Professional Documents
Culture Documents
Introductory Materials
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
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.
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2. 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.
3. 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.
To this end, the State shall regulate the acquisition, ownership, use,
and disposition of property and its increments.
* No longer may the due process clause and the freedom of contract
be invoked to challenge labor and social legislation. This has long
been discarded since the 1937 case of West Coast Hotel vs. Parish (US)
and the 1924 case of Pp. vs. Pomar (RP).
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)
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.
2. Art. II, Sec. 10, Const. : The State shall promote social justice in all
phases of national development.
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3. 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. . .
4. 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.
5. 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.
6. 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 social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use,
and disposition of property and its increments.
8. 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).
The State shall regulate the relations between workers and ERs,
recognizing the right of labor to its just share in the fruits of production
and the right of enterprises to reasonable returns in investment,
expansion and growth.
* The law, while protecting the rights of laborers, does not authorize the
oppression or destruction of the employer
Laissez Faire
1. Laissez faire or the principle of free enterprise never found full
acceptance in this jurisdiction . . . (ACCFA vs. CUGCO)
1. 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.
1. Art. II, Sec. 10, Const. : The State shall promote social justice in all phases
of national development.
Definition [H, E, P, A]
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Limits of Use
* Art. XIII, Sec. 3, Const. : [In the relation between workers and ERs the
following rights shall be assured by the State:
a. Rights to self-organization
b. Right to collective bargaining
c. Right to collective negotiations
d. Right to peaceful and concerted Activities including the right
to strike
e. Right to security of Tenure
f. Right to just and humane Conditions of work
g. Right to a living Wage
h. Right to participate in policy and Decision-making processes
(WACT BOND)
* Only to those that affect the rights of employees and have repercussions
on their right to security of tenure.
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
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1. Art. II, Sec. 10, Const. : No law impairing the obligation of contracts
shall be passed.
2. Art. III, Sec. 16, Const. : All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial or
administrative bodies.
3. 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)
MGT. Rights [C P S T]
1. Right to conduct business
2. Right to prescribe rules
3. Right to select employees
4. Right to transfer and discharge employees
* 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.
2. 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)
3. 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. to receive less compensation on what a worker is
entitled to recover
b. to prevent him from demanding benefits to which he is
entitled
2. Bank and EEs association, entered into a CBA providing for the
withdrawal of the pending case of the association against the bank
for non-payment of Php60.00 ECOLA. There is nothing in the
compromise which contravenes the law, morals, good customs,
public order, or public policy. (Monte de Piedad vs. MOLE)
Management Prerogatives
1. Right to select and discharge employees with valid cause
2. promulgate reasonable employment rules and regulation
3. designation of work to employees
4. transfer and promote employees
5. control company operations
6. install money-saving devices
7. re-clarify or abolish positions
8. sell or close business
Drug Testing
G. R. : cannot right to privacy
Exception:
- if job or occupation involve public safety
Ex.ample:
a. bus drivers
b. security guards
3. 1 Role of Law
1. 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.
* Art. 1701 : Neither capital nor labor shall act oppressively against the other,
or impair the convenience of the public.
Fair Treatment
* The NCC states that every person must in the exercise of his rights, and in
the performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith. (AHS Phils. vs. NLRC)
Law Compliance
ER Obligation
4. 3 Applicability
1. Art. 6: All rights and benefits granted under this Code shall, except as
many otherwise be provided, apply alike to all workers, whether
agricultural, or non-agricultural.
3. Art. IX-B, Sec. 2(1), Const. :The Civil Service embraces all branches
of Government, including GOCCs with original charters.
Test-GOCC
1. The rule now is that only the GOCCs with original charters come
under the Civil Service Law. (Cabrera vs. NLRC)
* An IRR providing that EEs paid by the month shall be presumed to be paid
for all days in the month, whether worked or not. In effect, will except EEs
paid by the month from the enjoyment of the holiday pay benefit. (Insular
Bank EE Union vs. Inciong)
* IRR of RA 6715 excluding security guards from those allowed to join unions.
(MERALCO vs. SOLE)
2. 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.
In Favor Labor-Rationale
Liberal Construction
* Are the provisions violative of the equal protection clause? No. The ER
and the laborer do not stand on equal footing; to ensure equality, the
latter must, be afforded protection. Insofar as labor contracts are
concerned, the same are usually drafted and prepared by the ER. All
doubts in their provisions should therefore be resolved against it.
(Alcantara)
Doubt
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No doubt
* 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 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)
* The basic policy of the law is to balance or to coordinate the rights and
interests of both workers and ERs. It should not be deduced that the basic
policy is to favor labor to prejudice capital. (Azucena)
1. Art. 217 (a) (2), (3), (4), (6): Jurisdiction of Labor Arbiters and the
Commission
1. The Labor Arbiters shall have exclusive and original jurisdiction,
except as otherwise provided, the following cases involving all
workers: (unfair labor practice)
2. Termination disputes (qualified by Art. 261 which grant voluntary
arbitrators original and exclusive jurisdiction over all unresolved
grievances arising from CBAs and company personnel policies);
3. Cases involving terms and conditions of employment, if
accompanied with a claim for reinstatement (including claims of
OFWs arising out of an ER-EE relationship, including claims for actual,
moral and exemplary damages, as provided in Sec. 10, Migrant
Workers Act);
4. Claims for actual, moral, exemplary and other damages arising from
the ER-EE relations;
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2. Art. 128 : Visitorial and Enforcement Power of the Secretary of Labor or his
duly authorized representative.
