amusement places are

located."







REPUBLIC ACT 9710
MAGNA CARTA FOR
WOMEN

Republic Act 9710 or
the Magna Carta of Wom-
en, was signed into law.
The law prohibits discrim-
ination against women,
and recognizing and pro-
moting their rights. It
likewise ensures womens
equitable participation
and representation in
government, political par-
ties, international bodies,
civil service and the pri-
vate sector.


Features of the new
law:

Designates the Com-
mission on Human Rights
to ensure the promotion
and protection of wom-
ens human rights;
Section 140 of Republic
Act No. 7160, otherwise
known as "The Local Gov-
ernment Code of 1991",
is hereby amended to
read as follows:

"SEC. 140. Amuse-
ment Tax. - (a) The
province may levy an
amusement tax to be
collected from the
proprietors, lessees,
or operators of thea-
ters, cinemas, concert
halls, circuses, boxing
stadia, and other plac-
es of amusement at a
rate of not more than
ten percent (10%) of
the gross receipts
from the admissions
fees
"(b) In the case of
theaters or cinemas,
the tax shall first be
deducted and withheld
by their proprietors,
lessees, or operators
and paid to the pro-
vincial treasurer be-
fore the gross receipts
are divided between
said proprietors, les-
sees, or operators and
the distributors of the
cinematographic films.
"(c) The holding of
operas, concerts, dra-
mas, recitals, paint-
ings, and art exhibi-
tions, flower shows,
musical programs,
literary and oratorical
presentations, except
pop, rock, or similar
concerts shall be ex-
empt from the pay-
ment of the tax herein
imposed.
"(d) The sangguniang
panlalawigan may
prescribe the time,
manner, terms and
conditions for the pay-
ment of tax. In case
of fraud or failure to
pay the tax, the
sangguniang panlala-
wigan may impose
such surcharges, in-
terest and penalties
as it may deem ap-
propriate.
"(e) The proceeds
from the amusement
tax shall be shared
equally by the prov-
ince and the munici-
pality where such
Republic Act No. 9640
AN ACT AMENDING SECTION 140 (A) OF REPUBLIC ACT NO. 7160,
OTHERWISE KNOWN AS "THE LOCAL GOVERNMENT CODE OF 1991"
and
Republic Act No. 9710
MAGNA CARTA FOR WOMEN
AUGUST 2009 VOLUME II, ISSUE No. 8
L C A L C A L C A
LINES LINES LINES
Inside this issue:
Continuation of
Republic Act 9710
(Magna Carta for
Women)
2
Republic Act
9653
2
Revenue Memo-
randum Circular
No. 45-2009
3
Revenue Memo-
randum Circular
No. 31-2009
3
Revenue Memo-
randum Circular
No. 41-2009
4
Jurisprudence 5
JLs Corner 10

Ensures mandatory
training on human rights
and gender sensitivity to
all government personnel
involved in the protection
and defense of women
against gender-based vio-
lence;

Institutes affirmative
action mechanisms so that
"women can participate
meaningfully in the formu-
lation, implementation,
and evaluation of policies,
plans, and programs for
national, regional, and
local development."

The number of women in
third level positions in
government shall be in-
creased to achieve a fifty-
fifty (50-50) gender bal-
ance within the next five
years while the composi-
tion of women in all levels
of development planning
and program implementa-
tion will be at least 40
percent;

Ensures the equal treat-
ment before the law by
ensuring that the State
shall take steps to review
and when necessary,
amend and/or repeal ex-
isting laws that are dis-
criminatory to women
within three years from
the effectivity of the
Magna Carta;

Provides equal access
and elimination of dis-
crimination in education,
scholarships, and train-
ing. Thus, "expulsion,
non-readmission, prohib-
iting enrollment, and
other related discrimina-
tion of women students
and fa-
culty due to pregnancy
out of marriage shall be
outlawed."

Promotes the equal
status given to men and
women on the titling of
the land and issuance of
stewardship contracts
and patents; and

Encourages Local Gov-
ernment Units (LGUs) to
develop and pass a Gen-
der and Development
(GAD) code based on the
gender issues and con-
cerns in their respective
localities based on con-
sultation with their wom-
en constituents.

