CUEVAS- Labor Standards Reviewer

CHAPTER THREE HOLIDAYS, SERVICE INCENTIVE & SERVICE CHARGES #94- RIGHT TO HOLIDAY PAY

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HOLIDAY PAY FOR ONLY 11 REGULAR HOLIDAYS • •

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Holiday pay is a one-day pay given by law to an employee even if he does not work on a regular holiday. This gift of a day’s pay is limited to each of the eleven regular or legal holidays. It is not demandable for any other kind of nonworking day. Purpose is to prevent diminution of the monthly income of the workers on account of work interruptions declared by state. BUT, to receive holiday pay, certain conditions have to be met. The employee should not have been absent without pay on the working day preceding the regular holiday. If he was absent without pay, the assumption is that he would have been absent also on the following day if it were not a holiday.

3. For SPECIAL WORKING holidays • Employee is entitled only to his basic rate. No premium pay is required since work performed on said days is considered work on ordinary working days.

EMERGENCY COST-OF-LIVING ALLOWANCE ON A REGULAR HOLIDAY. Yes.

DIVISOR to convert the salary from monthly to daily is LOWER THAN 365 • The employee is still monthly-paid and all the

HOLIDAY PAY OF A PART-TIMER • •

If the work is partial, the pay should also be partial. DOLE, holiday pay of a part-timer is to be determined on a case-to-case basis, which is any of the ff, whichever yields the highest amount: 1. The regular wage per day 2. The basic wage on the working day preceding the regular holiday if the employee is present or on leave with pay on the last working day immediately prior to the regular holiday 3. The average of his basic wages for the last seven working days for employees who are paid by results 4. The basic wage on the particular holiday, if worked

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Nothing justifies an employer in withdrawing or reducing any benefits, supplements, or payments for unworked regular holidays as provided in existing individual or collective agreement or employer practice or policy.

FORMULAS TO COMPUTE WAGES ON HOLIDAYS 1. For REGULAR holidays (If Regular Workday) •

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extra, aside from the usual holiday pay to its monthly-paid employees

DOUBLE HOLIDAY: 2 REGULAR HOLIDAYS ON SAME DAY • If unworked, employees entitled to 200% • If worked, entitled to 300% of his basic wage

SUCCESSIVE REGULAR HOLIDAYS •

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If unworked- 100% If worked- 1st 8 hours, 200% -excess of 8 hours, +30% of hourly rate on said day If unworked- 100% If worked- 1st 8 hours, +30% of 200% -excess of 8 hours +30% of hourly rate on said day

2. For SPECIAL holidays

An employee may not be paid for both holidays if he absents himself from work on the day immediately preceding the first holiday, unless he works on the first holiday, in which case, he is entitled to his holiday pay on the second holiday.

#95. RIGHT TO SERVICE INCENTIVE LEAVE

(If Rest Day) •

days of the monthincluding legal holidays are deemed paid if the quotient is equal or greater than the legal minimum rate Employer cannot claim reimbursement of overtime pay

HOLIDAY FALLING ON A SUNDAY • No legal obligation for the employer to pay

RELATION TO AGREEMENTS •

If unworked, no pay unless there’s a favorable company policy or CBA If worked, 1st 8hours, +30% of the daily rate of 100%. Excess of 8 hours, +30% of hourly rate on said day Falling on the employee’s rest day and if worked, 1st 8hours, +50% of the daily rate of 100%. Excess of 8 hours, +30% of hourly rate on said day

Every covered employee who has rendered at least one year of service incentive leave of five days with pay “At least on year of service” shall mean service within 12 mos, WON continuous or broken, reckoned from the date the employee started working, including authorized absences and paid regular holidays, unless the number of working days in the establishment as a matter of practice or policy, or provided in the employment contract, is less than 12mos, in which case the period shall be considered as one year for the purpose of determining entitlement to service incentive leave

PART-TIME WORKERS •

Also entitled, coz rules speak of the no. Of months in a year for entitlement to said

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benefit. They are also entitled to the full five days service incentive leave benefit and not on a pro-rate basis. Can be commutated, proportionate to the daily work rendered and the regular daily salary

EXCLUDED •

Field personnel and employees whose performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid in a fixed amount for performing work irrespective of the time consumed in the performance thereof

PIECE-RATE WORKERS •

Not entitled.