* 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. where the ER contests the findings of the labor
employment and enforcement officer; and
b. raises issues supported by documentary profits which
were not considered in the course of inspection.
recovery of wages and other monetary claims and benefits, including legal
interest owing to a person employed in domestic or household service:
Provided
such complain does not include claim for reinstatement
aggregate money claims of each househelper does not
exceed P5,000.00
* The complaint shall be resolved within 30 days from the date of the filing
of the same.
5. Art. 289 : The penalty (of the offenses listed in the Labor Code) shall be
imposed upon the guilty officer of officers of a corporation, trust, firm,
partnership, association pr entity which committed said offenses.
7. Art. 291 : Prescription of Money Claims- All money claims arising from ER-
EE relations accruing during the effectivity of this Code 3 years from the
time the cause of action is accrued.
8. Art. 292 : Money claims specified in Art. 291shall be filed before the
appropriate entity independently of the criminal action that may be
instituted in the proper courts.
Pending the final determination of the merit of money claims filed
with the appropriate entity, no civil action shall be filed with any court.
This provision shall not apply to EEs compensation cases which
shall be processed and determined strictly in accordance with
the pertinent provisions of this Code.
5. 1 Work Relationship
ER and EE
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2. Art. 167 (f) and (g) : (f) ER means any person, natural or juridical,
employing the services of the EE.
(g) EE means any person compulsory covered by the GSIS . . .,
including members of the AFP, and any person employed as
casual, emergency, temporary, substitute or contractual, or any
person compulsory covered by the SSS. . .
3. Art. 212 (e) and (f) : ER includes any person acting in the interest of
the ER directly or indirectly. The term shall not include any labor
organization or any of its officers except when acting as an ER.
(f) EE includes any person in the employ of an ER. The term shall not
be limited to the EEs of a particular ER, unless this Code explicitly
states. It shall include any individual whose work has ceased as a
result or in connection with any current labor dispute or because of
unfair labor practice if he has not obtained any other substantially
equivalent or regular employment.
CLASSIFICATION
1. casual
2. regular
3. emergency
4. temporary
5. substitute
6. contractual
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 be 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 is labor-only contracting where:
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2. Sec. 9, Rule VIII, Book III, IRRs : (a) Any person who undertakes to
supply workers to an ER shall be deemed to be engaged in labor-
only contracting where such person :
* Does not have
substantial capital
[substantial] investment in the form of tools, equipment,
machineries, work premises and other materials; and
* 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.
(c) For cases not falling under this Article, the Secretary of Labor shall
determine through whether or not the contracting out is permissible in the
light of the circumstances of each case and after considering the
operating needs of the ER and the rights of the workers involved.
5. Sec. 8, Rule VIII, Book III, IRRs : Job Contracting There is job
contracting permissible under the Code if the following conditions
are met:
1. The contractor carries on an independent business and undertakes
the contract work [A R M - F]
a. on his own account
b. under his own responsibility
c. according to his own manner and method
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A. DETERMINATION
B. FACTORS
* 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)
* Shoe shiners who had their own customers but shared proceeds with
company. No. The company does not exercise any degree of control or
supervision over his work. The shoe shiner is a partner in trade. (Besa vs.
Trajano)
* The power of control refers merely to the existence of the power and not
the actual exercise thereof.
* Caddles who are not under the control and supervision of the golf club as
to working hours, manner of carrying out their services, etc. No. The club did
not have the measure of control over the incidents of the caddys work and
compensation that the ER would possess. (Manila vs. IAC)
* College teachers. Yes. The Court takes judicial notice that a university
controls the work of the members of its faculty; that it prescribes the courses
or subjects that they teach and the time and place for teaching. (Feati vs.
Bautista)
* Jeepney drivers working under the boundary system. Yes. The driver does
not have any interest in the business because he did not invest anything in
the acquisition of jeeps and did not participate in the management
thereof. (Citizens League of Free Workers vs. Abbas)
C. CONTROL TEST
*** There is an ER-EE relationship where the ER controls or has reserved the
right to control the EE not only as the result of the work but also as to the
means by which said work is to be accomplished (Paradise vs. Ng). The test
merely calls for the existence of the right to control the manner of doing the
work not the actual exercise of the right. (Ruga vs. NLRC) The line should be
drawn between rules that merely serve as guidelines towards the
achievement of the mutually desired results without dictating the means or
methods employed in attaining it, and those that control or fix the
methodology and bind or restrict the party hired to the use of such means.
The first , which aim only to promote the result, create no ER-EE relationship
unlike the second, which addresses both the result and the means to
achieve it. (Insular Life vs. NLRC) The control test calls merely for the
existence of the right to control and manner of doing work, not the actual
exercise of the right. (Dy Keh Beng)
D. ECONOMIC TEST
E. AGREEMENT
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.
With respect to the first requirement, the law does not require both
substantial capital and investment in the form of tools, equipment,
machineries, etc. This is clear from the use of the conjunction or. (Neri vs.
NLRC)
7. the control and supervision of the work and the ERs powers with
respect to the hiring, firing and payment of salaries;
8. the duty to supply premises, tools and appliances. (Mafinco vs. Ople)
parties. The records do not show any participation on the part of SHIPSIDE
with respect to the selection and engagement of the individual stevedores.
