THE LABOR CODE OF THE PHILIPPINES ANNOTATED - …

1 TABLE OF CONTENTS i THE LABOR CODE OF THE PHILIPPINES ANNOTATED Volume II LABOR RELATIONS AND TERMINATION OF EMPLOYMENT [Articles 211 to 302, LABOR Code] By JOSELITO GUIANAN CHAN Practising Lawyer, Professor of Law and Bar Reviewer Third Edition, 2005 Revised and Enlarged (Also available in Compact Disc) TABLE OF CONTENTS ii Philippine Copyright 1996, 2000 and 2005 by JOSELITO GUIANAN CHAN Third Edition, 2005 Revised and Enlarged All Rights Reserved ISBN 971-91837-8-0 No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, machine-copied, mimeographed, typewritten, or in any other form, for distribution or sale, without the written permission of the author.

2 Any copy of this book without the corresponding number and genuine signature of the author or his representative on this page, either proceeds from an illegitimate source or is in possession of one who has no authority to dispose thereof. _____ Authorized Signature Serial No. _____ Published & Distributed by: ChanRobles Publishing Company 22nd Floor, Philippine Stock Exchange Centre Tektite East Tower, Exchange Road Ortigas Center, Pasig City Metro Manila, PHILIPPINES Tel. Nos.: (632) 634-07-41/42/43/44/45 Fax No.: (632) 634-07-36 Website: E-mail: Printed by: ChanRobles Digital Printing A Division of ChanRobles Publishing Company TABLE OF CONTENTS iiiRepublic of the PHILIPPINES SENATE Manila BLAS F. OPLE Senator FOREWORD Since the LABOR laws of the country were codified in the Seventies during my incumbency as LABOR Secretary, the LABOR Code has undergone a series of revisions both by acts of the legislature and by executive fiat.

3 Taken with the numerous LABOR and social legislations bearing upon the field of LABOR and employment as well as the myriad rules implementing the LABOR Code and related laws, the subject could be utterly confusing and rather complicated. Through the years, it has been noted that only very few annotations and commentaries have been written on the LABOR Code. This is unfortunate considering its significance and impact on the lives of millions comprising the backbone of our nation. This book by Atty. Joselito Guianan Chan is certainly a welcome addition to the sparse bibliography on the LABOR Code. Like a master craftsman, Atty. Chan has carefully shifted through the maze of existing and old laws, rules and regulations and other executive issuances and jurisprudential precepts, to separate the grain from the chaff, so to speak, to bring us to the crux of things.

4 He has intricately woven all these materials into a smooth-flowing and compelling discussion of the current status of the law and its intricacies, correlated with all relevant topics. In treating the more difficult or doubtful questions of the law, he provides us with incisive analysis and in-depth discussion of the legal issues at hand, with appropriate reference to the leading and latest judicial precedents, supplemented with a glimpse of the legislative history of the provisions under consideration, whenever necessary. The long years of legal practice and experience of Atty. Chan, both in the courtroom as an advocate of the law, and in the classroom as professor of law, not to mention his able stewardship of his law firm and skillful advocacy of his clients causes, have no doubt contributed in the formation and crystallization of this authoritative and comprehensive work.

5 Indeed, no law library would be complete without a copy of this masterpiece. Students and practitioners will surely find this book invaluable. Senate of the PHILIPPINES , Manila, 14 August 1996. (Sgd.) BLAS F. OPLE 2nd Floor, Marbella Manila Bldg., 2071, Roxas Blvd., Manila Tel. 536-0259 TABLE OF CONTENTS iv PREFACE Third Revised Edition, 2005 This third edition comes on the 9th year since the first was published in 1996. More than 5,000 copies have been printed and distributed of this hardbound version. Its digitized CD adaptation has likewise elicited similar enthusiasm from students, practitioners and clients when it was released also in 1996 at a time when the internet age was just at its gestation stage. This book, in fact, was the first to be in digitized form in the PHILIPPINES at that time.

