Professional Documents
Culture Documents
58
Constitutional Mandate
I. Labor: Concept
-
7 Cardinal Rights
1.
Self-Organization
2.
Collective Bargaining + Negotiations
3.
Peaceful and Lawful Collective Action (Right to Strike)
4. Security of Tenure
5.
Humane conditions of work
6.
Living Wage
7.
Participation in relevant Policy & Decision Making Processes
Rights granted in other provisions in the Constitution
1.
Right to form unions, associations, societies for purposes not
contrary to law.
2.
Right to self-organization shall not be denied to government
employees.
3.
Regular farmworkers shall have the right to own directly or
collectively the lands they till.
4. The State shall by law and for common good, undertake in
cooperation with the private sector a continuing program of urban
land reform and housing.
5.
The State shall protect working women by providing safe and
healthful working conditions taking into account their maternal
functions.
6.
Labor is entitled to seats allotted to party-list representatives
7.
The State shall promote industrialization and full employment
based on sound agricultural development and agrarian reform.
8. Congress shall create an agency to promote the viability and
growth of cooperatives.
9. The Government shall increase salary scales of the other officials
and employees of the National Government.
10. Career civil service employees shall be entitled to appropriate
separation pay and to retirement and other benefits under existing
laws.
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LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
58
Consti., Art. II, Sec. 20; Art. XIII, Sec. 3, pars. 3 and 4
III. Classification
1.
2.
3.
Labor Standards
Labor Relations
Welfare Legislation
Coca-Cola v. Gacayna
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LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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IV. Basis
-
The writing of the Labor Code began in 1968 under the Minister of
Labor Blas Ople
The objective was not merely to consolidate the then existing
pieces of labor legislation but also to reorient them to the needs of
economic development and justice
Information had to be gathered from different departments and
bureaus of the government, UP Law, IBP, NEDA, etc.
Ratified on April 28, 1973
It was signed into law on May 1, 1974 and took effect on Nov 1, 1974
because it is designed to be a dynamic and rowing body of laws
which will reflect continually the lessons of practical applications
and experience
Art. 3
ART. 4 (LC)
All Cases
Labor Code + IRR
All doubts
Art. 1
November 1, 1974
Art. 2
3
4
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LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Art. 217
Art. 5
Art. 221
Person
Either natural or juridical, individual or collectively
Includes business trust and legal representatives
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Employee
Arts. 97 (a), (b), (c); 173 (f), (g), (h); 218 (e), (f)
Employer
Includes any person acting directly or indirectly in the interest of an
employer in relation to an employee
Includes the government and all its branches, subdivisions and
instrumentalities, all GOCCs and institutions, as well as non-profit
private institutions, or organizations.
The term shall not include any labor organization or any of its
officers or agents except when acting as employer.
All rights and benefits under the Labor Code shall be applied to all
kinds of workers
BUT GOCCs incorporated under a general charter shall be governed
primarily by their original charters
Art. 217 (a) (2), (3), (4), (6); 128, 129, 288, 289, 290, 291, 292, Consti., Art. III, Secs. 11 & 16
Lirio v. Genovia
5
58
Control Test
For purposes of the test, Control refers to:
a. Control as to the MEANS
b. Control as to the RESULTS.
Under this test an employer-employee relationship exist where the
person for whom the services are performed reserves the right to
control not only the end to be achieved, but also the manner and
means to be used in reaching the end.
This is to be distinguished from the control used in Independent
Contractor (IC). In IC, control is used not to test ER-EE relationship,
but WON theres control (as to the means only) as would warrant a
relationship with an IC.
One need not actually exercise direct control, provided the ER
reserves the right to control. It also need not be done personally or
physically because it may be done through an intermediary
(supervisor or manager, etc.)
Control may be used as [a] guideline or [b] regulation.
Arts. 106, 107, 108, 109; OR: Book III, Rule VIII-A
INDEPENDENT CONTRACTOR
Has sufficient substantial capital
OR investment in machinery, tools
or equipment directly or intended
to be related to the job contracted
Carries an independent business
different from the employers
Undertakes to perform the job
under its own account and
responsibility, FREE from the
principals control
NO ER-EE Relationship except
when the contractor or
subcontractor fails to pay the
employees wages.
LIMITED liability
(Principal solidarily liable with
contractor or subcontractor only
when latter fails to comply with
requirements as to unpaid wages
and other labor standards
violations.)
Permissible
LABOR-ONLY CONTRACTOR
Has NO substantial capital NOR
investment in the form of
machinery, tools or equipment
Has no independent business
Performs activities directly related
to the main business of the
principal
Principal treated as direct employer
of the person recruited in all
instances (contractor is deemed
agent of the principal)
Principals liability extends to all
rights, duties and liabilities under
labor standard laws including the
right to self-organization
Prohibited
PROVING
ER-EE RELATIONSHIP
ILLEGAL DISMISSAL
BURDEN
The party trying to
establish the
presence of the
relationship
Employee
QUANTUM OF
EVIDENCE
Substantial Evidence
1.
2.
3.
1.
2.
3.
4.
Orozco v. CA (2008)
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LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
58
10
In case of conflict between the text of the contract and the intent
of the parties, it is the latter that prevails, and not the wording
which is prone to mistakes, inadequacies and ambiguities. To hold
otherwise would give life, validity and precedence to mere typo
errors and defeat the very purpose of agreements.10
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
58
1. Parties
Worker
-
1.
2.
3.
4.
5.
6.
7.
8.
1.
2.
3.
4.
5.
6.
Licensing Requirements:
1.
Citizenship (Filipino)
2.
Capitalization (P 3M)
3.
Validity of License (4 years; 1 year provisional)
4. Non-Transferability
5.
Registration / License Fees
6.
Bonds (100k)
7.
Placement / Documentation Fees
Workers Fees
Reports/Employment Information
Arts. 33, 14 (d), 34 (h); RA 8042, Sec. 6 (h)
Art. 13 (b)
SOL 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 jobs, wages,
other terms and conditions and other employment data.
Failure to do so = illegal recruitment
Overseas Employment
RA 8042, Sec. 6
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LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
58
Illegal Recruitment
The following are acts of illegal recruitment, done by a non-license or nonholder of authority:
(a) To charge or accept directly or indirectly any amount greater than
the specified in the schedule of allowable fees prescribed by the
SOL, or to make a worker pay any amount greater than that
actually received by him as a loan or advance;
(b) To furnish or publish any false notice or information or document in
relation to recruitment or employment;
(c) To give any false notice, testimony, information or document or
commit any act of misrepresentation for the purpose of securing a
license or authority under the Labor Code;
(d) To induce or attempt to induce a worker already employed to quit
his employment in order to offer him another unless the transfer is
designed to liberate a worker from oppressive terms and conditions
of employment;
(e) To influence or attempt to influence any persons or entity not to
employ any worker who has not applied for employment through
his agency;
(f) To engage in the recruitment of placement of workers in jobs
harmful to public health or morality or to dignity of the Republic of
the Philippines;
(g) To obstruct or attempt to obstruct inspection by the SOL or by his
duly authorized representative;
(h) To fail to submit reports on the status of employment, placement
vacancies, remittances of foreign exchange earnings, separations
from jobs, departures and such other matters or information as
may be required by the SOL;
(i) To substitute or alter to the prejudice of the worker, employment
contracts approved and verified by the DOLE from the time of
actual signing thereof by the parties up to and including the period
of the expiration of the same without the approval of the DOLE;
(j) For an officer or agent of a recruitment or placement agency to
become an officer or member of the Board of any corporation
engaged in travel agency or to be engaged directly or indirectly in
the management of a travel agency;
(k) To withhold or deny travel documents from applicant workers
before departure for monetary or financial considerations other
than those authorized under the Labor Code and its implementing
rules and regulations;
(l) Failure to actually deploy without valid reasons as determined by
the DOLE; and
(m) Failure to reimburse expenses incurred by the workers in
connection with his documentation and processing for purposes of
deployment, in cases where the deployment does not actually take
place without the worker's fault. Illegal recruitment when
committed by a syndicate or in large scale shall be considered as
offense involving economic sabotage.
Qualified/Syndicated Illegal Recruitment
This is carried out by a group of three (3) or more persons
conspiring or confederating with one another.
