Labor Law Case Notes (Up to 2015)

1. The 20% requirement for registration of independent union is only material

at the time of registration. It’s not counted before (organizational meeting) or after

(if members resign after registration). There is no need to comply with the 20%

requirement when submitting a charter certificate. [Eagle Ridge, Takata 2014]

2. The only thing required to be certified and attested are the additional

documents (list of officers and constitution/by laws), not the charter certificate

issued by the federation. [SMCC]

3. If there is commingling between supervisory and managerial employees in

the same union, it will not affect the legitimacy of the labor union. [Heritage Hotel]

Neither is it a ground to oppose a certification election.

4. Employer cannot file an opposition against the conduct of certification

election since he is a mere bystander.

5. A petition to cancel union registration can never suspend a certification

election.

6. A petition for certification election case although initiated as a petition is not

a litigation. It is merely an investigation which is non-adversarial and fact-finding.

Hence, there is no need for a certificate of non forum shopping. [Samalikha,

2009]

7. When the employers scheduled an excursion before the certification

election, campaigned against the union and the employer escorted the

employees during the election, the employer is guilty of ULP. [DNH, 2014]

8. [Landmark Case] There is no prohibition when you commingle academic

and non-academic employees in the same union since there is no managerial

employee involved and they are all rank and file employees. It is a legitimate

union. However there must be two certification elections since there are two

bargaining units. In essence, one bargaining agent will be representing two

certification elections. [Holy Child School, 2013]

9. A violation of the Union Security Clause is not ULP even if malicious or

flagrant since it is not an economic provision. [2013]

10. Removal of chairs which has been provided for decades is not ULP.

That long practice did not become an obligation. Chairs are not benefits hence

not covered by the non-dimunition provision. [Coca Cola, 2013]

11. A CBA which prescribes probationary, regular and casual employees

and functions serves as a limitation to managerial prerogatives on outsourcing

parts of its operations. [2013]

12. When the CBA states that a deadlock can only be consensually

declared, the Supreme Court said that there can still be a deadlock since the

DOLE secretary has plenary authority to decide all controversies and issues

involved in labor disputes. [Tabangaw Shell, 2013]

13. A CBA is a contract that binds the employer, hence unilateral

changes and suspensions of the provisions cannot be allowed. [Wesleyan, 2014]

14. The Secretary of Labor is merely a nominal party, hence he cannot

question the decisions of the CA with the SC.

15. Under a Department Order, an appeal to the Secretary Labor is not

allowed when the Med-Arbiter granted a Petition for Certification Election in an

unorganized establishment. However, there is a Court of Appeals decision that

nullified this Department Order. [Republic of the Philippines, 2014]

16. There is no longer a 3-month monetary limit when migrant workers’

contracts are illegally terminated. R.A. 10022 reiterating the old ruling is invalid

for being unconstitutional. [En Banc, 2014]

17. The Regional Tripartite Wage and Productivity Board can set

minimum wages but not grant wage increases across the board. The NWPC

does not set minimum wage. They only set guidelines for the RTWPB. As a

result, the RTWPB may add additional wage exemptions to exporters to the four

exempted industries as long as reviewed and approved by the NWPC. This is

adjunct to the wage determining functions of the RTWPB.

18. If the decision of the Med-Arbiter is appealable and decided upon by

the Secretary of Labor, the decision of the Secretary of Labor must be subjected

to a motion for reconsideration before you file a Rule 65 certiorari with the Court

of Appeals. The Motion for Reconsideration requirement is inherent in Rule 65.

19. When appealing from the Voluntary Arbitrator’s decision to the Court

of Appeals under Rule 43, follow the period in the labor code which is 10 days

(not 15 days under Rule 43)

20. Money claims such as back wages stemming from illegal dismissal

has a 4 year prescriptive period, not a 3 year period. However, payment of

unpaid benefits falls under the 3 year prescriptive period since it is not a remedy

related to illegal dismissal.

21. Claims from occupational diseases based on employer negligence in

providing a safe working environment can be filed with the RTC based on the

“reasonable causal connection” test. Injury and damages were suffered based on

quasi-delict. The employee is not praying for any relief under the Labor Code.

[Indophil Textile, 2014]

22. NLRC has no original jurisdiction over termination disputes. Hence

you cannot file a Memorandum of Appeal based on a new dismissal arising after

the company refuses to comply with the Labor Arbiter’s Return to Work order.

[Grandour Security]

23. General rule is an appeal by the employer is perfected to the NLRC

by posting the bond. The appeal bond should be equivalent to the monetary

award. Nevertheless employers may file a notice of appeal then file a motion to

reduce the bond all within the 10 day period to appeal. The filing of the motion

shall be entertained as long as the ground is meritorious and a reasonable bond

(10%) is posted. Then you have a fresh period of 10 days to comply with the

decision on the bond. Damages and attorneys fees are not included in the bond

computation. Only benefits, allowances and back wages are included. [McBernie,

2013]

24. Reasonable amount of the reduced appeal bond can be 20% of the

bond, depending on the court’s discretion. There is no uniform rate. [Sara Lee,

2014]

25. Failure of the foreigner to get an employment permit results in

dismissal of an illegal dismissal case. [McBernie, 2013]

26. A job description with duties and responsibilities is already a sufficient

standard for regularization that should be informed to the employee. There is no

need for numerical metrics. It can be qualitative or quantitative measures. [Abbot

Laboratories, 2014]

27. A sales clerk holds cash and property since her job involves inventory

and cashering, hence it is a position imbued with trust and confidence. [Bluer

than Blue, 2014]

28. A driver entrusted with transporation of goods is an employee holding

a position of trust and confidence. [2011] A programmer is also an employee of

trust and confidence since he deals with company confidential information.

29. Illegally suspended employees are also entitled to moral damages

when it is done with oppressive to labor or done contrary to good morals.

[Montinola v. PAL]

30. Since PAL was under rehabilitation, employee may no longer recover

the amount due him or her during the reinstatement pending appeal. It was not

due to the fault of PAL. [PAL v. Paz 2014]

31. General rule is that back-wages are pegged at your previous salary

absent any proof as to how salary increases. Exceptions are minimum wage

earners which benefit from wage increases.

32. The test of assuredness means that the back-wages are amounts

assured to be given to the employee had he not been illegally dismissed. Failure

to demonstrate this “assuredness” (not just company practice), then you cannot

benefit from salary increases when computing backwages.

33. Commissions can be part of a salary or profit sharing. When it is

merely part of profit sharing, it is not included in your back wages.

34. Updating the computation of awards up to finality is not violative of

the immutability of a final and executory judgment. [2014]

35. It must be the employer who will dismiss you on account of disease in

order for you to be granted separation pay.

36. The law does not only cover contagious disease. The law states

“suffering from any disease” as a ground for dismissal.

37. For dismissal on the ground of disease, employer must comply with

twin notice requirement. (Appraisal of employee of the ground & Notice of

Dismissal).

38. Without certification of public health authority, that is a substantive

requirement hence dismissal is without effective. It is not a procedural

requirement like that of the twin notice rule.

39. When employees are put on floating status exceed 6 months, this is

akin to retrenchment which must also comply with the twin notice rule. (Notice to

the DOLE and notice to the employee).