The terms and conditions of their services are matters determined not by
SHIPSIDE but by La Union. It is also sufficiently established that La Union
exercised supervision and control over its labor force. While SHIPSIDE
occasionally issued instructions to the stevedores, such instructions, in legal
contemplation are mere requests since the privity of contract lies between
the workers and La Union. (SHIPSIDE vs. NLRC)
* Agency hiring : PBC and CESI entered into an agreement under which
the latter undertook to supply the former with 11 messengers. The
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agreement provided that the messengers would remain EEs of CESI; PBC
remitted to CESI amount equivalent to the wages of the messengers; CESI
in turn paid them and their names are not included in the PBCs payroll; the
bank, in cases of dismissal would request CESI, and CESI would in fact
withdraw such messenger, and the messengers performed their functions
within the banks premises. CESI cannot be considered a job contractor
because its undertaking is not the performance of a specific job; it merely
undertook to provide the bank with a certain number of persons able to
carry out the work of messengers. (PBC vs. NLRC)
* Security Guard Hiring : Hyatt and VSS entered into a contract of services
wherein VSS agreed to protect the properties and premises of Hyatt by
providing security guards. The security guards filled up Hyatt employment
application forms and submitted the forms to the Security Department of
the hotel. Their wages were paid directly by Hyatt and their assignments,
promotions, supervisions and dismissal were approved by the Chief Security
Officer of Hyatt. (Vallum Security vs. NLRC)
6. 1 Employment Policies
A. PARTIES
A.1. Worker
* Art. 13 (a) Worker any member of the labor force, whether employed
or unemployed
A.2 Agency
A.3 Entity
B. ALLOWED ENTITIES
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]
1. public employment agencies
2. POEA
3. private recruitment entities
4. private employment agencies
5. shipping or manning agents or representatives; and
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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.
C.2 Bonds
1. Art. 31 : All applicants for license or authority shall post such cash and
surety bonds as determined by the Secretary of Labor to guarantee
compliance with prescribed recruitment procedures, rules and
regulations, and terms and conditions of employment as
appropriate.
2. The purpose of bonds is to insure that if the rights of these overseas
workers are violated by their ERs recourse would still be available to
them against the local companies that recruited them for the foreign
principal. (Stronghold vs. CA)
* 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.
employment agency for violation of Art. 34 of the Labor Code. She was
recruited under false pretense. (Alcantara)
** Illegal termination
- full reimbursement fees + 12%
- salaries for unexpired portion or 3 mos. For every year of
unexpired term whichever is lower
5. 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.)
6. 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)
* 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)
C. 8 Enforcement
1. Art. 36 : The Secretary of Labor shall have the power to restrict and
regulate the recruitment and placement activities of all agencies
within the coverage of this Title and is hereby authorized to issue
orders and promulgate rules and regulations to carry out the
objectives and implement the provisions of this Title.
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.
B. Definition of Terms
Sec. 1 (j), (w), (z), (ff), and (qq), Rule II, Book I, Rules and regulations on
Overseas Employment
6. 3 Sanctions
* Illegal recruitment:
a. imprisonment of not less than 6 years and 1 day but not more
than 12 years and
b. a fine of not less than P200,000.00 nor more than P500,000.00.
* The Secretary of Labor or his duly authorized representative may order the
closure of illegal recruitment establishments.
5. Art. 38 (c) of the Labor Code granting the Secretary of Labor the
power to issue search or arrest warrants is declared unconstitutional
and null and void. (Salazar vs. Achacoso)
Sec. 7, Rule XIV, Book I, IRRs : The employment permit shall be valid for
a minimum period of 1 year.
Art. 288 : Any alien found guilty shall be summarily deported upon
completion of service of sentence.
Coverage
Policy Objectives
Definition
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.
- 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
B. LEARNERS
- Learnership programs must be approved by TESDA
C. HANDICAPPED WORKERS
Conditions of Employment
- not exceed 8 hours
- allowed overtime
* Art. 61 :
1. Period of apprenticeship shall not exceed 6 months.
2. Wages shall not start below 75% of the minimum wage.
3. Apprenticeship program must be duly approved by TESDA or
apprentices becomes regular EE. This must be evidenced by an
apprenticeship agreement. (Nitto Enterprises vs. NLRC)
3. Qualifications of an Apprentice:
a. At least 15 years of age: provided, those below 18
years of age shall not work in hazardous occupations;
b. Be physically fit for the occupation.
c. Possess vocational aptitude and capacity.
d. Possess the ability to comprehend, and follow oral and
written instructions. (Sec. 11, Rule VI, Book III, IRRs)
EMPLOYER
a. habitual absentism
b. willful disobedience e.g. rules
c. insubordination lawful order
d. poor physical conditions apprentice
e. theft or malicious destruction
f. poor efficiency of performance
g. engaging in violence
h. gross misconduct
i. bad health or continuing illness. (Sec. 25, Rule VI, Book II, IRRs)
B. LEARNERS
- learnership must be approved by TESDA
1. Art. 75 :
1. Duration of the learnership period shall be 3 months;
2. Wages and salary rates begin at not less than 75% minimum wage;
and
3. A commitment to employ learners if they so desire, as regular EEs
upon completion of the learnership.
All learners who have been allowed or suffered work during the
first 2nd months to be deemed EEs training is terminated by the
ER before the end of the stipulated period though no fault of
the learner.
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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. 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
9. 1 Hours Regulation
* 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 8-hour 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]
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6. 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.]
2. Supervisory EEs are given the following duties and functions assist the
department superintendent in various aspects of management such
as in the planning of systems and procedures, recommends
disciplinary action against erring subordinates or promotion of
deserving personnel, train and guide subordinates; communicate
and coordinate with other supervisors; recommend measures to
improve work method; and other related tasks as may be assigned
by his immediate superior. Yes. They discharge duties and
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* Art. 83 : The normal of hours of work of any EE shall not exceed 8 hours a
day.
2. 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. he stops working,
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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.
Waiting Time
Idle Time
1. A laborer need not leave the premises of the factory, shop or boat in
order that his period of rest shall not be counted, it being enough
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Meal Time
1. Sec. 7, Rule I, Book III, IRRs : Every ER shall give his EEs not less than 1
hour time-off for regular meals, except in the following cases where
a meal period of not less than 20 minutes may be given by the ER
provided
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)
On Call
Travel Time
***Principles which determine whether or not time spent in travel is working time:
Semestral Break
7. 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.