It is deemed committed in large scale if committed against three (3)
or more persons individually or as a group.
Sanctions
Venue: RTC of place of commission / residence of offended party
Money Claims: LA have original and exclusive jurisdiction
Enforcement Powers
Rule Making Power
Art. 36
Regulatory Power
Art. 35, 36
SOL shall have the power to restrict and regulate the recruitment
and placement activities of all agencies within the coverage of this
Title
SOL shall have the power to suspend or cancel any license or
authority to recruit employees for overseas employment for
violation of rules and regulations.
Visitorial Power
Art. 37
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LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
58
Requirements:
o
CV of applicant
o
Contract of Employment
o
Designation by employer of at least 2 understudies per
alien worker
Report of the Bureau Director as to the availability or nonavailability of any person in the Philippines who is competent, able,
and willing to do the job for which the services of the applicant are
desired
BDs assessment as to whether or not the employment of the
applicant will redound to the national interest;
Admissibility of the alien as certified by the Commission on
Immigration and Deportation
The recommendation of the Board of Investments or other
appropriate government agencies if the applicant will be employed
in preferred areas of investments or in accordance with imperatives
of economic developments
Payment of a P100.00 fee
1.
2.
3.
4.
5.
6.
7.
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
DO 97-09, Sec. 13
a.
b.
c.
d.
e.
f.
10
58
Art. 57
Art. 44 (a); RA 7796, Sec. 4 (b), (c), (e)
Manpower
Means that portion of the nations population which has actual or
potential capability to contribute directly to the production of
goods and services
Skills Development
Means the process through which learners and workers are
systematically provided with learning opportunities to acquire or
upgrade, or both, their ability, knowledge and behavior pattern
required as qualifications for a job or range of jobs in a given
occupational area
Technical Education
Refers to the education process designed at post-secondary and
lower tertiary levels, officially recognized as non-degree programs
aimed at preparing technicians, para-professionals and other
categories of middle-level workers by providing them with a broad
range of general education, theoretical, scientific and technological
studies, and related job skills training
Middle-Level Manpower
-
Refers to those
o
Who have acquired practical skills and knowledge
through formal or non-formal education and training
equivalent to at least a secondary education but
preferably a post-secondary education with a
corresponding degree or diploma; or
o
Skilled workers who have become highly competent in
their trade or craft as attested by industry.
RA 7796, Sec. 2
RA 7796, Sec. 3
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LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
1.
2.
3.
Apprentice
A person undergoing training for an approved apprenticeable
occupation during an established period assured by an
apprenticeship agreement
They train in a highly skilled job or in a job found only in a highly
technical industry that is why training period exceeds three months
An apprentice is also a learner
Learner
Persons hired as trainees in semi-skilled and other industrial
occupations which are non-apprenticeable and which may be
learned through practical training on the job in a relatively short
period of time which shall not exceed three (3) months.
Learners are immediately hired after the training period as
compared to an apprentice
Learnership is allowed even for non-technical jobs
QUALIFICATIONS
BUSINESS
ENTERPRISE
PERIOD
AGREEMENT
REGULATIONS
COMPENSATION
LEARNER
No qualifications
needed
Semi-Skilled business
APPRENTICE
Qualifications may be
set
Highly Technical
Industries
3 mos.
6 mos.
Learnership
Apprenticeship
Approval of TESDA
Approval of TESDA,
Endorsed by a tripartite
body
Must not be lower than 75% of minimum wage
Apprenticeable Occupation
An occupation officially endorsed by a tripartite body
Approved for apprenticeship by the Authority;
Only employers in the highly technical industries may employ
apprentices
Learners may be hired when:
-
11
58
RA 7277, Sec. 2
Senate shall give full support to the improvement of the total wellbeing of PWDs and their integration into the mainstream of society.
State shall adopt policies ensuring the rehabilitation, selfdevelopment and self-reliance of PWDs.
It shall develop their skills and potentials to enable them to
compete favorably for available opportunities.
They should be able to live freely and as independently as possible.
PWDs rights must never be perceived as welfare services by the
Government.
The rehabilitation of the PWDs shall be the concern of the
Government in order to foster their capability to attain a more
meaningful, productive and satisfying life.
Ensure full participation of different sectors as supported by
national and local government agencies
The State also recognizes the role of the private sector in
promoting the welfare of PWDs and shall encourage partnership in
programs that address their needs and concerns.
The State shall advocate for and encourage respect for PWDs. The
State shall exert all efforts to remove all social, cultural, economic,
environmental and attitudinal barriers that are prejudicial to PWDs.
RA 7277, Sec. 3
Arts. 65, 66, 67
Sheltered Employment
o
The provision of productive work for PWDs through
workshop providing special facilities, income producing
projects or homework schemes with a view to give them
the opportunity to earn a living thus enabling them to
acquire a working capacity required in open industry.
o
If suitable employment for PWDs cannot be found
through open employment, the State shall endeavor to
provide it by means of sheltered employment.
o
In the placement of PWDs in sheltered employment, it
shall accord due regard to the individual qualities,
vocational goals and inclinations to ensure a good
working atmosphere and efficient production.
Apprenticeship
o
PWDs shall be eligible as apprentices or learners;
o
Provided, That their handicap is not much as to
effectively impede the performance of job operations in
the particular occupation for which they are hired;
o
Provided, further, that after the lapse of the period of
apprenticeship if found satisfactory in the job
performance, they shall be eligible for employment.
Impairment
Is any loss, diminution or aberration of psychological, physiological,
or anatomical structure of function
Disability
-
Shall mean:
(1) A physical or mental impairment that substantially limits one
or more psychological, physiological or anatomical function
of an individual or activities of such individual;
(2) A record of such an impairment; or
(3) Being regarded as having such an impairment
Handicap
Refers to a disadvantage for a given individual resulting from an
impairment or a disability, that limits or prevents the functions or
activity, that is considered normal given the age and sex of the
individual
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
This Act shall cover all PWDs and, to the extend herein provided,
departments, offices and agencies of the National Government or
non-government organization involved in the attainment of the
objectives of this Act.
12
58
The Eight-Hour Labor Law was designed not only to safeguard the
health and welfare of the laborer or employee, but in a way to
minimize unemployment by forcing employers, in cases where
more than 8-hour operation is necessary, to utilize different shifts
of laborers or employees working only for eight hours each.11
11
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LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
13
58
"Managerial employees"
Those whose primary duty consists of the management of the
establishment in which they are employed
One who is vested with the powers or prerogatives to lay down and
execute management policies
Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if the
exercise of such authority is not merely routinary or clerical in
nature but requires the use of independent judgment.
1.
2.
3.
(a)
(b)
12
13
Domestic Workers
Refers to any person engaged in domestic work within an
employment relationship
Domestic Work = service in the employers home which is usually
necessary or desirable for the maintenance and enjoyment thereof
and includes ministering to the personal comfort and convenience
of the members of the employers household, including services of
family drivers
Exception/Exclusions:
Any person who performs domestic work only occasionally or
sporadically and not on an occupational basis.
The term shall not include children who are under foster family
arrangement, and are provided access to education and given an
allowance incidental to education
Assignment to non-household work.
o
No DW shall be assigned to work in a commercial,
industrial or agricultural enterprise at a wage or salary
rate lower than that provided for agricultural or nonagricultural workers as prescribed herein.
Persons in the Personal Service of Another
Domestic servants and persons in the personal service of another if
they perform such services in the employer's home which are
usually necessary or desirable for the maintenance and enjoyment
thereof, or minister to the personal comfort, convenience, or safety
of the employer as well as the members of his employer's
household.
Piece-rate Workers
Workers who are paid by results, including those who are paid on
piece-work, "takay," "pakiao" or task basis, and other non-time
work if their output rates are in accordance with the standards
prescribed under Section 8, Rule VII, Book Three of these
regulations, or where such rates have been fixed by the SOL in
accordance with the aforesaid Section.
Those who are paid a standard amount for every piece or unit of
work produced that is more or less regularly replicated, without
regard to the time spent in producing the same13
Workers under piece-rate employment have no fixed salaries and
their compensation is computed on the basis of accomplished
tasks14
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LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
14
14
58
Art. 83
The normal hours of work of any employee shall not exceed 8 hours
a day.
o
This does not mean that an employer cannot employ a
worker for less than 8 hours
Health personnel in cities and municipalities with a population of at
least 1M 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 for 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
of at least 30% of their regular wage for work on the sixth day.