40. Institution of clearance procedures prior to release of salary is

allowed. It is to ensure that properties of the employer are returned before their

departure. This is not violative of the rule on withholding of wages. [2015]

41. Guidelines indicative of labor law ―control, should not merely relate

to the mutually desirable result intended by the contractual relationship; they

must have the nature of dictating the means or methods to be employed in

attaining the result, or of fixing the methodology and of binding or restricting the

party hired to the use of these means. [Tongko, 2011]

42. A position must be expressly mentioned in the By Laws in order to be

considered as a corporate office. Thus, the creation of an office pursuant to or

under a By-Law enabling provision is not enough to make a position a corporate

office. The criteria for distinguishing between corporate officers who may be

ousted from office at will, on one hand, and ordinary corporate employees who

may only be terminated for just cause, on the other hand, do not depend on the

nature of the services performed, but on the manner of creation of the office.

[Matling Industrial v. Coros, October 13, 2010]

43. Production assistants, drivers/cameramen, security guards, are NOT

―talents. They are employees. [ABS-CBN, 2011]

44. Under the boundary-hulog scheme incorporated in the Kasunduan, a

dual juridical relationship was created between petitioner and respondent: that of

employer-employee and vendor-vendee. The Kasunduan did not extinguish the

employer-employee relationship of the parties extant before the execution of said

deed. [Villamaria v. CA, April 19, 2006]

45. Mere compliance with substantial capital requirement will not suffice

for a contractor to be considered a legitimate contractor. If the workers supplied

by the contractor work alongside the principal‘s regular employees who are

performing identical work, such is an indicium of labor-only contracting. It is the

totality of the facts and the surrounding circumstances of the case which is

determinative of the parties‘ relationship. Several factors may be considered,

such as, whether the contractor was carrying on an independent business; the

nature and extent of the work; the skill required; the term and duration of the

relationship; the right to assign the performance of specified pieces of work; the

control and supervision of the workers the power of the employer with respect to

the hiring, firing and payment of the workers of the contractor; the control of the

premises; the duty to supply premises, tools, appliances, materials and labor;

and the mode, manner and terms of payment. [Coca-Cola Bottlers v. Agito,

February 13, 2009]

46. A contractor‘s Certificate of Registration is not sufficient proof that it is

an independent contractor. A Certificate of Registration issued by the

Department of Labor and Employment is not conclusive evidence of such status.

The fact of registration simply prevents the legal presumption of being a mere

labor-only contractor from arising. [Babas v. Lorenzo Shipping, December 15,

2010]

47. Project could refer to one or the other of at least two (2)

distinguishable types of activities. Firstly, a project could refer to a particular job

or undertaking that is within the regular or usual business of the employer

company, but which is distinct and separate, and identifiable as such, from the

other undertakings of the company. Such job or undertaking begins and ends at

determined or determinable times. The term ―project could also refer to,

secondly, a particular job or undertaking that is not within the regular business of

the corporation. Such a job or undertaking must also be identifiably separate and

distinct from the ordinary or regular business operations of the employer. The job

or undertaking also begins and ends at determined or determinable times. [Leyte

Geothermal Power Progressive Employees Union v. PNOC, March 30, 2011]

48. Management prerogative refers ―to the right of an employer to

regulate all aspects of employment, such as the freedom to prescribe work

assignments, working methods, processes to be followed, regulation regarding

transfer of employees, supervision of their work, lay-off and discipline, and

dismissal and recall of work. Although management prerogative refers to ―the

right to regulate all aspects of employment, 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. [SHS Perforated Materials v. Diaz, October 13, 2010]

49. Employees engaged on task or contract basis or paid on purely

commission basis are not automatically exempted from the grant of service

incentive leave, unless, they fall under the classification of field personnel.

[Serrano v. Severino Santos Transit, August 9, 2010]

50. Any employee, whether employed for a definite period or not, shall

beginning on the first day of his/her service, be eligible for membership in any

labor organization. In a certification election for the bargaining unit of rank and

file employees, all rank and file employees, whether probationary or permanent

are entitled to vote. As long as probationary employees belong to the defined

bargaining unit, they are eligible to support the petition for certification election.

(NUWHRAIN-Manila Pavilion Hotel Chapter v. Secretary, July 31, 2009)

51. Confidential employees are those who (1) assist or act in a confidential

capacity, (2) to persons who formulate, determine, and effectuate management

policies in the field of labor relations. The two (2) criteria are cumulative, and both

must be met. The exclusion from bargaining units of employees who, in the

normal course of their duties, become aware of management policies relating to

labor relations is a principal objective sought to be accomplished by the

“confidential employee rule.” (Tunay na Pagkakaisa ng Manggagawa sa Asia

Brewery v. Asia Brewery, August 3, 2010)

52. As regards the qualification of bank cashiers as confidential employees,

National Association of Trade Unions (NATU) – Republic Planters Bank

Supervisors Chapter v. Torres declared that they are confidential employees

having control, custody and/or access to confidential matters, e.g., the branch's

cash position, statements of financial condition, vault combination, cash codes

for telegraphic transfers, demand drafts and other negotiable instruments,

pursuant to Sec. 1166.4 of the Central Bank Manual regarding joint custody, and

therefore, disqualified from joining or assisting a union; or joining, assisting or

forming any other labor organization. Golden Farms, Inc. v. Ferrer-Calleja

meanwhile stated that “confidential employees such as accounting personnel,

radio and telegraph operators who, having access to confidential information,

may become the source of undue advantage. Said employee(s) may act as spy

or spies of either party to a collective bargaining agreement.” In Philips Industrial

Development, Inc. v. National Labor Relations Commission, the Court designated

personnel staff, in which human resources staff may be qualified, as confidential

employees because by the very nature of their functions, they assist and act in a

confidential capacity to, or have access to confidential matters of, persons who

exercise managerial functions in the field of labor relations. (Standard Chartered

Bank Employees Union (SCBEU-NUBE) v. Standard Chartered Bank, April 22,

2008)

53. Payroll Master and employees who have access to salary and

compensation data are NOT Confidential employees. Their position do not

involve dealing with confidential labor relations information. (San Miguel Foods v.

SMC Supervisors and Exempt Union, August 1, 2011)

54. Art. 234(c) requires the list of names of all the union members of an

INDEPENDENT UNION comprising at least 20% of the bargaining unit. This

should not be equated with the list of workers who participated in the

organizational meetings (par [b]). Subsequent affidavits of retraction (withdrawal

of membership) will not retroact to the time of the application for registration or

even way back to the organizational meeting. (Eagle Ridge Golf and Country

Club v. CA, March 18, 2010)

55. A trade union center is any group of registered national unions or

federations organized for the mutual aid and protection of its members; for

assisting such members in collective bargaining; or for participating in policy

formulation.

56. A trade union center has no authority to charter directly. Under the law and

the rules, the power granted to labor organizations to directly create a chapter or

local through chartering is given to a federation or national union only, not to a

trade union center. (San Miguel Corporation Employees Union v. San Miguel

Packaging Products Employees Union, September 12, 2007)

57. The charter certificate need not be certified under oath by the local union’s

secretary or treasurer and attested to by its president. Considering that the

charter certificate is prepared and issued by the national union and not the

local/chapter, it does not make sense to have the local/chapter’s officers certify

or attest to the due execution of such document. (Samahang Manggagawa Sa

Charter Chemical (SMCC-SUPER) v. Charter Chemical and Coating Corp.,

March 16, 2011)

58. The mixture of rank-and-file and supervisory employees in a union does

not nullify its legal personality as a legitimate labor organization. (Samahang

Manggagawa Sa Charter Chemical (SMCC-SUPER) v. Charter Chemical and

Coating Corp., March 16, 2011

59. As amended by R.A. 9481, the Labor Code now allows a R&F union and a

Supervisory union of the same company to be part of the same federation.