Provisions for overtime covers both profit and non-profit
establishment or undertaking
For purposes of computing overtime
REGULAR WAGE includes the cash wage only; without
deduction of facilities provided.
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)
* 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)
* 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)
Retail Establishment
- sale of goods for personal or household use
ex. grocery
Service Establishment
- sale of services to individuals for their own or household use
ex. T.V. repair shop
* 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
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.
2. Sec. 1, Rule II, Book III, IRRs : This rule shall apply to all EEs except:
[G R S D M F]
a. Those of the government and any of its political subdivisions,
including GOCCs.
b. Retail and service establishments regularly employing not
more than 5 workers.
c. Domestic helpers and persons in the personal service of
another.
d. Managerial EEs.
e. Field personnel and other EEs whose time and performance is
unsupervised by the ER.
f. Includes task and contract basis
Rationale Prohibition
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* 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]
3. Other officers or members of the managerial staff [if they perform the
following duties and responsibilities:
a. Primary duty consists of the performance of work directly
related to management policies of the ER;
b. Customarily and regularly exercise discretion and
independent judgment;
c. 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
d. 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)
7. 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.
* 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.
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.
11.1 Coverage
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;
e. Field personnel and other EEs whose time and performance is supervised
by the ER.
Regular Holidays
1. New Years day
2. Maundy Thursday
3. Good Friday
4. Bataan Day
5. Labor day
6. Independence day
7. National heroes day
8. Bonifacio day
9. X-mas day
10. Rizal day
2. Monthly paid EEs are not excluded from the benefits of holiday pay.
(Mantrade vs. Bacungan)
2. To receive holiday pay, the EE should not have been absent without
pay on the working day preceding the regular holiday. (Azucena)
5. 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%.
If the employees are already paid for all non-working days, the
divisor should be 365 and not 251
* 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)
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. Those who are already enjoying the benefit.
2. Those enjoying vacation leave with pay of at least 5 days.
3. Those employed in establishments regularly employing less than 10
workers
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4. Exempt establishments.
Sec. 1, Rule V, Book III, IRRs :
5. Those of the government and any of its political subdivisions including
GOCCs.
6. Domestic helpers and persons in the personal services of another.
7. Managerial EEs.
8. 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.
12.2 Entitlement
- can be converted to cash
* Art. 95 : 5 days incentive leave with pay for at least 1 year of service.
[The term at least 1 year of service shall mean service within 12 months,
whether continuous or broken, reckoned from the date the EE started
working, including authorized absences and paid regular holidays unless
the working days in the establishment as a matter of practice or policy, or
that provided in the employment contract are less than 12 months, in which
case said period shall be considered as 1 year. (Sec. 3, Rule V, Book III, IRRs)
2. Explain the rule a fair days wage for a fair days labor? Unless
specifically required by law, contract or established policy, the ER is
not bound to pay wages to a worker who has not actually rendered
any service.
used for fencing and repair of the owners house. They claim for
minimum wages for non-agricultural workers. Is the claim valid?
No. They are still agricultural workers. They perform activities which fall
under the primary aspect of agriculture and the cutting of trees to be
used for fencing is incidental to the farming operations and falls under
the secondary aspect of agriculture.
Coverage
Minimum Wage
3. Art. 75 : Learners : Wage rates shall begin at not less than 75% of the
applicable minimum wage.
* 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
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
3. CMC has 3 buses used to transport its workers, free of charge from
Makati to its plat in Muntinlupa. The buses became dilapidated and
the service was discontinued by the company. The EEs demanded
for their replacement. Decide with reasons.
Yes. This is taken into account in determining overtime and premium pay
, premium contributions, social security, maternity pay, etc. (EO 178)
* Gratuity That paid to the beneficiary for past services rendered purely
out of the generosity of the giver or grantor. While it may be enforced once
it forms part of a contractual undertaking, the grant of such benefit is not
mandatory so as to be considered a part of labor standard law. (Plastic
Town vs. NLRC)
* The minimum wage law directly benefits the lowly paid EEs who receive
inadequate wages on which they support themselves and their families. It
benefits all wage earners indirectly by setting a floor below which their
remuneration cannot fall. It increases the standard of competition among
ERs since it would protect the fair-minded ER who operates at lower costs
by reason of paying his workers a wage below subsistence. (Pp vs.
Gatchalian)
G. BENEFITS
Yes. The company has the right to change the basis of the payment of
the wages of the workers. The workers would not suffer since it is within
their capability to clean and inspect the number of containers to enable
them to at least earn the rate they were receiving at the time the
change was effected. They cannot however be deprived of benefits
they were already enjoying at the time of such change. (Alcantara)
Methods of Fixing
Wage Distortion
Wage/Salary
Wage Payment
b. written consent of EE
c. ER does not receive any pecuniary benefit
d. EE given time to withdraw from the bank considered
as compensable his work
A. DIRECT PAYMENT
Wage Prohibition
Yes. The application of his purchases on credit as part of his wages the
products in lieu of legal tender. (Alcantara)
3. Art. 114 : Deposits for Loss or Damage : No ER shall require his worker to
make deposits from which deductions shall be made for the reimbursement
for loss or damage to tools, materials or equipment supplied by the ER
except:
a. When the ER is engaged in such trades, occupations or business where
the practice of making deductions or requiring deposits is a recognized
one, or
b. is necessary or desirable as determined by the Secretary of Labor in
appropriate rules and regulations.
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7. 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.
A. WAGE DEDUCTION
2. 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)
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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?
Yes. Compensation can take place under Art. 1706 of the NCC.
