Volume: VOL.. XIX – No. 3
Date: September 30, 2007

VERA LEGAL BRIEFS

Demand for a car loan payments not an issue in a labor dispute

Following dismissal of certain employees who have availed of the company’s car loan policy, Nestle Phils. demanded payment of the remaining balance of their car loan or return the cars to the company.

Acting on the employees’ petition for a temporary restraining order against the company’s demand pending resolution of their complaint for illegal dismissal, the NLRC issued the relief prayed for upon the supposition that the car loan issue is an offshoot of the illegal dismissal case. (Under Art. 218, Labor Code, authority of the National Labor Relations Commission to issue writs of injunction can only be exercised in a labor dispute). The Court annulled the questioned NLRC order, holding that the company’s demand vis’-a’-vis’ the car loans “x x x is not a labor, but a civil, dispute. It involved debtor-creditor relations, rather than employee-employer relations” (G.R. No. 81597, March 18, 1991).

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BI assures overstaying aliens of leniency

Overstaying aliens in the country are urged by the Bureau of Immigration (BI) to legalize their status with the assurance that they will not be arrested if they voluntarily update their stay.

BI Commissioner Marcelino Libanan urged the overstaying aliens to avail of the BI’s new policy liberalizing its rules on visa extension for all foreign tourists regardless of their nationality.

The Commissioner assured these aliens that they will not be arrested as long as they update their stay, pay the necessary fees, and if they have been living here for more than two years, voluntarily leave the country.

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Separation pay in lieu of reinstatement?

The general rule is that employees who are illegally dismissed are entitled to backwages and reinstatement to their former position without loss of seniority rights.

There are instances, however, where reinstatement is no longer viable as in these cases:

1) Where the business of the employer has closed;

2) Where the relations between the employer and the employee
have become severely strained that it becomes
inadvisable to order reinstatement; or

3) Where the employee decides not to be reinstated.

In the foregoing instances, the employer will instead be ordered to grant separation pay (G.R. 117936-37, 5/20/98).

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Q and A – A brief primer on Wage Order No. NCR-13
covering the national capital region (NCR)

Q: What areas are covered by WO-NCR-13?

A: NCR covers the cities of Caloocan, Manila, Pasay and Quezon, Las Piñas, Makati, Malabon, Mandaluyong, Marikina, Muntinlupa, Navotas, Parañaque, Pasig, Pateros, San Juan, Taguig, Cainta and Valenzuela.

Q: What is the amount of wage increase for NCR?

A: WO-NCR-13 mandates integration of the COLA (P30.00 per WO-NCR-09
and P20.00 per WO-NCR-10) into the basic wage, and after such
integration, an increase of P12.00 per day in the basic wage
effective August 28, 2007.

Q: What are now the effective daily minimum wage rates for workers in the NCR?

A: Effective August 28, 2007, the daily minimum wages in NCR are
shown in the table hereunder:

Q: Who are entitled to the P12.00 wage increase prescribed under WO NCR-13?

A: Only workers in the private sector who are minimum wage earners
on the effectivity of WO-NCR-13 are entitled to the P12.00 increase
regardless of their position or status of employment and the
method of their income payment.

This Wage Order does not cover domestic helpers, persons in the personal
service of another, including family drivers and workers of duty registered
BMBEs (under RA 9178).

Q: What establishments may be exempted from compliance with WO NCR-13?

Upon application with and as determined by the Wage Board, the following
may be exempted from compliance with WO NCR-13:

A: Mere absence does not constitute abandonment

Mere absence or failure to report for work does not constitute abandonment
of work. There must be clear proof of deliberate and unjustified intent to
sever the employer-employee relationship (413 SCRA 162).

1. Distressed establishments;
2. Establishments facing potential losses;
3. Retail/Service establishment employing not more than ten (10) Workers;
4. Establishments whose total assets, including those arising from loans, but exclusive of the land on which the particular business entity’s office, plant and equipment are situated, are not more than Three Million Pesos (P=3,000,000.00); and,

5. Establishments adversely affected by natural calamities.

Application for exemption shall be filed with the Wage Board within 75 days from the publication date of the implementing Rules of WO NCR-13 with complete supporting documents specified in the Rules.

Q: May a wage increase granted by an employer prior to August 28, 2007 be deemed compliance with WO NCR-13?

