Professional Documents
Culture Documents
LABOR LAW
Part I
that govern the individual and collective interaction of ERs and EEs or their representatives. Ex. Book V of Labor Code 3. Welfare Legislation designed to take care of contingencies which may affect workers, e.g. where there is loss of income for research beyond the workers control. BENEFITS * Social Security Law. 1.3 History and Origin 1.4 Basis for Enactment 1. Art. II, Sec.5, Const. : The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of general welfare are essential for the enjoyment by all the people of the blessing of democracy. Art. II, Sec. 18, Const. : The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Art. XIII, Sec. I, Const. : The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.
Introductory Materials Section 1. Labor Law in General 1.1 Labor Law Defined [S, R, J] 1. Labor Legislation Consists of statutes, regulations and jurisprudence governing the relations between capital and labor by: a. b. providing for certain terms and conditions of employment or providing a legal framework within which these terms and conditions and the employment relationships may be 2. negotiated adjusted and administered.
2. 3.
Social Legislation Includes all laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice. In that sense, labor laws are necessarily social legislation. promote public welfare
1.2 Law Classification 1. Labor Standards Law That which sets out the minimum terms, conditions and benefits of employment that ERs must provide or comply with and to which EEs are entitled as a matter of legal right. Ex. 8-hour labor law Labor Relations Law That which defines [S R D & IM]
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. * Labor and social legislation are enacted pursuant to the police power of the State. This is its inherent power to enact wholesome and reasonable laws to promote order, safety, health, morals and general welfare of society. In its exercise the state may interfere with personal liberty, with property and with business and occupation. (Calalang vs. Williams).
2.
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1.5 Law and Worker The SC reaffirms its concern for the lowly worker who, often at the mercy of his ER, must look up to the law for protection. Fittingly, the law regards him with tenderness and even favor and always with hope in his capacity to help in shaping the nations future. It is an error to take him for granted. (Cebu Royal Plant vs. Deputy Minister of Labor) Section 2. Labor and the Constitution 2.1 Constitutional Provisions 1. Art. II, Sec. 9, Const. : The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. Art. II, Sec. 10, Const. : The State shall promote social justice in all phases of national development. Art. II, Sec. 13, Const. : The State recognized the role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. . Art. II, Sec. 14, Const. : The State recognizes the role of women in nation-building, and shall ensure their fundamental equality before the law of women and men. Art. II, Sec. 18, Const. : The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. Art. XIII, Sec. 1, Const. : The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce
7.
Art. XIII, Sec. 3 (1st par), Const. : 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 . . .
8.
2. 3. 4. 5. 6.
Art. XIII, Sec. 4, Const. : The State shall, by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to win collectively or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof . . . 9. Art. XIII, Sec. 11, Const. : The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost . . . 10. The present Constitution has gone further than the 1973 Constitution in guaranteeing vital social and economic rights to marginalized groups of society, including labor. The framers of the Constitution intended to give primacy to the rights of labor and afford the sector full protection regardless of the geographical location of the workers and whether they are organized or not (Globe Mackay vs. NLRC). 2.2 Protection to Labor 1. Art. XIII, Sec. 3, Const. : 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 1) self organization, 2) collective bargaining and negotiations, and 3)
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2.4 Policy Considerations Social Justice 1. 2. Art. II, Sec. 10, Const. : The State shall promote social justice in all phases of national development. What does social justice envision? It envisions [E, R, C] a. b. c. equitable diffusion of wealth and political power for the common good; regulation of the acquisition, ownership, use and disposition of property and its increments; and creation of economic opportunities based on freedom of initiative and self-reliance. (Art. XIII, Sec. 1 & 2, Const. ; Alcantara)
Definition [H, E, P, A] 1. Social justice is neither communism nor despotism, nor atornism, nor anarchy, but the humanization of laws and the equalization of social and economic forces so that justice in its rational and objectively secular conception may at least be approximated. It means the promotion of the welfare of the people, the adoption of measures by the government to ensure economic stability of all the competent elements of society, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. (Calalang vs. Williams) What does social justice guarantee? Social justice does not champion division of property of economic status; what it guarantees are equality of opportunity, equality of political rights, equality before the law, equality between values given and received, and equitable sharing of the social and material goods on the basis of efforts exerted in their production. (Guido vs. RPA) Those who have less in life should have more in law Equal pay for equal wok
2.
Laissez Faire 1. Laissez faire or the principle of free enterprise never found full acceptance in this jurisdiction . . . (ACCFA vs. CUGCO)
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Art. III, Sec. 16, Const. : All persons shall have the right to a speedy disposition of their cases before all judicial, quasijudicial or administrative bodies. Art. III, Sec. 18 (2), Const. : No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.
Labor as Property The right of a person to his labor is deemed property within the meaning of the Constitutional guarantees. That is his means of livelihood. He cannot be deprived of his labor or work without due process of law. (Phil. Movieworkers Assn. Vs. Premiere Productions) Due Process Requirements * The twin requirements of notice and hearing constitutes essential elements of due process in cases of EE dismissal: the requirement of notice is intended to inform the EE of the ERs intent to dismiss and the reason for the proposed dismissal; upon the other hand, the requirement of hearing affords the EE an opportunity to answer his ERs charges against him and accordingly to defend himself therefrom before dismissal is effected. Neither of these 2 requirements can be dispensed with without running afoul of the Constitution. (Century Textile vs. NLRC) Liberty of Contract and State Interference * Legislation appropriate to safeguard to peoples vital interests may modify or abrogate contracts already in effect. Reservation of essential attributes of sovereign power is read into contracts as a postulate of the legal order. All contracts made with reference to any matter that is subject to regulation under the police power must be understood as made in reference to the possible exercise of that power. (Abella/Had. Danao vs. NLRC) such was the case when Art. 283 of the Labor Code granted severance pay to workers
Protection to Labor 1. The law must protect labor, at least to the extent of raising him to equal footing in bargaining relations with capital and to shield him from abuses brought about by the necessity for survival. It is safe to presume, therefore, that an EE or laborer who waives in advance any benefit granted him by law does so, certainly not in his interest or through generosity but under the forceful intimidation of urgent need; and hence, he could not have so acted, freely and voluntarily. (Sanchez vs. Harry Lyons)
2.6 Other Rights 1. Art. II, Sec. 10, Const. : No law impairing the obligation of contracts shall be passed.
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2.
Waiver and Compromise * Not all waivers and quitclaims are invalid as against public policy 1. It is only when there is clear proof that the waiver was wangled an unsuspecting person, or the terms of settlement are unconscionable on its face, that the law will step in to annul the questionable transaction. But where it is shown that the person making the waiver did so voluntarily, with full understanding of what he was doing, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as a valid and binding undertaking. (Sicangco vs. NLRC) Should a party fail or refuse to comply with the terms of a valid compromise or amicable settlement, the other party could either enforce the compromise by a writ of execution, or regard it as rescinded and to insist upon his original demand. (Morales vs. NLRC) Voluntary consideration not unconscionable Waiver of future benefits is not valid and binding The law does not consider as valid any agreement a. b. to receive less compensation on what a worker is entitled to recover to prevent him from demanding benefits to which he is entitled 3.
2.
4.
3.
Instances when quitclaim, waiver or compromise invalid: 1. A worker hospitalized for several times for work-related accidents was told by an immediate supervisor and a personnel officer to retire and execute a quitclaim or else would be dismissed and got nothing. The retirement and quitclaim was made under threat of dismissal. (Alcantara) A messenger with 5 years employment resigned and executed a quitclaim after being told by his manager to resign or else charges will be filed against him. The threat was unjust since the messenger did not commit any unlawful act. There was intimidation, which vitiated consent. (Guatson Tours vs. NLRC)
2.
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Drug Testing G. R. : cannot right to privacy Exception: if job or occupation involve public safety Example: a. b. bus drivers security guards
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Participation in Decision-making Process Only if it affects his [R, D, W]: a. b. c. rights duties welfare not management operation prerogatives regarding business
7.
1.
where
The law explicitly considers it a State Policy to ensure the participation of workers in decision and policy-making processes affecting their rights, duties and welfare. However, a line must be drawn between management prerogatives regarding business operations per se and those which affect
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Section 3. Labor and the Civil Code 3. 1 1. Role of Law Art. 1700, NCC : The relation between capital and labor are merely contractual. They are so impressed with public interest that labor contracts must yield to common good. Therefore, such contracts are subject to special laws on labor unions, collective bargaining, strikes, lockouts, closed shops, wages, working conditions, hours of labor and similar subjects. ER-EE Standard of Conduct * Art. 1701 : Neither capital nor labor shall act oppressively against the other, or impair the convenience of the public.
3.2
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Test-GOCC 1. 4.4 1. The rule now is that only the GOCCs with original charters come under the Civil Service Law. (Cabrera vs. NLRC) Implementing Rules Art. 5: Implementing rules and regulations of the DOLE and other government agencies of the Code shall become effective * 15 days after announcement newspapers of general circulation. Limitation Rule Making Power 1. * This power is limited to the promulgation of rules and regulations to effectuate policies of the Code. Such rules and regulations must conform to the terms and standard prescribed in the statute. They cannot supplant its plain and explicit command. (Alcantara) * A rule or regulation promulgated by an administrative body, such as the DOLE, to implement a law, in excess of its rulemaking authority is void. (Azucena) 2. Examples of void IRRs: * IRR providing the 10-day period specified in Art. 223 refers to working days as stated in the article. of their adoption in
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1. 2. 3. 4. 5.
Afford protection to labor Promote full employment Ensure equal work opportunities regardless of sex, race or creed Regulate the relations between workers and ERs. Assure the rights of workers to self-organization, collective bargaining, security of tenure, and just humane conditions of work.
* The provision in case of doubt does not apply where the pertinent provisions of the Labor Code leave no room for doubt either in their interpretation or application. (Bonifacio vs. GSIS) Sweeping Interpretation * The Supreme Court cannot also adopt a sweeping interpretation of the law, lest it engages itself in judicial legislation. (Bravo vs. EEC) Factual Consideration and Rationality * The care and solitude in the protection and vindication of the right of workingmen cannot justify disregard of relevant facts or schewal of rationality in the construction of the text of applicable rules in order to arrive at disposition in favor of an EE. (PAL vs. NLRC) Equity and Moral Consideration * Considerations of equity and social justice cannot prevail against the expressed provisions of labor laws. (Manning vs. NLRC) Balancing Conflicting Claims
4.6 Law Interpretation 1. Art. 4 : 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. Art. 1702, NCC : In case of doubt, all labor legislation and labor contracts shall be construed in favor of the safety and decent living of the laborer.
2.
In Favor Labor-Rationale * This kind of interpretation gives meaning and substance to the liberal and compassionate spirit of the law. The policy is to extend the decrees applicability to a greater number of EEs to enable them to avail of the benefits under the law, in consonance with the States avowed policy to give maximum aid and protection to labor. (Abella vs. NLRC)
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3.
* In cases where the relationship of ER-EE still exists, the power to issue Compliance Orders to give effect to the labor standard provisions of this Code and other social legislation. Writs of execution to the appropriate authority shall be issued for the enforcement of the said orders, except in cases: a. b. where the ER contests the findings of the labor employment and enforcement officer; and raises issues supported by documentary profits which were not considered in the course of inspection.
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4. 5.
* Order Stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance poses grave and imminent danger to the health and safety of workers in the workplace. Within 24 hours, a hearing shall be conducted to determine whether an order for the stoppage of work and suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the ER, he shall pay EEs their EEs their salaries or wages during said period.
6.
Disputes arising from Art. 264 including legality of strikes and lockouts
* It shall be unlawful for any person to Obstruct, impede, delay or otherwise render ineffective the order of the Secretary of Labor. * No inferior court shall issue a temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders in accordance with this Article. * Any government EE found guilty of violation, after appropriate administrative investigation, be subject to Summary dismissal from the service.
2. Art. 128 : Visitorial and Enforcement Power of the Secretary of Labor or his duly authorized representative. 1. 2. Accesss to ERs records and premises at anytime of the day or night whenever work is being undertaken therein and copy thereform; Question any EE; and
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* The complaint shall be resolved within 30 days from the date of the filing of the same. 4. Art. 288 : Penalties and Jurisdiction a. Except, as otherwise provided in the Code, or unless the acts complained of hinges in a question or interpretation or implementation of ambiguous provisions of an existing CBA, any violation of this Code declared to be unlawful or penal in nature shall be punished with: a fine not less than P1,000.00 nor more than P10,000.00. or imprisonment of not less than 3 months nor more than 3 years. Or both such fine and imprisonment at the discretion of the court. In addition to such penalty any alien found guilty shall be summarily deported upon completion of service of service.
Section 5. Work Relationship 5. 1 Work Relationship ER and EE 1. Art. 97 (a) and (b) : Person means individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons. (b) ER includes any person acting directly or indirectly in the interest of the ER in relation to an EE and shall include the Government and all its branches, subdivisions and instrumentalities, all GOCCs and institutions, as well as nonprofit private institutions, or organizations.
b.
Any criminal offense punished under this Code shall be under the concurrent jurisdiction of the MTC and the RTC.
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Is the purchaser of the assets of an ER corporation considered a successor ER of the latters EE? No. Labor contracts are not enforceable against a transferee of an enterprise, labor contracts being in personam, thus binding only between parties.
ER-EE Relationship Independent Contractor and Labor Contractor 1. Art. 106 : Contractor or subcontractor a. Whenever an ER enters into a contract with another person for the performance of the formers work, the EEs of the contractor and of the latters subcontractor, if any
* The workers recruited and placed by such person are performing activities which are directly related to the principal business or operations of the ER in which the workers are habitually employed.
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b.
4.
*Where the ER-EE relationship has become ascertained, the ER becomes bound by statutory requirements pertaining, though not limited, to terms and conditions of employment, labor relations and post employment. (Phone-Poulenc vs. NLRC) Nonetheless, when a contractor fails to pay the wages of his EEs, the ER who contracted out the job to the contractor becomes jointly and severally liable with his contractor to the EEs of the latter to the extent of the work performed under the contract as if such ER were the ER of the contractors EEs. The law itself, establishes an ER-EE relationship between the ER and the job contractors EEs for a limited purpose i.e. in order to ensure that the latter get paid the wages due them. A similar situation obtains where there is a labor-only contracting. This time, however, for a comprehensive purpose: ER for purposes of this Code, to prevent any violation or circumvention of any provision of this Code. The law in effect holds both the ER and the labor only contractor responsible to the latters EEs for more effective safeguarding of the EEs rights under the Labor Code. (PBC vs. NLRC) A. DETERMINATION * In determining whether the relationship is that of ER and EE or one of independent contractor, each case must be determined on its own facts and all the features of the relationship must be considered. (Villaluga vs. NLRC) ** the existence of an ER-EE relationship is a question of law and cannot be made the subject of agreement * the nature of ones business is not determined by self-serving appellations one attaches thereto but by the tests provided by statute and prevailing case law B. FACTORS 1. The existence of ER-EE relationship is determined by the following elements namely:
5.
2.
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(WEDS) although the latter is the most important element. (Rosario Brothers vs. Ople) No particular form of evidence is required to prove the existence of an ER-EE relationship. Any competent and relevant evidence to prove the relationship may be admitted (Opulencia vs. NLRC) 2. Is there an ER-EE relationship? * Workers under a pakiao agreement arranged by G whom PRC considered as an independent contractor. ER gives orders to G, on where to store the copra, when to bring out, how much to load and where, and what class of copra to handle. The equipment used is owned by PRC. Yes. PRC has direct control over the handling of the copra. The control test is satisfactorily met. * Piece workers subject to specifications. Yes. The fact that the making of the basket is subject to Dys specifications indicates the existence of control. (Dy Koh Beng vs. ILMU) * Tailors, pressers, stitchers and similar workers employed by COD on a piece-work basis. The EEs are governed by the companys regulations i.e. 8-hour workday, recording of attendance etc Furthermore, a master cutter distributes job orders equally, supervises the work and sees to it that they were finished as soon as possible. Yes. The workers conduct in the performance of their work was controlled by the company (Rosario vs. Ople) * Cargadores and pahinantes recruited by SMC through a labor contractor who are governed by the regulations of the SMC whose work consisted of loading, unloading, pilling or palleting empty bottles and wooden shells from company trucks and warehouses. Yes. The evidence firmly establishes the control exercised by the SMC. (BLUM vs. Zamora)
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E.