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RULE IF COLLECTION OF SERVICE CHARGE IS ABOLISHED • •

EXCLUDED EMPLOYER: BURDEN OF PROOF •

Employer’s duty. If he fails to do so, he is deemed to be covered by the rule

COMMUTATION OF SIL •

The SIL shall be commutable to its money equivalent if not used or exhausted at the end of the year

Shall be the salary rate at the date of commutation. The availment and commutation of the SIL benefit may be on a pro-rata basis

SICK LEAVE & VACATION LEAVE AS VOLUNTARY BENEFITS • •

Their grant results from the employer’s discretionary policy or from bargaining with the employees or their representative. Sick leave is not commutable or payable in cash on the employee’s option.

PATERNITY & MATERNITY LEAVE • • •

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R.A. 8187. Paternity leave of 7 days with full pay to all married male employees in the private and public sectors. Available only for the first four deliveries of the legitimate spouse w/ whom the husband is cohabiting. Delivery includes childbirth, miscarriage or abortion. Purpose is to enable the husband to lend support to his wifeduring the period of recovery and/or in the nursing of the newly born child.

PARENTAL (SOLO PARENT) LEAVE •

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R.A. 8972. Parental leave of not more than 7working days every year, to any solo parent employee who has rendered service of at least one year. He must notify his employer of the availment, within a reasonable time period..and present a Solo Parent Identification Card Unutilized parental leave is not convertible to cash unless otherwise agreed.

#96. SERVICE CHARGES

The share of covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average monthly share of each employee for the past 12 months immediately preceding the abolition or withdrawal of such charges.

TIPS •

BASIS OF COMPUTATION •

All service charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of 85% for all covered employees and 15% for management. The share of the employees shall be equally distributed among them. Rule applies to all employees of covered employers, regardless of their positionsm designations or employment status, and irrespective of the method by which their wages are paid

If a restaurant or similar establishment does not collect service charges but has a practice or policy of monitoring and pooling tips given voluntarily by its customers to its employees, the pooled tips should be monitored, accounted for, and distributed in the same manner as the service charges.

TITLE TWO- WAGES CHAPTER ONE- PRELIMINARY MATTERS #97. DEFINITION WAGE Applies to the compensation for manual labor, skilled or unskilled, paid at stated times, and measured by the day, week, month or season. Indicates inconsiderable pay for a lower and less responsible character of employment

SALARY Denotes a higher degree of employment, or a superior grade of services, and implies a position or office Suggests a larger or more permanent or fixed compensation for more important service

WAGE INCLUDES SALES COMMISSIONS • •

Wage/Salary/Pay is a reward or recompense for services performed. In the computation of the separation pay, the salary should also include the earned sales commissions.

WAGE INCLUDES FACILITIES OR COMMODITIES •

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Wage includes the fair and reasonable value of board, lodging or other facilities customarily furnished by the employer to the employee. This means that an employer may provide food and housing to his employee’s wages. As regards foods and snacks, deduction from wages should not be more than value of the food of their value. Remaining 30% has to be subsidized by the employer.

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Fair rental value deduction. In order that the cost of facilities furnished by the employer may be charged against an employee, his acceptance of such facilities must be voluntary.

FACILITIES DISTINGUISHED FROM SUPPLEMENTS •

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Facilities shall include articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employer’s business. Facilities are wage-deductible, supplements are not.

SUPPLEMENTS Constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages.

FACILITIES Items of expense necessary for the laborer’s and his family’s existence and subsistence, so they form part of the wage and when furnished by the employer are deductible therefrom The criterion is not with the kind of benefit or item given but its purpose.

REQUIREMENTS FOR DEDUCTING VALUE OF FACILITIES •

Three requirements before the value of a facility may be deducted from the employee’s wage. 1. Proof must be shown that such facilities are customarily furnished by the trade. 2. The provision of deductible facilities must be voluntarily accepted in writing by the employee. 3. Facilities must be charged at fair and reasonable value.

SALARY EXCLUDES ALLOWANCES •

Allowances in the concept of salaries or wages. No.

SALARY DISTINGUISHED FROM GRATUITY •

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A gratuity is something given freely, or without recompense; a gift whish is something voluntarily given in return for a favor or services; a tip It is that which is paid to the beneficiary for past services rendered purely out of the generosity of the grantor. Gratuity pay is not intended to pay a worker for actual services rendered. It is a monetary benefit given to the workers whose purpose is to reward employees who have rendered satisfactory and efficient service to the company. While it may be enforced once it forms part of a contractual undertaking, the grant of such benefit is not mandatory

FAIR DAY’S WAGE FOR FAIR DAY’S LABOR •

Governs the relation between labor and capital and remains a basic factor in determining employee’s wages.