60. An employer cannot ignore the existence of a legitimate labor organization

at the time of its voluntary recognition of another union. The employer and the

voluntarily recognized union cannot, by themselves, decide whether the other

union represented an appropriate bargaining unit. The employer may voluntarily

recognize the representation status of a union in unorganized establishments.

SLECC WAS NOT AN UNORGANIZED ESTABLISHMENT WHEN IT

VOLUNTARILY RECOGNIZED SMSLEC AS ITS EXCLUSIVE BARGAINING

REPRESENTATIVE ON 20 JULY 2001. CLUP-SLECC AND ITS AFFILIATES

WORKERS UNION FILED A PETITION FOR CERTIFICATION ELECTION ON

27 FEBRUARY 2001 AND THIS PETITION REMAINED PENDING AS OF 20

JULY 2001. THUS, SLECC’S VOLUNTARY RECOGNITION OF SMSLEC ON 20

JULY 2001, THE SUBSEQUENT NEGOTIATIONS AND RESULTING

REGISTRATION OF A CBA EXECUTED BY SLECC AND SMSLEC ARE VOID

AND CANNOT BAR CLUP-SLECCWA’S PRESENT PETITION FOR

CERTIFICATION ELECTION. (Sta. Lucia East Commercial Corporation v. Hon.

Secretary Of Labor, August 14, 2009)

61. There is no requirement for a certificate of non-forum shopping in the

Labor Code or in the rules. A certification proceeding, even though initiated by a

“petition,” is not a litigation but an investigation of a non-adversarial and fact-

finding character. Such proceedings are not predicated upon an allegation of

misconduct requiring relief, but, rather, are merely of an inquisitorial nature.

(SAMMA-LIKHA v. SAMMA Corporation, March 13, 2009)

62. The Secretary of Labor and Employment dismissed the first petition as it

was filed outside the 60-day freedom period. Subsequently, another petition for

CE was filed, this time within the freedom period. Is this later Petition barred? At

that time therefore, the union has no cause of action since they are not yet legally

allowed to challenge openly and formally the status of SMCGC-SUPER as the

exclusive bargaining representative of the bargaining unit. Such dismissal,

however, has no bearing in the instant case since the third petition for

certification election was filed well within the 60-day freedom period. Otherwise

stated, there is no identity of causes of action to speak of since in the first

petition, the union has no cause of action while in the third, a cause of action

already exists for the union as they are now legally allowed to challenge the

status of SMCGC-SUPER as exclusive bargaining representative. (Chris

Garments Corporation v. Hon. Patricia A. Sto. Tomas and Chris Garments

Workers Union-PTGWO, January 12, 2009)

63. The legal personality of petitioner union cannot be collaterally attacked in

the certification election proceedings. A separate action for cancellation of the

union’s registration/legal personality must be filed. (Samahang Manggagawa Sa

Charter Chemical (SMCC-SUPER) v. Charter Chemical and Coating Corp.,

March 16, 2011)

64. As amended by R.A. 9481, the Labor Code now provides that, in

certification election cases, the employer shall not be considered a party with a

concomitant right to oppose a petition for certification election.

65. The legal personality of petitioner union cannot be collaterally attacked in

the certification election proceedings. A separate action for cancellation of the

union’s registration/legal personality must be filed. (Legend International Resorts

v. Kilusang Manggagawa ng Legend, February 23, 2011)

66. Except when it is requested to bargain collectively, an employer is a mere

bystander to any petition for certification election; such proceeding is non-

adversarial and merely investigative, for the purpose thereof is to determine

which organization will represent the employees in their collective bargaining with

the employer. The choice of their representative is the exclusive concern of the

employees; the employer cannot have any partisan interest therein; it cannot

interfere with, much less oppose, the process by filing a motion to dismiss or an

appeal from it; not even a mere allegation that some employees participating in a

petition for certification election are actually managerial employees will lend an

employer legal personality to block the certification election. The employer's only

right in the proceeding is to be notified or informed thereof. (Republic of the

Philippines, represented by DOLE, v. Kawashima Textile, July 23, 2008)

67. The charge that a labor organization committed fraud and

misrepresentation in securing its registration is a serious charge that should be

clearly established by evidence and the surrounding circumstances. The

petitioner (the party that filed the Petition for Cancellation) has the burden of

proof. (Yokohama Tire Phils. v. Yokohama Employees Union, March 10, 2010;

Heritage Hotel Manila v. PIGLAS-Heritage, October 30, 2009)

68. The mere signing of the authorization in support of a Petition for

Certification Election before the “freedom period,” is not sufficient ground to

terminate the employment of union members under the Union Security Clause

respondents inasmuch as the petition itself was actually filed during the freedom

period. (PICOP Resources, Inc. v. Tañeca, August 9, 2010)

69. The duty to bargain does not include the obligation to reach an agreement.

While the law makes it an obligation for the employer and the employees to

bargain collectively with each other, such compulsion does not include the

commitment to precipitately accept or agree to the proposals of the other. All it

contemplates is that both parties should approach the negotiation with an open

mind and make reasonable effort to reach an agreement. (Union of Filipro

Employees v. Nestle Phils., March 3, 2008)

70. While the parties may agree to extend the CBA’s original five-year term

together with all other CBA provisions, any such amendment or term in excess of

five years will not carry with it a change in the union’s exclusive collective

bargaining status. By express provision of the above-quoted Article 253-A, the

exclusive bargaining status cannot go beyond five years and the representation

status is a legal matter not for the workplace parties to agree upon. In other

words, despite an agreement for a CBA with a life of more than five years, either

as an original provision or by amendment, the bargaining union’s exclusive

bargaining status is effective only for five years and can be challenged within

sixty (60) days prior to the expiration of the CBA’s first five years. (FVC Labor

Union-Philippine Transport and General Workers Organization (FVCLU-PTGWO)

v. Sama-Samang NagkakaisangManggagawa Sa FVC-Solidarity Of Independent

And General Labor Organizations (SANAMA-FVC-SIGLO), November 27, 2009)

71. The test of grouping is community or mutuality of interest. There should be

only one bargaining unit for employees involved in “dressed chicken” processing

and workers engaged in “live chicken” operations. Although they seem separate

and distinct from each other, the tasks of each division are actually interrelated

and there exists mutuality of interests which warrants the formation of a single

bargaining unit. (San Miguel Foods v. San Miguel Corp. Supervisors and Exempt

Union, August 1, 2011)

72. In Silva v. National Labor Relations Commission, we explained the

correlations of Article 248 (1) and Article 261 of the Labor Code to mean that for

a ULP case to be cognizable by the Labor Arbiter, and for the NLRC to exercise

appellate jurisdiction thereon, the allegations in the complaint must 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. This

pronouncement in Silva, however, should not be

construed to apply to violations of the CBA which can be considered as gross

violations per se, such as utter disregard of the very existence of the CBA itself,

similar to what happened in this case. When an employer proceeds to negotiate

with a splinter union despite the existence of its valid CBA with the duly certified

and exclusive bargaining

agent, the former indubitably abandons its recognition of the latter and terminates

the entire CBA. (Employees Union of Bayer v. Bayer Phils., December 6, 2010)

73. Generally, a bonus is not a demandable and enforceable obligation. For a

bonus to be enforceable, it must have been promised by the employer and

expressly agreed upon by the parties. Given that the bonus in this case is

integrated in the CBA, the same partakes the nature of a demandable obligation.