REPUBLIC ACT NO.
9653
AN ACT ESTABLISH-
ING REFORMS IN THE
REGULATION OF RENT
OF CERTAIN
RESIDENTIAL UNITS,
PROVIDING THE
MECHANISMS THERE-
FOR AND
FOR OTHER PURPOSES

The Rent Control Act of
2009 imposes a year-
long moratorium on rent
increases.

The new law will not al-
low increase in housing
rental for a year, and
after that, it puts a cap
on any increase to only
seven percent until 2013.

The Act of 2009 retains
the salient provisions of
the original Rent Control
Law. These include the
rent increases of covered
units at 10 percent annu-
ally, as long as the unit
is occupied by the same
lessee. The proposed
limit on rent increase will
be effective until Decem-
ber 31, 2011.

Other provisions that
were retained under the
Rent Control Act of 2009
include the following: (1)
a lessor could not de-
mand more than one
month advance and two
months deposit; and (2)
a lessor or his successor-
in-interest is prohibited
from ejecting a lessee on
the ground that the
leased premises has
been sold or mortgaged
to a third person, regard-
less of whether the lease
or mortgage is registered
or not.

The measure also pro-
poses that the grounds
for Judicial Ejectment
would still be limited to
the grounds provided in
the previous law.

For a year from the
time RA 9653 takes ef-
fect, no increase will be
allowed on the rent of
REPUBLIC ACT NO. 9653
RENT CONTROL ACT OF 2009
Page 2 L C A LINES
any residential unit. After
this, rent increase will be
no more than seven per-
cent each year.
The law covers all resi-
dential units in Metro Ma-
nila with a monthly rent
of P1 to P10,000 and all
units in urban cities with a
monthly rent of P1 to
P5,000.

Violators face a fine of
P25,000 to P50,000, or
imprisonment of one
month and a day up to six
months, or both.

According to the law,
when a unit becomes va-
cant, the owner may set
the initial rent for the
next renter. In the case
of boarding houses, dor-
mitories, rooms, and bed
spaces, no increase will
be imposed more than
once a year.

It also says that rent
will be paid in advance
within the first five days
of every month, or at the
beginning of the lease
agreement unless the
contract of lease provides
for a later date of pay-
ment.

It forbids the owner
from demanding more
than one-month advance
rent and more than two-
months deposit. Any in-
terest in the deposit will
be returned to the renter
at the end of the lease
agreement.

If the renter fails to pay
rent or utility bills or de-
stroys house property,
the deposit and interest
shall be forfeited in favor
of the unit owner in the
amount that would cover
the arrears or damages.
The law prohibits the sub
-leasing of the unit with-
out the consent of the
unit owner. This, togeth-
er with the failure to pay
rent for three months
and the owners need to
repossess the property
or make necessary re-
pairs to make it more
safe and habitable, are
grounds for judicial ejec-
tion.

The renter, however,
cannot be ejected on
grounds that the unit has
been sold or mortgaged
to a third person.
The unit owner may en-
gage the renter in a rent-
to-own agreement, which
will be exempt from cov-
erage of the law.



REVENUE MEMORAN-
DUM CIRCULAR NO.
45-2009


All identified users of the
system except self-
employed individuals, are
advised to use the eREG
system for purposes of
securing TIN. Registered
employers including
those with existing eTIN
log-in accounts are re-
quired to enroll using the
system and required to
enroll using the system
and submit their Letter
of Intent (LOI) to the
Revenue District Office
(RDO) having jurisdiction
over the employers ad-
dress. Furthermore, in-
terested Government
Agencies and Instrumen-
talities (GAIs) may sub-
mit their application for
system access by accom-
plishing BIR Form No.
0044 together with the
LOI duly signed by the
Head of Office to the
RDO where the GAI is
registered. The LOI shall
include the following de-
tails:

1. TIN of employers or
GAI;
2. Last name/First
name/Middle name
of authorized user;
3. Job designation of
authorized user;
4. Purpose of Request;
5. Valid email account
of authorized user;
and
6. Internet Protocol (IP)
address of the Per-
sonal Computer (PC)
dedicated to access
the eREG System.



