering or leaving the
(Grand Boulevard Hotel v. GLOWHRAIN, G.R. No. premises of a strike area, or work in place of the strikers.
153664, 2003). (Art. 279d).

Valid v. Illegal Strike Categories of Illegal Strike

Valid strike Illegal Strike
1. Prohibited by Law (e.g. Strike By Government
Employees)
A strike that is staged for a A strike staged for a
2. Improper Grounds (e.g. Intra or Inter Union Dispute,
valid purpose and purpose not recognized by
Wage Distortion)
conducted through means law, or, if for a valid
3. Noncompliance with Procedural Requirements
allowed by law. purpose, conducted
violative of the law. 4. Unlawful Means and Methods
5. Violation of Injunction Order
6. Those Contrary to an Existing Agreement (Ex. No
Strike/Lockout Provisions in the CBA)
A legal strike may turn into an illegal strike 7. The Strikers do not belong to a Legitimate Labor
Organization
Even if the strike is valid because its objective or purpose
is lawful, the strike may still be declared invalid where the Liability of union officers and members for illegal
means employed are illegal. (Phil. Diamond Hotel and strike and illegal acts during strike Liabilities of
Resort, Inc. v. Manila Diamond Hotel Employees Union, Parties
G.R. No. 158075, 2006)
Any union officer who knowingly participates in an illegal
strike and any worker or union officer who knowingly
Prohibited acts during strike participates in the commission of illegal acts during a
strike may be declared to have lost his employment
A. By anyone status. (Art. 279a)

No person shall obstruct, impede, or interfere with, by Mere participation in illegal strike
force, violence, coercion, threats, or intimidation, any
peaceful picketing by employees (Art.279(b), Labor Code, Mere participation in an illegal strike by a union officer is
as amended); sufficient ground to terminate his employment. In case
of a lawful strike, the union officer must commit illegal acts
1. Blocking the free ingress to/ egress from work during a strike for him to be terminated. (Art. 279a)
premises for lawful purposes
2. Obstruction of public thoroughfares Note: The mere fact that the criminal complaints against
3. Threatening, coercing and intimidating non- terminated Union members were subsequently dismissed
striking employees, officers, suppliers and does not extinguish their liability under the Labor Code (C.
customers Alcantara & Sons, Inc. v. CA, G.R. No. 155109 (2011).
4. Resistance and defiance of assumption of
jurisdiction by the Labor Secretary or an injunction B. Picketing
5. Acts of violence (Association of Independent
Unions in the Philippines (AIUP), et. al. vs. NLRC,
G.R. No. 120505, March, 25, 1999)

B. By the Employer

No employer shall use or employ any strikebreaker, nor

shall any person be employed as a strike-breaker. (Art.
279c)
It is the right of workers during strikes consisting of
C. By public official or police force marching to and fro before an establishment involved in a
labor dispute generally accompanied by the carrying and
No public official or employee, including officers and
Page | 94
display of signs, placards and banners intended to inform 279e)
the public about the dispute. (Guidelines Governing Labor
Relations, October 19, 1987; NCMB Manual, Sec. 1) Innocent third-party rule in picketing

The purpose of the picket line is to persuade employers An innocent third party shall not be adversely affected by
peacefully by publicizing the labor dispute to inform the the picketing. The lawful ingress and egress of passage
public of what is happening and thus cause other workers of an innocent third party cannot be blocked.
not to work in the establishment and for customers not to
do business there (Phimco Industries, Inc. v. Phimco The third party employers or “innocent bystanders” who
Industries Labor Association (PILA), et al., 628 SCRA 119, have no employer-employee relationship with the
2010). picketing strikers, may apply for injunction with the regular
courts to enjoin the conduct of the picket. Because of the
Elements of Picketing absence of such employer-employee relationship, the
NLRC cannot entertain such application for injunction
a. There must be a labor issue; from innocent bystanders. (Chan, 2019)
b. It must be a concerted activity of the union;
and The right to picket is not an absolute one. The right may
c. Characterized by the peaceful marching to and from at be regulated at the instance of third parties or "innocent
the employee’s premises with placards to appraise the bystanders'' if it appears that the inevitable result of its
employer and the public of their demands. exercise is to create an impression that a labor dispute
with which they have no connection or interest exists
Requisites for LAWFUL picketing between them and the picketing union or constitute an
invasion of their rights. (MSF Tire & Rubber, Inc. v. Court
a. The picket should be peacefully carried out; of Appeals, G.R. No. 128632, August 5, 1999)
b. There should be no act of violence, coercion or
intimidation attendant thereto; Strike v. Picketing
c. The ingress to or egress from the company premises
Strike Picketing
should not be obstructed; and d. Public thoroughfares
should not be impeded. To withhold or to stop Picketing outside of the
work by the concerted company compound usually
Prohibited Activities action of employees as a accompanies the work
result of an industrial or stoppage
1. By any person labor dispute
No person shall obstruct, impede, or interfere with, by Focuses on the stoppage Focuses on publicizing the
force, violence, coercion, threats or intimidation, any of work labor dispute and its
peaceful picketing by employees during any labor incidents to inform the public
controversy or in the exercise of the right to self- of what is happening in the
organization or collective bargaining, or shall aid or abet company
such obstruction or interference. (Art. 279b)
Refers to the actual Simply means marching to
2. By police force stoppage of work and fro in front of the
employer‘s premises,
The police force shall keep out of the picket lines unless usually accompanied by the
actual violence or other criminal acts occur therein: display of placards and
Provided, That nothing herein shall be interpreted to other signs; separate and
prevent any public officer from taking any measure different from the actual
necessary to maintain peace and order, protect life and stoppage of work
property, and/or enforce the law and legal orders. (Art.
279d) Guaranteed under the Right to picket guaranteed
Constitutional provision under the freedom of
3. By person engaged in picketing on the right of workers to speech and of expression
conduct peaceful and to peaceably assemble
No person engaged in picketing shall commit any act of concerted activities
violence, coercion or intimidation or obstruct the free
ingress to or egress from the employer’s premises for
lawful purposes, or obstruct public thoroughfares. (Art.
Page | 95
C. ⚖️ ⚖️ Lockouts Illegal strike and illegal lockout/In Pari Delicto
Doctrine
Lockout is the temporary refusal of an employer to furnish
work as a result of an industrial or labor dispute. (Art. When the employer engaged in illegal lockout and the
219p) employee engaged in illegal strike, both parties are in pari
delicto, and such situation warrants the restoration of the
Grounds for lockout status quo ante and bringing the parties back to the
respective positions before the illegal strike and illegal
Similar to a strike, the proper grounds for a lockout are: lockout. [Philippines Inter-Fashion Inc. v. NLRC, G.R. No.
L-59847 (1982)]
1. Bargaining deadlock (BD);
2. ULP by labor organizations. ⚖️ ⚖️ Assumption of Jurisdiction by Secretary of
Labor and Employment
Mandatory procedural requirements
When May the SOLE Assume Jurisdiction
1. Effort to bargain (in case of bargaining
deadlock);
2. Filing and service of notice of lockout to the
NCMB;
3. Observance of cooling-off period;