"Health personnel" = Includes resident physicians, nurses,
nutritionists, dieticians, pharmacists, social workers, laboratory
technicians, paramedical technicians, psychologists, midwives,
attendants and all other hospital or clinic personnel
On Duty
Meal Period
Regular Meal Period (1 hr.)
Art. 85
Shorter Meal Period (Less than an hour but not less than 20 min)
Book III, Rule I, Sec 7, par 1
Notes:
-
Rest Period
Short duration or coffee break (compensable)
Art. 84, 2nd par; Book III, Rule I, Sec. 7, 2nd par.
Every employer shall give his employees not less than 1 hour timeoff for regular meals, except in the following cases when a meal
period of not less than 20 minutes may be given and is
compensable hours worked of the employee
At Work
-
When work is continuous for several shifts, the meal time breaks
should be counted as working time for purposes of overtime
compensation
To shorten meal time to less than 20 minutes is not allowed. If it is
then it becomes only a rest period and is considered working time
The employees themselves may request that their meal period be
shortened so that they can leave work earlier than the previously
established schedule
o
The shortened meal here is not compensable
o
Conditions to be followed
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
15
58
Notes:
Although the laborers can rest completely and may not be actually
at work, if they are required to be in their place of work before or
after the regular working hours and within the call of his
employers, the time they stay in the place of work should not be
discounted from their working hours
Coverage
Applies to all employees
Exclusions:
Government + GOCCs
Retail and service establishments regularly employing not more
than 5 workers
DW and persons in the personal service
Managerial employees
Field personnel and performance based employees
"Retail Establishment" = One principally engaged in the sale of goods to endusers for personal or household use;
"Service Establishment" = One principally engaged in the sale of service to
individuals for their own or household use and is generally recognized as such;
Additional Compensation
Working time for Night differential time
o
10pm 6am
Night differential Pay:
o
+10% on hourly rate falling under the Night Differential
Time
15
16
58
ADDITIONAL PAY
+30% of basic daily rate
+50% of basic daily rate
OVERTIME PAY
REGULAR OT
SPECIAL HOLIDAY, REST DAY,
REGULAR HOLIDAY OT
ADDITIONAL PAY
+25% of basic hourly rate
+30% of special hourly rate
ADDITIONAL PAY
+10% on hourly rate
(10pm 5am)
* Minimum wage is currently pegged at P466 / day (or P58.25 / hr.)
Art. 94; E.O. 203 (1987); RA 9492; E.O. 292 (2007); Book III, Rule IV; PD 1083
All employees
G.R.:
(a)
(b)
(c)
(d)
(e)
(f)
Employer to choose
o
Employer to inform 1 week before implementation
E:
Respect based on religious grounds
o
Employee to inform employer at least 7 days before
effectivity of such rest day
E.E.:
If it will prejudice or obstruct operations and employer
cannot normally be expected to resort to other remedial measures,
the employer may so schedule the weekly rest day of his choice for
at least 2 days in a month.
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
a) Regular Holidays
New years Day
January 1
Maundy Thursday
Movable date
Good Friday
Movable date
Eidul Fitr Movable date
Araw ng Kagitingan Monday nearest April 9
Labor Day Monday nearest May 1
Independence Day
Monday nearest June 12
National Heroes Day Last Monday of August
Bonifacio Day
Monday nearest November 30
Christmas Day
December 25
Rizal Day Monday nearest December 30
b) Nationwide Special Holidays:
Ninoy Aquino Day
Monday nearest August 21
All Saints Day
November 1
Last Day of the Year December 31
Notes:
In the event the holiday falls on a Wednesday, the holiday will be
observed on the Monday of the week. If the holiday falls on a
Sunday, the holiday will be observed on the Monday that follows
Provided, That for movable holidays, the President shall issue a
proclamation, at least six months prior to the holiday concerned,
the specific date that shall be declared as a nonworking day
Provided, however, The Eidul Adha shall be celebrated as a regional
holiday in the Autonomous Region in Muslim Mindanao.
58
Divisor as Factor
The divisor acts as the total number of regular days + regular
holidays
This is used to identify the hourly rate for monthly paid employees
The higher the divisor, the less hourly rate the person would have
o
When an employee changes the way the divisor is
computed, and as a result, an increase in the divisor
occurs, this becomes a diminution of their wages, which
is prohibited by the law.
Sunday
Art. 93 (a) 2nd sentence, (b); Book III, Rule III, Sec. 2
5 days of leave with pay, as an incentive for the hard work and
dedication of employees
Muslim holidays
Arts. 169, 170, 171, 172; PD 1083; RA 9492
16
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
17
58
(e)
RA 8187, Secs. 1, 2, 3, 4, 5, 6; Implementing Rules
a.
b.
c.
-
Entitled to full pay for the 7 days absence for the 1st 4 deliveries,
miscarriage or abortion
Pay should not be below minimum wage
RA 8972
Consti., Art. XV, Sec. 1
"Solo parent"
(a) A woman who gives birth as a result of rape and other crimes
against chastity even without a final conviction of the offender:
Provided, That the mother keeps and raises the child;
(b) Parent left solo or alone with the responsibility of parenthood due
to death of spouse;
(c) Parent left solo or alone with the responsibility of parenthood
while the spouse is detained or is serving sentence for a criminal
conviction for at least one (1) year;
(d) Parent left solo or alone with the responsibility of parenthood due
to physical and/or mental incapacity of spouse as certified by a
public medical practitioner;
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
(f)
(g)
(h)
(i)
(j)
19
58
Requirements
The Punong Barangay/kagawad or prosecutor or the Clerk of Court,
as the case may be, shall issue a certification at no cost to the
woman that such an action is pending, and this is all that is required
for the employer to comply with the 10-day paid leave.
For government employees, in addition to the aforementioned
certification, the employee concerned must file an application for
leave citing as basis R.A. 9262.
RA 9710
Art. 100
"Wage"
-
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
20
58
"Facilities"
Include articles or services for the benefit of the employee or his
family
Does not include tools of the trade or articles or service primarily
for the benefit of the employer
Value of Facilities = cost of operation and maintenance, +
adequate depreciation + reasonable allowance (not more than 5
% interest)
If the fair rental value is lower than the computed value, fair rental
value will be used
"Supplements"
Extra remuneration or special privileges or benefits given to or
received by the laborers over and above their ordinary earnings or
wages.
FACILITIES
Forms part of the wages
For the employee
Deductible from Wage
Necessary for the laborer and his
familys existence and subsistence
Coverage/Exclusions
"Wage"
Paid to any employee shall mean the remuneration or earnings,
however designated, capable of being expressed in terms of money,
whether fixed or ascertained on a time, task, piece.
Commissions
Are intimately related to or directly proportional to the extent or
energy of an employee's endeavors21
Exemptions
Sec. 7
Distressed Establishments;
Retail/Service Establishments regularly employing not more than
10 workers;
Establishments whose Total Assets including those arising from
loans but exclusive of the land on which the particular business
entity's office, plant and equipment are situated, are not more than
P3 M
Establishments Adversely Affected by Natural Calamities.
Micro and small indigenous exporters as certified by the Export
Development Council, subject to the criteria and requirements to
be provided for in its Implementing Rules.
18
21
19
22
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
SUPPLEMENTS
Over and above the actual wage
For the employer
Non-Deductible from Wage
Given through the employers
liberality or own benefit
21
58
Effect on Benefits
Art. 100
The giving of salary increase across-theboard to comply with a CBA provision cannot
be said to have ripened into a company
practice
o
Reimbursement benefits
RA 6727, Sec. 2;
Policies of State:
-
23
Methods of Fixing
Floor Wage Method
-
The issue of the validity of the wage order subsists even after its
implementation23
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
22
58
Wage Distortion
Art. 127
RA 8188, Sec. 12
Art. 104; Book III, Rule VII, Sec. 4; Labor Advisory on Payment of Salaries thru ATM
Art. 102; Art. 1705 (NCC); Book III, Rule VII, Secs. 1, 2
24
G.R.: Employer cannot make any deduction from the wages of his
employee
E: Insurance premiums; Union Dues; Authorized by law / by SOL
In case of Bankruptcy: Unpaid wages before declaration of
such shall have first preference over creditors
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
23
58
Art. 110; Book III, Rule VIII, Sec. 7; Arts. 1707, 2241(6), 2242(3), 2244(2), 2245, 2246, 2248, 2250
(NCC)
Art. 117
Art. 118
Art. 2245
Notes:
Book III, Rule X, Secs. 11, 12
G.R.:
The laborer's wages shall not be subject to execution or
attachment
E:
Debts incurred for food, shelter, clothing and medical
attendance.