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If there is no work performed by the employee there can be no wage or pay unless the laborer was able, willing and ready to work but was prevented by management or was illegally locked out, suspended or dismissed. Where the failure of workers to work was not due to the employer’s fault, the burden of economic loss suffered by the employees should not be shifted to the employer. Each party must bear his own loss.

EQUAL PAY FOR EQUAL WORK •

Employees working in the Phils, if they are performing similar functions and responsibilities under similar working conditions, should be paid under this principle.

AGRICULTURAL WORK • • •

Work on the soil and harvests is agri work. When the harvests are processed into finished product or transformed to another product, that processing work is industrial. Where the enterprise is highly mechanized and carries on processing activities not merely incidental to purely farming operations, employees in other than purely agri work deemed industrial employees.

#98. APPLICATION OF TITLE - does not apply to farm tenancy or leasehold, domestic service and persons working in their respective homes in needle work or in any cottage industry duly registered in accordance with law

Chapter II- MINIMUM WAGE RATES #99. REGIONAL MINIMUM WAGES MINIMUM WAGE DEFINITION: RATIONALE • • •

“Statutory minimum wage” is the lowest wage rate fixed by law that an employer can pay his workers. Compensation which is less than such minimum rate is considered an underpayment that violates the law. This article recognizes that there are minimum wage rates for agri and for non-agri employees, and these are determined for each region and by the regional wage boards.

NEED FOR MARGIN OVER THE MINIMUM WAGE • •

The minimum must be fair and just. The minimum wage can by no means imply only the actual minimum. Some margin must be provided over and above the minimum to take care of contingencies.

ABILITY TO PAY IMMATERIAL •

The employer cannot exempt himself from liability to pay minimum wages coz of poor financial condition of the company, the payment of minimum wages not being dependent on the employer’s ability to pay.

EMPLOYEES NOT ESTOPPED TO SUE FOR DIFFERENCE IN AMOUNT OF WAGES •

A laborer who accepts a lower wage than what the law sets as minimum wage forlaborers shall be entitled to receive the deficiency.

EXEMPTIONS • • • •

Household or domestic helpers, including family drivers and persons in the personal service of another Homeworkers engaged in needlework Workers employed in any establishment duly registered with the National Cottage Industries and Devt. Authority Workers in any duly registered cooperative

COOPERATIVES MAY STILL BE EXEMPTED FROM THE MIN WAGE LAW

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NEGOTIATED BENEFITS •

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“Barangay Micro Business Enterprises”, serve as seedbeds for developing entrepreneurship

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RETAIL & SERVICE ESTABLISHMENTS • •

R.A. 6727, Wage Rationalization Act, provides for the statutory min wage rate of all workers in private sector It must show that regulary employs not more than 10 workers for it to be exempted from coverage of this law

#100. PROHIBITION AGAINST ELIMINATION OR DIMINUTION OF BENEFITS NONDIMINUTION OF BENEFITS •

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So that the rule against diminution of supplements or benefits may apply, it must be shown that: 1. The grant of the benefit is founded on a policy or has ripened into a practice over a long period 2. The practice is consistent and deliberate 3. The practice is not due to error in the construction or application of a doubtful or diff question of law 4. The diminution or discontinuance is done unilaterally by the employer Grant of benefits paid by the company to its intermittent workers which has ripened into a practice may no longer be withdrawn, like, for example: Food or meal allowance; Noncontributory retirement plan; monthly emergency allowance.

EXCEPTIONS TO THE NONDIMINUTION RULE:

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Payments to be considered such should have been practiced over a long period of time and must be shown to have been constant and deliberate.

Art. 100 is not violated if the giving of acrossthe-board pay increase is discontinued when such provision is removed from CBA through negotiation. Similarly, the giving of across-the-board salary increases so as to rectify a salary distortion caused by compliance with a wage order cannot be said to have ripened into a company pratice If there is no salary distortion to cure, the previous acb method cannot be demanded as if it were a legal obli

BENEFIT ON REIMBURSEMENT BASIS. • •

Example, Per Diem or Monthly Ration of Gasoline. Elimination of an existing benefit in exchange for an equal or better one does not violate Art. 100

RECLASSIFICATION OF POSITION; PROMOTION •

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Reclassification from rank-and-file to supervisory. The position holders lose overtime pay and other benefits, but Art. 100 is not violated. Promotion produces the same effect. But promotion and reclassification must be done with good faith The personnel movement should not be intended to circumvent the law to deprive employees of the benefits they used to receive.