A: In an organized or unionized establishment a wage increase granted by the employer within three (3) months prior to August 28, 2007 shall be credited as compliance with the wage order provided there is an agreement by the parties or CBA provision allowing such crediting.

In an unorganized establishment, a wage increase granted by the employed within five (5) months prior to August 28, 2007 shall be credited as compliance with the Wage Order.

Q: What is meant by “wage distortion”?

A wage distortion results where the prescribed wage increase effectively erases the quantitative differences in wage rates between or among employee groups based on skills, length of service or other logical bases of wage differentiation.

Where the increase under WO NCR-13 results in distortions in the wage structure in the establishment, the same shall be corrected in accordance with the procedure under Article 12 of the Labor Code.

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 Visitor’s visa extendible up to two years

The steady increase in foreign tourists prompted the Bureau of Immigration to authorize them to extend their stay in the country for up to two years.

Under the Memorandum Order issued by the BI dated July 31, 2007 foreigners with temporary visitor’s visa may extend their stay in the country from two months up to 16 months even without the approval of any BI official.

Visa extensions can even be as long as 24 months or two years with approval by the Bureau’s Immigration Regulation Division. However, extension of stay after 24 months requires the approval of the BI Commissioner.

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 Non-performance by carrier

In an action for breach of contract of carriage, the aggrieved party does not have to prove that the common carrier was at fault or was negligent. All that is necessary to prove is the existence of the contract and the fact of its non-performance by the carrier (G.R. 142305, 12/10/03).

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Rule against forum shopping does not cover responsive pleading

For resolution before the Supreme Court is a petition for certiorari alleging that the trial court and the Court of Appeals gravely abused their discretion in not dismissing the respondent bank’s counterclaim for lack of certification against forum shopping.

Petitioners’ contention of grave abuse of discretion by the lower courts is “utterly baseless,” ruled the highest court. -Section 5, Rule 7 of the 1997 Rules of Civil Procedure provides that the required certification against forum shopping is intended to cover only an initiatory pleading which is an “incipient application of a party asserting a claim for relief.”

The respondent bank’s answer with counterclaim is a responsive as opposed to an initiatory pleading, and filed merely to counter petitioners’ complaint that initiates the civil action. The rule banning, forum shopping does not cover a defendant’s/respondent’s claim for relief that arises from, or is directly connected with the main action or complaint. In fact, declared the Court, failure of the plaintiff to comply with such requirement will result in the “dismissal of the case without prejudice”--not the dismissal of the respondent’s counterclaim (CA-G.R. SP No. 58995).

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 Fixed-period of employment is not void per se

At issue in Brent School v. Zamora was the employment contract between the school and its Athletic Director which fixed a specific term of five years from the date of its execution. The Supreme Court upheld the validity of the contract between the school and the Director fixing the latter’s period of employment.

Although Article 280 of the Labor Code [defining regular and casual employment] seeks to prevent circumvention of the employee’s right to security of tenure, it

should not apply, said the court, to all instances of fixed-period of employment. As it ruled in the Brent case, the Court reiterated that Article 280 should not apply ---

“to instances where a fixed period of employment was agreed upon knowingly and voluntarily by the parties, without any force, duress or improper pressure xxx upon the employee and any other circumstances vitiating his consent xxx or where the employer and employee dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter” (G.R. 168052)

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 Meaning of “to be heard” in due process

To be heard” does not only means verbal arguments in court. One may also be heard through pleadings (G.R. 2023; Llora Motors v. Drilon).

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BRIEFLY NOTED

Actual use a pre-requisite to ownership

Actual use in commerce in the Philippines is a pre-requisite to the acquisition of ownership over a trademark or tradename. Adoption alone of a trademark is not considered actual use and would not give exclusive rights to the holder of such trademark (G.R. 75420, 11/25/91).

Domestic helper or regular employee?

A househelper hired by a company to do work inside company premises--as in the staff house--is a regular employee rather than a domestic helper (G.R. 94951. 4/22/91).

Conflict of interest bars affiliation

A supervisory union is disqualified from affiliating with a national federation of labor organizations which includes the company’s rank-and-file employees’ union (Atlas Lithographic vs. DOLE, 1/6/92).

Valid, existing CBA bars certification election

If a collective bargaining agreement