AGREEMENT * The existence of an ER-EE relationship is a question of law and being such, it cannot be made the subject of an agreement. (Tabas vs. CMC)
5.2 Independent Contractor and Labor Contractor Only 1. Art. 106 : Contractor or subcontractor a. Whenever an ER enters into a contract with another person for the performance of the formers work, the EEs of the contractor and of the latters subcontractor, if any shall be paid in accordance with the provisions of this Code. In the event that the contractor or the subcontractor fails to pay the wages of his EE in accordance with this Code, the ER shall be jointly and severally liable with his contractor or subcontractor to such EEs to the extent of the work performed under the contract, in the same manner and extent that he is liable to EEs directly employed by him. b. There labor-only [considered as agent] contracting where: * the person supplying workers to an ER does not have substantial capital [substantial] investment in the form of tools, equipment, machineries, work premises, among others
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** Examples of Independent Contractor: * Commission agent : IPC Company entered into agreement with registered representatives who worked on a commission basis. While the agents were subject to a set of rules and
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6.2 Employment Agencies Private Sector-Agencies and Entities A. PARTIES A.1. Worker * Art. 13 (a) Worker any member of the labor force, whether employed or unemployed A.2 Agency * Art. 13 (c) : Private fee-charging employment agency any person or entity engaged in the recruitment or placement of workers for a fee which is charged directly or indirectly, from the workers or ERs or both. A.3 Entity * Art. 13 (e) : Private recruitment entity any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or the ERs or both. B. ALLOWED ENTITIES B.1 Allowed Private Agencies and Entities * Art. 16 : Except as provided in Chapter II of this Title, no person or entity, other than the public employment offices, shall engage in the recruitment and placement of workers. Sec. 1, Rule III, Book I, IRRs No person or entity shall engage in the recruitment and placement of workers either for local or overseas employment except the following: [allowed agencies]
Section 6. Employment Policies, Recruitment and Placement of Workers, and Agencies 6. 1 1. Employment Policies Art. 12 : Statement of Objectives It is the policy of the State: a. b. c. d. e. f. To promote and maintain a state of Full employment through improved manpower training, allocation and utilization; To protect every citizen desiring to work locally or overseas by securing for him the best possible terms and conditions of employment; To facilitate a free choice of Available employment by persons seeking work in conformity with national interest; To facilitate and regulate the Movement of workers in conformity with national interest; To regulate the employment of Aliens, including the establishment of a registration and/or work permit system; To strengthen the network of public employment offices and rationalize the participation of the private sector in the
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*Art. 25 : . . . the private employment sector shall participate in the recruitment and placement of workers, locally and overseas, under such guidelines, rules and regulations as may be issued by the Secretary of Labor. B.2 Prohibited Business Agencies and Entities 1. Art. 18 : Ban on Direct Hiring No ER may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. a. Direct hiring by members of the diplomatic corps; b. International organizations and such other ERs as may be; c. allowed by the Secretary of Labor is exempted from this provision. 2. Art. 26 : Travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment, whether for profit or not.
4.
Art. 15 (a) 2 : (a) The Bureau of Employment Services shall be primarily responsible for developing and monitoring a comprehensive employment program. It shall have the power and duty: 1) To establish and maintain a registration and/or licensing system to regulate private sector participation in the recruitment and placement of workers, locally or overseas, and to secure the best possible terms and conditions of employment for Filipino contract workers and compliance therewith under such rules and regulations as may be issued by the Minister of Labor.
C. GOVERNMENT TECHNIQUES OF REGULATION PRIVATE RECRUITMENT AND PLACEMENT BUSINESS C.1 Licensing, Citizenship, Transferability and Fees 1. Capitalization, Duration,
Art. 27 : Citizenship Requirement: a. b. Only Filipino citizens or Only corporations, partnerships or entities at least 75% of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas. 5.
Distinguish authority from license? Authority means a document issued by the Secretary of Labor and Employment authorizing a person or association to engage in recruitment and placement activities as a private recruitment entity; while a license is the document
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C.5 Prohibited Practices [IF FAITS CHOW] 1. Art. 34 : Prohibited Practices It shall be unlawful for any individual, entity license or holder of authority: 1. To charge or accept; directly or indirectly, any amount greater than that specified in the schedule of allowable fees, or make a worker pay any amount greater than that actually received by him as a loan or advance; To furnish or publish any false notice or information or document in relation to recruitment or employment; [includes the act of furnishing fake employment documents to a worker. (Azucena) To give any false notice, testimony, information or document or commit any Act of misrepresentation for the purpose of securing a license of authority under this Code; To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is so designed to liberate the worker from oppressive terms and conditions of employment; To influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency; 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; To obstruct or attempt to obstruct inspection by the secretary of Labor or by his duly authorized representatives; To Fail to file reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such
2.
2.
C.3 Workers Fees * Art. 32 : Any person applying with a private fee-charging employment agency for employment assistance shall not be charged any fee until 1. 2. he has obtained employment through its efforts; or he has actually commenced employment. Such fee shall be always covered with the appropriate receipt clearly showing the amount paid. The Secretary of Labor shall promulgate the schedule of allowable fees.
3.
4.
5. 6. 7. 8.
C.4 Reports Submission * Art. 33 : Whenever the public interest requires, the Secretary of Labor may direct all persons or entities within the coverage of this Title to submit a report on the status of employment, including job vacancies, details of job requisitions, separation from job, wages, other terms and conditions, and other employment data.
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h.
3.
** Liability of private employment agency employment contract joint and solidary with employer all claims and liabilities that may arise in connection with the implementation of the contracts
C.6 Illegal Recruitment 1. Art. 13 (b) : Recruitment and Placement - Act of [CECTUHPI] a. b. c. d. e. f. g. Canvassing Enlisting Contracting Transporting Utilizing Hiring or Procuring workers and
2.
Any recruitment activities, including the prohibited practices, enumerated under Art. 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Art. 39 of this Code.
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a. b.
shall be considered an offense involving economic sabotage and shall be penalized in accordance with Art. 39 hereof. non-bailable life imprisonment
5.
** Illegal recruitment by a syndicate Carried out by a group of 3 or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. ** Illegal recruitment in large scale Committed against 3 or more persons individually or as a group. [When the Labor Code speaks of illegal recruitment, committed against 3 or more persons, it must be understood as referring to the number of complainants therein, otherwise, prosecutions for single crimes of illegal recruitment can be cumulated to make out a case of large scale illegal recruitment. In other words, a conviction for large-scale illegal recruitment must be based on a finding in each case if illegal recruitment of 3 or more persons whether individually or as a group. (Pp vs. Reyes) 3. Sec. 8, Migrant Workers Act : A criminal action arising from illegal recruitment as defined herein shall be filed with the RTC of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense: provided, That the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts. 4. The crime of illegal recruitment has 2 elements: 6.
G convinced F and S, that they could be employed for France for a fee. G was also able to persuade A that he could give A a working visa. Nothing happened to F, S and A. G did not have any license to recruit or authority to recruit? A may be charged and convicted of a large-scale illegal recruitment since he did not have the license or authority to recruit, and yet recruit at least 3 persons. (Pp vs. Turda) Furthermore, he can also be convicted and charged of estafa since the latter is a malum in se while the former is a malum prohibium (Id.) NATO, a national union of teachers was able to find jobs abroad for its member by directly contacting other teachers organizations in foreign countries, without charging additional fees. Is this legal? No. Only persons or entities with appropriate license or authority can engage in recruitment and placement of workers. Contact services are activities that fall within the scope of recruitment and placement of workers. (Alcantara) A paper manufacturing company in Cainta would like to know if it needs to obtain a license authority before it can recruit workers for its plant. No license or authority is necessary. The company is not engaged in the business of recruitment and placement of workers, it is not recruiting workers to be employed by others. It does not represent a principal. It is recruiting its own workers. (Alcantara)
7.
C.7 Rule Making * The Secretary of Labor and Employment has the power and authority not only to restrict and regulate the recruitment and placement activities of all agencies but also promulgate rules and regulations to carry out the objectives and implement the provisions governing said activities. (Eastern Assurance vs. Secretary of Labor)
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d.
B. Definition of Terms Sec. 1 (j), (w), (z), (ff), and (qq), Rule II, Book I, Rules and regulations on Overseas Employment 1. 2. 3. 4. Contract Worker - Any person working or who has worked overseas under a valid employment contract. Manning agency Any person or entity recruiting seamen for vessels plying international waters and fore related maritime activities. Name Hire Worker who is able to secure employment overseas on his own without the assistance or participation of an agency. Overseas employment Employment of a worker outside the Philippines, including employment on hoard vessels plying international waters covered by a valid employment contract. Placement fee Amount charged by a private employment agency from a worker for its services in securing employment. Service fee Amount charged by a license from its foreign ER as payment for actual services rendered in relation to the recruitment and employment of workers for said principal. Sanctions 1. Art. 35 : Suspension and/or Cancellation of License or Authority The Secretary of Labor shall have the power to suspend or cancel any license or authority to recruit EEs for overseas employment for violations of rules and regulations by the DOLE, the POEA, or for violation of the provisions of this, and other applicable laws . .
Public Sector Agencies A. EMPLOYMENT OFFICES AND THE POEA 1. Art. 14 (a) : The Secretary of Labor shall have the power and authority: (a) To organize and establish new employment agencies in addition to the existing employment offices under the DOLE as the need arises. Sec. 3, EO 247 : POEA functions
5. 6.
2.
a. b.
c.
Regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system; Formulate and implement in coordination with appropriate entities concerned, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements; Protect the rights of Filipino workers to fair and equitable recruitment and employment practices and ensure their welfare;
6. 3
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Violation of any of the provisions thereof or its implementing rules and regulations by a non-license or non-holder of authority a. b. c. 4. imprisonment of not less than 4 years nor more than 8 years or a fine of not less than P20,000.00 nor more than P100,000.00 or both such imprisonment and fine, at the discretion of the court. If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall in addition to the penalties herein prescribed, be deported without further proceedings: * Illegal recruitment: a. b. imprisonment of not less than 6 years and 1 day but not more than 12 years and a fine of not less than P200,000.00 nor more than P500,000.00. recruitment constituting Economic
In case of breach of the employment contract by a foreignbased ER, may the private employment agency or recruitment entity be held liable? What is the nature of the liability of the recruitment and placement agency and its principal? Yes. The agency or entity undertakes under oath to assume full and complete responsibility for all claims and liabilities which may arise in connection with the use of the license or authority. The agency is jointly severally liable with the principal or foreign-based ER for any of the violations of recruitment agreement contract of employment. (Ambraque vs. NLRC; Pp vs. Catan)
Section 7. Alien Employment 7. 1 1. Technique of Regulation-Employment Permit Art. 40 : Employment Permit of Non-resident Aliens Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign ER who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the DOLE . . . For an enterprise registered in preferred areas of investments, said employment permit must be issued upon recommendation
* Illegal Sabotage: a. b.
life imprisonment; and a fine of not less than P500,000.00 nor more than P1,000,000.00.
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Are there exceptions to the prohibition against employment of aliens in entities engaged in nationalized activities? Yes, when (a) the Secretary of Justice specifically authorizes the employment of technical personnel; or (b) where aliens are elected members of Board of Directors in proportion to their allowable participation in the capital; or (c) when allowed under certain special laws. (Alcantara)
Section 8. Development of Human Resources 8.1 Objectives - Definitions 1. Art. 43 : It is the objectives of this [F E D] a. b. c. Title to Develop human resources Establish training institutions, and Formulate such plans and programs as will ensure efficient allocation, development and utilization of the nations manpower and thereby promote employment and accelerate economic and social growth.
Coverage * A resident alien need not obtain an employment permit in order to be employed in the Philippines. (Almodiel vs. NLRC) Employment Permit Conditions for Grant 1. Art. 40 : The employment permit may be issued to a nonresident alien or to the applicant ER after a determination of: [W A C] a. competent
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2. 3.
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Definition 1. 2. Art. 58 : Apprenticeship Practical training on the job supplemented by related theoretical instruction. Art. 73 : Learners Persons hired as trainees in semiskilled and other industrial occupations which are nonapprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed 3 months. Art. 78 : Handicapped workers Those whose earning capacity is impaired by age or physical or mental deficiency or injury
4.
5.
3.
Who Can Employ and When A. APPRENTICES must be approved by TESDA 1. Art. 60 : Only ERs in highly technical industries and only in apprenticeable occupations may employ apprentices. Sec. 1, Rule IV, Book II, IRRs : Highly Technical Industries Trade, business, enterprise, industry or other activity which is engaged in the application of advanced technology. Art. 58 : Apprenticeship Occupation Requires more than 3 months of practical training supplemented by related theoretical instruction. 1 month probation prior approval by TESDA of the proposed apprenticeship program is a condition sine qua non before an apprenticeship can be validly entered into employer is not obliged to employ the apprentice after the completion of his training 2. Art. 70 : Apprenticeship programs shall be primarily voluntary except:
In school, training provides the trainee the theoretical foundation, basic training, develops his skill and proficiency in actual working conditions as it continues personal discipline and work value. (Sec. 4 (p), RA 7796) 8.2 Program Incentive * Art. 52 : Deduction from taxable income of of the value of labor training but not to exceed 10% direct labor wage: Provided, That in the case of apprenticeship programs, the program is recognized by DOLE. 8.3 Training and Employment of Special Workers Apprentices, Learners and Handicapped Workers Policy Objectives * What is the policy of the State on apprenticeship? 1. To help meet the demand of the economy for trained manpower;
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C. HANDICAPPED WORKERS * Art. 79 : Handicapped workers may be employed when their employment 1. 2. is necessary to prevent curtailment of employment opportunities; and when it not create unfair competition in labor costs or lower working standards.
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d. 4.
A 5-star hotel would like to have an apprentice program dishwashers? No. This is not an apprenticeable program occupation because proficiency can be attained within a very short period. Besides, the hotel industry is not highly technical. (Alcantara) After working for 1 month may an apprentice be dismissed without cause? No. After the probationary period of 1 month, the apprenticeship agreement may be terminated only for cause.
Ratio of theoretical vs. on the job training > 100: 2000 - may work overtime duly credited as his training time * Art. 72 : The Secretary of Labor may authorize the: 1. hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum as a requisite for graduation or board examination. There is no ER-EE relationship between students on one hand, and schools, where there is written agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge. (Sec. 14, Rule X, Book III, IRRs) A clerk in the College of Law of a University worked without pay but was allowed to take up no more than 3 units per semester free of charge. The clerk resigned and demanded payment of unpaid wages. Is the clerk entitled to unpaid wages? Yes. Sec. 14, Rule X, Book III, IRRs : only applies in instances where the students are given real opportunity, including such facilities as may be reasonably necessary to finish their chosen courses under such arrangement. In this problem, the clerk was not given any real opportunity to finish law as he was allowed to take up no more than 3 units per semester. There is therefore an ER-EE relationship between the clerk and the university. (Alcantara)
5.
6. Causes for termination of apprenticeship agreement by apprentice: a. b. c. d. Repeated violation by ER of agreement Cruel or inhuman treatment Personal problems which prevents a performance (bad health) Substandard working conditions
satisfactory
2.