CONTINGENT OR CONDITIONAL BENEFITS; BONUS •

NOT ESTABLISHED PRACTICE; MISTAKE IN APPLICATION OF LAW •

These are not within the prohibition of Art. 100 coz as products of bilateral contract, they can only be eliminated or diminsihed bilaterally. What the law forbids is elimination or modification done unilaterally by the employer. A party to the CBA may propose changes within 60 days before it expires. The changes may not always be to add to but also to subtract from, or otherwise modify the existing benefits.

ACROSS-THE-BOARD SALARY INCREASE NOT NECESSARILY A COMPANY PRACTICE

EXEMPTION OF BMBE’s •

Absent clear administrative guidelines, the employer cannot be faulted for erroneous application of the law.

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A bonus is not a demandable and enforceable obli. But it is so when it is made part of the wage. In such a case, the latter would be a fixed amount and the former would be a contingent one dependent upon the realization of profit. WON bonus forms part of wages depends upon the circumstances and conditions for its payment. If it is an additional compensation which the employer agreed to give without any conditions imposed for its payment, such as success of biz, then it is part of the wage.

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But, of there is no agreement that bonus forms part of the employee’s compensation, then bonus would depend on the profit to be realized.

EQUITY OR LONG PRACTICE AS BASIS OF BONUS •

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Employees whose employment has been terminated may still demand payment of service award under company policy and, proportionately, of the anniversary and performance bonuses, considering that they already had rendered the service required. The right is not defeated by a “release and quitclaim”

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If the Christmas bonus was included in or considered as the equivalent of the 13thmonth pay, there would be no need for a specific provision on Xmas bonus in the CBA. BUT if the CBA provided for a bonus in graduated amounts depending on the length of service of the employee, the intention is clear that the bonus provided in the CBA was meant to be in addition to the legal requirement.

13TH MONTH PAY DEEMED WRITTEN IN CONTRACT •

The absence of an express provision in the CBA obligating employer to pay this is immaterial.

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A seafarer is a contractual, not regular employee. At such, they are not entitled to the 13th month pay. This Decree contemplates the situation of land-based workers. And not seafarers who generally earn more.

#101. PAYMENT BY RESULTS WORKERS PAID BY RESULTS, IN GENERAL •

This shall mean 1/12 of the “basic salary” (excludes all other fringe benefits such as cost of living allowances) of an employee within a calendar year.

Depends on what kinds of commissions are involved. If the commissions may be properly considered part of the basic salary, they should be included in computing the 13th month pay.

P.D. No. 851 shows no intention to cover persons in govt service

SEAFARERS

This is a misnomer coz it is basically a bonus and therefore is gratuitous in nature. The granting of this is a management prerogative which cannot be forced upon the employer.

ARE COMMISSIONS INCLUDED IN THE COMPUTATION?

Difference of opinion on how to compute the 13th month pay does not justify a strike. It is a nonstrikeable issue and a strike held on that ground is illegal.

EXCLUSION: GOVERNMENT EMPLOYEES

COMPUTATION OF 13TH MONTH PAY; EXCLUSIONS •

The rules implementing 13th Month Pay provide that a distressed employer shall qualify for exemption from the requirement of the decree only upon authorization from the Sec of DOLE.

NONSTRIKEABLE

FOOD, ETC, NOT SUBSTITUTE FOR 13TH MONTH PAY 14TH MONTH PAY NOT LEGALLY DEMANDABLE •

An employee who has resigned or whose service were terminated at any time for payment of the 13th-month pay is entitled to this monetary benefit in proportion to the length of time he worked during the year, reckoned from the time he started working during the calendar year up to the time of his resignation or termination from the service.

DISTRESSED EMPLOYER

13TH MONTH PAY WHEN CBA BONUS DEEMED APART FROM, NOT “EQUIVALENT” OF 13TH MONTH PAY

If the commissions are not integral part of the basic salary, then they should be excluded.

PROPORTIONATE 13TH MONTH PAY

While normally discretionary, the grant of a gratuity or bonus by reason of its long and regular concession, may be regarded as part of regular compensation.