(Alcantara)
B. CHECK-OFF
C. GARNISHMENT/ATTACHMENT
1. Under Art. 1708 of the NCC, laborers wages shall not be subject to
execution or attachment, except for debts incurred for food, shelter,
clothing and medical attendance (Pacific Customs vs. Inter-Island
Dockmen and Labor Union)
D. DEPOSIT
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)
Prohibited Acts
2. Art. 119 : It shall be unlawful for any person to make any material false
statement, report or record filed or kept pursuant to the provisions of
this Code.
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A. RECORD KEEPING
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)
The law itself, established 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 for wages due them.
Yes. Under Art. 107, the person, though not an ER, who contracts with
the independent contractor for the damages employed by the latter
are indirect ERs. (Alcantara)
Extent of Liability
1. The direct ER and the indirect ER are jointly and severally liable to
petitioners for the monetary claims. (Deferia vs. NLRC) For purposes of
determining the extent of their civil liability, they shall be considered
as direct ERs. (Art. 109)
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)
No, XYZ will still be liable for the unpaid wages of the janitor since the
obligation is imposed by law. (Id)
No. The janitors employed by ABC are considered indirect EEs and not
to indirect EEs coming from the private sector. (Rabago vs. NLRC)
Yes, under Art. 110 workers enjoy first preference as regards wages owed
them for services rendered during the period prior to the bankruptcy or
liquidation. (PCIB vs. National Mines and Allied Union)
4. Atlas Textile mortgaged its assets to DBP. DBP foreclosed the asset.
The EEs filed a complaint against Atlas and DBP for the wage
69
differentials. The labor arbiter and the NLRC held that the workers
preference under Art. 110 does not create a lien?
No. Art. 110 does not create a lien in favor of the workers. (Alcantara)
Art. 110
establishes merely a rule of preference and does not create a
lien in favor of the workers
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);
b. 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)
c. Claims for actual, moral, exemplary and other
damages arising from the ER-EE relations;
d. Except claims for EEs Compensation, Social Security,
Medicare and maternity benefits, all other claims,
arising from the ER- EE relations, including
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.
3. 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. Such complaint does not include claim for reinstatement
b. Aggregate money claims of each househelper does not
exceed P5,000
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4. Art. 111 :
In cases of unlawful withholding of wages the culpable party
may be assessed attorneys fees equivalent to 10% of the
amount of wages recovered.
14. 1 Coverage
1. Section 1, Rule V, Book III, IRRs : This rule shall apply only to
establishments collecting service charges such as hotels, restaurants,
lodging houses, night clubs, cocktail lounge, massage clinics, bars,
casinos and gambling houses, and similar enterprises, including those
entities operating primarily as private subsidiaries of the Government.
2. Section 2, Rule VI, Book III : This rule shall apply to all EEs of covered
ERs except to managerial EEs.
Managerial EE
a. powers of prerogatives to lay down, and execute
management to lay don and execute management policies
and/or
b. hire, transfer, suspend, lay-off, recall, discharge, assign, or
discipline EEs or to effectively recommend such managerial
actions.
Yes. In case the service charge is abolished, the share or the covered EEs
shall be considered integrated in their wages. (Art. 96)
Coverage
2. The CBA provides for the payment of Christmas bonuses to all regular
EEs in the bargaining unit with of at least 1 year of continuous service.
Is this equivalent to the 13th month pay?
No. The Christmas bonuses provided in the CBA accords a reward for
loyalty to certain EEs. This is evident from the stipulation granting the
bonus in question to workers with at least 1 year of continuous service.
The bonus therefore is to be in addition to the legal requirement. (UCP
vs. NLRC)
2. 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-of-living 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.
3. From 191 to 1997, DFC included in the computation of this 13th 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?
Basic Wage
Substitute Payment
74
1. Benefits in the form of food or free electricity not proper substitute for the
13th month pay. (Framanlis vs. Minister of Labor)
15. 3 Non-inclusion
1. Sec. 7, Revised Guidelines on the 13th Month Pay Law: The mandated
13th month pay need not be credited as part of the regular wage of
EEs for purposes of determining overtime and premium pays, fringe
benefits as well as contributions to the state insurance fund, Social
Security, Medicare and private retirement plans.
Section 16 : Bonus
16. 1 Definition
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.
17.2 Coverage
1. Section 1, Rule XII, Book III, IRRs : This rule shall apply to all ERs except
to:
a. government and GOCCs and
b. to ERs of household helpers and persons in their personal
service insofar as such workers are concerned
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 male workers. This is one of the exceptions to the
night work prohibition. (Art. 131)
B. DISCRIMINATION
2. C, a 45-year old teacher was dismissed by the school after she got
married to Q, her 18-year old 4th year high school student. Is the
dismissal lawful?
C. MARRIAGE
D. GENERAL
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,
77
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)
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
1. Art. 132 : The Secretary of Labor shall establish standards that will
ensure the safety and health of women EEs. In appropriate cases,
he shall, by regulations, require ER to:
a. Provide seats proper for women and permit them to use seats
when they are free from work and during working hours,
provided they can perform their duties in the position without
detriment to efficiency.
b. To establish a nursery in a workplace.
c. To determine appropriate minimum age and other standards
for retirement or termination in special occupations such as
those of flight attendants and the like.
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. It shall inculcate in the youth patriotism
and nationalism, and encourage their involvement in public and civic
affairs.
18.2 Coverage
Section 1, Rule XII, Book III, IRRs : This Rule shall apply to all ERs except
[G H]
1. to the Government and GOCCs and
2. to ERs of household helpers and persons in their personal service
insofar as such workers are concerned.
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
2. Would a company rule providing for lower wages for workers below
18 years who are inexperienced violate the prohibition?