REVENUE MEMORAN-
DUM CIRCULAR NO.
31-2009


Quoted hereunder is the
Memorandum of the
Commissioner dated 6
June 2009 Disallowing
Bangko Sentral ng Pilipi-
nas (BSP) Claimed Inter-
est for Taxable Year
2005.
The letter clarified the
question as to what rul-
ing will prevail to resolve
the conflicting interpreta-
tions of the BIR and the
BSP on the deductibility
of interest expense.
Section 34(B)(1) of the
Tax Code of the 1997
provides that the amount
of interest paid or in-
curred within a taxable
year on indebtedness in
connection with the tax-
payers profession, trade
or business shall be al-
lowed as deduction from
gross income provided
that the taxpayers oth-
erwise allowable deduc-
tion for interest expense
shall be reduced deduc-
tion for interest expense
shall be reduced by an
amount equal to the fol-
lowing percentages of
the interest income sub-
jected to final tax:
Forty-one percent (41%)
beginning January 1,
1998
Thirty-nine percent
(39%) beginning January
1, 1999, and
Thirty-eight percent
(38%) beginning January
1, 2000
On the other hand, Sec-
tion 3 of Revenue Regu-
lations No. 13-2000 dis-
cusses the requisites for
deductibility of interest
expense:
1. There must be an
indebtedness;
2. There should be an
interest expense paid
or incurred upon
such indebtedness;
3. The interest must be
that of the taxpayer;
4. The indebtedness
must be connected
with the taxpayers
trade, business or
exercise of profes-
sion;
5. The interest expense
must have been paid
or incurred during
the taxable year;
6. The interest must
have been stipulated
in writing;
7. The interest must be
legally due;
8. The interest payment
arrangement must
not be between relat-
ed taxpayers as
mandated in Sec. 34
(B)(2)(b), in relation
to Sec. 36(B), both
of the Tax Code of
Page 3 VOLUME II, ISSUE No. 8
1997;
9. The interest must
not be incurred to
finance petroleum
operations; and
10. In case of interest
incurred to acquire
property used in
trade, business or
exercise of profes-
sion, the same was
not treated as a
capital expenditure.

The limitation shall ap-
ply regardless of
whether or not a tax
arbitrage scheme
was entered into by
the taxpayer or re-
gardless of the date
when the interest
bearing loan and the
date when the invest-
ment was made for
as long as, during the
taxable year, there is
an interest expense
incurred on one side
and an interest in-
come earned on the
other side, which in-
terest income had
been subjected to
final withholding tax.
This rules shall be ob-
served irrespective of
the currency of the loan
contracted and/or in
whatever currency the
investments or deposits
were made.
It was represented that
BSP claimed that it is
not liable for the defi-
ciency income tax as-
sessment for the year
2005 for its claimed
interest expense should
not be reduced by a
portion of the interest
income subjected to
final tax.
Thus, if a taxpayer in-
curred indebtedness
plus interest expense
The implementing rules
itself says that the limita-
tion shall apply regardless
of whether or not a tax
arbitrage was entered into
by the taxpayer or re-
gardless of the date when
the interest bearing loan
and the date when the
investment was made for
as long as, during the
taxable year, there is an
interest expense incurred
on one side and an inter-
est income earned on the
other side, which interest
income had been subject-
ed to final withholding tax
and that the rule shall be
observed irrespective of
the currency of the loan
contracted and/or what-
ever currency the invest-
ments or deposits were
made.