SERVICES RENDERED AS BASIS OF BONUS •

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Art. 101 speaks of workers whose pay is calculated not on the basis of time spent on the job but of the quantity or quality or the kind of work they turn out. They are paid by results. They do nontime work 1. Those whose time and performance is supervised by the employer (there is an element of control and supervision over the manner as to how the work is to be performed), ex. Piece-rate worker in company premises, where the ouput may be easily counted 2. Those whose time and performance is unsupervised by the employer (none, because the control, if any, is merely over the result of the work itself) e.x. pakiaw and takay system, job is to be performed in bulk where the output is easily counted

BASIS OF OUTPUT PAY RATE • •

The basis shall be the performance of an ordinary worker of minimum skill or ability An ordinary worker of minimum skill or ability is the average worker of the lowest producing group representing 50% of the total number

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of employees engaged in similar employment in an establishment. Where the output rates do not conform with the prescribed standards, employees shall be entitled to receive under such prescribed standards and that actually paid them by the employer.

LEGAL SUFFICIENCY OF THE PIECE RATE •

Piece-rate workers may be categorized into two: 1. Those who are paid piece rates which are prescribed in Piece Rate Orders issued by DOLE. (Wages are determined by simply multiplying the number of pieces produced by the rate per piece. Not covered by rules on hours of work. Whatever they produce by the end of the day shall determine their actual earnings even if the work day exceeds eight hours) 2. Those who are paid output rates which are prescribed by the employer and are not yet approved by DOLE. (The number of pieces produced is multiplied by the rate per piece as determined by the employer. If the resulting amount is equivalent to or more than the applicable statutory minimum daily rate in relation to the number of hours worked, the worker will receive such amount. If amount is less, employer is required to pay the difference between the resulting amount and the applicable legal min rate)

3. 4. 5. 6. 7.

Night shift differential pay Holiday pay Meal and rest periods Overtime pay (conditional) Premium pay (conditional) 8. 13th month pay 9. Other benefits granted by law

CHAPTER III- PAYMENT OF WAGES #102. FORMS OF PAYMENT •

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PROOF OF WAGE PAYMENT • •

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Do not apply to employees whose time and performance is unsupervisedby the employersm including those who are engaged on task or contract basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance. Workers paid by results whose time and performance are supervised by the employer are entitled to the benefits.

ENTITLEMENT TO HOLIDAY PAY •

A piece-rate employee is entitled to holiday pay which shall not be less than his average daily earnings for the last seven actual working days immediately preceding the regular holiday, provided that in no case shall the holiday pay be less than the applicable statutory minimum wage.

ENTITLEMENT TO 13TH-MONTH PAY •

Yes, provided that the piece-rate worker should have rendered at least one month work or service during the calendar year.

BENEFITS PAYABLE TO PIECE-RATE WORKERS 1. The applicable statutory min daily rate 2. Yearly service incentive leave of 5 days with pay

Employer has the burden to prove payment Every employer must keep a payroll, showing the length of time to be paid, amount. The employee must sign the payroll.

#103. TIME OF PAYMENT • •

ENTITLEMENT OF PIECE-RATE WORKERS TO NIGHT DIFFERENTIAL & SERVICE INCENTIVE LEAVE •

No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, chits or any object other than legal tender, even when expressly requested by the employee. Payment of wages by check or money order shall be allowed when such manner of payment is cutomary on the date of the effectivity of Labor Code.

Wage shall be paid at least once every two weeks or twice a month at intervals not exceeding 16 days. The payment of wages which cannot be completed in two weeks shall be subject to two conditions, in absence of a CBA or arbitration award 1. That payments are made at intervals not exceeding 16 days in proportion to the amount of work completed 2. That final settlement is made upon completion of the work

#104. PLACE OF PAYMENT •

As a general rule, the place of payment shall be at or near the place of undertaking. Payment in a place other than the workplace shall be permissible only under the following circumstances: 1. By reason of actual or impending emergencies caused by fire, flood, epedemic or other calamity rendering payment thereat impossible 2. When the employer provides free transportation to the employees back and forth 3. Under any other analogous circumstances, provided that the time spent by the employees in collecting their wages shall be considered as compensable hours worked. • No employer shall pay his employees in any bar or club, drinking establishment, massage clinic, dance hall or gambling place • Upon written permission of the majority of the employees, all private establishments and other entities with 25 employees or more located within 1km to a bank shall pay the wages and other benefits through it.

#105. DIRECT PAYMENT OF WAGES •

Wages shall be paid directly to the workers to whom they are due, except:

1. In cases of force majeure rendering such payment impossible 2. Where the worker has dies, in which case wages may be paid to worker’s heirs without the necessity of intestate proceedings.

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#106. CONTRACTOR OR SUBCONTRACTOR •

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In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with the Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the smae manner and extent that he is liable to employees directly employed by him. There is “labor-only” contracting where the person supplying workers to an employer does not have substantial capital, and the workers placed by such persons are performing activities which are directly related to the principal business of such employer. The person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.

