CRALaw Labor Law Pre Week 2019 PDF

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UPDATEDLAST-MINUTEPRE-WEEK NOTESFOR THE2019 BAR EXAM IN LABOR LAWBased on the topics prescribedin the 2019 SYLLABUSProf. Joselito Guianan ChanProfessor of Law, Bar Reviewer, Book Author & Legal PractitionerChan Robles Online Bar Reviewchanroblesbar-----------------------------------MAJOR TOPIC 1...

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ChanRobles Internet Bar Review

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UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE

2019 BAR EXAM IN LABOR LAW Based on the topics prescribed in the 2019 SYLLABUS

Prof. Joselito Guianan Chan

Professor of Law, Bar Reviewer, Book Author & Legal Practitioner

Chan Robles Online Bar Review www.chanroblesbar.com

----------------------------------MAJOR TOPIC 1 GENERAL PROVISIONS A. BASIC POLICY ON LABOR 1. Under Article 3 of Labor Code: a) b) c) d) e)

Full protection to labor; Promotion of full employment; Promotion of equal work opportunities regardless of sex, race or creed; Regulation of the relations between workers and employers; Protection of the rights of workers to: 1. self-organization; 2. collective bargaining; 3. security of tenure; and 4. just and humane conditions of work.

2. Under Article XIII, Section 3 of the Constitution: a) b) c) d)

e)

f)

Full protection to labor, local and overseas, organized and unorganized; Promotion of full employment; Promotion of equality of employment opportunities for all; Guarantee of the rights of all workers to: 1. self-organization; 2. collective bargaining and negotiations; 3. peaceful concerted activities, including the right to strike in accordance with law; 4. security of tenure; 5. humane conditions of work; 6. a living wage; 7. participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. Promotion of the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. Regulation of the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

B. CONSTRUCTION IN FAVOR OF LABOR 1. Under Article 1702 of the Civil Code. “Article 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.”

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UPDATEDLAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW Prof. Joselito Guianan Chan CHAN ROBLES ONLINE BAR REVIEW www.chanroblesbar.com SELLING THIS MATERIAL IS ABSOLUTELY PROHIBITED

2. Article 4 of the Labor Code. “Article 4. Construction in Favor of Labor. – All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.” 3. Follow this rule in interpreting and construing: a. b.

DOUBTS OR AMBIGUITIES IN LABOR CONTRACTS such as employment contract and collective bargaining agreement (CBA); DOUBTS OR AMBIGUITIES IN EVIDENCE in labor cases.

. C. CONSTITUTIONAL AND CIVIL CODE PROVISIONS RELATING TO LABOR LAW 1. Selected Constitutional Provisions.  Under Article II (Declaration of Principles and State Policies): a.

“Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.” This provision is invoked by the Supreme Court when it affirms the interest, rights and welfare of labor. Example: When the SC nullifies a patently illegal provision in an employment contract or when it invalidates a Quitclaim executed by a worker because of unconscionably low consideration.

 Under Article III (Bill of Rights): a.

Freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. THIS FREEDOM GUARANTEED UNDER ARTICLE III, SECTION 4 OF THE CONSTITUTION IS RELEVANT ONLY IN CONNECTION WITH PICKETING AND NOT IN RELATION TO STRIKE WHICH HAS A DIFFERENT CONSTITUTIONAL BASIS (ARTICLE XIII, SECTION 3).

b.

Right of public and private sector employees to form unions, associations, or societies for purposes not contrary to law shall not be abridged. THIS IS KNOWN AS “FREEDOM OF ASSOCIATION.” THIS PROVISION IS THE BASIS FOR THE EMPLOYEES’ RIGHT TO SELF-ORGANIZATION.

c.

Non-impairment of obligations of contracts. THE CONCEPT OF THIS RIGHT IN POLITICAL LAW IS SIMILAR IN LABOR LAW.

d.

Right to speedy disposition of cases in judicial, quasi-judicial or administrative bodies. THIS CAN BE INVOKED IN LABOR CASES AT ALL LEVELS, to wit: (1) Before quasi-judicial or administrative bodies, such as: a) Labor Arbiters, NLRC; b) Med-Arbiters/BLR; c) DOLE Regional Directors/DOLE Secretary; and d) Voluntary Arbitrators. (2) Before judicial bodies, such as: a) Court of Appeals; and b) Supreme Court, when labor cases reach these higher level courts.

e.