REVENUE MEMORAN-
DUM CIRCULAR NO. 41-
2009

Issued to clarify the
meaning of the term
Managerial and Tech-
nical Positions under
Section 25(C) of the Tax
Code of 1997 and to in-
form all internal revenue
officials, employees and
others concerned that
BIR Ruling No. DA-061-
04 issued in favor of Cy-
press Semiconductor
Philippine Headquar-
ters, Ltd.Regional Op-
erating Headquarters
which held that certain
positions of Filipino per-
sonnel of multinational
companies qualify as
managerial and/or tech-
nical positions are enti-
tled to the 15% prefer-
ential tax rate under
Section 25(C) of the tax
Code of 1997 is revoked
insofar as it is incon-
sistent with the provi-
sions of this Revenue
Memorandum Circular.
The alien individuals oc-
cupying managerial and
technical positions re-
ferred to in Section 2.57-
1(D) of Revenue Regula-
tions No. 2-98 as
amended by Revenue
Regulations No. 12-2001
are the so-called
expatriate employ-
ees. BIR Ruling No. DA
450-99 defined
expatriate employees
as follows:
xxx The term
expatriate employ-
ees, however is
classified to refer
only to aliens em-
ployed in manage-
rial, confidential or
highly technical
positions. Thus,
under Philippine
Labor Law, the
employment of non
-resident aliens is
limited only to posi-
tions which are
managerial or
HIGHLY technical in
nature or where
there are no Filipi-
nos who are com-
petent, able and
willing to perform
the services for
which the aliens
are desired.
In Philippine Appliance
Corporation vs.
Laguesma, 226 SCRA
730 (1993), the Su-
preme Court held that
managerial employee
is one who is vested with
powers or prerogatives
to lay down and execute
management policies
and/or to hire, execute
management policies
and/or to hire, execute
management policies
and/or to hire, transfer,
suspend, lay-off, recall,
discharge, assign or dis-
cipline employees.
On the other hand, the
term technical posi-
tion is limited only to
positions which are
highly technical in na-
ture or where there are
no Filipinos who are
competent, able and will-
ing to perform the ser-
vices for which the aliens
are desired.
Only Filipinos employed
and occupying manage-
rial and highly tech-
nical positions as de-
fined above similar to
the positions of the al-
iens employed by region-
al or area headquarters
and regional operating
headquarters of multina-
tional companies shall be
entitled to the option to
be taxed at either 15%
of gross income or at the
regular income tax rate
on their taxable income
in accordance with Sec-
tion 25(C) of the Tax
Code of 1997, as amend-
ed if the employer,
i.e., Regional Operat-
ing Headquarters/
Regional or Area
Headquarters, is gov-
erned by Book III of
E.O. 226, as amended
by R.A. 8756.

Page 4 L C A LINES

MARIA SOLEDAD TO-
MIMBANG
vs.
ATTY. JOSE TO-
MIMBANG
G.R. No. 165116 Au-
gust 14, 2009


FACTS: Maria Soledad
Tomimbang (Soledad)
and Atty. Jose To-
mimbang (Jose) are
siblings. Soledad bor-
rowed money to Jose
which she will use for the
renovation on the follow-
ing conditions: (1) Sole-
dad shall keep a record
of all the advances; (2)
She shall start paying
the loan upon the com-
pletion of the renovation;
(3) upon completion of
the renovation, a loan
and mortgage agreement
based on the amount of
the advances made shall
be executed by Soledad
and Jose; and (4) the
loan agreement shall
contain comfortable
terms and conditions
which Soledad could
have obtained from PAG-
IBIG.

Later, Jose and Soledad
entered into a new
agreement whereby the
latter will start making
monthly payments on
her loan. Soledad turned
over to Jose all the rec-
ords of the cash advanc-
es for the renovations
and made monthly pay-
ments but later stopped
making monthly pay-
ments and ignored the
demands made by Jose.

In its decision, the Re-
gional Trial Court (RTC)
ordered Soledad to pay
Jose.

The Court of Appeals
(CA) affirmed in toto
the RTC judgment.


ISSUES: (1) Whether
or not Soledad's obliga-
tion is due and demand-
able; and
(2) Whether or not inter-
est should be imposed on
Soledad's indebtedness
and, if in the affirmative,
at what rate.

RULING: With regard
to the first issue, the ob-
ligation is due and de-
mandable.

After the renova-
tion apartment units had
been partially completed,
Soledad and Jose agreed
that the former shall al-
ready start making
monthly payments. Jose
demanded payment of
the loan, and Soledad
agreed to pay. Soledad
committed to pay when
she was able.
Evidently, by vir-
tue of the subsequent
agreement, the parties
mutually dispensed with
the condition that Sole-
dad shall only begin pay-
ing after the completion
of all renovations. There
was, in effect, a modifi-
catory or partial nova-
tion, of Soledad's obliga-
tion. Article 1291 of the
Civil Code provides,
thus:

Art. 1291. Obliga-
tions may be modi-
fied by:
1. Changing their
object or principal
conditions;
2. Substituting the
person of the debt-
or;
3.Subrogating a
third person in the
rights of the credi-
tor. (Emphasis sup-
plied)

As can be
gleaned from the forego-
ing, the aforementioned
four essential elements
and the requirement that
there be total incompati-
bility between the old
and new obligation, ap-
ply only to extinctive no-
vation. In partial nova-
tion, only the terms and
conditions of the obliga-
tion are altered, thus,
the main obligation is not
changed and it remains
in force.