Verily, by virtue of its incorporation in the CBA, the Christmas bonus due to

respondent Association has become more than just an act of generosity on the

part of the petitioner but a contractual obligation it has undertaken.

(Lepanto Ceramics v. Lepanto Ceramics Employees Association, March 2, 2010;

Eastern Telecoms v. Eastern Telecoms Employees Union, February 8, 2012)

74. Petitioners clearly and consistently questioned the legality of RGMI’s

adoption of the new salary scheme (i.e., piece-rate basis), asserting that such

action, among others, violated the existing CBA. Indeed, the controversy was not

a simple case of illegal dismissal but a labor dispute involving the manner of

ascertaining employees’ salaries, a matter which was governed by the existing

CBA. Article 217(c) of the Labor Code requires labor arbiters to refer cases

involving the implementation of CBAs to the grievance machinery provided

therein and to voluntary arbitration. Moreover, Article 260 of the Labor Code

clarifies that such disputes must be referred first to the grievance machinery and,

if unresolved within seven days, they shall automatically be referred to voluntary

arbitration. (Santuyo v. Remerco Garments, March 22, 2010)

75. Individual employees cannot raise a grievance. Only disputes involving

the union and the company shall be referred to the grievance machinery or

voluntary arbitrators. A FEDERATION cannot raise a grievance on behalf of

members of its local/chapter. (Insular Hotel Employees Union v. Waterfront

Insular Hotel, September 22, 2010)

76. While an arbitral award cannot per se be categorized as an agreement

voluntarily entered into by the parties because it requires the intervention and

imposing power of the State thru the Secretary of Labor when he assumes

jurisdiction, the arbitral award can be considered an approximation of a collective

bargaining agreement which would otherwise have been entered into by the

parties, hence, it has the force and effect of a valid contract obligation. That the

arbitral award was higher than that which was purportedly agreed upon in the

MOA is of no moment. For the Secretary, in resolving the CBA deadlock, is not

limited to considering the MOA as basis in computing the wage increases. He

could, as he did, consider the financial documents submitted by respondent as

well as the parties’ bargaining history and respondent’s financial outlook and

improvements as stated in its website. (Cirtek Employees Labor Union v. Cirtek

Electronics, November 15, 2010)

77. The hold-over principle, i.e., the duty of the parties to keep the status quo

and to continue in full force and effect the terms and conditions of the existing

CBA until a new agreement is reached by the parties applies to an imposed CBA

(i.e., an arbitral award).

The law does not provide for any exception nor qualification on which economic

provisions of the existing agreement are to retain its force and effect. Likewise,

the law does not distinguish between a CBA duly agreed upon by the parties and

an imposed CBA. (General Milling Corporation-ILU v. General Milling Corp., June

15, 2011)

78. For a charge of unfair labor practice to prosper, it must be shown that the

employer was motivated by ill-will, bad faith or fraud, or was oppressive to labor.

The employer must have acted in a manner contrary to morals, good customs, or

public policy causing social humiliation, wounded feelings or grave anxiety. While

the law makes it an obligation for the employer and the employees to bargain

collectively with each other, such compulsion does not include the commitment to

precipitately accept or agree to the proposals of the other. All it contemplates is

that both parties should approach the negotiation with an open mind and make

reasonable effort to reach a common ground of agreement. (Manila Mining

Corporation Employees Association v. manila Mining Corp., September 29,

2010)

79. Basic is the principle that good faith is presumed and he who alleges bad

faith has the duty to prove the same. By imputing bad faith to the actuations of

CAB, CABEU-NFL has the burden of proof to present substantial evidence to

support the allegation of unfair labor practice. Apparently, CABEU-NFL refers

only to the circumstances mentioned in the letter-response, namely, the

execution of the supposed CBA between CAB and CABELA and the request to

suspend the negotiations, to conclude that bad faith attended CAB’s actions. The

Court is of the view that CABEU-NFL, in simply relying on the said letter-

response, failed to substantiate its claim of unfair labor practice to rebut the

presumption of good faith.

80. Another cause for termination is dismissal from employment due to the

enforcement of the union security clause in the CBA. A stipulation in the CBA

authorizing the dismissal of employees are of equal import as the statutory

provisions on dismissal under the Labor Code, since “a CBA is the law between

the company and the union and compliance therewith is mandated by the

express policy to give protection to labor.” In terminating the employment of an

employee by enforcing the union security clause, the employer needs only to

determine and prove that: (1) the union security clause is applicable; (2) the

union is requesting for the enforcement of the union security provision in the

CBA; and (3) there is sufficient evidence to support the decision of the union to

expel the employee from the union. These requisites constitute just cause for

terminating an employee based on the union security provision of the CBA.

81. Union security” is a generic term, which is applied to and comprehends

“closed shop,” “union shop,” “maintenance of membership,” or any other form of

agreement which imposes upon employees the obligation to acquire or retain

union membership as a

condition affecting employment.There is union shop when all new regular

employees are required to join the union within a certain period as a condition for

their

continued employment. There is maintenance of membership shop when

employees, who

are union members as of the effective date of the agreement, or who thereafter

become members, must maintain union membership as a condition for continued

employment until they are promoted or transferred out of the bargaining unit or

the agreement is terminated. A closed shop, on the other hand, may be defined

as an enterprise in which, by agreement between the employer and his

employees or their representatives, no person may be employed in any or certain

agreed departments of the enterprise unless he or she is, becomes, and, for the

duration of the agreement, remains a member in good standing of a union

entirely comprised of or of which the employees in interest are a part.

82. The power to dismiss is a normal prerogative of the employer. However,

this is not without limitations. The employer is bound to exercise caution in

terminating the services of his employees especially so when it is made upon the

request of a labor union pursuant to the Collective Bargaining Agreement. x x x.

While respondent company may validly dismiss the employees expelled by the

union for disloyalty under the union security clause of the collective bargaining

agreement upon the recommendation by the union, this dismissal should not be

done hastily and summarily thereby eroding the employees’ right to due process,

self-organization and security of tenure. The enforcement of union security

clauses is authorized by law provided such enforcement is not characterized by

arbitrariness, and always with due process. Even on the assumption that the

federation had valid grounds to expel the union officers, due process requires

that these union officers be accorded a separate hearing by respondent

company.

83. The Union Shop Clause in the CBA simply states that “new employees”

who during the effectivity of the CBA “may be regularly employed” by the Bank

must join the union within thirty (30) days from their regularization. There is

nothing in the said clause that limits its application to only new employees who

possess non-regular status, meaning probationary status, at the start of their

employment. Petitioner likewise failed to point to any provision in the CBA

expressly excluding from the Union Shop Clause new employees who are

“absorbed” as regular employees from the beginning of their employment. What

is indubitable from the Union Shop Clause is that upon the effectivity of the CBA,

petitioner’s new regular employees (regardless of the manner by which they

became employees of BPI) are required to join the Union as a condition of their

continued employment.