EMPLOYER a. b. c. d. e. f. g. h. i. habitual absentism willful disobedience e.g. rules insubordination lawful order poor physical conditions apprentice theft or malicious destruction poor efficiency of performance engaging in violence gross misconduct bad health or continuing illness. (Sec. 25, Rule VI, Book II, IRRs)
* employer must make a commitment to employ the business 3. Qualifications of an Apprentice: B. LEARNERS a. b. c. At least 15 years of age: provided, those below 18 years of age shall not work in hazardous occupations; Be physically fit for the occupation. Possess vocational aptitude and capacity. - learnership must be approved by TESDA 1. Art. 75 :
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Section 9. Conditions of Employment Hours of Work 9. 1 Hours Regulation Rationale and Enforcement * The 8-hour labor law was designed not only to safeguard the health and welfare of the laborer but in a way to minimize unemployment by forcing ERs, in cases, where more than an 8hour operations is necessary, to utilize different shifts of laborers working only for 8 hours each. (Manila Terminal vs. CIR) 9.2 Coverage I. Art. 82 : The provisions of this Title shall apply to EEs in all establishments and undertakings whether for profit or not but to [GMS- FMDP] 1. Government EEs [whether employed by the National Government or any of its political subdivisions, including those employed in GOCCs with original charters. (Sec. 2, Rule I, Book III, IRRs] Managerial EEs [refer to those who meet all of the following conditions, namely: a. b. c. Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof; Customarily or regularly direct the work of 2 or more EEs Has the authority to hire or fire other EEs of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any change of status of other EEs are given, particular weight. (d.)]
3. 4.
Art. 76 : Learners employed in piece or incentive-rate jobs during training shall be paid in full for the work done. J entered into a learnership agreement with employer A. Before the end of 2 months, A terminated the agreement. When J requested for a chance to let him finish the 3 months period. At the end of 3 months, A refused to hire J. Is the stand of A sustainable? No. A has a commitment under the learnership agreement to employ J as a regular worker upon the completion of the learnership.
C. HANDICAPPED WORKERS [A P M I] 1. Art. 80 : Rates to be paid to handicapped workers shall not be less than 75% of the applicable minimum wage. Employment agreement must state the duration of the employment period and the work to be performed.
2.
2.
Art. 81 : Handicapped workers may be hired as apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.
Enforcement 1. Art. 66 : Appeal to the Secretary of Labor - The decision of the authorized agency of the DOLE may be appealed to the Secretary of Labor within 5 days from receipt of the decision. The decision of the Secretary of Labor shall be final and executory.
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6. 3. Other officers or members of the managerial staff if they perform the following duties and responsibilities: a. b. c. Primary duty consists of the performance of work directly related to management policies of the ER; Customarily and regularly, exercise discretion and independent judgment; Regularly directly assist a proprietor or managerial EE or execute under general supervision work along specialized or technical lines requiring special training, experience or knowledge; or execute under general supervision special assignment and tasks; and Do not devote more than 20% of their hours worked to activities which are not directly and closely related to the performance of the work described in the preceding paragraphs. (Id.)
And workers who are paid by results. [Including those who are paid on piece-work, takay, pakiao, or task basis if their output rates are in accordance with the standards prescribed.]
II.
Give the reason for the exceptions? 1. 2. Government EEs Terms and conditions of employment are governed by the Civil Service Law Managerial EEs Employed by reason of their special training, expertise or knowledge and for positions requiring the exercise of discretion and independent judgment. Value of work cannot be measured in terms of hours. Non-agricultural field personnel These regularly perform their duties away from the principal or branch office or place of business of the ER; they are on their own in the field and the number of hours of actual work they render cannot be reasonably ascertained. Members of the family dependent upon him for support Amounts given by way of support may far exceed the benefits to which the EEs are entitled under the laws on overtime. Domestic helpers and persons in the personal service of another They minister to the personal needs and comfort their ER and his family and terms and conditions of employment are governed in other parts of the Labor Code. Workers paid by results Compensation computed on the basis of work accomplished and not on time spent in accomplishing the work. (Alcantara)
d.
3. 4. Field personnel [Non-agricultural EEs who regularly perform their duties away from the principal place of business or branch office of the ER and whose actual hours of work in the field cannot be determined with reasonable certainty. (Art. 82) 4. 5. Members of the family of the ER who are dependent on him for support domestic helpers and persons in the personal service of another. Perform such service: a. b. In the ERs home which are usually necessary or desirable for the maintenance or enjoyment thereof; Or minister to the personal comfort, convenience or safety of the ER as well as the members of his ERs household. (sec. 2, Rule I, Book III, IRRs) However, house personnel hired by a ranking company official, but paid for the company itself, to maintain a staff house provided for the official, are not the latters domestic helpers but regular EEs of the company. (Cadiz vs. Philippine Sinter) 5.
6.
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2.
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B. all time during which an EE is suffered or permitted to work. Rest periods of short duration during working hours shall be counted as hours worked. 2. Sec. 4, Rule III, Book III, IRRs : Principles in Determining Hours Worked 1. All hours are hours worked which the EE is required to give to his ER regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion; An EE need not leave the premises of the workplace in order that his rest period shall not be counted, it being enough that a. b. c. 3. he stops working, may rest completely and may leave his workplace, to go elsewhere, whether within or outside the premises of the workplace;
9.3 Normal Hours * Art. 83 : The normal of hours of work of any EE shall not exceed 8 hours a day. ** Health personnel in cities and municipalities with a population of at least 1,000,000 or in hospitals and clinics with a bed capacity of at least 100 shall hold regular office hours for 8 hours a day, for 5 days a week, exclusive of time of meals, except where the exigencies of the service require that such personnel work for 6 days or 48 hours in which case they shall be entitled to an additional compensation at least 30% of their regular wage for work on the 6th day. [Health personnel Includes resident physicians, nurses, nutritionists, dieticians, pharmacists, social 2.
If the work performed was necessary or it benefited the ER or the EE could not abandon his work at the end of the
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3.
Jose works as a janitor. He continues sweeping the floors after 5:00 p.m The manager is aware of this, but he does not stop Jose from doing work after 5:00 p.m. Is this hours of work? Yes. Although Jose was not instructed expressly to render work, he was impliedly allowed to do so by failure of the ER to warn him against rendering such work. Besides the work rendered by Jose benefited the ER.
2.
Waiting Time 1. Sec. 5, Rule I, Book III, IRRs : Waiting time spent by an EE shall be considered as working time if waiting is an a. integral part of his work, or b. the EE is required to engage by an ER to wait The controlling factor is whether waiting time spent in idleness is so spent predominantly for the ERs benefit or for the EEs. (Azucena) 2. S, a company driver has the following work schedule: 8:30 a.m. - fetches G.M.; 9:00 a.m. 12:00 noon does nothing on call for G.M. at the company premises ; 12 noon 1:00 p.m. lunch; 1:00 p.m. 5:00 p.m. drives the G.M. to conferences; 5:00 p.m. goes home. The company refuses to pay him for the 9:00 a.m. to 12:00 noon period. Is this valid? No. S is not free to make use of the period effectively and gainfully for his own purposes. He must remain in the premises as at any time he may be called to drive for the G.M. (Alcantara) 30 minutes prior to the start of the scheduled working hours, the workers of an enterprise assembled at a designated area to 3.
3.
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* Rest periods or coffee breaks running from 5 to 20 minutes shall be considered as compensable working time. 2. Where during the so-called meal period, the laborers are required to stand by for emergency work, or where said meal hour is not one of complete rest, such period is considered overtime. (Pan Am vs. Pan Am EEs Association)
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Semestral Break * Regular full-time teachers are entitled to salary and COLA during semestral break. (U.Pang. Faculty Union vs. U. Pang.) 9.5 Overtime Work and Offsetting Prohibition 1. Art. 87 : Overtime Work 2. regular work day plus 25% basic hourly rate Special days, holiday or rest day plus 30% of the regular hourly rate on said days.
2.
Travel Time ***Principles which determine whether or not time spent in travel is working time: Travel from Home to Work Normal travel from home to work is no work time but an emergency call outside of regular working hours requiring him to go to his regular place of business is working time. Travel that is all in the days work Time spent by an EE in traveling from one job site to another, during the workday, must be counted as hours worked. Travel away from home Travel away from home is clearly worktime when it cuts across the EEs workday, except during meal period or when EE is permitted to sleep in adequate facilities furnished by the ER. The time is not only hours worked on regular workdays but also during corresponding working hours on non-working days. Outside of these regular working hours, travel away from home is not considered working time. (Azucena)
Art. 89 : Emergency Overtime Work - Any EE may be required by the ER to perform overtime work in any of the following cases: [WED-UPS] a. When the country is at war b. When any other national or local emergency has been declared c. When it is necessary to prevent loss of life or property or in case of imminent danger to the public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic or other Disaster or calamity. d. When there is Urgent work to be performed on machines and installations in order to avoid serious loss or damage to the ER or some other cause of similar nature. e. When the work is necessary to prevent loss or damage to Perishable goods.
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8.
May the right to overtime pay be waived? As a general rule, the right cannot be waived. (Cruz vs. Yes Sing) However, when the waiver is exchange for certain benefits and privileges, which may be more than what will accrue to them in overtime pay, the waiver may be permitted. (MERALCO Workers Union vs. MERALCO)
Rationale Overtime Pay * The reasons for overtime pay is that the worker is made to work longer than what is commensurate with the agreed compensation for the statutorily fixed or voluntary agreed hours of labor he is supposed to do. When he thus spends additional time to his work, the effect upon him is multi-faceted; he puts in more effort, physical or mental; he is delayed in going home to his family to enjoy the comforts thereof; he might have no time for relaxation, amusement or sports; he might miss important pre-arranged arrangements. (PNB vs. PEMA) Compressed Week voluntary basis * While as a general rule, the right to overtime pay cannot be waived under existing laws, the EEs and ER can agree to a compressed workweek of 5 days of 9 hours each with no payment of overtime if this will redound to the benefit of the workers i.e. if the original workweek is reduced from Monday Saturday to Monday Friday. (Azuzena) However, Alcantara answered in a 1984 problem differently when he answered that overtime pay should be paid. In that problem, the workers were required to render 9.5 hours of work for 5 days. (What is the answer, I really do not know, ask the reviewer) Conditions for Compressed Work Week 1. 2. 3. 4. voluntary agreed upon not to exceed 48 hours/ week no diminution on take home pay or fringe benefits waivers must be made
4.
Art. 90 : For purposes of computing overtime and other additional remuneration as required by this Chapter the regular wage of an EE shall include the cash wage only, without deduction on account of facilities provided by the ER. Y, corporation, as a company policy, required its EEs to render only 6 hours of work daily but pays them the minimum wage corresponding to 8 hours work. Later, the full 8-hours was required without any increase in wages. Are the EEs entitled to overtime pay? Yes. Though voluntary practice or policy, the company has fixed the normal workday at 6 hours. It now constitute part of the terms and conditions of employment and cannot be unilaterally withdrawn by the ER. (Alcantara) Distinguish overtime pay from premium pay : Overtime pay is additional compensation for work done beyond the normal work hours on ordinary working days. Premium pay is additional compensation for work rendered by the EE on days normally he should not be working. But additional compensation for work rendered in excess of 8 hours during these days is also considered overtime pay. A was late for work on a particular day. To offset for the time he was late, A worked on additional period equivalent to the period he was late for work. The period was offset against A undertime. Is this valid? Yes. The prohibition to offset overtime against undertime applies to undertime incurred and overtime rendered on different days.
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7.
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e. f.
Retail Establishment 3. sale of goods for personal or household use ex. grocery 4. X works at a gasoline station which has only 5 EEs. Is he entitled to night shift differential? No. He works in a retail establishment employing not more than 5 workers. (Alcantara) What if X works at Kings Minimarts, a retail store chain with 10 outlets of 2 EEs each outlet. Is he entitled to night shift differential? Yes. The total number of EEs of the ER exceeds 5. It is at least 20. (Id)
Service Establishment sale of services to individuals for their own or household use ex. T.V. repair shop
No Formula Basic Contract * When the contract of employment requires work for more than 8 hours at specific wages per day, without providing for a fixed hourly rate or that the daily wages include overtime pay, said wages cannot be considered as including overtime compensation. (Manila Terminal vs. CIR) Built-In Compensation * The employment contract may provide for a built-in overtime pay. Because of this, non-payment of overtime pay by the ER is valid. (Engineering equipment vs. Minister of Labor) 9.6 Night Work 1. Art. 86 : Every EE shall be paid night shift differential of not less than 10% of his regular wage for each hour of work performed between 10:00 p.m. and 6:00 a.m. Sec. 1, Rule II, Book III, IRRs : This rule shall apply to all EEs except: [G R S D M F] a. b. c. d. Those of the government and any of its political subdivisions, including GOCCs. Retail and service establishments regularly employing not more than 5 workers. Domestic helpers and persons in the personal service of another. Managerial EEs. Rationale Prohibition * First, there are remotely injurious effects of permanent nightwork manifested in the later years of workers life. Of the more immediate importance is the disarrangement of his social life, including the recreational activities of his leisure hours and the ordinary associations of normal family relations. From an economic point of view, it is to be discouraged because of its adverse effect upon efficiency and output. A moral argument in the case of workers is that they go to and from the factory in the darkness. (Shell vs. NLU) Exercise of a profession is neither a retail nor service
Section 10 : Weekly Rest Periods * Art. 82 : The provisions of this Title shall apply to EEs in all establishments and undertakings whether for profit or not, but not to [G M S F I F D R] 1. Government EEs [whether employed by the National Government or any of its political subdivisions, including those employed in GOCCs with original charters. (Sec. 2, Rule I, Book III, IRRs] Managerial EEs [refer to those who meet all of the following conditions, namely:
2.
2.
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a. b. c.
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b.
7. > Mere designation to a position with a high-sounding title, does not make an EE where the exercise of independent judgment is not present. (Sierra vs. NLRC) 3. Other officers or members of the managerial staff [if they perform the following duties and responsibilities: a. b. c. Primary duty consists of the performance of work directly related to management policies of the ER; Customarily and regularly exercise discretion and independent judgment; Regularly directly assist a proprietor or managerial EE or execute under general supervision work along specialized or technical lines requiring special training, experience or knowledge, or execute under general supervision special assignment and tasks; and Do not devote more than 20% of their hours worked to activities which are not directly and closely related to the performance of the work described in the preceding paragraphs. (Id)
And workers who are paid by results. [Including those who are paid on piece-work, takay, pakiao, or task basis if their output rates are in accordance with the standards prescribed.] Sec. 1, Rule III, Book III, IRRs : This rule shall apply to all ERs whether operating for profit pr not, including public utilities operated by private persons.
10.2 Scheduling of Rest Day; When Compulsory Work Allowed; and Compensation 1. Art. 91 : It shall be for the duty of every ER, whether operating for profit or not, to provide EE a rest period of not less than 24 consecutive hours after every 6 consecutive normal working days. * The ER shall determine and schedule the weekly rest day of his EEs However, the ER shall respect the preference of EEs as to their weekly rest day when such preference is based on religion grounds.
d.
4.