Hence, by her
very own admission and
partial performance of
her obligation, there can
be no other conclusion
but that under the novat-
ed agreement, petition-
er's obligation is already
due and demandable.

With regard to
the second issue, under
Article 1169 of the Civil
Code of the Philippines,
since the obligation in
this case involves a loan
and there is no stipula-
tion in writing as to inter-
est due, the rate of inter-
est shall be 12% per an-
num computed from the
date of extrajudicial de-
mand.



ISSUES: (1) Whether
JURISPRUDENCE
Page 5 VOLUME II, ISSUE No. 8
JUDELIO COBARRU-
BIAS
vs.
PEOPLE OF THE PHIL-
IPPINES, THE HON-
ORABLE COURT OF
APPEALS SPECIAL
FORMER SECOND DI-
VISION, and HON.
BONIFACIO SANZ
MACEDA, Acting
Judge of the Regional
Trial Court of Las Pi-
as City, Branch 255
G.R. No. 160610 Au-
gust 14, 2009

FACTS: Judelio Cobar-
rubias (Cobarrubias)
was charged with Frus-
trated Homicide, Homi-
cide, Violation of Sec-
tion 261(Q) of the Om-
nibus Election Code in
relation to Section 32 of
Republic Act No. 7166,
and Illegal Possession of
Firearms under Presi-
dential Decree No.
1866.

The Regional Trial Court
(RTC) dismissed Co-
barrubias charge for
Frustrated Homicide
and Illegal Possession of
Firearms.

Cobarrubias filed with
the RTC a Motion for
Correction of Clerical
Error, alleging that in
the dispositive portion
of the Order, the charge
for Homicide should
have been dismissed
instead of the charge
for Illegal Possession of
Firearm, which should
have been the case set
for further trial but the
same was denied.

or not the CA committed
serious and reversible
error in dismissing the
Petition on the ground of
technicality; (2) Whether
or not there is a conflict
between the fallo and the
body of the order.


RULING: With regard
to the first issue, the CA
committed serious and
reversible error in dis-
missing the Petition.
Section 6, Rule 1 of the
Rules of Court provides
that rules shall be liber-
ally construed in order to
promote their objective
of securing a just,
speedy and inexpensive
disposition of every ac-
tion and proceeding.
Thus, in several cases,
the Supreme Court
(SC) has ruled against
the dismissal of petitions
or appeals based solely
on technicalities especial-
ly when there was subse-
quent substantial compli-
ance with the formal re-
quirements.

Cobarrubias failure to
implead the People of the
Philippines as respondent
was found to be not so
grave as to warrant dis-
missal of the petition.
After all, Cobarrubias
rectified his error by fil-
ing an Amended Petition,
impleading the People of
the Philippines as re-
spondent.

Technicalities may be set
aside when the strict and
rigid application of the
rules will frustrate rather
than promote justice.

With regard to the se-
cond issue, there is a
conflict between the fallo
and the body of the or-
der.

The trial court inadvert-
ently designated the
wrong criminal case
number to the charge for
Illegal Possession of Fire-
arms. Instead of the
charge for Illegal Posses-
sion of Firearm, the trial
court erroneously wrote
the charge for Homicide.

The general rule is that
where there is a conflict
between the fallo, or the
dispositive part, and the
body of the decision or
order, the fallo prevails
on the theory that the
fallo is the final order
and becomes the subject
of execution, while the
body of the decision
merely contains the rea-
sons or conclusions of
the court ordering noth-
ing. However, where
one can clearly and un-
questionably conclude
from the body of the de-
cision that there was a
mistake in the dispositive
portion, the body of the
decision will prevail.

In this case, considering
the clear finding of the
trial court that the prose-
cution failed to prove
beyond reasonable doubt
the guilt of Cobarrubias
in the charges for Homi-
cide and Frustrated Hom-
icide, while the two other
charges for Illegal Pos-
session of Firearms and
Violation of the Omnibus
Election Code require
further evidence, it is
only just and proper to
correct the dispositive
portion to reflect the
exact findings and con-
clusions of the trial court.
Thus, in accordance with
the findings of the trial
court, Frustrated Homi-
cide and Homicide should
be dismissed, while Ille-
gal Possession of Fire-
arms and Violation of
Section 261(Q) of the
Omnibus Election Code in
relation to Section 32 of
Republic Act No. 7166
should be set for further
trial.