6 Since its last revision in 2000, a number of significant statutes affecting LABOR law have been enacted. Important decisions changing certain well-ensconced doctrines have likewise been enunciated by the Supreme Court, most noteworthy of which is the Agabon rule which was promulgated in November, 2004. Additionally, several major issuances have been made by the President and the other agencies of government tasked to implement and enforce LABOR laws. For instance, the President has issued Executive Order No. 204 on May 05, 2005 delegating to the Secretary of LABOR and Employment the power to exercise administrative supervision over the NLRC. The Secretary of LABOR and Employment, for her part, has also promulgated several edicts, most notable of which is Department Order No. 40-03 in 2003 amending the implementing rules of Book V of the LABOR Code.

7 For its part, the NLRC has changed its rules in 2002 and the NCMB has revised its procedural guidelines in the conduct of voluntary arbitration proceedings in late 2004. All these exciting developments in the law and jurisprudence are reflected in this book and in the other volume by the same author entitled The LABOR Code of the PHILIPPINES ANNOTATED , Volume I [ LABOR Standards and Social Legislation], 2006 edition. This and the other volume are being released in two formats one, in hardbound, and the other, in digitized form - to accommodate those who are more conversant with the latter format. This latest edition is dedicated to the memory of the late Blas F. Ople, the Father of the LABOR Code, who graciously wrote the Foreword to this book in 1996. I cannot repay the precious time he gave up to go over the manuscript of its first edition.

8 Indeed, I am bound in lasting gratitude. J. G. C. Chan Robles Law Firm Philippine Stock Exchange Centre Exchange Road Ortigas Center Pasig City Metro Manila September 09, 2005 TABLE OF CONTENTS v To LABOR and capital in whose hands rest the future of harmonious LABOR relations and industrial peace, this humble work is dedicated. TABLE OF CONTENTS viTABLE OF CONTENTS BOOK FIVE LABOR RELATIONS Page Title I POLICY AND DEFINITIONS Chapter .. 1 1 Article 211. Declaration of 1 1. LABOR RELATIONS, 1 2. LABOR RELATIONS AND LABOR STANDARDS, DISTINGUISHED, 2 3. GENERAL PRINCIPLE IN THE INTERPRETATION AND APPLICATION OF LABOR LAWS, 2 4. STATE POLICY, 2 5. CONSTITUTIONAL FOUNDATION, 3 Chapter 5 5 Article 212. 5 1. DEFINITIONS, 6 2.

9 CHANGE IN NOMENCLATURE, 6 3. LEGAL SIGNIFICANCE OF EMPLOYMENT RELATIONSHIP IN LABOR RELATIONS CASES, 6 a. Legal significance, 6 b. Statutory definitions of employer and employee , 7 c. Statutory definition according to Article 212 [e] and [f], 7 d. Statutory definition according to Article 97, 7 e. Statutory definition according to Article 167, 7 f. Definition in broad sense, 8 g. LABOR organization or its officers or agents as employer, 8 h. Unregistered association may be an employer, 8 i. Kinds of employees, 8 j. Employees who ceased to work but are still deemed employees, 9 k. Substantially equivalent and regular employment , defined, 9 4. LABOR OR INDUSTRIAL DISPUTE, 9 a. LABOR or industrial dispute, meaning and nature, 9 b. Direct employer-employee relationship not essential requisite, 9 c.

10 Test of existence of a LABOR dispute , 10 Title II NATIONAL LABOR RELATIONS COMMISSION Chapter 11 CREATION AND 11 Article 213. National LABOR Relations 11 1. NATURE, 12 2. EXECUTIVE ORDER NO. 185 [MARCH 10, 2003] GRANTED ADMINISTRATIVE SUPERVISION TO DOLE SECRETARY OVER THE NLRC, 12 3. EXECUTIVE ORDER NO. 204 [MAY 05, 2005] DELEGATING TO THE SECRETARY OF LABOR AND EMPLOYMENT THE POWER TO EXERCISE ADMINISTRATIVE SUPERVISION OVER NLRC, 12 4. ORGANIZATION, 14 a. Composition of the NLRC, 14 b. Tripartite composition, 14 c. Commission en banc, 14 d. NLRC s five (5) divisions, 14 e. NLRC acts collegially, 15 f. The NLRC Chairman, 15 g. Review of a case on appeal by same person whose decision is under review, TABLE OF CONTENTS viinot allowed, 15 h. Temporary or emergency transfer of cases from one Division to another, 15 i.