1ST SET OF PROHIBITION: LABORONLY CONTRACTING •

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DEFINITION OF CONTRACTING OR SUBCONTRACTING •

An arrangement where a principal agrees to put out or farm out with a contractor or subcontractor the performance of a specific job, work, or service within a definite or predetermined period, regardless of WON such job, work, or service is to be performed within or outside the premises of the principal.

FOUR FEATURES OF LEGITIMATE CONTRACTING 1. 2. 3. 4.

Parties Specific Job Period Location

#107. INDIRECT EMPLOYER

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Refers to capital stocks and subscribed capitalization in the case of corporations, tools, equipment, implements, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out.

RIGHT TO CONTROL •

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#109. SOLIDARY LIABILITY Trilateral relationship in legitimate contracting. Three parties involved in this arrangement: 1. Principal- any employer who puts out or farms out a job, service or work to a contractor or subcontractor 2. Contractor or subcontractor- any person or entity engaged in a legit con or subcon arrangement 3. Contractual employee- one employed by a con or subcon to perform or complete a job, service or work pursuant to an arrangement bet the latter and a principal Between principal and contractor’s employee’s no employer-employee

Not really contracting cos the arrangement is merely to recruit or place people to be employed, supervised, or paid by another, who is therefore the employer. Prohibited coz it is an attempt to evade the obli of an employer. A labor-only contractor is not a full-fledged businessman, he has no discrete, adequately capitalized, dully registered business and if he has, the people he gathers are not under his control or supervision. Essential element of LOC- when the arrangement is merely to recruit, supply or place workers to perform a job, work, or service for a principal. Two confirming elements: 1. Lack of substantial capital or investment and performance of activities directly related to the principal’s main business. 2. Contractor does not excercise control over the performance of the employees

SUBSTANTIAL CAPITAL

#108. POSTING OF BOND

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relationship exists coz the contractor is an bizman. But this relationship will exist between principal and workers where the contracting arrangement is not legit. It is unlawful if it is only labor-contracting or against public policy. In labor-only contracting, there is no contracting and no contractor, only a representative to gather and supply people.

Refers to the right reserved to the person for whom the service of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end. “Exclusive servicing”- does not necessarily mean being under the control or employment of the entity being served, thus the relationship may still be classified as independent contractorship coz the element of control is absent.

CONTROL OVER FORMER EMPLOYEES •

Employees may resign their jobs to become contractors to their former employer, but the latter should cease controlling the means and method of doing the work allegedly contracted, otherwise the result is labor-only contracting.

2nd SET OF PROHIBITIONS: ARRANGEMENTS THAT VIOLATE PUBLIC POLICY •

Contracting in bad faith to the prejudice of regular employees 1. Labor-only contracting

2. Contracting that terminates the employment

3. 4. 5. 6.

of regular employees, or reduces their work hours, or reduces or splits a bargaining unit, if such contracting out is not done in good faith and not justified by biz exigencies Contracting with a cabo (labor con by a labor union) Con with in-house agency Con coz of a strike or lockout Con that constitutes UMPL under Art. 248

3rd SET OF PROHIBITIONS: EXPLOITATIVE ACTS UNDER SEC.6 OF D.O. #18-02 •

Taking undue advantage of the econ situation or lack of bargaining strength of the contracting employee or undermining his security of tenure by: 1. Req contractual employee to perform functions currently being performed by the regular employee of principal, or contractor or subcontractor 2. Requiring him to sign as a precondition to employment or continued employment, an antedated resignation letter, blank payroll, waiver of labor standards, etc. 3. Req him to sign a contract fixing the period to a term shorter than the term of contract between the principal and the con or subcon, unless the contract is divisible into phases for which substantially different skills are required and made known to the employee at the time of engagement

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RIGHTS OF CONTRACTUAL EMPLOYEES 1. Safe and healthful working conditions 2. Labor standards 3. Social security and welfare benefits 4. Self-organizations, CBA & Peaceful concerted action 5. Security of tenure Also, certain conditions must be expressly stipulated in the employment contract: 1. Specific description of the job to be performed 2. Place of work and terms and conditions of employment 3. Term or duration of employment Contractor or subcon shall inform the contractual employee of the terms or conditions on or before the first day of his employment.