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
The excess, if any, after the payment of the credits which enjoy
preference with respect to specific property, real or personal, shall
be added to the free property which the debtor may have, for the
payment of the other credits.
For special preferred credits, preferences listed will be given in pari
passu, pro rata (in equal footing, proportionately)
Art. 2245
o
Credits of any other kind or class, or by any other right
or title not comprised in the four preceding articles,
shall enjoy no preference
58
Visitorial Powers
The SOL or his duly authorized representatives, including labor
regulation officers, shall have access to employers records and
premises at any time of the day or night whenever work is being
undertaken therein, and the right to copy therefrom, to question
any employee and investigate any fact, condition or matter which
may be necessary to determine violations or which may aid in the
enforcement of this Code and of any labor law, wage order or rules
and regulations issued pursuant thereto.
Enforcement Powers
In cases where the relationship of employer-employee still exists,
the SOL or his duly authorized representatives shall have the power
to issue compliance orders to give effect to the labor standards
provisions of this Code and other labor legislation based on the
findings of labor employment and enforcement officers or
industrial safety engineers made in the course of inspection.
The Secretary or his duly authorized representatives shall issue
writs of execution to the appropriate authority for the
enforcement of their orders, except in cases where the employer
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.
The SOL may likewise order stoppage of work or suspension of
operations of any unit or department of an establishment when
non-compliance with the law or implementing rules and
regulations poses grave and imminent danger to the health and
safety of workers in the workplace.
o
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 employer,
he shall pay the employees concerned their salaries or
wages during the period of such stoppage of work or
suspension of operation.
Power to Review
The SOL may, by appropriate regulations, require employers to
keep and maintain such employment records as may be necessary
in aid of his visitorial and enforcement powers under this Code.
25
Jurisdictions
Regional Director of DOLE / duly authorized hearing officers
(Summary proceeding)
To hear and decide on Recovery of wages and other monetary
claims and benefits, including legal interest, owing to an employee
or person employed as a DW, arising from employer-employee
relations
Provided, That such complaint does not include a claim for
reinstatement
Provided further, that the aggregate money claims of each
employee or DW does not exceed P5k.
Power to enforce compliance with labor standards law
Appeals: NLRC
-
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
25
58
PD 851 (13th Month Pay Law) was signed into law in 1975 by
President Ferdinand Marcos
o
Originally, it was only for employees not receiving more
than P1k basic salary
PD 1364 was signed on 1978, to stop accepting applications for
exemption under PD 851
Memorandum Order 28 was issued by President Cory Aquino in
1986, removing the P1k basic salary ceiling
Revised Guidelines on the Implementation of the 13th Month Pay Law (1987), Secs. 1, 2, 3, 4, 5,
6, 7, 8; P.D. 851, Secs. 1, 2
All rank and file employees, who have worked at least 1 month
DWs are included (RA 10361, Art. IV, Sec. 25)
For the protection of the level of real wages from the ravage of
worldwide inflation
Absence of an increase in the legal minimum wage since 1970
Christmas Season is an opportune time for society to show its
concern for the plight of the working masses
VII. Bonus
Differences between Commission and Bonus28
COMMISSION
PRODUCTIVITY BONUS
Paid upon the specific results Generally tied to the productivity, or
achieved employee capacity for revenue production, of
a corporation
A percentage of the sales closed by Closely resembles profit-sharing
the employee and operates as an
integral part the basic pay
Intimately related to or directly No clear direct or necessary relation
proportional to the extent or to the amount of work actually
energy of an employee's endeavors done by each individual employee
Demandable once earned Not a demandable and enforceable
obligation
Mandatory once earned; Management prerogative
considered as wages
Conditioned on contract on Conditioned on the profit or amount
commission; automatic increment of productivity achieved and
to each unit of work rendered by management decision
salesmen
Included in basic salary for 13th Not included in basic salary for 13th
month pay computation month pay computation
Bonus
-
26
30
27
31
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
26
58
(a)
(b)
G.R.: This Rule shall apply to all employers, whether operating for profit
or not, including educational, religious and charitable institutions
E: Government and to GOCCs and to employers of DW and persons in
their personal service insofar as such workers are concerned.
Discrimination
Coverage
Applies to all persons, who shall be employed or permitted or
suffered to work at night, except those employed in agriculture,
stock raising, fishing, maritime transport and inland navigation
Period must be not less than 7 consecutive hours, including the
interval from midnight to five oclock in the morning
Night worker = Any employed person whose work requires
performance of a substantial number of hours of night work which
exceeds a specified limit.
o
This limit shall be fixed by the SOL after consulting the
workers representatives/labor organizations and
employers.
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
a.
b.
27
58
a.
b.
c.
d.
The SOL shall establish standards that will ensure the safety and
health of women employees. In appropriate cases, he shall, by
regulations, require any employer to
Provide seats proper for women and permit them to use such seats
when they are free from work and during working hours, provided
they can perform their duties in this position without detriment to
efficiency;
To establish separate toilet rooms and lavatories for men and
women and provide at least a dressing room for women;
To establish a nursery in a workplace for the benefit of the women
employees therein; and
To determine appropriate minimum age and other standards for
retirement or termination in special occupations such as those of
flight attendants and the like.
i. Establishments which are required by law to maintain a clinic
or infirmary shall provide free family planning services to their
employees which shall include, but not be limited to, the
application or use of contraceptive pills and intrauterine
devices.
ii. In coordination with other agencies of the government engaged
in the promotion of family planning, the DOLE shall develop
and prescribe incentive bonus schemes to encourage family
planning among female workers in any establishment or
enterprise.
Employers who habitually employ more than 200 workers in any
locality shall provide free family-planning services to their
employees and their spouses which shall include but not limited to,
the application or use of contraceptives.
Art. 136
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Coverage
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.
Benefit
-
Conditions:
Notify ER of her pregnancy and the probable date of her childbirth,
which will notify SSS
Full payment of ER within 30 days from the filing of the maternity
leave application
Payment of daily maternity benefits shall be a bar to the recovery
of sickness benefits
Can only avail for the first 4 deliveries or miscarriages
SSS to reimburse the employer 100% of maternity benefits
advanced
But if required contributions not remitted her employer to the SSS,
or without the latter having been previously notified by the ER of
the time of the pregnancy, the ER shall pay to the SSS damages
equivalent to the benefits
Sickness Benefit.
A member who has paid at least 3 monthly contributions in the 12month period immediately preceding the semester of sickness or
injury and is confined therefor for more than 3 days in a hospital or
elsewhere with the approval of the SSS, shall, for each day of
compensable confinement or a fraction thereof, be paid by his
employer, or the SSS, if such person is unemployed or selfemployed, a daily sickness benefit equivalent to 90% of his average
daily salary credit, subject to the following conditions:
o
Daily sickness benefit be paid must not be longer than
120 days in 1 calendar year
o
Any unused portion of the 120 days of sickness benefit is
not carried forward and added to the total number of
compensable days allowable in the subsequent year
o
The daily sickness benefit shall not be paid for more
than 240 days on account of the same confinement
o
The employee member shall notify his employer of the
fact of his sickness or injury within 5 calendar days after
the start of his confinement
RA 7877, Secs. 3, 4
Definition
Work, education or training-related sexual harassment is
committed by an employer, employee, manager, supervisor, agent
of the employer, teacher, instructor, professor, coach, trainor, or
any other person who, having authority, influence or moral
ascendancy over another in a work or training or education
environment, demands, requests or otherwise requires any sexual
favor from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said act.
Any person who directs or induces another to commit any act of
sexual harassment as herein defined, or who cooperates in the
commission thereof by another without which it would not have
been committed, shall also be held liable under this Act.