STA. LUCIA EAST COM-
MERCIAL CORPORA-
TION
vs.
HON. SECRETARY OF
LABOR AND EMPLOY-
MENT and
STA. LUCIA EAST COM-
MERCIAL
CORPORATION WORK-
ERS ASSOCIATION
(CLUP LOCAL CHAP-
TER),
G.R. No. 162355 Au-
gust 14, 2009



FACTS: Confederated
Labor Union of the Philip-
pines (CLUP), in behalf
of its chartered local,
instituted a petition for
certification election
among the regular rank-
and-file employees of
Sta. Lucia East Commer-
cial Corporation
(SLECC) and its Affili-

Page 6 L C A LINES
ate.

The Med-Arbiter ordered
the dismissal of the peti-
tion due to inappropri-
ateness of the bargaining
unit. CLUP-Sta. Lucia
East Commercial Corpo-
ration and its Affiliates
Workers Union appealed
the order of dismissal but
later on moved for the
withdrawal of the appeal.

CLUP-SLECC and its Affil-
iates Workers Union re-
organized itself and re-
registered as CLUP-Sta.
Lucia East Commercial
Corporation Workers As-
sociation (CLUP-
SLECCWA), limiting its
membership to the rank-
and-file employees of
Sta. Lucia East Commer-
cial Corporation. It was
issued Certificate of Cre-
ation of a Local Chapter.

CLUP-SLECCWA filed the
instant petition. It al-
leged that SLECC em-
ploys about 115 employ-
ees and that more than
20% of employees be-
longing to the rank-and-
file category are its
members. CLUP-
SLECCWA claimed that
no certification election
has been held among
them within the last 12
months prior to the filing
of the petition, and while
there is another union
registered with DOLE
covering the same em-
ployees, namely
SMSLEC, it has not been
recognized as the exclu-
sive bargaining agent of
[SLECCs] employees.

SLECC filed a motion to
dismiss the petition. It
averred that it has volun-
tarily recognized
[SMSLEC] as the exclu-
sive bargaining agent of
its regular rank-and-file
employees, and that col-
lective bargaining negoti-
ations already com-
menced between them.

A CBA between
[SMSLEC] and [SLECC]
was ratified by its rank-
and-file employees and
registered with DOLE.

CLUP-SLECCWA filed its
Opposition and Comment
to SLECCS Motion to
Dismiss. It assailed the
validity of the voluntary
recognition of [SMSLEC]
by [SLECC] and their
consequent negotiations
and execution of a CBA.

The Med-Arbiter dis-
missed CLUP-SLECCWAs
petition.


On appeal, the Secretary
found merit in CLUP-
SLECCWAs appeal.

SLECC filed a motion for
reconsideration which
the Secretary denied for
lack of merit. SLECC
then filed a petition for
certiorari before the ap-
pellate court.


The Court of Appels
(CA) affirmed the rul-
ing of the Secretary.

ISSUE: Whether or not
the CA committed a re-
versible error when it
affirmed the Secretarys
finding that SLECCs vol-
untary recognition of
SMSLEC was done while
a legitimate labor organi-
zation was in existence in
the bargaining unit.


RULING: The CA did
not commit a reversible
error when it affirmed
the Secretarys finding
that SLECCs voluntary
recognition of SMSLEC
was done while a legiti-
mate labor organization
was in existence in the
bargaining unit.

Employees in two corpo-
rations cannot be treated
as a single bargaining
unit even if the business-
es of the two corpora-
tions are related.

SLECC cannot ignore that
CLUP-SLECC and its Affil-
iates Workers Union was
a legitimate labor organi-
zation at the time of
SLECCs voluntary recog-
nition of SMSLEC. SLECC
and SMSLEC cannot, by
themselves, decide
whether CLUP-SLECC
and its Affiliates Workers
Union represented an
appropriate bargaining
unit.