#110. WORKER PREFERENCE IN CASE OF BANKRUPTCY •

EXTENT OF EMPLOYER’S LIABILTY IN INVALID CONTRACTING & VIOLATION OF OTHER PROHIBITIONS...total! LEGITIMATE LABOR CONTRACTING 1. If he carries on a distinct and independent biz and undertakes to perform the job on its own account and under its own responsibility, free from the control of the principal in all matters connected with the performance of the work except as to the results thereof. 2. He has substantial capital or investment 3. The agreement between the principal or contractor or subcon assures the contractual employees entitlement to all labor and occupational safety and health standards, free excercise of the right to self organization, security of tenure and social and wealth benefits. So a labor contractor is a legit, if he is a job contractor and not a labor-only contractor and if he is properly registered

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A legit contractor is an employer. Principal is solidarily liable with him in the event of any violations of the Labor Code, including the failure to pay wages. When a contractor fails to pay the wages of his employees, the employer who contracted thejob becomes jointly and severally liable

In the event of bankruptcy or liquidation of an employer’s business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid.

#111. ATTORNEY’S FEES • • •

In cases of unlawful witholding of wages, the culpable party may be assessed attorney’s fees equal to 10% of the wages recovered. It is unlawful to demand or accept amount beyond such Awarded attorney’s fee may not exceed 10% but between lawyer and client, quantum meruit may apply or as much as he deserves, esp where a lawyer is employed without a price for his services agreed on.

CHAPTER IV PROHIBITION REGARDING WAGES #112. NON-INTERFERENCE IN DISPOSAL OF WAGES •

EXTENT OF PRINCIPAL’S LIABILITY IN LEGIT CONTRACTING •

with the contractor to the extent of the work performed under the contract, as if such employer were the employer of the contractor’s employees. Jointly and severally liable means being liable for an entire liability. If liability is invested with punitive character, the liability of contractor should solely be that of the contractor in the absence of proof that the principal conspired with the contractor in the commission of the illegal dismissal.

No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner, force, compel or oblige his employees to purchase merchandise, commodities or other properties from the employer or from any other person, or otherwise make use of any store or service of such employer.

#113. WAGE DEDUCTION •

No employer is allowed except:

1. In cases where the worker is insured with his consent by the employer and the deduction is to recompense the employer for the amount paid by him as premium on the insurance. 2. For union dues 3. Where he is authorized by law a. For value of meals and other facilties b. Insurance c. Indebtedness, where it is due & demandable d. Witholding tax e. If one is member of a legally established cooperative f. SSS, Medicare & Pag-ibig contributions

PAYMENT TO THIRD PERSON •

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Employee’s payment of obli to a third person is deductible form the employee’s wages if the deduction is authorized in writing by the employee. The employer may agree to make the deduction but is not obliged to do so.

#114. DEPOSITS FOR LOSS OR DAMAGE #115. LIMITATIONS • 1. 2. 3. 4. •

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Payments for lost or damaged equipment is deductible from the employee’s salary if 4 conditions are met: The employee is clearly shown to be responsible for the loss or damage. The employee is given ample opportunity to show cause why deduction should not be made. The amount of the deduction is fair and reasonable and shall not exceed the actual loss or damage. The deduction from the employee’s wage does not exceed 20% of the employee’s wages in a week. Deductions for unpaid absences are allowed. If the employee is monthly-paid, the equivalent daily rate should be determined first before making the deduction. Monthly rate times 12 divided by the number of days considered paid in a year.

#116. WITHOLDING OF WAGES AND KICKBACKS PROHIBITED #117. DEDUCTION TO ENSURE EMPLOYMENT #118. RETALIATORY MEASURES •

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Unlawful for an employer to refuse to pay or reduce wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceedingunder the codem has testified or os about to testify in such proceedings. Is this article strikeable? In fine, a wage violation is unlawful and may be pursued in a money claim. But the violation itself is not strikeable, unless the retaliation is of the kind considered as ULP. The article applies to implicit or unspoken testimony by an employee

#119. FALSE REPORTING

CHAPTER V- WAGE STUDIES. WAGE AGREEMENTS AND WAGE DETERMINATION #120. CREATION OF NAT. WAGES&PRODUCTIVITY COMMISSION #121. POWERS AND FUNCTIONS OF THE COMMISSION #122. CREATION OF REGL. TRIPARTITE WAGES & PRODUCTIVITY BOARDS #123. WAGE ORDER #124. STANDARDS FOR MINIMUM WAGE FIXING •

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The method for minimum wage adjustment is “salary-ceiling method” where wage adjustment is applied to employees receiving a certain denominated salary ceiling. “Floor wage” order does not require acrossthe-board pay increase

WAGE DISTORTION •

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A situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional qualitative differences in wage rates among employee groups in an establishment so as to effectively obliterate the distinctions embodied in wage structure based on skills, length of service. There is no legal req that in the rectification There is no distortion if the employees whose wages are being compared are located in diff regions Distortion Adjustment Formula: Existing Minimum Wage = % Prescribed Wage Increase Actual Salary of Employee

#125. FREEDOM TO BARGAIN • No wage order shall be construed to prevent workers in particular firms or enterprises of industries from bargaining for higher wages with their respective employer.