28
58
Consti., Art. II, Secs. 13, 18; Art. XV, Sec. 3 (2)
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Child
-
Child Labor
-
Working Child
Refers to any child engaged as follows:
i. When the child is below 18 years of age, in work or economic
activity that is not child labor as defined in the immediately
preceding sub-paragraph, and
ii. When the child below 15 years of age,
In work where he/she is directly under the
responsibility of his/her parents or legal guardian
and where only members of the childs family are
employed; or
In public entertainment or information.
29
58
"Hours of work"
(1) All time during which a child is required to be at a
prescribed workplace
(2) All time during which a child is suffered or permitted to
work. Rest periods of short duration during working
hours shall be counted as hours worked.
Childs age: < 15
o
Max of 20 hrs./week
o
Max of 4 hrs./day
o
No work from 8PM 6AM
Childs age: 15-17
o
Max of 40 hrs./week
o
Max of 8 hrs./day
o
No work from 10PM 6AM
Art. 140
The phrase "worst forms of child labor" shall refer to any of the
following
o
All forms of slavery, as defined under the "Antitrafficking in Persons Act of 2003", or practices similar
to slavery such as sale and trafficking of children, debt
bondage and serfdom and forced or compulsory labor,
including recruitment of children for use in armed
conflict; or
o
The use, procuring, offering or exposing of a child for
prostitution, for the production of pornography or for
pornographic performances; or
o
The use, procuring or offering of a child for illegal or
illicit activities, including the production and trafficking
of dangerous drugs and volatile substances prohibited
under existing laws; or
o
Work which, by its nature or the circumstances in which
it is carried out, is hazardous or likely to be harmful to
the health, safety or morals of children, such that it
The family court shall have original jurisdiction over all cases
involving offenses punishable under this Act Provided. That in cities
or provinces where there are no family courts yet, the regional trial
courts and the municipal trial courts shall have concurrent
jurisdiction depending on the penalties prescribed for the offense
charged.
The preliminary investigation of cases filed under this Act shall be
terminated within a period of 30 days from the date of filing.
If the preliminary investigation establishes a prima facie case, then
the corresponding information shall be filed in court within 48
hours from the termination of the investigation.
Trial of cases under this Act shall be terminated by the court not
later than 90 days from the date of filing of information. Decision
on said cases shall be rendered within a period of 15 days from the
date of submission of the case.
Domestic Work
Domestic Worker/Kasambahay
RA 10361, Art. I, Sec. 4 (d)
Household
RA 10361, Art. I, Sec. 4 (f)
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
30
58
Compensation
Minimum Wage
RA 10361, Art. IV, Sec. 24; IRR, Rule IV, Sec. 2
Standard of Treatment
Guarantee of Privacy
Pay Slip
-
Employment Contract
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
Employment Age
Leave Benefits
RA 10361, Art. IV, Sec. 29; IRR, Rule IV, Sec. 14
A DW who has worked for at least 1 month is entitled to SSS, PAGIBIG, PhilHealth benefits
o
These shall be shouldered by the employer
If DW is receiving P5k or more per month:
o
DW to pay in proportion
Termination of Service
Fixed Duration
RA 10361, Art. V, Sec. 32, par. 1; IRR, Rule VII, Sec. 1, par. 1
Mutually agreement
Not Fixed
RA 10361, Art. V, Sec. 32, par. 2; IRR, Rule VII, Sec. 1, par. 2
(a)
(b)
(c)
(d)
(e)
(f)
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Directly to DW
At least once a month
Only through legal tender
31
58
(a)
(b)
(c)
(d)
(e)
(f)
(g)
If Mutually Agreed
RA 10361, Art. V, Sec. 32, par. 3; IRR, Rule VII, Sec. 1
None needed
Employment Certification
Abused/Exploited DW
Labor-related disputes
Jurisdiction of Regular Couirts
RA 10361, Art. VII, Sec. 37, par. 2; IRR, Rule XI, Sec. 3
P40k
January 18
Cannot charge to DW
Debt Bondage
Withholding of Wages
RA 10361, Art. IV, Sec. 28; IRR, Rule IV, Sec. 7
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
32
58
"Industrial Homework"
A system of production under which work for an employer or
contractor is carried out by a homeworker at his/her home.
Materials may or may not be furnished by the employer or
contractor.
o
It differs from regular factory production principally in
that, it is a decentralized form of production where
there is ordinarily very little supervision or regulation of
methods of work.
"Industrial Homeworker"
-
o
o
Employer
"Home"
-
"Employer"
Any natural or artificial person who, for his own account or benefit,
or on behalf of any person residing outside the Philippines, directly
or indirectly, or through any employee, agent, contractor,
subcontractor; or any other person who:
o
Delivers or causes to be delivered any goods. articles or
materials to be processed or fabricated in or about a
home and thereafter to be returned or to be disposed of
or distributed in accordance with his direction; or
o
Sells any goods, articles or materials for the purpose of
having such goods or articles processed in or about a
home and then repurchases them himself or through
another after such processing.
"Contractor" or "Subcontractor
Any person who, for the account or benefit of an employer, delivers
or causes to be delivered to a homeworker goods or articles to be
processed in or about his home and thereafter to be returned,
disposed of or distributed in accordance with the direction of the
employer.
"Cooperative:
An association registered under the Cooperative Code of the
Philippines.
"Processing"
Manufacturing, fabricating, finishing, repairing, altering, packing,
wrapping or handling in any way connected with the production or
preparation of an article or material.
Wage Deductions
D.O. No. 5, Sec. 6
Homeworkers Organization
D.O. No. 5, Sec. 4
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
33
58
The employer may require the homeworker to redo once the work
which has been improperly executed without having to pay the
stipulated rate again.
Returned goods
The Regional Director shall have the power to order and administer
compliance with the provisions of the law and regulations affecting
the terms and conditions of employment of home workers and
shall have the jurisdiction in cases involving violation of this Rule.
Non-compliance with the order issued by the Regional Director can
be the subject of prosecution in accordance with the penal
provisions of the LC.
Jurisdiction
Regional Director
-
This Rule shall apply to all employers, whether operating for profit
or not, including the Government and any of its political
subdivisions and GOCCs, which employs in any workplace one or
more workers.
Art. 163
Art. 162
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
A part-time physician
A part-time dentist
An emergency clinic
o
301 employees and above
Full-time dentist
34
58
Art. 164
Art. 167
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Enforcement
The SOL shall, by appropriate orders, set and enforce mandatory
occupational safety and health standards to eliminate or reduce
occupational safety and health hazards in all workplaces and
institute new, and update existing, programs to ensure safe and
healthful working conditions in all places of employment.
The SOL may, through appropriate regulations, collect reasonable
fees for the inspection of steam boilers, pressure vessels and
pipings and electrical installations, the test and approval for safe
use of materials, equipment and other safety devices and the
approval of plans for such materials, equipment and devices.
o
The fee so collected shall be deposited in the national
treasury to the credit of the occupational safety and
health fund and shall be expended exclusively for the
administration and enforcement of safety and other
labor laws administered by the DOLE.
DOLE Responsibilities:
To conduct continuing studies and research to develop innovative
methods, techniques and approaches for dealing with occupational
safety and health problems
To discover latent diseases by establishing causal connections
between diseases and work in environmental conditions
To develop medical criteria which will assure insofar as practicable
that no employee will suffer impairment or diminution in health,
functional capacity, or life expectancy as a result of his work and
working conditions.
Shall develop and implement training programs to increase the
number and competence of personnel in the field of occupational
safety and industrial health.
Shall be solely responsible for the administration and enforcement
of occupational safety and health laws, regulations and standards
in all establishments and workplaces wherever they may be located
o
However, chartered cities may be allowed to conduct
industrial safety inspections of establishments within
their respective jurisdictions where they have adequate
facilities and competent personnel for the purpose as
determined by the DOLE and subject to national
standards established by the latter.
35
58
8 hours of work
OT PAY
WEEKLY REST
PERIODS
NIGHT WORK
COVERAGE
1. Applies to all employees, whether for profit or
not
2. Employees of GOCCs under Corp Code
EXCEPTIONS
1.
2.
3.
4.
5.
6.
7.
8.
Government Employees
Managerial Employees
Officers of Management Staff
Field Personnel
Family dependants
Domestic Workers
Personal Assistants
Workers paid by results/Piece-rate workers
Same
Same
Same
1.