19.1 Coverage
Art. 141 : This chapter shall apply to all persons rendering services in
households for compensation
19.2 Househelpers
For work rendered by the maids and the family driver, they should be paid
at the rate prescribed by law for non-agricultural workers. (Alcantara) No
household helper shall be assigned to work in a commercial industrial or
agricultural enterprise at a wage or salary rates lower than that provided
for agricultural or non-agricultural workers as prescribed therein. (Art. 145)
Yes. The period contract exceeds the maximum set by the law. Art. 142
provides that the original contract of domestic service shall not last for
more than 2 years, although it may be renewed for such periods as may
be agreed upon by the parties. Ms contract will therefore be good for
only 2 years. (Alcantara)
3. Aside from the rights to minimum wage, what other rights are enjoyed
by a househelper? [E J B - I F]
a. Opportunity for elementary education if a househelper is less
than 18 years old (Art. 146)
20.1 ER
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.
Sears is jointly and severally liable if S is not able to pay the wages of the
homeworkers. (Sec. 8, Rule XIV, Book III, IRRs)
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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.
Art. 158 : The requirement for an emergency hospital or dental clinic shall
not be applicable in case there is a hospital or dental clinic which is
accessible from the ERs establishment and he makes arrangement for the
reservation therein of the necessary beds and dental facilities for the use of
his EEs
5 km urban
25 min rural
84
21.3 Administration
Art. 165 : (a) The DOLE 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.
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.
(b) The Secretary of Labor 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. The fee so collected expended
exclusively for the administration and enforcement of safety and
other labor laws administered by the DOLE.
22.1 Coverage
Section 1, Rule I, Book VI, IRRs : This Rule shall apply to all establishments
and undertakings, whether operated for profit or not, including
educational, medical, charitable and religious institutions and
organizations, in cases of regular employment with the exception of the
Government and its political subdivisions including GOCCs.
22.2 EE Classification
1. Art. 280
a. Regular EEs
b. Project EEs
c. Casual EEs
d. Seasonal EEs
2. Art. 281
Probationary EE
3. Others
Contract-fixed period
ER Determination
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)
2. 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)
3. 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
86
Nature of Work
No. Their services are usually necessary or desirable in the usual trade or
business of the cooperative. (Central Negros Electric vs. NLRC)
Contract to Contract
for bridges. He was never assigned to work outside the plant of the
ER. Every 3 months, he was made to fill up and sign an employment
contract relating to a particular phase of a work in a specific project.
Is M a regular EE?
Project EEs
No. They are project EEs whose work is co-terminus with the project for
which they are hired. (Sandoval Shipyards vs. Leogardo)
No. The interviewers were hired for specific projects the completion or
termination of which are determined at the start of their employment.
(Manansag vs. NLRC)
No. Their work did not end upon the completion of a project. They
perform their jobs even after a job had been finished. Since they
performed tasks vital and indispensable to the efficient administration
and completion of the companys various projects, they are considered
regular EEs. (Capitol Industrial vs. NLRC)
Rationale
1. The rationale for this rule is that if a project has already been
completed, it would be unjust to require the ER to maintain them in
the payroll while they are doing absolutely nothing except waiting
until another program begun, if at all. In effect, these stand-by
workers would be enjoying the status of a privileged retainers,
collecting payments for work not done, to be disbursed by the ER
from profits not earned. This is not fair by any standards and can only
be lead to a coddling of labor at the expense of management. (De
Ocampo vs. NLRC)
Implication
Project EEs are not entitled to separation pay as their work was
coterminous with the completion of the project. (Sandoval Shipyards vs.
Leogardo)
No. They were engaged for a specific project or undertaking. They are
casual EEs and as such do not enjoy the security of tenure since they
work for only 11 months. (Philippine Jai Alai vs. Clave)
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)
4. 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)
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Purpose
Duration/Exception
Absorbed EEs
Award to the private respondent of the salary for the unexpired 3-month
portion of her 6-month probationary employment who was validly
terminated during her probationary employment is unjust and oppressive
to the ER. (International Catholic Immigration Commission vs. NLRC)
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)
Yes. The positions were temporary in nature and her employment was
for a definite period. Even assuming that she was on probationary
employment, the probationary period for teachers is 3 years. (Biboso vs.
Victoria Milling)
Coverage
1. Art. 278 : The provisions of this Title shall apply to all establishments or
undertakings, whether for profit or not.
Security of Tenure
Nature of Rights
Rationale Regulation
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)
5. Analogous cases.
Management Rights
The following are management rights with respect to EEs:
1. 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)
No. The directive to see the company president was neither reasonable
nor one connected with his duties. (Mancho vs. NLRC)
Yes. Her acts constitute serious defiance of the lawful orders of her
superiors with respect to matters involving her duties. They are also
sufficient basis for her superiors to lose their trust and confidence
in her. (St. Lukes vs. Minister of Labor)
No. He did not drink beer in the company premises; neither did he report
for work under the influence of liquor because it was not their tour of
duty then. (Catalan vs. Genilo)
Yes. He was guilty of serious neglect of his duties. (Phil. Geothermal vs.
NLRC)
2. Example of Dishonesty
Falsification of time cards. (SMC vs. NLRC)
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
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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)
F. ANALOGOUS CASES
G. OTHERS
Art. 283 : The ER may also terminate the employment of the EE due to:
1. the Installation of labor saving device.
2. redundancy
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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.
Redundancy
Closure of Business
No. The cases of State Investment House vs. CA, Mendoza vs. NLRC, and
the Mindanao Terminal vs. Minister of Labor provide that the rule in
Article 283 with respect to separation pay applies only to closure not due
to business reverses. (Azucena)
3. What are the requirements for a valid cessation of business not due
to business reverses?