Field personnel [Non-agricultural EEs who regularly perform their duties away from the principal place of business or branch office of the ER whose actual hours of work in the field cannot be determined with reasonable certainty (Art. 82)]
5. Members of the family of the ER who are dependent on him for support 6. Domestic helpers and persons in the personal service of another. [Perform such services: a. In the ERs home which are usually necessary or desirable for the maintenance or enjoyment thereof;
Sec. 4, Rule III, Book III, IRRs : Where however the choice of the EEs as to their rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operation of the undertaking, the ER may so schedule the weekday rest day of their choice at least 2 days in a month. 2. Art. 92 : When ER may require Work on rest day [D U A - P N A] a. In case of actual or impending emergency caused by serious accident, fire, flood, typhoon, earthquake,
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1. * Art. 94 : Every worker shall be paid his regular daily wage during holidays, except: [RSIO, G, DH, M, FP] a. in retail and service establishments regularly employing less than 10 workers;
3. How much is a worker entitled if he works on a rest day? Scheduled rest day additional compensation of at least 30% of his regular wage. Scheduled rest day which is a non-working holiday entitled to additional compensation of at least 50% of his regular wage. Scheduled rest day which is a regular holiday entitled to additional compensation of at least 30% of his regular holiday rate of 200% based on his regular wage rate. (Sec. 4, Rule III, Book I, IRRs)
Sec. 1, Rule IV, Book III, IRRs : b. c. d. e. Those of the government and any of its political subdivisions, including GOCCs. Domestic helpers and persons in the personal service of another. Managerial EEs. Field personnel and other EEs whose time and performance is supervised by the ER.
4.
V works on board the M/V Starfish. Sometimes, the boat remains at sea for 2 weeks, while at other times, especially during bad weather, the vessel returns to port only after a few days. While the vessel is in port, V stays home with his family. Can V claim the additional compensation for work on rest day? Vs work is such that no regular workdays and no rest days can be scheduled. In such cases, the law provides that if he performs work on Sundays and holidays, he shall be paid an additional compensation of at least 30 % of his regular wage. [Art. 39 (b)]
Regular Holidays 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. New Years day Maundy Thursday Good Friday Bataan Day Labor day Independence day National heroes day Bonifacio day X-mas day Rizal day
Rationale Rest day * Ordinarily, Sundays and legal holidays are dedicated to reading and instruction so as to fill the mind with culture or some sort of
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2. Monthly paid EEs are not excluded from the benefits of holiday pay. (Mantrade vs. Bacungan) 3. X is a manicurist in the DStyle Barbershop which has 20 barbers and manicurists. Is she entitled to holiday pay? Yes. X is an EE who is paid by results ad she works in a service establishment employing more than 10 persons. (Sec. 8, Rule IV, Book III, IRRs) 12.2 1. Holiday Pay Art. 94 : The ER may require an EE to work on a holiday but such EE shall be paid a compensation equivalent to twice his regular rate. To receive holiday pay, the EE should not have been absent without pay on the working day preceding the regular holiday. (Azucena) A legal holiday falling on a Sunday creates no legal obligation for the ER to pay extra to the EE who does not work on that day, aside from the usual holiday pay, to its monthly-paid EEs. (Wellington vs. Trajano) X was told by ER to work during a legal holiday which fell on a Sunday. How much is he entitled to? X will get 200% of his daily rate plus premium pay pf 30% of the holiday pay = regular daily rate * 230%. If X works overtime during that day, how much will he earn? Holiday pay rate/8 plus overtime pay of 30% of the holiday hourly rate = holiday pay rate/8 * 130%. R was absent without pay on December 24. Is he entitled to holiday pay for Christmas day? No. An EE may not be paid on holiday pay if he was absent on the day preceding holiday, or in the case of Maundy Thursday and Good Friday, if he was absent on the day preceding the first holiday. It would be
Vacation and sick leave must be claimed otherwise waived cannot be converted into cash unless allowed by employer
2.
Faculty Private School * Regular holidays specified by law are known to both school and faculty members as no class days. Thus, hourly paid faculty members are not entitled to their pay for unworked regular holidays. On the other hand, hourly paid faculty members are however entitled to their regular hourly rate on days declared as special holidays or when classes are called off or shortened since the faculty member, although forced to take a rest, does not earn what he should earn on that day. (JRC vs. NLRC) Divisor as Factor * The daily rate is a constant figure for the purpose of computing overtime and night differential pay and commutation of sick and vacation leave credits, and this should also be the same basis for computing unpaid holidays. (Union of Filipro vs. Vivar) Section 12. Conditions of Employment Service Incentive Leave
3.
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12.1 Coverage Coverage * Art. 95 : The provision on service incentive leave shall not apply to: [E,S, IO, E, G, D, M, F] 1. 2. 3. 4. Those who are already enjoying the benefit. Those enjoying vacation leave with pay of at least 5 days. Those employed in establishments regularly employing less than 10 workers Exempt establishments.
Sec. 1, Rule V, Book III, IRRs : 5. 6. 7. 8. Those of the government and any of its political subdivisions including GOCCs. Domestic helpers and persons in the personal services of another. Managerial EEs. Field personnel and other EEs whose performance is unsupervised by the ER including those who are engaged on task or contract basis, purely commission basis, or those who are paid in a fixed amount of performing work irrespective of the time consumed in the performance thereof.
2.
3.
* Teachers of private schools on contract basis are entitled to service incentive leave. (Cebu Institute of Technology vs. Ople) 12.2 Entitlement can be converted to cash
4.
* Art. 95 : 5 days incentive leave with pay for at least 1 year of service.
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4. 5.
A. FACILITIES AND SUPPLEMENTS * The law guarantees the laborer a fair and just wage. The minimum wage can by no means imply only the actual minimum. Some margin or leeway must be provided, over and above the minimum, to take care of contingencies, such as increase in wants, and to provide means for a desirable improvement in his mode of living. (Atok-Big Wedge vs. Atok-Big-Wedge Mutual Benefit Association) B. SUPPLEMENTAL FACILITY 1. Distinguish between supplements and facilities? Supplements Extra remuneration or special privileges or benefits given to or received by the worker over and above his ordinary earnings or wages. granted for the convenience of the ER
Section 3, Rule VII, Book III, IRRs : * Workers in duly registered cooperatives when so recommended by the bureau of Cooperative Development and upon approval of the Secretary of Labor . . . Minimum Wage 1. Art. 97 (1) : Wage paid to * The remuneration or earnings, however designated, (LEGAL TENDER) capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an ER to an EE under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered
* and includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging or other facilities customarily furnished by the ER to EE. [ Fair and reasonable value shall not include any profit to the ER or to any person affiliated with the ER. 2. 3. Art. 61 : Apprentices : Wage rates shall in no case fall below 75 % of the applicable minimum wage. Art. 75 : Learners : Wage rates shall begin at not less than 75% of the applicable minimum wage. 2.
Facilities Items of expense necessary for the laborers and his familys existence and subsistence. They form part of the wage and when furnished by the ER are deductible therefrom since if they are not furnished, the laborer would spend and pay for them just the same i.e. meals; housing for dwelling purposes; fuel including electricity, gas, water for the non-commercial personal use of the EE; and other articles and services given primarily for the benefit of the worker or his family. for the benefit of the worker and his family
The criterion in determining whether an item is a supplement or facility is not so much with the kind of benefit or item given, but its purpose. (State Marine vs. Cebu Seamens Association)
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If the employer fails to prove this: a. b. c. Then it is a supplement not a facility. Once given, a supplement cannot be eliminated or diminished. Grant of bonus may be unilaterally be reduced by the employer if it depends on profits acquired.
4.
Because he lived 50 kilometers from its work, X requested his ER if he can sleep in the company premises. The latter agreed with the condition that he will deduct P5.00 per day as board charges from X. Is the deduction legal? No. Lodging is not customarily finished by the ER to his EEs. The deduction, furthermore, is not with the written consent of X.
C. CASH WAGE legal tender 1. What is basic salary? In its common, generally accepted meaning, it is the rate of pay for a standard work period,
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3.
13.3 Agencies for Wage Fixing Machinery Advisory agency National Wages and Productivity Commission 1. 2. Art. 120 : National Wages and Productivity Commission attached to the DOLE the policy and program coordination. Give at least 5 major powers and functions of the National Wages and Productivity Commission : a. b. c. d. To act as the national consultative and advisory body to the President and Congress on matters relating to wages, incomes and productivity. To formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levels. To prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial or industry levels. To review regional wage levels set by the Regional Tripartite Wages and Productivity Boards .
3.
Art. 126 : No preliminary or permanent injunction or temporary restraining order may be issued by any court,
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c.
13.5 Wage Order * Art. 123 : Whenever conditions in the region so warrant, the Regional Board shall investigate and study pertinent facts and, based on the standards and criteria herein prescribed, shall proceed to determine whether a Wage Order should be issued. In the performance of its wage-determining functions, the Regional Board shall conduct public hearings, consultations, giving notices to EEs and ERs groups, provincial, city and municipal officials and other interested parties. Any party aggrieved by the Wage Order issued by the Regional Board may appeal such order to the Commission within 10 calendar days from the publication of such order. It shall be mandatory for the Commission to decide such appeal within 60 calendar days from the filing thereof. Methods of Fixing *The determination of wages has generally involved two methods, the floor-wage method and the salary-ceiling method. The 1 st method involves the fixing of determinate amount that would be added to the prevailing statutory minimum wage. In the 2nd
3.
Art. 126 : No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or other entity against any proceedings before the Commission or the regional Boards. The ECOLA now forms part regular wage Employees paid by results should receive not less than the applicable wage rates provided for 8 hours workday
13.4 Area Minimum Wages and Criteria * Art. 124 : Standards/Criteria for Minimum Wage Fixing Regional minimum wages shall be nearly as adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general well-being of the EEs within the framework of the national economic and social development program. In the determination of such regional
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2.
- CONDITIONS a. b. c. d. 2. bank 1 km written consent of EE ER does not receive any pecuniary benefit EE given time to withdraw from the bank considered as compensable his work
Art. 103 : Time of Payment * Generally : Once every two weeks or twice a month at intervals not exceeding 16 days. No ER shall make payment with less frequency than once a month. * Force Majeure : Immediately after the force majeure or the circumstances have ceased. * Task cannot be completed in 2 weeks in the absence of a CBA or arbitration award:
13.6
Wage/Salary Differentiate wages from salary? * Wages Compensation for manual labor, skilled or unskilled paid at stated times, and measured by the day, week, month, or season. It indicates considerable pay for a lower and less responsive character of employment.
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Art. 104 : Place of Payment : Payment of wages at or near the place of undertaking, except provided by such regulations as the Secretary prescribe under conditions to ensure greater wages. 1. 2. -
2.
deterioration of peace and order conditions actual or impending emergencies calamity ER must provide or reimburse transportation back and forth Time spent collecting wages considered compensable his work 3.
A meat processing company gives a 25% discount to EEs for purchase on credit of its product. However, said purchases on credit will be considered payment of his wages. An EE purchases 10 cans of the product but objects to the application of his purchases as part of his wages. Is the objections valid? Yes. The application of his purchases on credit as part of his wages the products in lieu of legal tender. (Alcantara) May an ER make any deductions from the wages of EEs? General Rule : No. His own behalf or in behalf of any person. Exceptions: [Allowable Deductions] 1. 2. 3. 4. 5. Deductions of SSS, Medicare and Pag-ibig Premiums (Alcantara) Withholding tax (NLRC) Deductions for reimbursement of insurance premium advanced by the ER where the worker is insured with his consent by the former. (Art. 113) Deductions for unions dues where the right to check-off has been recognized by the ER or individual EE himself. (Id) Deductions made with the written authorization of the EE for payment to a 3rd person and the ER agrees to do so, provided that the latter does not receive any pecuniary benefit, directly or indirectly, from the transaction. (Alcantara) Deductions for reimbursement of loss or damage to tools, materials or equipment supplied by the ER to the EE, in trades, occupations or business where the practice of making such deductions is recognized. (Art. 114)
4.
Art. 105 : Direct Payment of Wages * General Rule : Wages paid directly to workers. * Exceptions: 1. Force majeure rendering such payment impossible or under the special circumstances, in which case the worker may be paid through another person under written authority given by the worker for the purpose. Where the worker has died, in case the ER may pay the wages of the deceased worker to the heirs of the latter without the necessity of intestate proceedings.
2.
A. DIRECT PAYMENT Payment of wages to leader of group not violation of direct payment since the contract to perform the services was made by the leader of the group, for and in behalf of the latter, not for each and everyone of them individually. (Bermiso vs. Escano) Wage Prohibition 1. Art. 112 : Non-Interference in Disposal of Wages
6.
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Art. 117 : Deduction to ensure employment - It shall be unlawful to make any deduction from wages of any EE for the benefit of the ER or his life representative or intermediary as consideration of a promise of employment or retention in employment. Art. 222 - No attorneys fees, negotiation fees or similar charges of any kind arising from any collective bargaining negotiations or conclusions of the CBA shall be imposed on any individual member of the contracting union: Provided, however that attorneys fees may be charged against union funds in an amount agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. Art. 1708 : The laborers wages shall not be subject to execution or attachment except for debts incurred for food, shelter, clothing and medical attendance.
7.
8.
J works as a dishwasher in a big restaurant. At the time of his employment, he was told that it was an industry practice that the value of plates broken by him while in the performance of his work will be deducted from his wages. May management deduct the said value from Js wages? Yes, provided the following conditions are met: [PRO-F20]
A. WAGE DEDUCTION 1. An obligation arising from non-payment of stock subscriptions to a corporation cannot be offset against a money claim of an EE against an ER. (Apodaca vs. NLRC) The wife of an EE tells the manager that her husband has not been giving her support. Taking pity, the manager instructs the cashier to deduct 1/3 of the EEs pay and give the same to the wife. Is this valid? No. The EE concerned did not give his written authorization for the deduction. (Alcantara) 3. Z borrowed P500.00 from his ER. When the loan became due and demandable, Z did not pay his ER. May the ER, without the written authorization of Z, deduct the loan from the latters wages?
2. 1. 2. 3. 4. 5. 5. The practice of making deductions is a recognized one or is necessary and desirable in the business of the ER. J is clearly shown to be responsible He is given reasonable opportunity to show cause why the deduction should not be made. The amount of deductions is fair and reasonable and does not exceed the actual loss or damage. The deduction does not exceed 20% of Js wages in a week. (Sec. 14, Rule VIII, Book III, IRRs)
Art. 116 : Withholding of Wages and kickbacks prohibited It shall be unlawful for any person, directly or indirectly,
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2.
A. RECORD KEEPING * The records shall be kept and maintained in or about the premises of workplace or in the branch where the EE is regularly assigned, the keeping of the records in any other place is prohibited. (South Motorists vs. Tosoc) 13.7 Liability of ER and other Parties ER, Independent Contractor and Subcontractor and LaborOnly Contracting 1. The rules on the liability of Job contractors, Indirect ERs and Labor-only contractors are the following: 1. General Rule : An ER who enters into a contract with a contractor to perform work for the ER, does not thereby create an ER-EE relationship between himself and the EEs of the contractor. Thus the EEs of the contractor remain the contractors EEs and his alone. (PBC vs. NLRC) Nonetheless : When a contractor fails to pay the wages of his EEs in accordance with the Labor Code, the ER who contracted out the job to the contractor becomes jointly and severally liable with the contractor to the EEs of the latter to the extent of the work performed under the contract as if such ER were the ER of the contractors EE. (Id) The law itself, established an ER-EE relationship between the ER and the job contractors EEs for a limited
2.
D. DEPOSIT 1. A marketing firm retains 5% of the weekly salary of its collectors as a deposit to answer for any shortage in their collections. These are refunded at the end of the month, if no shortages are incurred. Is the practice legal? It depends. If it is a recognized practice of ERs to require such deposits, then such is legal, since the sum retained is not excessive and is kept by the ER only for a reasonable period. (Alcantara) 2. A taxicab company requires its drivers to make deposits to defray boundaries and to cover car wash payments. Is this legal? Art. 114 does not permit deposits for deficiency in the remittances of drivers boundary but the requirement for deposit for car wash payments is lawfull. (5-J Taxi vs. NLRC)
2.