Bargaining 30 days
Deadlock

When in his opinion, there exists a labor dispute causing

ULP 15 days or likely to cause a strike or lockout in an industry
(no union-busting) indispensable to the national interest, the SOLE may
assume jurisdiction over the dispute and decide it or
certify the same to the Commission for compulsory
ULP NO COOLING-OFF arbitration. (Art. 278g)
(with union-busting) PERIOD
The purpose of SOLE’s extraordinary power is aimed at
arriving at a peaceful and speedy solution to labor
disputes without jeopardizing national interest (Union
Should the dispute remain unsettled until the lapse of the of Filipro Employees Drug v. Nestle, 499 SCRA 521, 2006)
requisite number of days from the mandatory filing of the
notice, the employer may declare a lockout. (Art. 278e). Industry Indispensable to the National Interest

1. Hospital sector;
Procedural Requirements
2. Electric power industry;
3. Water supply service, to exclude small water supply
1. Notice of lockout vote meeting within 24 hours
services, such as bottling and refilling stations;
before the intended vote (Sec. 10, Rule XXII,
4. Air traffic control;
Book V, IRR);
5. Other industries as may be recommended by the
2. Lockout vote;
National Tripartite Industrial Peace Council (TIPC) (Sec.
3. Report of lockout vote;
16, Rule XXII, Book V, IRR as amended by D.O. No. 40-
4. Observance of the waiting period (7- day strike
H13)
ban).
Who determines industries indispensable to the
Effect of illegal lockout
national interest (Art. 278g)
1. Secretary of Labor and Employment;
Any worker whose employment has been terminated as a
2. President
consequence of an unlawful lockout shall be entitled to
reinstatement with full back wages. (Art. 279(a), Labor
Code)

Page | 96
Requisites for Assumption of Jurisdiction

1. Both parties have requested the SOLE to assume

jurisdiction; or
2. After a conference called by the Office of the SOLE on
the propriety of its issuance, motu proprio or upon a
request or petition by either parties to the labor dispute
(Book V, IRR Rule XXII, sec. 15, IRR as amended by D.O.
No. 40-H-13 s 2013)

Immediately Executory

The assumption and certification orders are executory in

character and must be strictly complied with by the
parties. (Allied Banking v. NLRC, G.R. No. 116128, 1996)

Effect of defiance of assumption or certification

orders

No strike or lockout shall be declared after assumption of

jurisdiction by the President or the Minister or after
certification or submission of the dispute to compulsory or
voluntary arbitration or during the pendency of cases
involving the same grounds for the strike or lockout. (Art.
279(a), par. 2)

A strike/lockout undertaken despite the issuance by the

Secretary of Labor of an assumption or certification
order becomes a prohibited activity and thus, illegal,
pursuant to Art. 279(a) of the Labor Code. (Allied Banking
v. NLRC, G.R. No. 116128, 1996)

Return-to-work and readmission if strike or lockout

has already taken place

If strike or lockout has already taken place at the time of

assumption or certification, 1. All striking or locked out
employees shall immediately return-to-work; and 2. The
employer shall immediately resume operations and
readmit all workers under the same terms and conditions
prevailing before the strike or lockout. (Art. 278g)

The SOLE may also determine the retroactivity of arbitral

awards pursuant to power to assume jurisdiction as part
of his/her plenary powers to determine the effectivity
thereof in absence of specific provision of law (LMG
Chemicals Corp. v. Sec. of Labor and Employment, 356
SCRA 577 ,2001

Page | 97
Note: For a ULP case to be cognizable by the Labor Arbiter,
and the NLRC to exercise its appellate jurisdiction, the
allegations in the complaint should show prima facie the
concurrence of two things, namely: [1] gross violation of the
CBA; and [2] the violation pertains to the economic
provisions of the CBA.
(ULP)