Service of a written notice to the EEs and to the DOLE at least
1 month before the intended date thereof.
Cessation or withdrawal from business operations must be
bona fide in character.
Payment to the EEs termination pay amounting to at least
month pay, for every year of service, or 1 month pay,
whichever is higher. (ALU vs. NLRC)
Ailment or Disease
The law requires that the ER must furnish the worker sought to be dismissed
with two written notices before termination of employment can be legally
effected:
1. Notice which apprises the EE of the particular acts or omissions for
which his dismissal is sought; and
2. Subsequent notice which informs the EE of the ERs decision to dismiss
him. Failure to comply with the requirements taints the dismissal with
illegality. (Pepsi-Cola vs. NLRC)
Opportunity to be Heard
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)
3. 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.
Yes. As compared to the BLTB case, the findings of the city fiscal were
based solely on the affidavit of the accused-turned state witness. The
substantial evidence requirement is not present. (China City Restaurant vs.
NLRC)
Yes. The meeting called by the ER does not qualify as the hearing
required by law. (Segismundo vs. Montalvo)
Right to Counsel
Burden of Proof
Art. 277 : The burden of proving that the termination was for a valid or
authorized cause shall rest on the ER.
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Degree of Proof
Condonation
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)
Offer to Reinstate
The fact that his ER latter made an offer to re-employ him did not cure the
vice of his earlier arbitrary dismissal. (Ranara vs. NLRC)
Prescription
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.
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2. Art. 284 :
Disease : 1 month salary or month salary for every year of
service, whichever is higher.
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 backwages, the court may not only mitigate, but
also absolve the ER from liability fro backwages where good faith is
evident. (Durabilt vs. NLRC)
A. COMPUTATION OF BACKWAGES
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)
5. What if reinstatement is not prayed for in the case before the labor
arbiter. Is the labor arbiter allowed to grant reinstatement?
No. The EE will not be reinstated if he did not pray for reinstatement.
(Labor vs. NLRC) But an earlier case, (General Baptist Colloge vs. NLRC) says
that EE is entitled to reinstatement although he failed to specifically pray
for the same. The Labor case is a later case.
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Yes. G held a sensitive position. The case left both parties with less than
full trust and faith in each other. He should be paid severance
compensation in lieu of reinstatement. (Golden Donuts vs. NLRC)
A. RESIGNATION
B. CONSTRUCTIVE DISCHARGE
Suspension of Operations
1. Art. 286 : The bona fide suspension of the operation of a business or
undertaking for a period not exceeding 6 months, or the fulfillment
by the EE of a military or civic duty shall not terminate employment.
In all such cases, the ER shall reinstate the EE to his former position
without loss of seniority rights if he indicates his desire to resume his
work not later than 1 month from the resumption of operations of his
ER or from his relief from the military or civic duty.
Art. 287 : Any EE may be retired upon reaching the retirement age
established in the CBA or other applicable employment contract.
Unless the parties provide for broader inclusions, the term month
salary shall mean 15 days plus 1/12th of the 13th month pay and the cash
equivalent of not more than 5 days of service incentive leaves.
Obligation
1. The law does not impose any obligation upon ERs to set up a
retirement scheme for their EEs over and above that already
established under existing laws. (Llora Motors vs. Drilon)
Benefit
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)
2. 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?
PART II
SOCIAL SECURITY
Section 1, SSL : The Act shall be known as the Social Security Act of 1997.
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?
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25.3 Definitions
ER
1. 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.
2. What ERs are exempted from the SSS Law? Government and any of
its political subdivisions, branches or instrumentalities, including
GOCCs controlled by the government.
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 ER-EE 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 self-
support, physically or mentally.
Parent: Who is receiving regular support from member.
Beneficiaries
A. PRIMARY
1. Sec. 8, SSL :
Dependent spouse until remarriage
Dependent legitimate, legitimated or legally adopted and
illegitimate children provided that the illegitimate children
shall be entitled to 50% of the share of the legitimate,
legitimated and legally adopted children.
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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?
B. SECONDARY
Sec. 8
Dependent parents
C. OTHERS
25.4 Coverage
A. COMPULSORY
6. 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)
7. Individual farmers and fishermen under SSS rules and regulations. (Id.)
B. VOLUNTARY
3. Spouse who devote full time managing household and family affairs
unless specifically mandatorily covered. (Sec. 9, SSL)
C. BY ARRANGEMENT
III. After working for 5 years, J was fired without cause. His dismissal effected
him so much that 2 months after he suffered a stroke. Is he entitled to
disability benefits at the time of his stroke?
1. Sec. 24, SSL : Each ER shall immediately report EEs names, ages, civil
status, occupations, salaries and dependents.
2. Sec. 24-A : Each covered self-employed shall within 30 days from the
1st day he started practice register and report to the SSS his name,
age, civil status, occupation, average monthly net income and his
dependents.
25.7 Funding
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.
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)
Effects of Non-remittance
Sec. 22, SSL : Failure of refusal of the ER to pay or remit contributions shall
not prejudice the right of the covered EE to the benefits of coverage.
25. 8 Benefits
II. Section 2, Paternity Leave Act of 1995: Notwithstanding any law, rules and
regulations on the contrary, every male EE in the private and public sectors
shall be entitled to a paternity leave of 7 days with a full pay for the 1st four
deliveries of the legitimate spouse with whom he is cohabiting. The male EE
applying for paternity leave shall notify his ER of the pregnancy of his
legitimate spouse and the expected date of such delivery.
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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
Art. 1144 : 10 years from the time the right of action accrues since this is an
obligation created by law.
Benefit Protection
3. 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.