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4.
4.
Labor-Only Contractor : The conclusion is different where there is labor-only contracting. The labor-only contractor i.e. person or intermediary, is considered merely as an agent of the ER. The statute makes the ER directly responsible to the EEs of the labor-only contractor as if such EEs had been directly employed by the ER. The statute establishes an ER-EE relationship between the ER and the EEs of the labor-only contractor, this time for a comprehensive purpose, to prevent any violation of this Code. (Broadway Motors vs. NLRC) The legitimate job contractor provides services while the labor-only contractor only provides manpower. Job contractor undertakes to perform a specific job while labor-only contractor merely provides personnel to work for the employer.
2.
Art. 108 : An ER or indirect ER may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the EEs should the contractor or subcontractor, as the case may be fail to pay the same. C, a former EE of ABC entered into an agreement with the company wherein C will hire person to work in the painting department and the company will reimburse him for whatever wages he will pay plus 10% of this amount. If C fails to pay the wages, can the workers claim from the company? Yes. C is merely a labor-only contractor and is considered merely an agent of the ER who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. (Alcantara) 2.
3.
If an independent service contractor fails to pay the wages of the janitors its supplies to XYZ, is XYZ liable for the unpaid wages? Yes. According to Art. 106, the ER shall be jointly and severally liable to the EEs of the contractor or subcontractor to the extent of the work performed under the contract. (Alcantara)
3.
Would your answer change if XYZ already independent contractor the contract price?
paid
the
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14.9 Wage Recovery 1. Art. 217 (a) (2), (3), (4), (6) : Jurisdiction of Labor Arbiters and the Commission The Labor Arbiters shall have exclusive and original jurisdiction, except as otherwise provided, the following cases involving all workers: a. Termination Disputes (qualified by Art. 261which grant voluntary arbitrators original and exclusive jurisdiction over all unresolved grievances arising from CBAS and company personnel policies); Cases involving terms and conditions and employment, if accompanied with a claim for reinstatement (including claims of an ER-EE relationship, including claims for actual, moral and exemplary damages, as provided in Sec. 10, Migrant Workers Act) Claims for actual, moral, exemplary and other damages arising from the ER-EE relations; Except claims for EEs Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from the ER- EE relations, including
b.
3.
c. d.
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2. Art. 128 : Visitorial and Enforcement Power oft the Secretary of Labor or his duly authorized representative Access to ERs records and premises at anytime of the day or night whenever work is being undertaken therein and copy therefrom; question any EE; and investigate any fact, condition or matter which may be necessary to determine violations of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto. In cases where the relationship or ER-EE still exists, the power to issue Compliance Orders to give effect to the labor standard provisions of this Code and other social legislation. Writ of execution to the appropriate authority shall be issued for the enforcement of the said orders, except in cases where the ER contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection.
* Under what circumstances may the Regional Director be divested of his jurisdiction to issue compliance orders under Art. 128 (b)? a. b. c. 3. ER contests the findings of the labor regulations officer and raises issue thereon; In order to resolve such issue, there is need to examine evidentiary matters; Such matters are not verifiable in the normal course of inspection. (Red V. Coconut vs. Leogrado)
Art. 129 : Recovery of wages, simple money claims and other benefits The Regional Director of the DOLE or any of the duly authorized hearing officers of the Department is empowered, through summary proceedings and after due notice, to hear and decide any monetary claims and benefits, including legal interest to a person employed in domestic or household service; Provided a. b. Such complaint does not include claim for reinstatement Aggregate money claims of each househelper does not exceed P5,000
Order stoppage of work or suspension of operations of any unit of or department of an establishment when noncompliance poses grave and imminent danger to the health and safety of workers in the workplace. Within 24 hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the ER, he shall pay EEs their salaries or wages during the said period.
It shall be unlawful for any person to Obstruct, impede, delay or otherwise render ineffective the order of the Secretary of Labor.
4.
The complaint shall be resolved within 30 days from the date of filing of the same.
Art. 111 :
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Section 15: Thirteenth Month Pay 15.1 Law Coverage Coverage 1. Section 2, Revised Guidelines on the 13 th Month Pay Law : The following ERs are still not covered by PD 851: The government and any of its political subdivisions, including GOCCs, except those corporations operating essentially as private subsidiaries of the government. ERs already paying their EEs a 13 th month pay or more in a calendar year or its equivalent at the time of this issuance. [The term its equivalent shall include Christmas bonus, mid-year bonus, cash bonuses and other payments but shall not include cash and stock dividends, cost of living allowances and other allowances regularly enjoyed by the EE, as well as non-monetary benefits. Where an ER pays less than required 1/12th of the EEs basic salary, the ER shall pay the differences.] ERs of household helpers and persons in the personal service of another in relation to such workers, and ERs of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the ER shall grant the required 13th month pay to such workers. A distressed ER may qualify for exemption for the 13 th month pay if there is prior authorization from the DOLE. (Dentech vs. NLRC)
2.
14.2 Service Charges * Art. 96 : To be distributed at the rate of 85% for covered EEs [distributed equally among them] and 15% for management. X a waiter at DC Diner was receiving a share in the restaurants service charges. Later, the restaurant discontinued the collection of service charges. The take-home pay of X was reduced by the value of the discontinued service charges. May X ask his ER to continue paying the service charges? Yes. In case the service charge is abolished, the share or the covered EEs shall be considered integrated in their wages. (Art. 96) The employees share in the service charges is part of the other benefits to which he is entitled, in addition to full backwages
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Define basic salary: For purposes of computing the 13th month pay, basic salary include remuneration or earnings paid by this ER for services rendered but does not include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as the cash equivalent or unused vacation and sick leave credits, overtime, premium, night-differential and holiday pay, and cost-ofliving allowances. However, these salary-related benefits should be included as part of the basic salary in the computation of the 13th month pay if the individual or collective agreement, company practice or policy, the same are treated as part of the basic salary of the EEs.
14th Month Pay 1. The grant of the 14 th month pay is a management prerogative, gratuitous in nature and therefore it cannot be forced. (Kamaya Hotel vs. NLRC)
3.
From 191 to 1997, DFC included in the computation of this 13 th month pay, the EEs sick, vacation and maternity leaves, In 1998, the company discontinued the inclusion of the aforementioned items in the 13th month pay. Is this valid?
15.3 Non-inclusion
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1.
16.2 When Demandable 1. From the legal point of view, a bonus is not a demandable and enforceable obligation. But it is so when it is made part of the wage or salary or compensation. In such case, the latter would be a fixed amount and the former would be a contingent one dependent upon the realization of profit. (Azucena) Furthermore, while normally discretionary, the grant if gratuity or bonus by reason of its long and regular concession, may become regarded as part of the regular compensation. (Liberation Steamship vs. CIR) 2.
Art. 131 : Exceptions to Nightwork prohibition [A, F, U, P M, H, M, - FA] a. In cases of actual or impending emergencies caused by a serious accident, fire, flood, earthquake, epidemic or other Disasters or calamity, to prevent loss of life or property. Cases of force majeure or imminent danger to public safety. Cases of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the ER would otherwise suffer. Work is necessary to prevent serious loss of perishable goods Woman EE holds a responsible position of managerial or technical in nature. Woman EE has been engaged to provide health and welfare service. Where the nature of the work requires the manual skill and dexterity of women workers; Where the women EEs are immediate members of the family operating the establishment or undertaking; and Analogous cases. (HUMMPS FAD)
b. c.
Section 17. Working Conditions for Special Groups of Workers Women 17.1 Women and the Constitution 1. Art. II, Sec. 14, Const. : The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.
d. e. f. g. h. i. 3.
17.2 Coverage 1. Section 1, Rule XII, Book III, IRRs : This rule shall apply to all ERs except to: a. b. government and GOCCs and to ERs of household helpers and persons in their personal service insofar as such workers are concerned
LG, a manufacturer and exporter of jeans, has a 3-shift work schedule but maintains a policy of not assigning women in the 3rd shift from 10:00 pm to 6:00 am. Is this policy discriminatory to women? Yes. The women sewers, by reason of their sex, are denied the opportunity to earn additional pay. The nature of the work requires the manual skill and dexterity of women workers and cannot be performed with equal efficiency to
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c.
D. GENERAL 1. Art. 137 : It shall be unlawful for any ER to : [DB, DP, RA] a. Deny any woman EE the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code; Discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy; Discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.
b. c.
Criminal liability for violations shall be penalized as provided in Art. 288 and 289 of this Code. The institution of any criminal action under this provision shall not bar the aggrieved EE from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. 2. C, a 45-year old teacher was dismissed by the school after she got married to Q, her 18-year old 4 th year high school student. Is the dismissal lawful? No, in the absence of substantial evidence to show that C took advantage of her position to court her student. There is nothing wrong if the two fell in love despite the disparity in their ages. (Chua-Qua vs. Clave) C. MARRIAGE 1. Art. 136 : Stipulation against marriage It shall be unlawful for an ER to : [C, S, D] a. b. Require as a condition of employment or continuation of employment that a woman EE shall not get married; Stipulate expressly or tacitly that upon getting married a woman shall be deemed resigned or separated;
2.
In Ls contract of employment with Club E, it was stipulated that her employment as a dancer would cease once she gets pregnant. When L got pregnant, L was no longer allowed to dance and since there were no other work available for which her talents were suitable, her employment was terminated. Is the action legal? Yes. It is both awkward and dangerous for her to dance during her pregnancy. Of course the ER has the obligation to give her another job, but as stated in the problem there is no other work for which her talents are suited. It is not fair to require the ER to continue employing her. (Alcantara)
3.
A pharmaceutical company rejected the applications of 5 pregnant women as sales representatives for contraceptive pills and family planning devices. Is this valid? Yes. The company has the prerogative to select its EEs. What is unlawful is for the ER to discriminate against or dismiss a woman by reason of their pregnancy. (Alcantara)
17.4 Facilities
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b. c.
2.
Art. 134 : (a) Establishments which are required by law to maintain clinic or infirmary shall provide free family planning services to their EEs. Is the ER required by law to give maternity benefits to its female workers? No. Maternity benefits are to be paid in appropriate instances by the SSS. The only obligation of the ER is to advance the benefit subject to reimbursement by the SSS. (Alcantara)
3.
18.3 Employable Age Section 12, RA 7610 as amended by RA 7658 : * General rule: Children below 15 years of age shall not be employed. * Exceptions: [P, E] 1. Child works directly under the sole responsibility of his parents or legal guardian and where only members of the ER family are employed, provided: a. b. his employment neither endangers his life, safety, health and morals, nor impairs his normal development: the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education.
17.5 Special classification Special Women Workers 1. X works as a hostess in a nightclub, she is paid a percentage of the ladys drink ordered by customers. There are nights when she does not earn anything because there are no customers. Is X an EE of the nightclub? Yes. Any woman who is permitted or suffered to work, with or without compensation, in any nightclub, cocktail lounge, massage clinic, bar, or similar establishment, under the effective control or supervision of the ER for a substantial period of time as determined by the Secretary of Labor shall be considered an EE of such establishment for purposes of labor and social legislation. (Art. 138) Section 18. Working Conditions for Special group of Workers Minors 18.1 Minors and the Constitution
2. Child is employed in entertainment or information through cinema, theater, radio or television, provided: a. Employment contract is concluded by the childs parents or legal guardian, with the expressed agreement of the child concerned, if possible, and the approval of the DOLE.
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b. c. d.
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e. 2.
Art. 139 : Any person, between 15 and 18 may be employed in any non-hazardous work. In any hazardous work, the employable age is 18 and up.
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2.
L, 10 years old, was hired as a singer in a carnival which stages shows wherever there is a town fiesta. She is paid P5,000.00 a month. L is therefore always on the road, traveling to different parts of the country. Is her employment lawful? No. Such employment will endanger her health and impair her normal development. She is also deprived of the opportunity to get primary education as she is always traveling to different parts of the country. (Alcantara)
18.4 Discrimination 1. Art. 140 : Prohibition against child discrimination No ER shall discriminate against any person in respect to terms and conditions of employment on account of his age. Would a company rule providing for lower wages for workers below 18 years who are inexperienced violate the prohibition? No. The payment of lower wages is by reason of the workers inexperience, not his age. There is no discrimination on account of the workers minority. (Alcantara) Section 19. Working Conditions for Special group of Workers Househelpers 19.1 Coverage
2.
Art. 141 : This chapter shall apply to all persons rendering services in households for compensation
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2.
What are the minimum wages for househelpers? a. b. c. Metro Manila and highly urbanized cities : P800.00 Chartered cities and 1st class municipalities : P650.00 Other municipalities : P550 Househelpers receiving P1,000.00 shall be covered by the SSS.
Section 20. Working Conditions for Special group of Workers Homeworkers 20.1 ER 1. Art. 155 : ER of homeworkers includes any person, natural or artificial, who for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly or though any EE, agent, contractor, sub-contractor or any other person: a. Delivers or causes to be delivered, any goods, fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or Sells any goods, articles or materials to be processed or fabricated in or about a home then rebuys them after such processing or fabrication, either himself or through some other person.
3. Aside from the rights to minimum wage, what other rights are enjoyed by a househelper? [E J B - I F] a. b. c. d. e. f. Opportunity for elementary education if a househelper is less than 18 years old (Art. 146) Just and human treatment (Art. 147) Board, lodging and medical attendance (Art. 148) Indemnity for unjust termination of services of 15 days plus the compensation already earned. Funeral benefits if the househelper has no relatives with sufficient means in the place where the head of the family lives. (Art. 1696, NCC) [F I B E J] If househelper is unjustly dismissed, g. pay wages (Indemnity) already earned + 15 days wages
b.
20.2 ER Liability 1. Section 8, Rule XIV, Book III, IRRs : The ER shall be jointly and severally liable to the EEs or homeworkers of the contractor or sub-contractor, in the same manner as if the EEs or homeworkers were directly engaged by the ER. S represents in the Philippines the Sears chain of department stores in the US. She sells wood and leather to housewives who makes these into wooden clogs according to the patterns and specifications of S. Is there an ER-EE relationship between S and the housewives?
If househelper leaves without justifiable cause, forfeits any unpaid salary not exceeding 15 days
4.
M works as a live-in labandera in the house of T somewhere in Quezon City. She works for 11 hours a day. Based on their contract, she is paid P800.00. Is she entitled to additional compensation?
2.
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Section 21, Medical, Dental and Conditional Safety 21.1 First Aid Treatment and ER Assistance 1. Art. 156. Every ER shall keep in his establishment such firstaid medicines and equipment as the nature and conditions of work may require, in accordance with such regulations as the DOLE shall prescribe. Section 1, Rule I, Book IV, IRRs This rule shall apply to all ERs whether operating for profit or not, including the Government ant GOCCs, which employ in any workplace 1 or more workers. 2. Art. 161 : It shall be the duty of an ER to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick EE in cases of emergency. The ER is not obliged to provide and spend for the continued or follow-up treatment of the EE unless it has bound itself to do so by contract or established practice or policy. (Alcantara)
301 or more workers : Services of a full-time nurse, a full-time physician, a full-time dentist, a dental clinic, and an infirmary or emergency hospital with one bed capacity for every 100 workers shall be provided. The physician and dentist shall stay in the premises of the workplace for at least 8 hours a day. Where the workplace has more than 1 shift per day, they shall be at the workplace during the work-shift which has the biggest number of workers and they shall be subject to call at anytime during the other workshifts to attend to emergency cases.
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21.2 Emergency Medical and Dental Services When and What is Required
Where the undertaking in such workplace is nonhazardous, the ER may engage the services of a part-time physician and part-time dentist who shall have the same responsibilities ass those of the part-time physician and the part-time dentist in the preceding paragraph, and shall engage the services of a full-time nurse.