The inclusion in the un-
ion of disqualified em-
ployees is not among the
grounds for cancellation
of registration, unless
such inclusion is due to
misrepresentation, false
statement or fraud under
the circumstances enu-
merated in Sections (a)
to (c) of Article 239 of
the Labor Code. Thus,
CLUP-SLECC and its affil-
iates workers union, hav-
ing been validly issued a

Page 7 VOLUME II, ISSUE No. 8
Certificate of Registra-
tion, should be consid-
ered as having acquired
juridical personality
which may not be at-
tacked collaterally. The
proper procedure for
SLEC is to file a Petition
for Cancellation of Cer-
tificate of Registration
of CLUP-SLECC and its
affiliates workers union
not to immediately
commence voluntary
recognition proceeding
with SMSLEC.
SLECC was not an unor-
ganized establishment
when it voluntarily rec-
ognized SMSLEC as its
exclusive bargaining
representative. CLUP-
SLECC and its affiliates
workers union filed a
Petition for Certification
Election and this peti-
tion remained pending.
Thus, SLECCs volun-
tary recognition of
SMSLEC while the Peti-
tion for Certification was
pending, the subse-
quent negotiations and
resulting registration of
a CBA executed by
SLEC are void and can-
not bar CLUP-
SLECCWAs present Pe-
tition for Certification
Election.

In petitions for certifica-
tion election, the em-
ployer is a mere by-
stander and cannot op-
pose the petition or ap-
peal the Med-Arbiters
decision. The exception
to this rule, which hap-
pens when the employ-
er is requested to bar-
gain collectively, is not
present in the case.


Llamas was asked to
submit an explanation for
such attitude toward
Macaraig which the com-
pany found unsatisfacto-
ry. The company sent
her a notice of termina-
tion from employment
anchored on gross and
habitual neglect of duty
and/or serious miscon-
duct or willful disobedi-
ence/insubordination,
drawing Llamas to file
before the National Labor
Relations Commission
(NLRC) a Complaint
against the company and
Macaraig for illegal dis-
missal, illegal deduc-
tions, damages and at-
torneys fees.

The Labor Arbiter found
Llamas dismissal to have
been for a just cause and
with due process.

On appeal, the National
Labor Relations Commis-
sion (NLRC), found Lla-
mas to have been illegal-
ly dismissed, it set aside
the Labor Arbiters deci-
sion.

On petition for certiorari,
the Court of Appeals
(CA) nullified the NLRC
decision and reinstated
the Labor Arbiters deci-
sion.

ISSUE: (1) Whether or
not Llamas was illegally
dismissed; and
(2) Whether or not due
process was accorded to
Llamas.

RULING: With regard
to the first issue, Llamas
was not illegally dis-
missed.

In the present case, Lla-
mas, as the companys
Accounting Manager,
failed to discharge her
important duty of remit-
ting SSS/PhilHealth con-
tributions not once but
quadruple times, result-
ing in companys incur-
ring of penalties, not to
mention the employees/
members contributions
being unupdated.

Under Article 282 (b) of
the Labor Code, negli-
gence must be both
gross and habitual to
justify the dismissal of an
employee. Gross negli-
gence is characterized by
want of even slight care,
acting or omitting to act
in a situation where
there is a duty to act, not
inadvertently but willfully
and intentionally with a
conscious indifference to
consequences insofar as
other persons may be
affected.

As to the second issue on
whether due process was
accorded Llamas, the
Supreme Court (SC)
rules in the affirmative.
Far from being arbitrary,
the termination of her
services was effected
after she was afforded
the opportunity to, as
she did, submit her ex-
planation on why she
should not be disciplined
or dismissed, which ex-
planation, it bears reiter-
ation, was, however,
found unsatisfactory.









RICARDO C. DUCO
vs.
COMMISSION ON ELEC-
TIONS, FIRST DIVI-
SION;
AND NARCISO B.
AVELINO
G. R. No. 183366 Au-
gust 19, 2009

FACTS: In Barangay Iba-
bao, Loay, Bohol, Ricardo
Duco (Duco) was pro-
claimed as the elected
Punong Barangay. His
opponent, Narciso
Avelino, initiated an elec-
tion protest in the Munici-
pal Circuit Trial Court
(MCTC), seeking a re-
count of the ballots in four
precincts upon his allega-
tion that the election re-
sults for the position of
Punong Barangay were
spurious and fraudulent
and did not reflect the true
will of the electorate.