84. Theoretically, there is nothing in law or jurisprudence to prevent an

employer and a union from stipulating that existing employees (who already

attained regular and permanent status but who are not members of any union)

are to be included in the coverage of a union security clause. Even Article 248(e)

of the Labor Code only expressly exempts old employees who already have a

union from inclusion in a union security clause.

85. The rationale for upholding the validity of union shop clauses in a CBA,

even if they impinge upon the individual employee’s right or freedom of

association, is not to protect the union for the union’s sake. Laws and

jurisprudence promote unionism and afford certain protections to the certified

bargaining agent in a unionized company because a strong and effective union

presumably benefits all employees in the bargaining unit since such a union

would be in a better position to demand improved benefits and conditions of work

from the employer. This is the rationale behind the State policy to promote

unionism declared in the Constitution, which was elucidated in the above-cited

case of Liberty Flour Mills Employees v. Liberty Flour Mills, Inc.

86. Article 212 of the Labor Code, as amended, defines strike as any

temporary stoppage of work by the concerted action of employees as a result of

an industrial or labor dispute. A labor dispute includes any controversy or matter

concerning terms and conditions of employment or the association or

representation of persons in negotiating, fixing, maintaining, changing or

arranging the terms and conditions of employment, regardless of whether or not

the disputants stand in the proximate relation of employers and employees. The

term “strike” shall comprise not only concerted work stoppages, but also

slowdowns, mass leaves, sitdowns, attempts to damage, destroy or sabotage

plant equipment and facilities and similar activities. Thus, the fact that the

conventional term “strike” was not used by the striking employees to describe

their common course of action is inconsequential, since the substance of the

situation, and not its appearance, will be deemed to be controlling.

87. “Mass leave” refers to a simultaneous availment of authorized leave

benefits by a large number of employees in a company. If only 5 employees

were absent on the same day, and they went on leave for various reasons, they

cannot be considered to have gone on “mass leave”. They did not go on strike.

“Concerted” is defined as “mutually contrived or planned” or “performed in

unison”

88. To strike is to withhold or to stop work by the concerted action of

employees as a result of an industrial or labor dispute. The work stoppage may

be accompanied by picketing by the striking employees outside of the company

compound. While a strike focuses on stoppage of work, picketing focuses on

publicizing the labor dispute and its incidents to inform the public of what is

happening in the company struck against. A picket simply means to march to and

from the employer’s premises, usually accompanied by the display of placards

and other signs making known the facts involved in a labor dispute. It is a strike

activity separate and different from the actual stoppage of work. While the right of

employees to publicize their dispute falls within the protection of freedom of

expression and the right to peaceably assemble to air grievances, these rights

are by no means absolute. Protected picketing does not extend to blocking

ingress to and egress from the company premises. That the picket was moving

was peaceful and was not attended by actual violence may not free it from taints

of illegality if the picket effectively blocked entry to and exit from the company

premises.

89. As we have stated, while the picket was moving, the movement was in

circles, very close to the gates, with the strikers in a hand-to-shoulder formation

without a break in their ranks, thus preventing non-striking workers and vehicles

from coming in and getting out. Supported by actual blocking benches and

obstructions, what the union demonstrated was a very persuasive and quietly

intimidating strategy whose chief aim was to paralyze the operations of the

company, not solely by the work stoppage of the participating workers, but by

excluding the company officials and non-striking employees from access to and

exit from the company premises. No doubt, the strike caused the company

operations considerable damage, as the NLRC itself recognized when it ruled out

the reinstatement of the dismissed strikers.

90. Employees’ refusal to work on three consecutive holidays, prompted by

their disagreement with the management-imposed new work schedule, was

considered a strike that was grounded on a non-strikeable issue, and a violation

of the No-Strike Clause in the CBA.

91. The display of placards and banners imputing criminal negligence on the

part of the employer and its officers, apparently with the end in view of

intimidating the employer’s clientele, are, given the nature of its business, that

serious as to make the strike illegal. The putting up of those banners and

placards, coupled with the name-calling and harassment, indicates that it was

resorted to to coerce the resolution of the dispute. That the alleged acts were

committed in nine non-consecutive days during the almost eight months that the

strike was on-going does not render the violence less pervasive or widespread to

be excusable. Art. 264 does not require that violence must be continuous or that

it should be for the entire duration of the strike.

92. When management and union are in pari delicto, the contending parties

must be brought back to their respective positions before the controversy, i.e.,

before the strike.

93. The effects of illegal strikes, outlined in Article 264 of the Labor Code,

make a distinction between participating workers and union officers. The services

of an ordinary striking worker cannot be terminated for mere participation in an

illegal strike; proof must be adduced showing that he or she committed illegal

acts during the strike. The services of a participating union officer, on the other

hand, may be terminated, not only when he actually commits an illegal act during

a strike, but also if he knowingly participates in an illegal strike.

94. The use of unlawful means in the course of a strike renders such strike

illegal. The filing of a petition to declare the strike illegal is thus unnecessary.

Article 263 provides that an employer may terminate employees found to have

committed illegal acts in the course of a strike.

95. A strike conducted by a union which acquired its legal personality AFTER

the filing of its Notice of Strike and the conduct of the Strike Vote is ILLEGAL.

96. Article 263(g) is both an extraordinary and a preemptive power to address

an extraordinary situation – a strike or lockout in an industry indispensable to the

national interest. This grant is not limited to the grounds cited in the notice of

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

the incidents of the strike or lockout that in the meanwhile may have taken place.

As the term “assume jurisdiction” connotes, the intent of the law is to give the

Labor Secretary full authority to resolve all matters within the dispute that gave

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

questions and controversies arising from or related to the dispute, including

cases over which the labor arbiter has exclusive jurisdiction.

97. Conformably with the long honored principle of a fair day’s wage for a fair

day’s labor, employees dismissed for joining an illegal strike are not entitled to

backwages for the period of the strike even if they are reinstated by virtue of their

being merely members of the striking union who did not commit any illegal act

during the strike.

98. We explained in Suico v. National Labor Relations Commission, that

Article 277(b), in relation to Article 264(a) and (e) of the Labor Code recognizes

the right to due process of all workers, without distinction as to the cause of their

termination, even if the cause was their supposed involvement in strike-related

violence prohibited under Article 264(a) and (e) of the Labor Code.

99. An employment should be deemed terminated, should the suspension of

operation go beyond six (6) months, even if the continued suspension is due to a

cause beyond the control of the employer. The decision to suspend operation

ultimately lies with the employer, who in its desire to avert possible financial

losses, declares suspension of operations. Article 283 is emphatic that an

employee, who was dismissed due to cessation of business operation, is entitled

to the separation pay equivalent to one (1) month pay or at least one-half (1/2)

month pay for every year of service, whichever is higher. And it is jurisprudential

that separation pay should also be paid to employees even if the closure or

cessation of operations is not due to losses.

100. Loss of confidence should ideally apply to employees holding a position of

trust and confidence, and to employees routinely charged with the care and

custody of the employer’s money or property. The position of Programmer is

analogous to the second category, i.e., employees having care and custody of

money or property.