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What are considered hazardous work places? [D C M P] Where the nature of the work exposes the worker to Dangerous environmental elements, contaminations or work conditions. Stevedoring, construction work, logging, firefighting, mechanized farming and similar work. Manufacture or handling of explosives and other pyrotechnic products Where the workers are exposed to heavy or power-driven machinery or equipment or tools. An auto repair shop has 8 EEs. What medical and dental services or facilities must be furnished by the owner of the latter?
Since the establishment employs less than 10 workers, the owner is only obliged to keep in the workplace first aid medicines.
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ER Determination 1. What determines whether a certain employment is regular or casual is not the will and words of the ER, much less the procedure of hiring the EE or the manner of paying his salary. It is the nature of the activities performed in relation to the particular business or trade considering all circumstances, and in some cases the length of time of its performance and its continued existence. (De Leon vs. NLRC) Tucor Industries, a company engaged in moving and storage of foods hired packers and drivers pursuant to employment contracts which provided that the workers were employed on as-needed basis and considered daily-hired. Are they considered regular EEs? Yes. Packing and driving activities are usually necessary and desirable in Tucors usual business. They are entitled to security of tenure, the provisions of the written agreement to the contrary notwithstanding. (Tucor vs. NLRC) 22.3 Regular EEs 1. Who are considered regular EEs?
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H applied for employment with Holiday Inn and was accepted for On-the-job training as telephone operator for 3 weeks. After the completion of the training she was employed on a probationary basis for 6 months. Four days before the said period, she was dismissed by the hotel on the ground that she failed to meet the standards of the hotel. Is the dismissal valid? No. At the time of her dismissal, she was already a regular EE since the on-the-job training was already her probationary period. She was not dropped after that period. Even granting that the probation did not end with the training, there is no reason why that period should not be included in the stipulated 6-month period probation. (Holiday Inn vs. NLRC)
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L was hired as a component mechanic by a manufacturing firm for a probationary period for 6 months. Management decided not to hire her after the probationary period. After a month, the company again hired L for another 6-month probationary period. After the 2nd 6-month probationary period, she was dismissed. Is L a regular EE? Yes. The nature of her job required her to perform activities which are necessary and desirable in the usual business of her ER. She was also rehired after the probationary employment extended to her. This fact of rehiring negates any claim that
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Project EEs 1. PPI, a company providing construction supervision of the Manila Expressway hired R for a term of 24 months. After the expiration of the period, he was hired for another term of 10 months, and then for 19 months. All these were entered during various stages prior to the completion of the construction project. Was R a regular EE of PPI? No. He was hired in a specific project or undertaking as a driver. He was a project EE whose employment terminated upon the expiration of his employment contract or upon the completion of the project. (Rada vs. NLRC) 2. A company engaged in the building and repair of vessels hired welders to work in the repair of a specified vessel. Is the employment of the workers considered regular? No. They are project EEs whose work is co-terminus with the project for which they are hired. (Sandoval Shipyards vs. Leogardo) 3. Consumer Pulse hired field interviewers on specified project basis for a definite period of time. Many of the interviewers worked for several projects. Generally, the contractual employment is not continuous but intermittent, sporadic with long intervals of idle periods in between projects due to lack of work or job contracts. Are the filed interviewers considered regular EEs?
Implication Project EEs are not entitled to separation pay as their work was coterminous with the completion of the project. (Sandoval Shipyards vs. Leogardo) 22.5 Casual EEs 1. What is casual employment? An employment is casual when the EE is engaged to perform tasks or activities which are not usually necessary or desirable in the usual business or trade of the ER. (Art. 280) Jai Alai Manila hired a mason and plumber to do renovation work on its building. The work lasted for 11 months. Are the mason and plumbers regular EEs?
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C was engaged by a trucking company to work as a truck driver for a period of six months. It appears that all drivers of the company were hired on fixed contract basis. The company merely filled in the blanks in a mimeographed form with the corresponding drivers data. After the 6-month period, Cs services were terminated. Was this a valid termination? No. The contract for a fixed period was a clever scheme to prevent its EEs from becoming regular EEs. he should be considered a regular EE. (Cielo vs. NLRC)
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15 years after his dismissal for cause. A was re-hired as a driver for 1 month. Did such re-hiring result in his reacquisition of his former regular status? No. The contract specifically provided for a fixed term. (Pantranco vs. NLRC)
22.8 Probationary EEs 1. What is a probationary employment? It is employment for a specified period generally no exceeding 6 months for the purpose of determining whether the EE can qualify for regular employment in accordance with reasonable standards prescribed by the ER. (Alcantara) What is the probationary period for apprentices and learners? Apprentices : The probationary period in the apprenticeship may not be under probationary employment in the company where he trained. In another company, however, the probationary period for him would be 6 months. Learners : If the job is learnable can be learned within 3 months then the probationary period is 3 months or less. (Policy Instructions No.1)
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At the time of her retirement, A has been employed as school teacher for 22 years. After 3 years from her retirement, she was rehired by the school teacher under contract which was renewable yearly. After 2 years of continuous satisfactory performance, her contract was not renewed. Was the nonrenewal violative of her security of tenure? Yes. When she was rehired, she did not have to undergo a probationary employment as her teaching competence had already been tried and tested during her 22 years of service. she could not be discharged solely on account of the expiration of her 2nd annual contract. She could not only be dismissed for cause and with due process. (St. Theresitas Academy vs. NLRC)
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A teacher was hired by a private school on a yearly basis. Before the expiration of the 2nd yearly contract, the school refused to renew her contract on the ground that her teaching performance was not satisfactory. Is the refusal justified?
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23.1 Introduction: EEs Security of Tenure Coverage 1. 2. Art. 278 : The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not. Confidential and managerial are also entitled to security of tenure, fair standards of employment and the protection of labor laws. (Inter-Orient Maritime vs. NLRC) Probationary and contractual EEs enjoy security of tenure but only to a limited extent. That is, they remained secure in their employment during the period of time their respective contracts remained in effect. (Labajo vs. Alejandro) Pakiao workers who by the nature of their work are considered regular workers enjoy security of tenure. (Dy Keh Beng vs. ILMU) However, if the circumstances indicate that they are in reality independent contractors, then they do not enjoy security of tenure. (Alcantara) The right of ER to freely select or discharge his EEs is regulated by the State, because the preservation of the lives of citizens is a basic duty of the State, more vital than the preservation of the corporate profit. (Llosa-Tan vs. Silahis) 23.2 Management Rights and the Just Cause of Termination Art. 282 : An ER may terminate an employment for any of the following casues: 1. 2. 3. 4. Serious misconduct or willful disobedience by the ER of the lawful orders of his ER or representative in connection with his work; Gross and habitual Neglect by the EE of his duties; Fraud or willful breach by the EE of the Trust reposed in him by his ER or duly authorized representative; Commission of a crime or offense by the EE against a. b. c. 5. the person of his ER or any immediate member of his family or his duly authorized representative and
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Security of Tenure 1. What is meant by the security of tenure? of an EE? Security of tenure of an EE is his right against unjust and arbitrary dismissal. He cannot be deprived of his work, which is property in the constitutional sense, without a just cause and without the benefit of hearing. (Alcantara) Is there an express constitutional guarantee of the security of tenure of an EE? Yes. Art. XIII, Sec. 3, Const. (Rance vs. NLRC)
Analogous cases.
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Management Rights 1. The following are management rights with respect to EEs: Right to manage people in general : Except as limited by special laws, an ER is free to regulate, according to his own discretion and judgment, all aspects of employment. (San Miguel vs. Ople) Right to just share in the fruits of production : Every business enterprise endeavors to increase its profits. In the process it
Nature of Rights Termination of employment is not anymore a mere cessation or severance of contractual relationship but an economic phenomenon affecting members of the family. This explains why under the board principles of social justice the dismissal of EEs is
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2. Examples of serious misconduct : a. EE utters obscene, insulting or offensive words against a superior (Asian Design vs. Deputy Minister of Labor) or challenging a superior officer to a fistfight. (Luzon Stevedoring vs. CIR) However, 2 other later cases ruled that the penalty of termination is extreme and excessive and is not commensurate with the acts committed. (Maranao Hotel vs. CA and Mary Johnston Hospital vs. NLRC) The controlling factor is the circumstances surrounding the willful misconduct. (Alcantara) Serious breach of company rules by allowing 2 security guards to come inside the Security Office, drinking and having sex with one of the guards, although both of them are married. (Stanford vs. NLRC) As a general rule, immorality does not justify a discharge. But when the EE holds a responsible position and has under him a good number of men, the EE must set a good example for his men to follow. Thus, when he got a young concubine and drove away the members of his family from the conjugal home, such dismissal is justified. (Sanchez vs. Ang Tibay) Sleeping in post, gross insubordination, dereliction of duty and challenging superior officers to a fight committed by a security guard. (Luzon Stevedoring vs. CIR) Seamans assault with a knife of a member of the ships crew. (Haverton vs. NLRC) Intoxication is such a misconduct as will justify separation from employment, where such intoxication interferes with the employment. (Azucena)
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Just Causes of Termination May an ER dismiss an EE who enjoys security of tenure? Yes. Security of tenure does not guarantee perpetual employment. If there is a just or authorized cause the ER may terminate the services of an EE; the former cannot be legally compelled to have in its employ s person whose continued employment is patently inimical to its interest. (Alcantara) d.
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3. What are examples of misconduct which does not warrant dismissal? a. b. c. Fistcuffs between two EEs as a result of mere private matter between them. (Aris vs. NLRC) Vending, soliciting, and engaging in usurious activities. (Pacific Products) Borrowing money from a patient which the EE later paid back. (Makati Medical Center vs. NLRC) However, when there is use for a trust relationship as leverage for borrowing money, the act becomes serious misconduct. (Pearl S. Buck Foundation vs. NLRC) Teacher falling in love with student provided the teacher did not take advantage of her position to court her student. (Chua-Qua vs. Clave)
Not every case of insubordination or willful disobedience by an EE of a lawful work-connected order of the ER or its representatives is reasonably penalized with dismissal. There must be a reasonable proportionality between the offense and the penalty imposed therefor. (Gold City vs. NLRC) Past infractions, to which the EE was already meted out disciplinary measures cannot be used as a justification for EEs dismissal from service of the current infraction does not suffice as a ground for just termination. (Filipino vs. Ople) M, an EE of Tritran was told by the personnel manager to see right away the president to apologize for his past misdeeds. He was dismissed because he failed to see the company president. Is the dismissal justified? No. The directive to see the company president was neither reasonable nor one connected with his duties. (Mancho vs. NLRC)
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4. Examples of willful disobedience : Violation of a rule which prohibits EEs from using company vehicles for private purposes without authority from management and stubborn refusal to attend a grievance conference to discuss the violation. (Soco vs. Mercantile Corp.) Willful violation of rules and regulations designed for the safety of laborers i. e. smoking by a painter in the painting booth. (Northern Motors vs. NLU) Allowing a customer to pass thru the exit gate without paying for the work done on his car, despite clear instructions to the contrary, (Manila Trading vs. Zulueta) Act of gambling if it is penalized under company rules with dismissal. (Dimalanta vs. Secretary of Labor) Failure to comply with reportorial requirements in the sales policies. (GTE vs. Sanchez)
B. JUST CAUSE: WILLFUL DISOBEDIENCE 1. What are the requisites in disobedience may constitute terminating employment? order that willful a just cause for
The orders, regulations, instructions of the ER or his representative must be: a. b. c. Reasonable and lawful has reference not only to the kind and character of directions, but also the manner in which they are made. Sufficiently known to the EE. In connection with the duties which the EE has been engaged to discharge.
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Habitual tardiness and absenteeism (Sajonas vs. NLRC) Numerous unauthorized absences. (Cando vs. NLRC)
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S, working as a lobby boy of a movie theater, was pursuant to standard management practice transferred from the day shift where he had been for quite some time to the night shift. He asked that the change be recalled but his request was denied. As he disliked the new assignment, he did not report for work. The company dismissed him due to abandonment. Is the dismissal jusitified? Yes. There was nothing unusual or discriminatory in his change of assignment because the rotation was standard company practice. (Castillo vs. CIR)
2. Example of Dishonesty Falsification of time cards. (SMC vs. NLRC) Theft of company property. (Firestone vs. Lariosa) However, the penalty must be proportional to the offense committed i.e. EE should not be dismissed for theft of used motor oil of minimal quantity if the EE has no previous record. (Gelmart vs. NLRC); EE should not be dismissed for theft of lead pipe to be used for personal use if the EE has no previous record. (PAL vs. PALEA); president of union should not be dismissed for leading an unexpected strike which lasted for 2 days and which resulted in a loss to the company of only P3,000.00 (Sampang vs. Inciong); counter clerk of PLDT should not be dismissed for tampering with a phone bill where the worth of the
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Due to unauthorized absences, M, employed with the company for 18 years, was transferred from the Fire Tender Section to the Pan Grinding Section. He however did not report to his new section, on the ground that the transfer was unreasonable and amounted to demotion. The company contends that his failure to work despite repeated notices constitutes abandonment and a ground for his dismissal. Is this valid? The penalty of dismissal is out of proportion to the offense committed considering the number of years of Ms
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Explain loss of confidence as a ground for just termination : The basic premise for dismissal on the ground of loss of confidence is that the EE concerned holds a position of trust and confidence. (Quezon Electric vs. NLRC) Mere existence of basis for believing that the EE has breached the trust of ER is sufficient and does not require proof beyond reasonable doubt. (Kwikway vs. NLRC) However, to constitute as valid ground, it must be substantial and not arbitrary, and must be founded on clearly established facts sufficient to warrant the EEs separation from work. (Labor vs. NLRC) Examples of loss of confidence as ground for just termination : GM of hotel found to have anti-Filipino tendencies, who did not perform his functions properly and who requisitioned wines for personal use. (Riker vs. Ople) Director who represented to the company that machinery brought were brand-new when in fact they were second-hand. (Pepsico vs. NLRC) Bank tellers act allowing encashment of checks over the counter without verification of drawers signature. (Allied Bank vs. Castro) Violation of the company sales policy of distributing its goods to as many customers as possible by a salesman who made it appear that they were sold to many customers. (Filipro vs. NLRC) Engaging in business other than that of ER, if the activities tend to injure or endanger the business of the ER or the EE is unable to give time and attention to the discharge of his duties. (Azucena)
5 EEs of an electric cooperative were dismissed for loss of confidence when they were caught pilfering electric current through tampered meters in their houses. Considering that the EEs held no position involving trust and confidence, is loss of confidence a ground to dismiss them? No. The offense they committed is not work-related. The pilferage could have been effected even if they were not EEs of the cooperative. (Quezon Electric Cooperative vs. NLRC) Compare this with the case of Flores vs. NLRC, where the same act constituted a ground of serious misconduct and breach of trust.