Execution of Decisions
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Appeal
26.1 Law
Policy Objective
Rationale
The primary purpose of a workmens compensation act is to provide
compensation for disability or death resulting from occupational injuries or
diseases or accidental injury; the statute is a remedial one, to compensate
reasonably those who are injured while in the employment of others, as part
of the natural, necessary cost of production. (Azucena)
Interpretation
26.2 Definitions
ER
Art. 266 : Any person, natural or juridical, employing the services of an EE.
Dependent
Beneficiaries
Who are the beneficiaries under the ECSIF?
1. Primary
a. Spouse dependent spouse until remarriage
b. 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.
2. Secondary
a. Parents dependent subject to restrictions imposed on
dependent children.
b. Children illegitimate subject to restrictions imposed on
dependent children
c. Legitimate descendants.
26.3 Compensability
Yes. The death arose out of and in the course of the employment since
the soldier was not on vacation leave and he had lawful permission to
go to the place and the other soldier was authorized to carry a firearm.
(Hinoguin vs. ECC)
Proximate Cause
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)
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Incidents of Employment
2. Acts for the personal benefit of the ER i.e. special errand rule.
While Travelling
Compensation depends upon whether the injury results from a risk inherent
in the nature of the employment, or reasonably incidental incidental
thereto, and upon whether the EE was engaged in the exercise of some
functions or duties reasonably necessary or incidental in the performance
of the contract of employment, or whether he was authorized or required
by such contract to be. (Azucena)
Assault
If there is a causal relation between the assault and the employment, the
assault is compensable. (Iloilo Dock vs. WCC)
1. Define sickness?
Any illness
a. definitely accepted as an occupational disease listed by the
Commission, or
b. any illness caused by employment subject to proof that the risk
of contracting the same is increased by working conditions.
(Art. 167)
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Disease due wholly to causes and conditions which are normal and
constantly present and characteristic of the particular conditions which
are normal and constantly present and characteristic of the particular
occupation. (Menez vs. ECC)
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
1st 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:
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a. EEs intoxication,
b. Willful intention to injure or kill himself or another,
c. Notorious negligence, or
d. Otherwise provided under this Title.
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
C. NOTORIOUS NEGLIGENCE
26.5 Funding
What are the sources of funding of the ECSIF? Contribution shall be paid in
their entirety by the ER and any contract or device for the deductions of
any portion thereof from the wages or salaries of the EEs shall be null and
void. (Art. 183) EEs do not have any contribution. The government accepts
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general responsibility for the solvency of the ECSIF. Any deficiency will be
covered by the supplemental appropriations from the National
Government. (Art. 184)
Effects of Non-Remittance
Art. 196 : Failure or refusal of the ER to pay or remit the contributions shall
not prejudice the right of the EE or dependent to benefits.
26.6 Benefits
Benefit Protection
Prescriptive Periods
Art. 201 : 3 years from the time the cause of action accrued.
Exclusivity of Benefits
1. Art. 173 : Liability of the ECSIF shall be exclusive and in place of other
liabilities of ER to EE, dependents or anyone otherwise entitled to
receive damages on their behalf. The payment of compensation
shall not bar the recovery of benefit provided in other laws i.e.
payment bars recovery for damages arising from the death of the
member.
No. The EE or his heirs has the right of selection or choice of action. He
cannot however pursue both courses of action simultaneously. (Floresca
vs. Philex)
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Benefit Protection
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
27.2 Definitions
ER
EE
Sec. 2, GSIS Act of 1997 : EE shall include :
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Dependents
Beneficiaries
Who are the beneficiaries under the GSIS Law?
1. Primary :
a. Legal dependent spouse until remarriage.
b. Dependent children.
2. Secondary :
a. Dependent parents.
b. Legitimate descendants subject to restrictions of dependent
children.
27.3 Compulsory Coverage
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.
Sec. 4, GSIS Act of 1997 : A member separated from the service shall
continue to be a member and entitled to whatever benefits he has
qualified, in event of any contingency compensable under this Act.
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
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27.7 Benefits
b. Separation
c. Unemployment.
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. 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.
Appeals
Sec. 31, GSIS Act of 1997 : Appeals of decisions/awards of the Board shall
be governed by Rules 43 and 45 of the 1997 Rules of Civil Procedure.
Appeal shall not stay orders unless stayed by orders of the Board, CA or the
SC.
28.2 Purposes/Objectives
(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.
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.
28.4 Funding
What are the sources of funding of the NHIF?
1. Members contributions.
2. Current balance of the Health Insurance Funds of the SSS and the
GSIS
3. Other appropriations earmarked by the national and local
governments purposely for the implementation of the Program.
4. Subsequent appropriations.
5. Donations and grant-in-aid.
6. Accruals.
7. Contributions by LGUs for indigent members.
II. Give the categories of personal health services to be granted under the
NHIP :
1. Inpatient hospital care i.e. room and board services of health care
professionals.
2. Outpatient care i.e. diagnostic, laboratory and other medical
examinations services and personal preventive services.
3. Emergency and transfer services.
4. Such other health services that the Corporation shall determine to
be appropriate and cost-effective.
I. Section 40, National Health Insurance Act : The following acts shall
constitute valid grounds for grievance action:
1. Violation of the rights of patients.
2. Willful Neglect of duties of program implementers that results in the
loss or non-enjoyment of benefits by members or their dependents.
3. Unjustifiable delay in actions or claims.
4. Delay in the processing of claims that extends beyond the period
agreed upon.
5. Any other Act or neglect that tends to undermine or defeat the
purposes of this Act. (VANUD)
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. A complaint for grievance must be filed with the Office which shall
rule on the complaint within 90 calendar days from receipt thereof.
2. Appeals from Office decisions must be filed with the Board within 30
days from receipt of notice of dismissal or disallowance by the Office.
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3. 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.
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