101. Art. 227 (b) of the Labor Code provides that, in cases of termination for a

just cause, an employee must be given “ample opportunity to be heard and to

defend himself.” This right to be heard is satisfied not only by a formal face to

face confrontation but by any meaningful opportunity to controvert the charges

against him and to submit evidence in support thereof. It does not mean verbal

argumentation alone inasmuch as a person may be heard just as effectively

through written explanations, submissions or pleadings. “Ample opportunity to be

heard” means any meaningful opportunity – verbal or written – given to the

employee to answer the charges against him and submit evidence in support of

his defense, whether in a hearing, conference or some other fair, just and

reasonable way.

102. 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.

103. Even if the order of reinstatement of the Labor Arbiter is reversed on

appeal, it is obligatory on the part of the employer to reinstate and pay the wages

of the dismissed employee during the period of appeal until reversal by the

higher court. The Labor Arbiter’s order of reinstatement is immediately executory

and the employer has to either re-admit the employee to work under the same

terms and condition prevailing prior to the dismissal, or to reinstate the employee

in the payroll, and that failing to exercise the options in the alternative, employer

must pay the employee’s salaries. If the employee has been reinstated during the

appeal period and such reinstatement order is reversed with finality, the

employee is not required to reimburse whatever salary he received for he is

entitled to such, more so if he actually rendered services during the period. The

social justice principles of labor outweigh or render inapplicable the civil law

doctrine of unjust enrichment.

104. If no actual or payroll reinstatement was effected during the period of

appeal despite the Labor Arbiter’s reinstatement order, can the employee still

collect the wages due him for the period of the supposed reinstatement even

after the Labor Arbiter’s decision has already been reversed by the NLRC? Yes.

The reinstatement aspect of the Labor Arbiter’s order is self-executory. The

salary automatically accrued from notice of the Labor Arbiter’s order of

reinstatement until its ultimate reversal by the NLRC or a higher court. Hence,

even after the Labor Arbiter’s order has been reversed, the employee can still

collect the wages due for the period of the reinstatement pending appeal. The

employee may be barred from collecting the accrued wages, however, if it is

shown that the delay in enforcing the reinstatement pending appeal was without

fault on the part of the employer.

105. Two-fold test in determining whether an employee is barred from collecting

the accrued wages: There must be an actual delay, i.e., the order of

reinstatement pending appeal was not executed prior to its reversal. The delay

was not due to the employer’s unjustified act or omission.

106. The reinstatement aspect of the Labor Arbiter’s order is self-executory. The

employee need not file a motion for the issuance of the writ of execution. Under

the NLRC Rules of Procedure, the employer is required to submit a report of

compliance within 10 calendar days from receipt of the Labor Arbiter’s decision. If

the employer disobeys the directive or refuses to reinstate the dismissed

employee, the Labor Arbiter shall immediately issue a writ of execution, i.e., motu

propio. If the employer disobeys the writ, the employer may be cited for

contempt.

107. In an illegal dismissal case, the Labor Arbiter dismissed the complaint for

illegal dismissal as he found the dismissed employee guilty of dishonesty as a

form of serious misconduct and fraud. The Arbiter, however, ordered the

reinstatement of the employee without backwages “as a measure of equitable

and compassionate relief”. The employer appealed the decision to the NLRC.

The employee claims that he is entitled to reinstatement pending appeal. Is the

employee correct? No. The provision mandating the immediate execution of the

reinstatement order of the Labor Arbiter pending appeal applies only if there is a

finding of illegal dismissal. Article 223 gives an interim relief, granted to an

employee while the case for illegal dismissal is pending appeal. Where there is

no finding of illegal dismissal, such interim relief does not apply.

108. The finality of the NLRC’s decision does not preclude the filing of a petition

for certiorari under Rule 65 of the Rules of Court. That the NLRC issues an entry

of judgment after the lapse of ten (10) days from the parties’ receipt of its

decision will only give rise to the prevailing party’s right to move for the execution

thereof but will not prevent the CA from taking cognizance of a petition for

certiorari on jurisdictional and due process considerations. Since an appeal to

this Court is not an original and independent action but a continuation of the

proceedings before the CA, the filing of a petition for review under Rule 45

cannot be barred by the finality of the NLRC’s decision in the same way as a

petition for certiorari under Rule 65.

109. Even if the petitioner workers did not specifically question the award of

separation pay, and did not ask for reinstatement, the court can grant

reinstatement as a remedy for the illegal dismissal. A court can grant the relief

warranted by the allegation and the proof even if it is not specifically sought by

the injured party. The inclusion of a general prayer may justify the grant of a

remedy different from or together with the specific remedy sought, if the facts

alleged in the complaint and the evidence introduced so warrant.

110. The employer’s policy of suspending drivers who fail to remit the full

amount of the boundary was fair and reasonable under the circumstances. An

employer has free rein and enjoys a wide latitude of discretion to regulate all

aspects of employment, including the prerogative to instill discipline on the

employees. Since the case involved a suspension, not a termination, the strict

application of the twin-notice rule is not warranted.

111. Constructive Dismissal occurs when there is cessation of work because

continued employment is rendered impossible, unreasonable, or unlikely as

when there is a demotion in rank or diminution in pay or when a clear

discrimination, insensibility, or disdain by an employer becomes unbearable to

the employee, leaving the latter with no other option but to quit. If there is no

quitting (as when the employee had returned to work), there can be no

constructive dismissal.

112. There is constructive dismissal when the employer pre-judged the

employee’s guilt without proper investigation, and instantly reported her to the

police as the suspected thief, after the employee herself (a cashier) reported the

loss of money. (The employee languished in jail for two weeks.) The due process

requirements under the Labor Code are mandatory and may not be supplanted

by police investigation or court proceedings. The criminal aspect of the case is

considered independent of the administrative aspect. Employers should not rely

solely on the findings of the Prosecutor’s Office. They are mandated to conduct

their own separate investigation, and to accord the employee every opportunity

to defend himself/herself.

113. The computation of backwages of a probationary employee should not

cover the entire period from the time her compensation was withheld up to the

time of her actual reinstatement. The computation of backwages shall end upon

the end of the probationary employment. The lapse of the probationary

employment without any appointment as a regular employee of the employer

effectively severed the employer-employee relationship between the parties.

NOTE: In this case, the SC said that the employer cannot be expected to retain

the employee as a regular employee after she lost P20,000 while acting as

cashier.

114. A transfer of work assignment without any justification therefor, even if the

employee would be presumably doing the same job with the same pay cannot be

deemed as faithful compliance with a reinstatement order.

115. Separation pay under Article 284 presupposes that it is the employer who

terminates the services of the employee found to be suffering from disease. It

does not apply to a situation where it is the employee who severe his or her

employment ties.

116. Even if there is a finding that the employee indeed resigned and was not

dismissed, the employee may still be granted financial assistance on equity

considerations.

117. “Off-detailing” or “Floating dismissal unless it lasts for months status” is not

more than six months. A complaint for illegal dismissal filed prior to the lapse of

the six-month period and.or the actual dismissal of the employee is generally

considered premature.

118. The main issue of whether an agency or an employment relationship exists

depends on the incidents of the relationship. The Labor Code concept of “control”

has to be compared and distinguished with the “control” that must necessarily

exist in a principal-agent relationship. The principal cannot but also have his or

her say in directing the course of the principal-agent relationship, especially in

cases where the company-representative relationship in the insurance industry is

an agency.