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J, a checker, was dismissed by San Miguel for breach of trust due to possible involvement in a burglary incident. The dismissal was effected despite Js acquittal in a criminal case for the said offense. Is the dismissal lawful? No. The termination of rank and file EEs due to breach of trust requires proof of actual involvement in the acts constituting the offense. (SMC vs. NLRC)
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JUST CAUSE : COMMISSION OF A CRIME OR OFFENSE 1. Another just cause of terminating an employment is the EEs commission of a crime or offense against the person of his ER or against any immediate member of the ERs family. The immediate members of the family referred to are limited to the spouse, ascendants, descendants, or legitimate, natural, or adopted brothers or sisters of the ER or of his relative by infinity in the same degrees, and those by consanguinity within the 4th degree. (Azucena) Conviction or prosecution is not required, to warrant his dismissal by his ER and the fact that a criminal complaint against the EE has been dropped by the city fiscal as not binding and conclusive upon the tribunal. (Starlite vs. NLRC)
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2. Examples of Analogous Cases : Unreasonable behavior and unpleasant deportment in dealing with the people she closely works with in the course of her employment, is analogous to the other just causes enumerated under the Labor Code. (Cathedral School vs. NLRC)
G. OTHERS 1. Other examples of just termination: Courtesy resignation (Batongbacal vs. Associated Bank) Faculty members of a school whose appointments as department heads are terminated. (La Sallette vs. NLRC)
Redundancy is an ERs personnel force, however does not necessarily or even ordinarily refer to duplication of work. That no other person was holding the same position which the dismissed EE held prior to the termination of his services does not show that his position had not become redundant. (Escareal vs. NLRC) Retrenchment What are the general standards to determine whether the retrenchment is valid? The general standards are the following: 1. 2. 3. 4. 5. The losses expected should be substantial and not merely de minimis in extent. The substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the ER. It must be reasonably necessary and likely to prevent the expected losses. The ER should have taken other measures prior or parallel to the retrenchment to forestall losses. I. e. ; cut other costs other than labor costs. Alleged losses if already realized, and the expected minimum losses sought to be forestalled, must be proved by sufficient and convincing evidence. (Lopez Sugar vs. FFW)
23.3 Authorized Cases of Termination Art. 283 : The ER may also terminate the employment of the EE due to: 1. 2. 3. 4. the Installation of labor saving device. redundancy retrenchment to prevent losses. closing or cessation of operation of the establishment or undertaking.
Art. 284: EE who has been found to be suffering from and Disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-EEs. Introduction of Labor saving Devices Redundancy
Distinguish redundancy from retrenchment? Redundancy means that the position of the EE has become superfluous, an excess over what is actually needed, even if the business reduction or reverses. (Azucena) Closure of Business
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Opportunity to be Heard 1. An EE must be given ample opportunity prior to his dismissal to adequately prepare for his defense. By ample opportunity is meant every kind of assistance that management must be accord to the EE to enable him to prepare adequately for his defense. Under the rules, indeed workers may be provided with a representative. (Ruffy vs. NLRC) The requirement of hearing affords the EE the opportunity to answer his ERs charges against him and accordingly to defend himself therefrom before dismissal is effected. (Salaw vs. NLRC) No hearing is required if the grounds for dismissal or termination of service does not relate to blameworthy act or omission on the part of the EE i.e. retrenchment or redundancy. (Witshire vs. NLRC). W was called to the Office of the General Manager and was told that she was being charged with discourtesy and insubordination. During that time, she was also called to explain her side. As she could not give an explanation, she was dismissed. Is the dismissal valid? No. She was denied procedural due process. She was not given ample opportunity to be heard and to defend herself. 4. 36 conductors of a bus were dismissed after investigations conducted by the Jago and the fiscal found out that they defrauded the company. Is the dismissal violative of due process? No. For the company to conduct its own investigation is a duplication of the JAGO and the city fiscals investigation. (BLTB vs. NLRC)
Ailment or Disease If the EE suffers from a disease and his continued employment is prohibited by law or prejudicial to his health or to the health of his co-EEs, the ER shall not terminate his employment unless there is a certification by a competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of 6 months even with proper medical treatment. (Sec. 8, Rule 1, Book VI, IRRs) A medical certificate issued by the companys own physician, is not a competent public health authority. 23.4 Procedure to Terminate Employment Two Facets of Valid Termination 1. 2. The legality of the act of dismissal which constitutes discharge with just cause; and The legality in the manner of dismissal with due process. (Shoemart vs. NLRC)
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Art. 277 : The burden of proving that the termination was for a valid or authorized cause shall rest on the ER. Degree of Proof In administrative or quasi-judicial proceedings, proof beyond reasonable doubt is not required as basis for a judgment of the legality of an ERs dismissal of an EE, nor even preponderance of evidenced, substantial evidence being sufficient. (MERALCO vs. NLRC) Condonation Having condoned the misconduct of the EE and pardoned the latter, he is deemed to have lost or waived his right to insist on the ERs acts as a ground for dismissal. (Azucena) Dismissal for Cause but Without Due Process A sanction, in the form of damages, must be imposed upon the ER for failure to give a formal notice and conduct an investigation as required by law before dismissing the EE from employment. (Wenphil vs. NLRC) Rules Managerial EEs and Rank and File EEs As a general rule, ERs are allowed a wider latitude of discretion in terminating the employment of managerial personnel or those who, while not of similar rank, perform functions which by their nature require the ERs full trust and confidence. This must be distinguished from the case of ordinary rank-and-file EEs whose termination on the basis of these same grounds require a higher proof of involvement in the events in question; mere uncorroborated assertions and accusations by the ER will not suffice. (Coca-Cola vs. NLRC)
A complaint founded on illegal dismissal is not an ordinary money claim but for reinstatement. The action may be brought within 4 years from dismissal pursuant to Art. 1146 of the NCC. (New Imus Lumber vs. NLRC) 23.5 Consequences of Termination Separation Pay A. General Rule If there is valid cause to terminate an employment, no separation pay need be paid. (Sec. 7, Rule I, Book VI, IRRs) B. Exceptions 1. Art. 283 : Installation of labor saving devices and redundancy : 1 month or 1 month pay for every year of service, whichever is higher. Retrenchment to prevent losses and closure or cessation of operation or establishment or undertaking not due to serious business losses or financial reverses : 1 month pay or month pay for every year of service, which ever is higher.
2. Art. 284 : Disease : 1 month salary or month salary for every year of service, whichever is higher.
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A. COMPUTATION OF BACKWAGES 1. Art. 279 : An EE who is unjustly dismissed from work shall be entitled to full backwages, inclusive of allowances, and to his other benefits or their monetary equivalents computed from the time his compensation was withheld from him up to the time of his actual reinstatement. The effects of extraordinary inflation are not to be applied without an agreement between the parties and without an official declaration thereof by competent authorities. (Lantion vs. GAUF)
C. COMPUTATION of SEPARATION PAY Includes not just the basic salary but also the regular allowances the EE has been receiving. (Planters Products vs. NLRC) However, commissions are not included in such base figure. (Soriano vs. NLRC) D. EFFECT- RECEIPT EEs who received their separation pay are not barred from contesting the legality of their dismissal. The acceptance of those would not amount to estoppel. (San Miguel vs. Javate) Backwages 1. Backwages in general are granted on grounds of equity which a worker has lost due to his illegal dismissal. (Torillo vs. Leogrardo) As a general rule, an EE is entitled to backwages only where his dismissal is due to the unlawful act of the ER or to the latters bad faith. (Reyes vs. Minister of Labor) While generally an order of reinstatement carries with it an award of
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Reinstatement 1. Reinstatement is a restoration to a state which one has been removed or separated. It is the turn to the position from which he was removed and assuming again the functions of the office already held. Reinstatement presupposes that the previous position from which one had been removed still exists, or that there is an unfilled position more or less of a similar nature as the one previously occupied by EE (NATU vs. Secretary of Labor) An ER has 2 options in order for him to comply with an order of reinstatement, which is immediately executory, even pending appeal, firstly, he can admit the dismissed EE back worth under the same terms and conditions
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Without Just Cause Requisites Art. 285(a) : An EE may terminate without just cause the ER-EE relationship by serving a written notice on the ER at least 1 month in advance. The ER upon whom no such notice has been served may hold the EE liable for damages. A. RESIGNATION Resignation is a voluntary act of an EE who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, then he has no other choice but to disassociate himself from his employment. The ER has no control over resignation and so, in order to ensure that no disruption of work would be involved by reason of resignation. This practice has been recognized because every business enterprise endeavors to increase its profits by adopting a device or means designed towards that goal. Resignation once accepted and being the sole act of the EE may not be withdrawn without the consent of the ER. ( Intertrod Maritime vs. NLRC) B. CONSTRUCTIVE DISCHARGE 1. A constructive discharge is a quitting because continued employment is rendered impossible, unreasonable or unlikely; as, an offer involving a demotion in rank and diminution in pay. (Philippine Japan Active Carbon vs. NLRC) This is not a case of voluntary resignation. It is in the nature of a contrivance to effect to dismissal without cause. (Rizal Memorial vs. NLRC)
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Benefit Section 24. Retirement Art. 287 : Any EE may be retired upon reaching the retirement age established in the CBA or other applicable employment contract. In case of retirement, the EE shall be entitled to receive such retirement benefits as he may have earned under existing laws and any CBA agreement and other agreements: Provided, however, That an EEs retirement benefits under any CBA and other agreements shall not be less than those provided therein. In the absence of a retirement plan or agreement providing for retirement benefits of EEs in the establishment, an EE upon reaching 2. 1. Retirement benefits are intended to help the EE enjoy the remaining years of his life, lessening the burden of worrying for his financial support, and are a form of reward for his loyalty and service to the ER. (Aquino vs. NLRC) The CBA between a university and its faculty members provided that in case of unusual circumstances, faculty members whose services are terminated shall be granted retirement benefits. Are faculty members affected by an unusual circumstance, such a phase-out, and who are given separation pay pursuant to law also entitled to retirement benefits?
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25.1Social Security Law (SSL) RA 1161 (as amended by RA 8282) Section 1, SSL : The Act shall be known as the Social Security Act of 1997. 25.2Policy of the State 1. Section 2, SSL : It is a policy of the State to establish, develop, promote and perfect a promote social justice and provide meaningful protection to members and their beneficiaries against the hazardous of disability, sickness, maternity, old age, death, and other contingencies resulting in loss of income or financial burden. EE
Section 8, SSL : EE Any person who performs services for an ER where either mental and physical efforts are used and who receives compensation for such services and where there is an EREE relationship. Dependent 1. Section 8, SSL : Legal spouse entitled by law to from member to receive support. Child : legitimate legitimated legally adopted illegitimate who is unmarried, and not gainfully employed and not reached 21 or over 21 is congenitally or while still minor permanently incapacitated and incapable of selfsupport, physically or mentally.
2.
The law imposes upon ERs and EEs the obligation to become members of and make contributions to the Social Security System. Is such a legal imposition valid and constitutional? Membership in the SSS is not the result of a bilateral, consensual agreement where the rights and obligations of the parties are defined by and the subject to their will. The law requires compulsory coverage of ERs and EEs, designed to provide security to the working men. Membership in the SSS is, therefore, in compliance with a lawful exercise of the police power of the State, to which the principle of non-impairment of the obligation of contract is not a proper defense. (PBM vs. SSS)
25.3 ER 1.
Definitions
Section 8, SSL : ER any person, natural or juridical, domestic or foreign, who carries on in the Philippines any trade, business industry, undertaking or activity of any kind and uses the services of another person who is under his orders as regards the employment.
1.
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2.
After 4 years of marriage, the spouses Salmonte broke up. The wife left the conjugal home. Thereafter, the husband V lived with another woman. When V died, who is entitled to his death benefits? Any legitimate children of V and illegitimate children (50% of the share of the legitimate children). The wife of V is not entitled since she does not qualify anymore as beneficiary since she is not dependent upon the husband. (Salmonte vs. Salmonte)
All EEs not over 60 years of age on date of employment and ERs on 1 st day of operation. (Sec. 9 and 10, SSL) Self-employed as determined by the commission but not limited to self-employed professionals; partners and single proprietors of businesses, actors, actresses, directors, scriptwriters, news correspondents who are not EEs; professional athletes, coaches, trainers, and jockeys and individual farmers and fisherman. (Sec. 9, SSL)
Enumerate the kinds of employment which are excepted from compulsory coverage under the SSL? 1. 2. 3. 4. 5. 6. 7. Employment purely casual and not for the purpose of occupation or business of the ER. (Sec. 8, SSL) Service performed on or in connection with alien vessel if EE employed when such vessel is outside of the Philippines. (Id.) EEs of the Philippine government, instrumentality or agency thereof. (Id.) Service performed in the employ of a foreign government, or international organizations or whollyowned instrumentality. (Id.) Services performed by temporary EEs excluded by SSS regulation. (Id.) Domestic helpers who are 60 years of age and below with a monthly income of not less than P1,000.00 on the date of their employment. (Sec. 9) Individual farmers and fishermen under SSS rules and regulations. (Id.)
C. OTHERS 1. Sec. 8 : Absent primary and secondary beneficiaries any other person designated be members as secondary beneficiary. S, a bachelor dies. His death benefits are claimed by L, his girlfriend whom he designated as beneficiary. The claim is contested by V, S brother. Who is preferred? L, V is not among the primary and secondary beneficiaries provided under the law. Thus, L, the designated beneficiary is preferred. (Alcantara) 3. E. a widower, designated M as his beneficiary. The unemployed married children of E contests the payment of death benefits to M. Is the contention valid? No. Eddies legitimate children are not considered dependents since they are already married. (Alcantara) 25.4Coverage
2.
III. As sacristan in the Catholic Church, B cleaned the premises of the church, tolled its bells, and assisted the priests in the masses and other church services. In consideration of these services, he received 5% of the monthly income of the church. Is B subject to compulsory coverage?
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C. BY ARRANGEMENT When can coverage be by arrangement? Any foreign government, international organization or wholly owned instrumentality employing workers in the Philippines or employing Filipinos outside of the Philippines may enter into an agreement with the Philippines for the inclusion of such EEs in the SSS except those already covered by their respective civil service retirement system. (Sec. 8, SSL) 25.5Effect of Separation from Employment or Interruption of Business of Professional Income I. What are the effects of separation from employment of an EE compulsorily covered? 1. 2. 3. II. ER contribution shall cease at the end of the month of separation an EE not required to pay contributions. EE credited with all contributions paid and entitled benefits according to SSL. EE may continue to pay total contribution to maintain right to full benefit. (Sec. 11, SSL)
25.7 Funding I. What are the different sources of funding for the SSS? 1. EE s contribution : The ER shall deduct and withhold from such EEs monthly salary, wage, compensation or earnings, the EEs contribution. (Sec. 18) [Compensation an actual remuneration as well as cash value of any remuneration paid in any medium other than cash. (Sec. 8)] 2. ERs contribution : ER shall pay, with respect to such covered EE, the ERs contribution in accordance with the schedule indicated in Section 18 of this Act. 3. Government contributions : Appropriation of necessary sums to meet the estimated expenses of the SSS for each ensuing year. 4. Contributions from those voluntarily covered by the SSS. II. The funds contributed to the System belong to the members who will receive benefits, as a matter of right, whenever the hazards provided by the law occur. (CMS Estate vs. SSS)
What are the effects if self-employed realizes no professional or business income? 1. 2. He shall not be required to pay contributions. He may be allowed to continue to pay contributions under the same rules as a separated EE. (Sec. 11, SSL)
III. After working for 5 years, J was fired without cause. His dismissal effected him so much that 2 months after he suffered
Effects of Non-remittance
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II.
2. 3.
Dependents pension (Sec. 12-A, SSL) Retirement (Sec. 12-B, SSL) paid at least 120 monthly contributions monthly pension for as long as he lives
III. On his way home from work, R went to a movie house to watch. He is stabbed by an unknown assailant while watching. The SSS denied his claims on the ground that the injury is not work-connected. Is the denial valid? No. It is not necessary for the enjoyment of benefits that there be casual connection between the injury and the work of the EE. What is required is membership in the SSS. Prescription Periods
4.
Death (Sec. 13, SSL) paid at least 36 monthly contributions lump sum of 36 monthly pensions
Art. 1144 : 10 years from the time the right of action accrues since this is an obligation created by law. Benefit Protection 1. Sec. 15, SSL : Benefits are not transferable. No power of attorney or other documents executed as beneficiary in favor of any agent, attorney or other person for the collection of their behalf shall be recognized except which beneficiary is physically unable to collect. Sec. 15, SSL : When Beneficiary is a national of a foreign country which does not extend benefits to Filipino beneficiary residing in the Philippines or which is not recognized by the Philippines. 3. General Rule : He is not entitled to benefit. Exception: Social Security Commission may authorize payment where the best interest of the SSS will be served.