2.
3.
4.
5.
6.
7.
8.
Government Employees
Managerial Employees
Officers of Management Staff
Field Personnel
a. Paid by results
b. Paid on commission basis
Domestic Workers
Personal Assistants
Family dependants
Workers paid by results/Piece-rate workers
Additions:
9. Establishment with 5 or less employees
10. Those in agriculture, stock raising, fishing, maritime
transport and inland navigation, during a period of not
less than 7 consecutive hours
HOLIDAYS
Same
Same plus:
Establishment with 9 or less employees
Same plus:
Those with vacation leave with pay of at least 5 days
Establishment with 9 or less employees
Depends on employer
SERVICE
INCENTIVE LEAVE
VACATION / SICK
LEAVE
PATERNITY LEAVE
Depends on employer
Depends on employer
None
None
None
MATERNAL LEAVE
PARENTAL LEAVE
VICTIMS LEAVE
SPECIAL LEAVE
BENEFITS FOR
WOMEN
MINIMUM WAGE
SERVICE CHARGE
RETIREMENT PAY
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
None
1. DW + Family drivers
2. Personal services of another
3. Workers of duly registered BMBEs
4. Homeworkers engaged in needlework
5. Farm tenancy or leaseholds
The following must apply for exemptions
6. Establishments with 10 or less employees
7. Distressed establishments
8. Establishments with less than P3M in assets
9. Establishments affected by natural calamities
10. Micro and small indigenous exporters
1. Government and GOCCs
2. Employers already paying 13th month pay
3. Employers of those who are paid on purely commission,
boundary, or task basis and those who are paid a fixed
amount
36
58
I. General Provisions
Art. 284
1.
2.
3.
4.
5.
6.
Regular employment
Project employment
Seasonal employment
Casual employment
Fixed-Term employment
Probationary employment
DO No. 19 of 1993
32
35
33
36
37
58
Conditions of Employment
Project employees who achieve a regular status shall enjoy security
of tenure.
Project employees entitled to separation pay:
o
Those whose aggregate period of continuous
employment in a construction company is at least 1 year
shall be considered as regular employees
Notes:
-
A casual employee allowed to work for more than 1 year ipso facto
considered as a regular employee
This proviso was not designed to stifle small-scale businesses nor
to oppress agricultural land owners to further the interests of
laborers, whether agricultural or industrial. What it seeks to
eliminate are abuses of employers against their employees and not,
as petitioners would have us believe, to prevent small-scale
businesses from engaging in legitimate methods to realize profit.
Hence, the proviso is applicable only to the employees who are
deemed "casuals" but not to the "project" employees nor the
regular employees treated in paragraph one of Art. 280. 42
38
42
39
43
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
44
Jurisprudence had laid two conditions for the validity of a fixedcontract agreement between the employer and employee43:
o
The fixed period of employment was knowingly and
voluntarily agreed upon by the parties without any
force, duress, or improper pressure being brought to
bear upon the employee and absent any other
circumstances vitiating his consent; OR
o
It satisfactorily appears that the ER and the EE dealt
with each other on more or less equal terms with no
moral dominance exercised by either party.
Logically, the decisive determinant in term employment should not
be the activities that the employee is called upon to perform, but
the day certain agreed upon by the parties for the commencement
and termination of their employment relationship
Seamen are considered contract workers, employed for a fixed
period only, as per accepted maritime industry practice. Seafarers
cannot stay for a long and indefinite period of time at sea, because
it has been shown that limited access to shore affects them
adversely. The diversity in nationality, culture, and language among
the crew also necessitates that the period of employment be
limited.44
38
58
1.
2.
3.
45
46
The parties are free to renew the contract or not; or for the
employer to extend to such employee a regular or permanent
employment.
If the employee is not given a permanent or regular employment
contract on account of his unsatisfactory work performance, it
cannot be said that he was illegally dismissed. In such case, the
contract merely expired.
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
47
39
58
WHEN
CONSIDERED
REGULAR
NATURE OF
WORK
WHEN
CONSIDERED
REGULAR
REGULAR EMPLOYMENT
Engaged in activities which are usually
necessary/desirable in the usual
business/trade of the employer
PROJECT EMPLOYMENT
1. Employee was assigned to carry out a
specific project or undertaking
2. The duration and scope were specified at
the time of engagement
SEASONAL EMPLOYMENT
1. The nature of the work to be performed is
seasonal in nature
2. The employment is for the duration of the
said season
N/A
CASUAL EMPLOYMENT
1. Employment to perform a job, work
or service which is merely incidental
to the business of the employer.
2. Such job, work, or service is for a
definite period made known to the
employee at the time of
engagement.
FIXED-TERM EMPLOYMENT
- The fixed period of employment was
knowingly and voluntarily agreed upon by
the parties without any force, duress, or
improper pressure; OR
- It satisfactorily appears that the ER and the
EE dealt with each other on more or less
equal terms with no moral dominance
exercised by either party.
PROBATIONARY EMPLOYMENT
1. Employee is made to undergo a trial period
during which the employer determines his fitness
to qualify for regular employment
2. This is based on reasonable standards made
known to him at the time of engagement
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
40
58
I. General Concepts
Art. 284; Book VI, Rule 1, Sec. 1
Art. 285
48
54
49
55
50
56
41
58
Resignation
Performance of Military/Civic Duty
Bona fide suspension of operations by employer
Forced Resignation
Notes:
-
terminated for just or authorized causes that must comply with the
due process requirements mandated by law.66
The Court acknowledges and recognizes the right of an employer
to transfer employees in the interest of the service. This exercise is
a management prerogative which is a lawful right of an employer.67
o
Hence, employers are barred from arbitrarily removing
their workers whenever and however they want. The law
sets the valid grounds for termination as well as the
proper procedure to take when terminating the services
of an employee.
The managerial prerogative to transfer personnel must be
exercised without grave abuse of discretion, bearing in mind the
basic elements of justice and fair play. Having the right should not
be confused with the manner in which that right is exercised. Thus,
it cannot be used as a subterfuge by the employer to rid himself
of an undesirable worker.
o
In particular, the employer must be able to show that
the transfer is not unreasonable, inconvenient or
prejudicial to the employee; nor does it involve a
demotion in rank or a diminution of his salaries,
privileges and other benefits.
o
It is also the burden of the employer to show that the
employee was duly notified of the transfer. 68
59
64
60
65
61
66
42
58
Art. 288
Serious Misconduct
It is improper or wrong conduct
It is the transgression of some established and definite rule of
action, a forbidden act, a dereliction of duty, wilful in character and
implies wrongful intent and not mere error in judgment
For serious misconduct to justify dismissal, the following requisites
must be present:
1.
It must be serious;
o
To be serious it should be of such grave and aggravated
character and not merely trivial or unimportant
2.
It must relate to the performance of the employee's duties;
3.
It must show that the employee has become unfit to continue
working for the employer.
A series of irregularities may constitute serious misconduct, which
could be a just cause for dismissal
Use of accusatory language / gross discourtesy
Accusatory and inflammatory language used by an employee to the
employer or superior can be a ground for dismissal or
termination.69
Wilful Disobedience
It is the employers prerogative to prescribe reasonable rules and
regulations necessary or proper for the conduct of its business, to
provide certain disciplinary measures to implement said rules and
to assure that the same be complied with
The disobedience to be considered wilful must be resorted to
without regard to its consequences
Notes:
Management has the right to transfer or reassign an employee
o
Disobedience of valid transfer order may justify
dismissal; disobedience of an invalid transfer order does
not.
o
Unless it is vitiated by improper motive and is merely a
disguised attempt to remove or punish the employee
sought to be transferred.
69
75
70
76
71
77
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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5. Analogous Causes
Art. 288 (e)
1.
2.
3.
4.
5.
6.
7.
8.
Elements of Abandonment:87
o
The failure to report for work or absence without valid
or justifiable reason
o
A clear intention to sever the employer-employee
relationship, manifested by some over acts.
Wilful Breach:
o
It is done intentionally, knowingly and purposely,
without justifiable excuse.
o
It must rest on substantial grounds and not on the
employers arbitrariness, whims, caprices or suspicion;
otherwise, the employee would eternally remain at the
mercy of the employer.
Ordinary Breach:
o
An act done carelessly, thoughtlessly, heedlessly or
inadvertently.