119. Guidelines indicative of labor law “control,”, should not merely relate to the

mutually desirable result intended by the contractual relationship; they must have

the nature of dictating the means or methods to be employed in attaining the

result, or of fixing the methodology and of binding or restricting the party hired to

the use of these means.

120. Conformably with Section 25, a position must be expressly mentioned in

the By-Laws in order to be considered as a corporate office. Thus, the creation of

an office pursuant to or under a By-Law enabling provision is not enough to make

a position a corporate office. The criteria for distinguishing between corporate

officers who may be ousted from office at will, on one hand, and ordinary

corporate employees who may only be terminated for just cause, on the other

hand, do not depend on the nature of the services performed, but on the manner

of creation of the office.

121. The fact that the parties involved in the controversy are all stockholders or

that the parties involved are the stockholders and the corporation does not

necessarily place the dispute within the ambit of the jurisdiction of the RTC. Two-

tier Test: (1) the status or relationship of the parties; (2) the nature of the

question that is the subject of the controversy. If the worker was not appointed by

the Board of Directors, there is no intra-corporate relationship. If what is involved

is termination of employment, it is a labor controversy, and not an intra-corporate

dispute.

122. The contractual stipulations do not pertain to, much less dictate, how and

when the referees will blow the whistle and make calls. They merely serve as

rules of conduct or guidelines in order to maintain the integrity of the professional

basketball league.

123. Drivers/cameramen are NOT “talents” They are employees, and should be

considered regular employees

124. A person is considered engaged in legitimate job contracting or

subcontracting if the following conditions concur: (a) The contractor carries on a

distinct and independent business and undertakes the contract work on his

account under his own responsibility according to his own manner and method,

free from the control and direction of his employer or principal in all matters

connected with the performance of his work except as to the results thereof; (b)

The contractor has substantial capital or investment; and (c) The agreement

between the principal and the contractor or subcontractor assures the contractual

employees' entitlement to all labor and occupational safety and health standards,

free exercise of the right to self-organization, security of tenure, and social

welfare benefits.

125. A contractor’s Certificate of Registration is not sufficient proof that it is an

independent contractor. A Certificate of Registration issued by the Department of

Labor and Employment is not conclusive evidence of such status. The fact of

registration simply prevents the legal presumption of being a mere labor-only

contractor from arising.

126. Mere compliance with substantial capital requirement will not suffice for a

contractor to be considered a legitimate contractor. If the workers supplied by the

contractor work alongside the principal’s regular employees who are performing

identical work, such is an indicium of labor-only contracting. It is the totality of the

facts and the surrounding circumstances of the case which is determinative of

the parties’ relationship. Several factors may be considered, such as, whether

the contractor was carrying on an independent business; the nature and extent of

the work; the skill required; the term and duration of the relationship; the right to

assign the performance of specified pieces of work; the control and supervision

of the workers the power of the employer with respect to the hiring, firing and

payment of the workers of the contractor; the control of the premises; the duty to

supply premises, tools, appliances, materials and labor; and the mode, manner

and terms of payment.

127. Even probationary employees who do not enjoy permanent status are still

entitled to the constitutional protection of security of tenure. Their employment

may only be terminated for a valid and just cause or for failing to qualify as a

regular employee in accordance with the reasonable standards made known to

him by the employer at the time of engagement and after being accorded due

process.

128. Section 2, Rule I, Book VI: If the termination is brought about by the

completion of a contract or phase thereof, or by failure of an employee to meet

the standards of the employer in the case of probationary employment, it shall be

sufficient that a written notice is served the employee, within a reasonable time

from the effective date of termination.

129. “Project” could refer to one or the other of at least two (2) distinguishable

types of activities. Firstly, a project could refer to a particular job or undertaking

that is within the regular or usual business of the employer company, but which is

distinct and separate, and identifiable as such, from the other undertakings of the

company. Such job or undertaking begins and ends at determined or

determinable times. The term “project” could also refer to, secondly, a particular

job or undertaking that is not within the regular business of the corporation. Such

a job or undertaking must also be identifiably separate and distinct from the

ordinary or regular business operations of the employer. The job or undertaking

also begins and ends at determined or determinable times. Plainly, the litmus test

to determine whether an individual is a project employee lies in setting a fixed

period of employment involving a specific undertaking which completion or

termination has been determined at the time of the particular employee’s

engagement.

130. If there is continuous rehiring for the same tasks or nature of tasks under

different projects, which tasks are vital, necessary and indispensable to the usual

business or trade of the employer, an employee who was initially hired as a

project employee may eventually acquire regular status.

131. The second paragraph of Art. 280 demarcates as “casual” employees, all

other employees who do not fall under the definition of the preceding paragraph.

The proviso, in said second paragraph, deems as regular employees those

“casual” employees who have rendered at least one year of service regardless of

the fact that such service may be continuous or broken. The proviso is applicable

only to the employees who are deemed “casuals” but not to the “project”

employees nor the regular employees treated in paragraph one of Art. 280.

132. Completion of the work or project automatically terminates the employment.

Prior or advance notice of termination is not part of procedural due process if the

termination is brought about by the completion of the contract or phase thereof

for which the employee was engaged. There is no violation of any requirement of

procedural due process by failing to give the project employees advance notice

of their termination; thus, there is no basis for the payment of nominal damages

(Agabon).

133. In a situation where the probationary status overlaps with a fixed-term

contract not specifically used for the fixed term it offers, Article 281 should

assume primacy and the fixed-period character of the contract must give way.

The fixed-term character of employment essentially refers to the period agreed

upon between the employer and the employee; employment exists only for the

duration of the term and ends on its own when the term expires. In a sense,

employment on probationary status also refers to a period because of the

technical meaning “probation” carries in Philippine labor law – a maximum period

of six months, or in the academe, a period of three years for those engaged in

teaching jobs. Their similarity ends there, however, because of the overriding

meaning that being “on probation” connotes, i.e., a process of testing and

observing the character or abilities of a person who is new to a role or job.

134. Article 291 is the law governing the prescription of money claims of

seafarers, a class of overseas contract workers. This law prevails over Section

28 of the Standard Employment Contract for Seafarers which provides for claims

to be brought only within one year from the date of the seafarer’s return to the

point of hire. Section 28 of the Standard Employment Contract for Seafarers,

insofar as it limits the prescriptive period within which the seafarers may file their

money claims, is null and void. The applicable provision is Article 291 of the

Labor Code, it being more favorable to the seafarers and more in accord with the

State’s declared policy to afford full protection to labor. The prescriptive period in

the present case is thus three years from the time the cause of action accrues.

135. Management prerogative refers “to the right of an employer to regulate all

aspects of employment, such as the freedom to prescribe work assignments,

working methods, processes to be followed, regulation regarding transfer of

employees, supervision of their work, lay-off and discipline, and dismissal and

recall of work.” Although management prerogative refers to “the right to regulate

all aspects of employment,” 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.

136. The declaration in March 2009 of the unconstitutionality of the clause “or for

three months for every year of the unexpired term, whichever is less” in RA 8042

shall be given retroactive effect to the termination that occurred in January 1999

because an unconstitutional clause in the law confers no rights, imposes no

duties and affords no protection. The unconstitutional provision is inoperative, as

if it was not passed into law at all.