5. 6. 7.
Permanent disability (Sec. 13-A, SSL) Funeral (Sec. 13-B, SSL) Sickness (Sec. 14, SSL) payment of at least 3 monthly contributions in the 12month period immediately preceding the sickness. Confinement for more than 3 days Notice to ER within 5 calendar days of sickness Exhaustion of sick leaves with full pay.
2.
8.
Maternity (Sec. 14-A, SSL) A female member who has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent to 100% of her average daily salary credited for 60 days or 78 in case of caesarian delivery for the 1 st 4 deliveries or miscarriages. These are all tax-exempt.
Sec. 16, SSL : All benefit payments made by SSS shall be exempt from all kinds of taxes, fees or charges and shall not be liable to attachment, garnishments, levy or seizures by or under any legal or equitable process whatsoever, either before or after receipt except to pay any debt of member to SSS.
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25.9Dispute Settlement Jurisdiction and Period of Dispute Settlement Sec. 5 : Disputes involving coverage, benefits, contribution, penalties and any related matter shall be decided by the Social Security Commission or duly designated member, or duly authorized hearing officers and should be decided within the mandatory period of 20 calendar days from submission. Decision shall be final 15 days after date of notification. Execution of Decisions Sec. 5, : The Commission motu proprio or on motion of any interest party may issue order of execution of decision after same is final and executory. Appeal Sec. 5 : Appeal to CA on law and facts. Appeal to the SC on pure questions of law. Section 26. Workmens Compensation EEs Compensation and State Insurance Fund (ECSIF) 26.1 Law Policy Objective Art. 166 : To promote and develop a tax exempt EEs compensation program whereby EEs and their dependents, in the event of work-connected disability or death, may secure adequate income benefit, and medical or related benefit. Rationale
2. Give the characteristics of the EEs Compensation Program Tax exempt. Designed to ensure promptitude in cases of workconnected disability or death in the award of benefits. Funded by monthly contributions of all covered ERs. Compulsory on all ERs and their EEs not over 60 years of age. Benefits are exclusive and in place of all other liabilities of the ER to the EE. Has its own adjudicative machinery with original exclusive jurisdiction on any matter related thereto, independent of other tribunals except the SC. (SMC vs. NLRC)
Interpretation As agent charged by the law to implement social justice guaranteed and secured by the Constitution, the ECC should adopt a liberal attitude in favor of the EE in deciding claims for compensability, especially where there is some basis in the facts inferring a work connection to the accident. (Lazo vs. ECC) 26.2Definitions ER
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2.
4. 5.
Spouse : Legitimate and living with the EE. Parents : of EE wholly dependent upon EE for regular support. (Art. 166)
Beneficiaries Who are the beneficiaries under the ECSIF? 1. Primary a. b. Spouse dependent spouse until remarriage Children dependent; provided dependent acknowledged natural children shall be considered as primary beneficiary when there are no other dependent children who are not eligible and qualified for monthly income benefit.
Proximate Cause The right to compensation extends to disability due to disease supervening upon and proximately and naturally resulting from a compensable injury. Where the primary injury is shown to have arisen in the course of employment, unless it is the result of an independent intervening cause attributable to claimants own negligence or misconduct i.e. condition of classroom floor caused Belarmino to slip and fall and suffer injury as a result, hence all medical consequences flowing from it, the premature delivery of her baby, and her death are compensable. (Belarmino vs. ECC) Going to or Coming from Work Rule 1. What is the going and coming rule? In the absence of special circumstances, an EE injured while going to or coming from his place of work is excluded from the benefits of workmens compensation acts, except: a. Where the EE is proceeding to or from his work on the premises of the ER.
2. Secondary a. b. c. Parents dependent subject to restrictions imposed on dependent children. Children illegitimate subject to restrictions imposed on dependent children Legitimate descendants.
26.3Compensability 1. What is an injury? Harmful change in the human organism from any accident arising out of and in the course of the employment. (Art. 167)
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d.
2.
What is the ingress or egress/proximity rule? Employment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. As a general rule, employment may be said to begin when the EE reaches the entrance to the ERs premises where the work is to be done; but it is clear that in some cases the rule extends to include adjacent premises used by the EE as a means of ingress and egress with the express or implied consent of the ER. (Iloilo Dock vs. WCC)
Incidents of Employment It is settled that injuries sustained in connection with acts which are reasonably incidental to the employment are deemed arising out of such employment. Generally, such incidents of work include: 1. 2. 3. 4. 5. Acts of personal ministration for the comfort and convenience of the EE i.e. answering a call of nature. Acts for the personal benefit of the ER i.e. special errand rule. Acts done to further the goodwill of the business. Slight deviations from work, from curiosity or otherwise. Acts in emergencies i.e. death of an EE while attempting to rescue a co-EE (Azucena)
Living, Boarding, Lodging on Premises of ER, or at Working Place Compensable if living on the ERs premises or at the place of work is an express or implied requirement of the contract of hiring and when the injury results from a risk or danger which is reasonably incidental to the employment. (Azucena)
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A. INTOXICATION OR DRUNKENNESS It has been held that even if it could be shown that a person drank intoxicating liquor it is incumbent upon the person invoking drunkenness as a defense to show that said person was extremely drunk. Thus, intoxication which does not incapacitate the EE from following his occupation is not sufficient to defeat the recovery of compensation, although intoxication may be a contributory cause to his injury. It must be shown that the intoxication was the proximate cause of death or injury and the burden of proof lies on him who raises drunkenness as a defense. (Nitura vs. ECC) B. SELF-INFLICTED INJURIES According to American authorities, suicide is compensable in the following cases: 1. When it results from insanity from compensable work injury or disease. When it occurs during a delirium resulting from compensable disease. (NAESS Shipping vs. NLRC)
26.4Coverage and Liability Compulsory Coverage Art. 168 : All ERs and their EEs not over 60 years of age, provided, an EE who is over 60 and paying contribution to qualify for retirement or life insurance benefits shall be subject to compulsory coverage. Foreign Employment Art. 170 : The Commission shall ensure adequate coverage of Filipino EEs employed abroad. Compulsory coverage of the ER shall take effect on the 1 st day of operation, and that of the EE on the date of employment. Exclusions 1. Art. 172 : The State Insurance Fund shall be liable for compensation to the EE or his dependents, except when the disability or death was occasioned by the: a. b. c. d. EEs intoxication, Willful intention to injure or kill himself or another, Notorious negligence, or Otherwise provided under this Title.
2.
C. NOTORIOUS NEGLIGENCE Notorious negligence has been defined as something more than mere or simple negligence or contributory negligence; it signifies a deliberate act of the EE to disregard his own personal safety. Disobedience to rules, orders, and/or prohibition does not in itself constitute notorious negligence, if
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26.5Funding
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2.
Death and Funeral minimum death benefit shall be P15, 000.00 and funeral benefit shall be P8,000.00 (Art. 194)
All the benefits are tax-exempt. Benefit Protection Art. 175 : Except as otherwise provided under this Title, no contract ,regulation or device whatsoever shall operate to deprive the EE or his dependents of any part of the income benefits and medical or related services granted under this Title. Existing medical services being provided by the ER shall be maintained and continued to be enjoyed by their EEs.
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3.
26.7Dispute Settlement Art. 180 : Government service insurance system or the social security system shall have original and exclusive jurisdiction to settle any dispute with respect to coverage, entitlement of benefits, collection of contributions and penalties and other related matters. Appeal Art. 181 : Decisions or orders shall be reviewable by the SC on question of law. Section 27: Government Service Insurance System 27. 1 Revised Government Service Insurance Act of 1997 27.2 Definitions ER Sec. 2, GSIS Act of 1997 : The ER includes : 1. 2. 3. 4. The national government, its political subdivisions, branches, agencies or instrumentalities. GOCCs. Financial institutions with original charters. Constitutional commissions and the judiciary.
2. 3.
Spouse legitimate and dependent for support upon member or pensioner. Parents legitimate parent dependent upon member for support. (Sec. 2, GSIS Act of 1997)
Beneficiaries Who are the beneficiaries under the GSIS Law? 1. Primary : a. b. 2. Legal dependent spouse until remarriage. Dependent children.
EE Sec. 2, GSIS Act of 1997 : EE shall include : 1. 2. Any person receiving compensation while in the service of ER whether by election, or appointment, irrespective of the status of appointment. Barangay officials.
subject
to
restrictions
of
27.3
Sec. 3, GSIS Act of 1997 : Coverage shall be compulsory for all EEs receiving compensation who have not reached compulsory retirement age, irrespective of the employment status.
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b. c. 27.5 Reporting Requirements Sec. 6, GSIS Act of 1997 : The ER shall report to the GSIS the names of all EEs, corresponding employment status, positions, salaries and other pertinent information. 27.6 Funding What are the different sources of funding of the GSIS? 1. ER and member contributions. (Sec. 5, GSIS Act of 1997) 2. Government guarantees the fulfillment of the obligations of the GSIS to members. (Sec. 8, GSIS Act of 1997) 3.
Judiciary Life insurance only. (Sec. 3, GSIS Act of 1997) *** All are tax exempt. Prescriptive Period Sec. 28, GSIS Act of 1997 : All claims, except for life and retirement benefits shall prescribed within 4 years from date of contingency. Benefit Protection Sec. 39, GSIS Act of 1997 : 1. 2. All benefits paid shall be exempt from taxes. All benefits shall be exempt from attachment, garnishment, executions, levy or other processes, issued by courts, quasi-judicial agencies or administrative bodies including COA disallowances and all forms of financial obligations of members, including pecuniary accountability arising from or caused or occasioned by exercise of performance or official functions or duties, or incurred relative to or in connection with his position or work except when monetary liability, contractual or otherwise, is in favor of the GSIS.
27.7 Benefits What are the benefits provided by the GSIS? 1. All members a. b. Lifetime insurance. Retirement at least 60 years of age, and 15 years of service. however, EE is allowed to continue to work to complete the 15-year service requirement. (Cana vs. CSC)
27.8
Dispute Settlement
2.
Disability Provided : he has paid at least 36 monthly contributions within the 5year period immediately preceding his disability, or he has paid a total of at least 180 monthly contributions prior to
Sec. 30, GSIS Act of 1997 : Government Service Insurance System shall have original and exclusive jurisdiction to settle any dispute arising under act or any laws administered by the GSIS. The Board may designate any member of the Board or official of the GSIS who is a lawyer as hearing officer to receive evidence, make findings of fact and submit recommendations.
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4. The Program shall be limited to: 28.2 Purposes/Objectives 1. Section 2, National Health Insurance Act : The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all the people at affordable cost. (b) Universality The National Health Insurance Program shall give the highest priority to achieving coverage of the entire population with at least at a basic minimum package of health insurance benefits. 2. Section 3, National Health Insurance Act : This Act seeks to: a. b. c. 3. Provide all citizens of the Philippines with the mechanism to gain financial access to health services; Create the National Health Insurance Program, hereinafter referred to as the Program to serve as the means to help the people pay for health care services; and Establish the Philippine Health Insurance Corporation, that will administer the Program at central and local levels. a. b. paying for the utilization of health services by covered beneficiaries or to purchasing health services in behalf of such beneficiaries.
It shall be prohibited from: a. b. c. d. providing health care directly from buying and dispensing drugs and pharmaceuticals, from employing physicians and other professionals for the purpose of directly rendering care, and from owning or investing in health care facilities.
28.3 Coverage 1. Section 7, National Health Insurance Act : All citizens of the Philippines shall be covered, provided, the Program shall not be made compulsory in certain provinces and cites until the Corporation shall be able to ensure the members in such localities shall have reasonable access to adequate and acceptable health care services.
Section 5, National Health Insurance Act : There is hereby created the National Health Insurance Program which shall provide health insurance coverage and ensure affordable, acceptable, available and accessible health care services for all the citizens of the Philippines, in accordance with the policies and specific provisions of this Act. This social insurance program shall serve as the means for the healthy to pay for the care of the sick and those who can afford medical care to subsidize those who cannot. It shall initially consist of Programs I and II of Medicare and be expanded progressively to constitute one universal health insurance program for the entire population. The Program shall include a sustainable system of the funds constitution, collection, management and disbursement for financing of the availment of a basic minimum package and other supplementary packages of
2. Who are the legal dependents of a member? a. b. Legitimate spouse who is not a member. Unmarried and unemployed legitimate, legitimated, illegitimate, acknowledged children, legally adopted or stepchildren below 21 years of age or 2 years old and above but suffering from congenital disability, either physical or mental, or any disability acquired that renders them totally dependent on member for support.
c.
Parents who are over 60 years of age whose monthly income is below an amount to be determined by the Corporation. (Sec. 4, National Health Insurance Act)
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28.6 Grievance and Appeal I. Section 40, National Health Insurance Act : The following acts shall constitute valid grounds for grievance action: 1. 2. 3. 4. 5. Violation of the rights of patients. Willful Neglect of duties of program implementers that results in the loss or non-enjoyment of benefits by members or their dependents. Unjustifiable delay in actions or claims. Delay in the processing of claims that extends beyond the period agreed upon. Any other Act or neglect that tends to undermine or defeat the purposes of this Act. (VANUD)
28.5 Health Care Providers I. What are the minimum accreditation requirements of health care providers 1. 2. 3. 4. 5. 6. II. Human resource, equipment and physical structure in conformity with the standards of the relevant facility, as determined by the Dept. of Health. Acceptance of formal program of quality assurance and utilization review. Acceptance of the payment mechanisms specified in the following section. Adoption of referral protocols and health resources sharing arrangements. Recognition of the right of patients. Acceptance of information system requirements and regular transfer of information.
II. Section 41, National Health Insurance Act : A member, his dependent, or a health care provider may file a complaint for grievance based on any of the above grounds, in accordance with the following procedure : 1. 2. 3. A complaint for grievance must be filed with the Office which shall rule on the complaint within 90 calendar days from receipt thereof. Appeals from Office decisions must be filed with the Board within 30 days from receipt of notice of dismissal or disallowance by the Office. The Office shall have no jurisdiction over any issue involving the suspension or revocation of accreditation, the imposition of fines, or the imposition of charges on members or their dependents in case of revocation of their entitlement.
Give the categories of personal health services to be granted under the NHIP : 1. 2. 3. 4. Inpatient hospital care i.e. room and board services of health care professionals. Outpatient care i.e. diagnostic, laboratory and other medical examinations services and personal preventive services. Emergency and transfer services. Such other health services that the Corporation shall determine to be appropriate and cost-effective.
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Section 29. CARL, RA 6657 1. Give the provisions of the 1987 Constitution of agrarian reform? The State shall promote comprehensive rural development and agrarian reform. (Sec. 21, Art. II, Const.) The State shall by law, undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State shall encourage and undertake the just distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into account ecological, developmental and equity considerations, and subject to the payment of just compensation. In determining retention limits, the State shall respect the right of small landowners. The State shall provide incentives of voluntary land-sharing. (Sec. 4, Art. XIII, Const.)
2.
Define agrarian reform. Agrarian reform means the redistribution of lands regardless of crops or fruits produced to farmers and regular farmworkers who are landless, irrespective of tenurial arrangement, to include the totality of factors and support services designed to life the economic status of the beneficiaries and all other arrangements alternative to the physical redistribution of lands, such as production or profit sharing, labor administration and distribution of shares of stock, which will allow the beneficiaries to receive a just share of the fruits of the lands they work. (Sec. 3, CARL)
3. Lands covered by the CARL. All alienable and disposable lands of the public domain devoted to or suitable for agriculture. No reclassification of forest or mineral lands to agriculture lands shall be
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