The MCTC ultimately ruled
in favor of Avelino.

Duco filed his notice of
appeal and paid as appeal
fees the amount of
P820.00. The Commission
on Election (COMELEC)
dismissed Ducos appeal,
holding that the appeal fee
under Section 3, Rule 40
of the COMELEC Rules of
Procedure requires the
payment in the amount of
P3,000.00 thus, a ground
for dismissal pursuant to
Section 9(a) Rule 22 of the
same Rules.


Duco moved for reconsid-
eration, but the COMELEC
denied his motion.

ISSUE: Whether or not
the COMELEC gravely
abused its discretion






EDEN LLAMAS
vs.
OCEAN GATEWAY MARI-
TIME AND MANAGEMENT,
INC.
G.R. No. 179293 Au-
gust 14, 2009



FACTS: Ocean Gateway
Maritime and Management,
Inc. (company) hired
Eden Llamas (Llamas) as
an accounting manager.

Mary Anne T. Macaraig
(Macaraig), Llamas Chief
Executive Officer, called the
latters attention on her fail-
ure, despite repeated de-
mands, to accomplish the
long overdue monthly and
annual company financial
reports and to remit the
companys contributions to
the Social Security System
(SSS) and PhilHealth.

On account of the delay in
the remittance of those
contributions, the company
was penalized which it
charged to Llamas via sala-
ry deductions.

Macaraig sent a memoran-
dum to Llamas charging her
with gross and habitual ne-
glect of duty and/or miscon-
duct or willful disobedience
and insubordination, detail-
ing therein the bases of the
charges, and requiring her
to submit a written explana-
tion why she should not be
penalized or dismissed from
employment.

Later, Macaraig instructed
Llamas to encash a check
and remit the proceeds
thereof. The latter refused,
but later on complied to the
orders of Macaraig.


amounting to lack or ex-
cess of jurisdiction in dis-
missing Ducos appeal and
in denying his motion for
reconsideration.

RULING: The COMELEC
did not gravely abuse its
discretion amounting to
lack or excess of jurisdic-
tion in dismissing Ducos
appeal and in denying his
motion for reconsideration.

The dismissal of the appeal
was in accordance with
Sec. 9 (a), Rule 22 of the
COMELEC Rules of Proce-
dure, which pertinently
states:

Sec. 9. Grounds for
Dismissal of Appeal.-
The appeal may be
dismissed upon mo-
tion of either party or
at the instance of the
Commission on any of
the following grounds:

Failure of
the appel-
lant to pay
the correct
appeal fee;
xxx

The payment of the defi-
ciency beyond the five-day
reglementary period did
not cure the defect, be-
cause the date of the pay-
ment of the appeal fee is
deemed the actual date of
the filing of the notice of
appeal. Accordingly, his
appeal, filed already be-
yond the five-day regle-
mentary period, rendered
the decision of the MCTC
final and immutable.

The payment of the full
amount of docket fee with-
in the period to appeal is a
sine qua non requirement
for the perfection of an
appeal. Such payment
is not a mere technicality
of law or procedure, but
an essential require-
ment, without which the
decision or final order
appealed from becomes
final and executory, as if
no appeal was filed.



An appeal is not a right
but a mere statutory
privilege that must be
exercised strictly in ac-
cordance with the provi-
sions set by law.

Page 9 VOLUME II, ISSUE No. 8
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What is intelligence?

Larry and Jonathan were digging a ditch on a very hot day. One said to the
other, "Why are we down in this hole digging a ditch when our boss is
standing up there in the shade of a tree?" "I don't know," responded the
other. "I'll ask him."

So Larry climbed out of the hole and went to his boss. "Why are we dig-
ging in the hot sun and you're standing in the shade?" "Intelligence," the
boss said. "What do you mean, intelligence'?"

The boss said, "Well, I'll show you. I'll put my hand on this tree and I want
you to hit it with your fist as hard as you can." Larry took a mighty swing
and tried to hit the boss' hand. The boss removed his hand and Larry hit
the tree. The boss said, "That's intelligence!"

Larry went back to his hole. Jonathan asked, "What did he say?" "He said
we are down here because of intelligence." "What's intelligence?" said Jon-
athan. Larry put his hand on his face and said, "Take your shovel and hit
my hand."