Abandonment
Courtesy Resignation
Change of Ownership
Habitual Absenteeism / Tardiness
Past Offenses
Habitual Infractions
Immorality
Conviction/Commission of a crime
Abandonment
For abandonment to exist it is essential that the employee must
have failed to report for work or must have been absent without
justifiable reason and that there has been a clear intention to sever
the ER-EE relationship manifested by overt acts.86
Notes:
-
Courtesy Resignation
Resignation per se means voluntary relinquishment of a position or
office. Adding the word "courtesy" does not change the essence of
resignation.88
Change of Ownership
In the exercise of such management prerogative, the employer
may merge or consolidate its business with another, or sell or
dispose all or substantially all of its assets and properties which
may bring about the dismissal or termination of its employees in
the process.
The transferee is not liable for past unfair labor practices of the
previous owner, except, when the liability therefor is assumed by
the new employer under the contract of sale, or when liability
79
85
80
86
81
87
44
58
Immorality
To constitute immorality, the circumstances of each particular case
must be holistically considered and evaluated in light of the
prevailing norms of conduct and applicable laws.93
Habitual Infractions
A series of irregularities when put together may constitute serious
misconduct, which under Art 282 of the Labor Code is a just cause
for dismissal.92
Past Offenses
Such previous offense may be used as valid justification for
dismissal from work only if the infractions are related to the
subsequent offense upon which the basis of termination is
decreed.91
Conviction/Commission of a Crime
The charge of drug abuse inside the companys premises and during
working hours against petitioner constitutes serious misconduct,
which is one of the just causes for termination.
Misconduct is improper or wrong conduct. It is the transgression of
some established and definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and implies wrongful intent
and not merely an error in judgment.94
89
97
90
98
99
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58
1.
2.
3.
4.
5.
Separation Pay
1 month pay OR 1 month pay per year of service (whichever is
higher)
A fraction of at least 6 months is considered as a year.
Retrenchment to Prevent Losses
Retrenchment is the termination of employment initiated by the
employer through no fault of and without prejudice to the
employees.
Is used interchangeably with the term "lay-off"
It is resorted to during periods of business recession, industrial
depression, seasonal fluctuations, or during lulls occasioned by lack
of orders, shortage of materials, conversion of the plant to a new
production program, or automation.106
Separation Pay
1 month pay OR month pay per year of service (whichever is
higher)
A fraction of at least 6 months is considered as a year.
Notes on the elements:108
The law speaks of serious business losses or financial reverses.
Sliding incomes or decreasing gross revenues are not necessarily
losses, much less serious business losses, within the meaning of the
law.
Financial statements must be prepared and signed by
independent auditors; otherwise, they may be assailed as selfserving.
In selecting employees to be dismissed, fair and reasonable
criteria must be used, such as but not limited to: (a) less preferred
status (e.g., temporary employee), (b) efficiency and (c) seniority.
The employer must also exhaust all other means to avoid further
losses without retrenching its employees. Retrenchment is a means
of last resort; it is justified only when all other less drastic means
have been tried and found insufficient.
Redundancy
Redundancy exists where the services of an employee are in
excess of what is reasonably demanded by the actual
requirements of the enterprise.
A position is redundant where it is superfluous, and superfluity of a
position or positions may be the outcome of a number of factors,
such as overhiring of workers, decreased volume of business, or
dropping of a particular product line or service activity previously
manufactured or undertaken by the enterprise.109
An employer is not precluded from adopting a new policy
conducive to a more economical and effective management even
if it is not experiencing economic reverses. Neither does the law
require that the employer should suffer financial losses before he
can terminate the services of the employee on the ground of
redundancy.110
It is however not enough for a company to merely declare that
positions have become redundant. It must produce adequate
proof of such redundancy to justify the dismissal of the affected
employees.111
Elements of a valid Redundancy:112
1.
Written notice served on employees and DOLE at least one month
prior to date of termination;
2.
Payment of separation pay equivalent to at least 1 month pay for
every year of service;
3.
Good faith in abolishing the redundant positions;
4. Fair and reasonable criteria in ascertaining what positions are to be
declared redundant and abolished.
104
109
105
110
106
111
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Redundancy v. Retrenchment
REDUNDANCY
Reduction of employees due to an
excess of such, which is reasonably
demanded by the actual
requirements of the enterprise.
1 month pay / 1 month pay per year
of service
Closure of Business
A closure or cessation of business is the complete or partial
cessation of the operations and/or shut-down of the
establishment of the employer. It is carried out to either stave off
the financial ruin or promote the business interest of the employer.
Unlike retrenchment, closure or cessation of business, as an
authorized cause of termination of employment, need not depend
for validity on evidence of actual or imminent reversal of the
employer's fortune.113
Requisites of a valid closure of business:114
1.
That the closure/cessation of business is bona fide, i.e., its purpose
is to advance the interest of the employer and not to defeat or
circumvent the rights of employees under the law or a valid
agreement;
2.
That written notice was served on the employees and the DOLE at
least 1 month before the intended date of closure or cessation of
business; and
3.
In case of closure/cessation of business not due to financial losses,
that the employees affected have been given separation pay
equivalent to month pay for every year of service or one month
pay, whichever is higher.
Art. 295
Art. 290
1.
2.
Separation Pay
1 month pay OR month pay per year of service (whichever is
higher)
A fraction of at least 6 months is considered as a year.
Notes:
-
RETRENCHMENT
Reduction of employees usually
due to poor financial returns, aimed
to cut down costs for operation
particularly on salaries and wages.
Must prove substantial,
real/reasonably imminent financial
losses justifying such termination
113
117
114
118
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119
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CONCEPT
RESIGNATION
SERIOUS MISCONDUCT /
WILFUL DISOBEDIENCE
LOSS OF TRUST OF
CONFIDENCE
COMMISSION OF CRIME
Voluntary act of
employee of
relinquishing the
office
Serious Misconduct:
1. Must be serious
2. Must relate to the
performance of an EEs
duties
3. Must show that the EE
has become unfit to
continue work
Gross Negligence
1. Want of even slight care
2. Acting/omitting to act in
a situation where there's
duty to act
3. Wilful and intentional
4. Conscious indifference to
consequences affecting
other people
Habitual Neglect
1. Failure to perform duties
2. For a period of time
3. Failure done repeatedly
Elements:
1. The EE must be one
holding a position of
trust and confidence.
2. An act that would justify
the loss of trust and
confidence
3. Such act must be based
on a wilful breach of
trust and founded on
clearly established facts
4. The basis for the
dismissal must be clearly
and convincingly
established
None
None
None
Wilful Disobedience
1. Conduct was
wilful/intentional
2. Characterized by a
wrongful and perverse
attitude
3. Order violated was
known, reasonable and
lawful
4. Order must pertain to
the duties of the EE
SEPARATION
PAY
None, unless
stipulated in CBA
or is company
practice
None
REDUNDANCY
RETRENCHMENT
CLOSURE OF BUSINESS
DISEASE
CONCEPT
Contemplates
the installation
of machinery to
effect economy
and efficiency in
its method of
production.
Elements:
1. Written notice to EE and
DOLE 1 month before
date of termination
2. Payment of separation
pay
3. Good faith in abolishing
redundant positions
4. Fair and reasonable
criteria
Elements:
1. Purpose is to advance the
interest of the employer
and not to defeat or
circumvent the rights of
employees
2. Written notice to EE and
DOLE 1 month before
date of termination
3. Payment of separation
pay in case of closure not
due to financial losses
Elements:
1. The disease is of such
nature of at such a stage
that it cannot be cured
within a period of 6
months even with proper
medical treatment.
2. There is a certification by
competent public health
authority
SEPARATION
PAY
1 month OR
1 month per year
of service
1 month OR
1 month per year of service
Elements:
1. Reasonably necessary
and likely to prevent
business losses
2. Written notice to EE and
DOLE 1 month before
date of termination
3. Payment of separation
pay
4. Retrenchment in Good
Faith
5. Use of fair and
reasonable criteria
1 month OR
month per year of service
1 month OR
month per year of service
1 month OR
month per year of service
* Note that those causes that only award month pay have a financial issue related to the termination
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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PROCEDURAL
REQUIREMENTS
LIABILITY
ENTITLEMENT
JUST CAUSES
AUTHORIZED CAUSES
History of the 4th Situation Doctrine (Compliance with substantive due process but not with procedural due process)
PERIOD
STATUS OF DISMISSAL
PRIOR TO 1989
Illegal Dismissal or Termination if EE is not given notice
WENPHIL CORP
Valid dismissal
V. NLRC (1989)
ER pays fine if there is termination for just cause, but non-compliance with procedural requisites
EE not entitled to reinstatement and backwages (to grant such would encourage worse behavior and constitute mockery of the rules of
dismissal)
Imposed a fine of 1k
SERRANO, JAN.