Prohibition against involuntary servitude. THIS PRINCIPLE IS RELEVANT ONLY IN THREE (3) SITUATIONS: NAMELY: (1) RESIGNATION AND (2) RETURN-TO-WORK ORDER IN NATIONAL INTEREST CASES. THIS MEANS THAT:

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UPDATEDLAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW Prof. Joselito Guianan Chan CHAN ROBLES ONLINE BAR REVIEW www.chanroblesbar.com SELLING THIS MATERIAL IS ABSOLUTELY PROHIBITED

(1) AN EMPLOYEE HAS THE RIGHT TO RESIGN SINCE HE CANNOT BE FORCED TO WORK AGAINST HIS WILL; (2) THE MOMENT AN ASSUMPTION OF JURISDICTION ORDER (AJO) IS ISSUED BY THE DOLE SECRETARY IN NATIONAL INTEREST CASES, A STRIKER CAN BE ORDERED TO RETURN TO WORK EVEN AGAINST HIS WILL IN CASE AT THE TIME OF SUCH ISSUANCE OF THE AJO, THERE WAS ALREADY AN ON-GOING STRIKE; and (3) WHEN EMPLOYEES ARE CALLED UPON TO RENDER MILITARY OR CIVIC DUTY.  Under Article XIII (Social Justice and Human Rights): Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall

also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth.

2. Selected Civil Code Provisions.  Article 1700 of the Civil Code: “Art. 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.” In Davao Integrated Port Stevedoring Services v. Abarquez, March 19, 1993. It was held that a CBA, as a labor contract within the contemplation of Article 1700 of the Civil Code, is not merely contractual in nature but impressed with public interest, thus, it must yield to the common good. Similarly, an employment contract or any other labor contract is treated as not merely contractual in nature similar to an ordinary contract like a lease contract because it is impressed with public interest. Consequently, all labor laws are deemed read or incorporated therein even if not so expressly provided or stipulated in its provisions.

 Article 1702 of the Civil Code. (See discussion above of Article 1702 of the Civil Code, in relation to Article 4 of the Labor Code regarding the rule on interpretation and construction provisions of law and labor contracts).

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SYLLABUS MAJOR TOPIC 2 PRE-EMPLOYMENT A. ILLEGAL RECRUITMENT  Who may commit illegal recruitment? Illegal recruitment may be committed by any of the following (1) By Non-Licensee or Non-holder of authority ; or (2) By ANY PERSON, regardless of whether a non-licensee, non-holder, licensee or holder of authority,  What are illegal recruitment acts that can be committed by No. 1 above (NON-LICENSEE or NON-

HOLDER OF AUTHORITY)?

When what is committed by such NON-LICENSEES or NON-HOLDERS OF AUTHORITY is any of the acts of recruitment allowed only to be done by licensees or holders of authority such as the act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and

includes referring, contract services, promising or advertising for employment abroad, whether for profit or not.

In other words, had they possessed of license or authority, their commission of any of the foregoing acts could have been valid and not constitutive of illegal recruitment. NOTE: The non-licensee or non-holder of authority is presumed to be engaged in such recruitment if he, in any manner, offers or promises for a fee employment abroad to two or more persons . What are acts of illegal recruitment when committed by ANY PERSON, whether a NON-LICENSEE,

NON-HOLDER OF AUTHORITY or even by a LICENSEE or HOLDER OF AUTHORITY?

(a) To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the DOLE Secretary, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to non-existent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA; (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; (e) To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization; (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines; (g) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment; (h) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the DOLE from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE; (i) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency ; (j) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations; (k) Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment; (l) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and (m) To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.”