137. The habeas data rule, in general, is designed to protect by means of

judicial complaint the image, privacy, honor, information, and freedom of

information of an individual. It is meant to provide a forum to enforce one’s right

to the truth and to informational privacy, thus safeguarding the constitutional

guarantees of a person’s right to life, liberty and security against abuse in this

age of information technology. The writs of amparo and habeas data will NOT

issue to protect purely property or commercial concerns nor when the grounds

invoked in support of the petitions therefor are vague or doubtful. Employment

constitutes a property right under the context of the due process clause of the

Constitution. It is evident that respondent’s reservations on the real reasons for

her transfer - a legitimate concern respecting the terms and conditions of one’s

employment - are what prompted her to adopt the extraordinary remedy of

habeas data. Jurisdiction over such concerns is inarguably lodged by law with

the NLRC and the Labor Arbiters. There is no showing from the facts presented

that petitioners committed any unjustifiable or unlawful violation of respondent’s

right to privacy vis-a-vis the right to life, liberty or security.

138. Retirement is the result of a bilateral act of the parties, a voluntary

agreement between the employer and the employee whereby the latter, after

reaching a certain age, agrees to sever his or her employment with the former. A

retirement plan giving the employer the option to retire its employees below the

ages provided by law must be assented to and accepted by the latter, otherwise,

its adhesive imposition will amount to a deprivation of property without due

process of law.

139. Employees engaged on task or contract basis or paid on purely

commission basis are not automatically exempted from the grant of service

incentive leave, unless, they fall under the classification of field personnel.

140. Secretary of Labor has NO jurisdiction to determine the existence of

employer-employee relationship in the exercise of the visitorial and enforcement

powers under Article 128. Article 128’s grant of visitorial and enforcement powers

is for the purpose of determining violations of, and enforcing, the Labor Code and

any labor law, wage order, or rules and regulations. If there is no employer-

employee relationship in the first place, the duty of the employer to adhere to

labor standards with respect to the non-employees is questionable. The

Secretary’s power under Art. 128 does not apply in two instances: (a) where the

employer-employee relationship has ceased; and (b) where no such relationship

has ever existed. If there is a prima facie showing of the absence of employer-

employee relationship, the Secretary is precluded from exercising the visitorial

and enforcement powers.

141. Under Art. 217, it is clear that a labor arbiter has original and exclusive

jurisdiction over termination disputes. On the other hand, under Article 261, a

voluntary arbitrator has original and exclusive jurisdiction over grievances arising

from the interpretation or enforcement of company policies. As a general rule

then, termination disputes should be brought before a labor arbiter, except when

the parties, under Art. 262, unmistakably express that they agree to submit the

same to voluntary arbitration.

142. The VA’s decision may still be reconsidered on the basis of a motion for

reconsideration seasonably filed within 10 days from receipt thereof. The

seasonable filing of a motion for reconsideration is a mandatory requirement to

forestall the finality of such decision. The absence of a categorical language in

Article 262-A does not preclude the filing of a motion for reconsideration of the

VA’s decision within the 10-day period.

143. By disallowing reconsideration of the VA’s decision, Section 7, Rule XIX of

DO 40-03 and Section 7 of the 2005 Procedural Guidelines went directly against

the legislative intent behind Article 262-A of the Labor Code. These rules deny

the VA the chance to correct himself and compel the courts of justice to

prematurely intervene with the action of an administrative agency entrusted with

the adjudication of controversies coming under its special knowledge, training

and specific field of expertise. In this era of clogged court dockets, the need for

specialized administrative agencies with the special knowledge, experience and

capability to hear and determine promptly disputes on technical matters or

intricate questions of facts, subject to judicial review, is indispensable.

144. The voluntary arbitrator had plenary jurisdiction and authority to interpret

the agreement to arbitrate and to determine the scope of his own authority –

subject only, in a proper case, to the certiorari jurisdiction of this Court. The

failure of the parties to specifically limit the issues to that which was stated

allowed the arbitrator to assume jurisdiction over the related issue. While

voluntary arbitrators are generally expected to decide only those questions

expressly delineated by the submission agreement; nevertheless, they can

assume that they have the necessary power to make a final settlement on the

related issues, since arbitration is the final resort for the adjudication of disputes.

145. An employer cannot hide under the legal cloak of the grievance machinery

of the CBA or the voluntary arbitration proceedings to disobey a valid order of

transfer from the management of the hotel. While it is true that the employer’s

transfer of assignment is the subject of the grievance machinery in accordance

with the provisions of their CBA, the employee is expected to comply first with the

said lawful directive while awaiting the results of the decision in the grievance

proceedings. Unless the order of the employer is rendered invalid, there is a

presumption of the validity of that order. The employer had the authority to

continue with the administrative proceedings for insubordination and willful

disobedience against the employer and to impose the penalty of suspension

despite the case before the grievance machinery and the panel of voluntary

arbitrators.

146. The fact that the workers were already rendering service to the company

when they were made to undergo apprenticeship renders the apprenticeship

agreements irrelevant as far as the employees are concerned, especially since,

prior to the apprenticeship, the employees performed tasks that were usually

necessary and desirable to the company’s usual business. Even assuming there

was a valid apprenticeship, the expiration of the first agreement and the retention

of the employees was a recognition by the employer of their training and

acquisition of a regular employee status. The second apprenticeship agreement

for a second skill which was not even mentioned in the agreement is a violation

of the Labor Code’s implementing rules.

147. The doctrine is applicable when a declaration of unconstitutionality will

impose an undue burden on those who have relied on the invalid law. It does not

apply to a situation where the declaration of unconstitutionality of Sec. 10. R.A.

8042 happened while the illegal dismissal case was pending before the Supreme

Court.

148. The commencement of the employment relationship must be treated

separately from the perfection of an employment contract. The perfection of the

contract, which (as a general rule) coincides with the date of execution, occurred

when the parties agreed on the object and the cause, and the terms and

conditions. Despite the non-deployment (which caused the non-commencement

of the employment relationship), rights have arisen based on the perfected

conract.

149. Section 10 of Republic Act No. 8042 (Migrant Workers Act) which provides

for money claims by reason of a contract involving Filipino workers for overseas

deployment applies to a case of non deployment without valid reasons – claims

arising out of an employer-employee relationship or by virtue of any law or

contract involving Filipino workers for overseas deployment including claims for

actual, moral, exemplary and other forms of damages. Following the law, the

claim is still cognizable by the labor arbiters of the NLRC.

150. Disputes involving the interpretation or implementation of CBA provisions

applicable to seafarers should be covered by Art. 261 and 262 of the Labor

Code, not by Section 10 of R.A. 8042. Voluntary Arbitrator has jurisdiction.

151. (V)endor-vendee relationship for entire business processes covered by the

applicable provisions of the Civil Code on Contracts is excluded. DO 18-A Series

of 2011 contemplates generic or focused singular activity in one contract

between the principal and the contractor (for example, janitorial, security,

merchandising, specific production work) and does not contemplate information

technology-enabled services involving an entire business processes (for

example, business process outsourcing, hardware and/or software support,

medical transcription, animation services, back office operations/support).

152. the DOLE, through its regional offices, shall not require contractors

licensed by PCAB in the Construction Industry to register under D.O. 18-A,

Series of 2011. Moreover, findings of violation/s on labor standards and

occupational health and safety standards shall be coordinated with PCAB for its

appropriate action, including the possible cancellation/suspension of the

contractor’s license.