Ineffectual Dismissal
2000
Procedural non-compliance is not a denial of due process that will nullify the termination, but the dismissal is ineffectual and the ER must
pay full backwages from the time of termination til judicial declaration that dismissal was for just or authorized cause
AGABON, NOV.
2004
Rationale: the mere fine imposed by Wenphil failed as deterrent against ERs who did not comply with procedural requisites; thus
the penalty upgrade to full payment of backwages to confront the practice by ERs to dismiss now and pay later
Problem: it does not implement the true meaning of Art.279 on Security of Tenure, that is, termination is illegal only if there is no
just or authorized cause; payment of backwages and other benefits including reinstatement is justified only if the EE is illegally
dismissed (i.e. no just or valid cause)
123
121
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58
Notes:
-
124
130
125
131
126
132
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58
Art. 229
PRESCRIPTIVE PERIOD
4 years
3 years
-
1 year
Based on Article 1155 of the Civil Code, the 3-year prescriptive period for
money claims in labor cases can be interrupted by the following:135
A claim filed with the proper judicial or quasi-judicial forum
An extrajudicial demand on the employer
The employer's acknowledgment of its debt or obligation.
Concept
-
Art. 229
134
141
135
142
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58
1.
2.
3.
4.
5.
Employees Unsuitability
While the employee is innocent, her continued presence as a
teacher in the school may well be met with antipathy and
antagonism by some sectors in the school community.151
Employees Retirement/Overage
-
Art. 285
Definition
Reinstatement means restoration to a state or condition from
which one had been removed or separated.
It presupposes that the previous position from which one had been
removed still exists, or that there is an unfilled position which is
substantially equivalent or of similar nature as the one previously
occupied by the employee.
Reinstatement does not mean promotion.147
The decision of the LA reinstating a dismissed employee shall be
immediately executory, even pending appeal.
Types of Reinstatement
1.
Actual reinstatement
2.
Payroll reinstatement
Intent of the law in making a reinstatement order immediately executory:
To restore the status quo in the workplace in the meantime that
the issues raised and the proofs presented by the contending
parties have not yet been finally resolved.
It is a legal provision which is fair to both labor and management
because while execution of the order cannot be stayed by the
posting of a bond by the employer, the workers also cannot
demand their physical reinstatement if the employer opts to
reinstate them only in the payroll.148
Exceptions
1.
Closure of Business
2.
Economic Business Conditions
3.
Employees Unsuitability
4. Employees Retirement/Overage
5.
Antipathy and Antagonism Doctrine of Strained Relations
6.
Job with a totally different nature
Closure of Business
Absent any showing that its business was deliberately stopped to
avoid reinstating the complaining employees, the amount of back
wages shall be computed from the time of their illegal termination
up to the time of the cessation of the business operations.
Computing backwages beyond the date of cessation of business,
would not only be unjust but confiscatory as well as violative of the
Constitution depriving the [respondent] of his property rights.149
Offer to reinstate
At any rate, sincere or not, the offer of reinstatement could not
correct the earlier illegal dismissal of the employer.155
Payroll Reinstatement/Wages pending Appeal
A form of constructive reinstatement where the employer does not
physical work again but is still receiving his regular salary and
benefits.
Even if the employee is able and raring to return to work, the
option of payroll reinstatement belongs to the employer an
exercise of its management prerogative.
In case of strained relations or non-availability of positions, the
employer is given the option to reinstate the employee merely in
the payroll, precisely in order to avoid the intolerable presence in
the workplace of the unwanted employee.156
No Refund Doctrine
If the employee has been reinstated during the appeal period and
such reinstatement order is reversed with finality, the employee is
not required to reimburse whatever salary he received for he is
entitled to such, more so if he actually rendered services during the
period.157
Reinstatement as Interim Relief, when applicable
Article 223 concerns itself with an interim relief, granted to a
dismissed or separated employee while the case for illegal
dismissal is pending appeal. It does not apply where there is no
finding of illegal dismissal.158
147
154
148
155
149
156
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Art. 285
Purpose
-
Computation:
Moment compensation was withheld -> Time of reinstatement
Includes the following:
o
Basic Wage/Salary
o
Allowances
o
13th month pay
o
Other benefits
Does not include the following:
o
Salary increases after termination
o
Benefits not yet awarded before termination
Legal Interest shall be awarded on top of the backwages after final
judgement.159
Effect of Failure to Order
The failure of the LA and the NLRC to award backwages to an
employee who is legally entitled thereto having been illegally
dismissed, amounts to a "plain error" that the Court may rectify,
although the employee did not bring any appeal regarding the
matter, in the interest of substantial justice.160
Fringe Benefits
Fringe benefits are included in the phrase full backwages, inclusive
of allowances, and to his other benefits or their monetary
equivalent.
Concept
-
CONCEPT
Attorneys Fees
10% of amount of wages recovered
It is unlawful to demand more than 10% attorneys fees
Damages
Moral Damages:
o
Recoverable only where the dismissal of the employee
was attended by bad faith or fraud, or constituted an
act oppressive to labor, or was done in a manner
contrary to morals, good customs or public policy.161
Nominal Damages:
o
30,000 In case of valid dismissals attended with a
violation of the EEs Procedural Due Process Rights
o
This form of damages would serve to deter employers
from future violations of the statutory due process
rights of employees. At the very least, it provides a
vindication or recognition of this fundamental right
granted to the latter under the Labor Code and its
Implementing Rules.162
Exemplary Damages:
o
Exemplary damages may avail if the dismissal was
effected in a wanton, oppressive or malevolent manner.
Eastern Shipping v CA
Aurora Land v NLRC (1997)
M+W Zander v Enriqez (2009)
162 Agabon v NLRC (2004)
163 BPI v NLRC (2010)
_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
BACKWAGES
To restore withheld
income because of unjust
dismissal
WHEN
AWARDED
Upon finding of LA of
unjust dismissal
COMPUTATION
EFFECT OF
RECEIPT
Not returnable
SEPARATION PAY
Awarded to validly
dismissed employees as a
measure of social justice
and equity.
Also awarded to unjustly
dismissed employees if
reinstatement is not
feasible.
Upon termination of
employee
When reinstatement is no
longer feasible
Will depend upon the CBA,
agreement between the
ER and EE or the cause of
the termination
Time it can be claimed
that the ER-EE
relationship has formally
ceased.
Not a bar from contesting
the legality of dismissal.
Employees who received their separation pay are not barred from
contesting the legality of their dismissal. The acceptance of those
benefits would not amount to estoppel.167
159
164
160
165
161
166
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G.R.: Corporate Officers are not personally liable for their official acts,
because a corporation, by legal fiction, has a personality
separate and distinct from its officers, stockholders, and
members.
E:
Unless they have exceeded their authority or where
terminations of employment are done with malice or in bad faith
o
In this case, they should be held solidarily liable with the
corporation169
169
58
1.
2.
Voluntary Retirement
Compulsory Retirement
Sec. 2
II. Definition
-
15 days of salary
5 days service incentive leave
1/12th of 13th month pay
Other benefits
Total
Notes:
-
170
175
171
176
172
177
15 days
5 days
2.5 days
________
22.5 days
Sy v. Metrobank (2006)
Equitable PCI Bank v Caguioa (2005)
PLDT v Reus (2008)
178 PAL v ALPAP (2002)
179 Intercontinental Broadcasting Corp. v Amorilla (2006)
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58
BASIS
PURPOSE
RETIREMENT PAY
Loyalty of EE
Help EE enjoy his remaining years
Release EE from burden of worrying
for his financial support
GRATUITY PAY
Generosity of
Grantor/ER
Reward for
satisfactory service
57
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_______________________________________________________________
LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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