PROHIBITED ACTIVITIES IN RELATION TO ILLEGAL RECRUITMENT

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UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW Prof. Joselito Guianan Chan CHAN ROBLES ONLINE BAR REVIEW www.chanroblesbar.com SELLING THIS MATERIAL IS ABSOLUTELY PROHIBITED

 What are the PROHIBITED ACTIVITIES in connection with recruitment for overseas employment? Besides illegal recruitment, the law additionally provides that it shall also be unlawful for any person or entity to commit the following prohibited acts: (1) Grant a LOAN to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, post-dated checks in relation to the said loan; (2) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a LOAN only from specifically designated institutions, entities or persons; (3) Refuse to condone or renegotiate a LOAN incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own; (4) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo HEALTH EXAMINATIONS only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner; (5) Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo TRAINING, SEMINAR, INSTRUCTION OR SCHOOLING of any kind only from specifically designated institutions, entities or persons, except for recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings; (6) For a SUSPENDED RECRUITMENT/MANNING AGENCY to engage in any kind of recruitment activity including the processing of pending workers' applications; and (7) For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of INSURANCE fees, premium or other insurance related charges, as provided under the compulsory worker's INSURANCE coverage.

LICENSE VS. AUTHORITY What is a “license” for overseas recruitment?

“License” refers to the document issued by the DOLE Secretary authorizing a person, partnership or corporation to operate a private recruitment or manning agency. What is an “authority” for overseas employment?

“Authority” refers to the document issued by the DOLE Secretary authorizing the officers, personnel, agents or representatives of a licensed recruitment or manning agency to conduct recruitment and placement activities in a place stated in the license or in a specified place.

ELEMENTS OF ILLEGAL RECRUITMENT What are the elements of illegal recruitment? The essential elements of illegal recruitment vary in accordance with the following classifications: (1) Simple illegal recruitment; (2) When committed by a syndicate; or (3) When committed in large scale. When illegal recruitment is committed under either Nos. 2 or 3 above or both, it is considered an offense involving economic sabotage.

SIMPLE ILLEGAL RECRUITMENT What are the 2 elements of simple illegal recruitment? (1) The offender has no valid license or authority required by law to enable one to lawfully engage in recruitment and placement of workers; and (2) He undertakes either any activity within the meaning of “recruitment and placement” defined under Article 13(b), (see above enumeration) or any prohibited practices (see above enumeration) under Article 34 of the Labor Code.  Can a recruiter be a natural or juridical person? Yes.  What are some relevant principles on illegal recruitment? 1. Mere impression that a person could deploy workers overseas is sufficient to constitute illegal recruitment. But if no such impression is given, the accused should not be convicted for illegal recruitment. 2. Mere promise or offer of employment abroad amounts to recruitment. 3. There is no need to show that accused represented himself as a licensed recruiter. 4. Referrals may constitute illegal recruitment.

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UPDATED LAST-MINUTE PRE-WEEK NOTES FOR THE 2019 BAR EXAM IN LABOR LAW Prof. Joselito Guianan Chan CHAN ROBLES ONLINE BAR REVIEW www.chanroblesbar.com SELLING THIS MATERIAL IS ABSOLUTELY PROHIBITED

5. It is illegal recruitment to induce applicants to part with their money upon false misrepresentations and promises in assuring them that after they paid the placement fee, jobs abroad were waiting for them and that they would be deployed soon. 6. Recruitment whether done for profit or not is immaterial. 7. The act of receiving money far exceeding the amount as required by law is not considered as “recruitment and placement” as this phrase is contemplated under the law. 8. Actual receipt of fee is not an element of the crime of illegal recruitment. 9. Conduct of interviews amounts to illegal recruitment. 10. Absence of receipt is not essential to hold a person guilty of illegal recruitment. 11. Conviction for illegal recruitment may be made on the strength of the testimonies of the complainants. 12. Absence of documents evidencing the recruitment activities strengthens, not weakens, the case for illegal recruitment. 13. Only one person recruited is sufficient to convict one for illegal recruitment. 14. Non-prosecution of another suspect is immaterial. 15. Execution of affidavit of desistance affects only the civil liability but has no effect on the criminal liability for illegal recruitment. 16. Defense of denial cannot prevail over positive identification. Positive identification where categorical and consistent and not attended by any showing of ill motive on the part of the eyewitnesses on the matter prevails over alibi and denial. Between the categorical statements of the prosecution witnesses, on the one hand, and bare denials of the accused, on the other hand, the former must prevail.

ILLEGAL RECRUITMENT AS A FORM OF ECONOMIC SABOTAGE When is illegal recruitment considered a crime involving economic sabotage? 1. When committed by a syndicate; or 2. When committed in large scale.

NOTE: THE FIGURE THREE (3) MAKES THE DIFFERENCE, THUS:  

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