#126. PROHIBITION AGAINST INJUNCTION #127. NON-DIMINUTION OF BENEFITS CHAPTER VI- ADMINISTRATION AND ENFORCEMENT #128. VISITORIAL & ENFORCEMENT POWER #129. RECOVERY OF WAGES, SIMPLE MONEY CLAIMS & OTHER BENEFITS •

Regional Director is empowered to hear such cases provided the ff requisites are present:

1. The claim is presented by an employee, or a person employed in domestic or household service 2. The claim arises from employer-employee relations 3. The claimant does not seek reinstatement 4. The aggregate money claim of each claimant does not exceed P5,000. • In the absence of these requisites, the Labor Arbiter shall have exclusive orig jurisdiction over claims arising from employer-employee relations. • It is not required that the complainant be an employee at the time the complaint is filed. It is enough that the claim arises from employment.

TITLE THREE WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES CHAPTER I-EMPLOYMENT OF WOMEN #130. NIGHTWORK PROHIBITION •

No woman, regardless of age shall be employed or permitted to work with or without compensation: a. In any industrial undertaking between 10pm and 6am on the following day. b. In any commercial or non-industrial undertaking, other than agricultural between midnight and 6am in the morning of the ff day c. In any agricultural undertaking at nighttime unless she is given a period of rest of not less than 9 consecutive hours.

#131. EXCEPTIONS •

Prohibitions in 130 shall not apply in any of the ff cases: a. In cases of actual or impending emergencies, or in cases of force majeure or imminent danger to public safety. b. In case of urgent work to be performed on machineries, equipment to avoid installation to avoid serious loss which the employer would suffer c. Where the work is necessary to prevent serious loss of perishable goods d. Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare service e. Where the nature of the work requires the manual skill and dexterity of women workers and cannot be performed with equal efficiency by male workers f. Where the women employees are immediate members of the family operating the establishment or undrtaking. g. Under other analogous cases

#132. FACILITIES FOR WOMEN • • • •

Provide seats proper for women Establish separate toilet rooms Establish a nursery Determine minimum age and other standrds for retirement

#133. MATERNITY LEAVE BENEFITS

• Maternity leave qualifications: 1. The female member should be employed at the time of delivery, miscarriage or abortion 2. She must have given the required notification to SSS thru her employer 3. Her employer must have paid at least three months of maternity contributions within the 12-minth period immediately before the semester of contingency. • Every pregnant woman in the private sector, WON married is entitled. • This benefit is granted to employee in lieu of wages and may not be included in computing the employee’s 13th month pay for the calendar year. • Another statutory leave is “Battered Woman Leave” for 10 days.

#134. FAMILY PLANNING BENEFITS #135. DISCRIMINATION PROHIBITED •

It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions for employment solely on account of her sex • Act of discrimination: 1. Payment of a lesser compensation, including wage, salary or other form of renumeration, and fringe benefits, to a female employee as against a male employee, for work of equal value. 2. Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes.

#136. STIPULATION AGAINST MARRIAGE •

It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married or to stipulate expressly or tacitly that upon getting married a woman employee shall be deemed resigned or separated or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.

#137. PROHIBITED ACTS •

It shall be unlawful for any employer 1. To deny any woman employee their benefits or discharge any woman employed by him, to prevent her from enjoying any of the benefits 2. To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy 3. To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant

#138. CLASSIFICATION OF CERTAIN WOMEN WORKERS •

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Any woman who works in any night club, cocktail oounge, massage clinic, bar , etc shall be considered asan employee of such establishment... R.A. 7877 “Anti-Sexual Harassment Act of 1995” Persons liable any person having authority, influence or moral ascendancy over another

in a work or training, who demands, requests or requires any sexual favor from another • Sexual Harassment in a Work-Related Environment: 1. The sexual favor is made as a condition in the hiring 2. The acts would impair the employee’s rights or privileges 3. The acts would result in an intimidating, hostile, or offensive envi for employee

CHAPTER II- EMPLOYMENT OF MINORS

EDUC ASSISTANCE PROGRAM •

EMPLOYMENT OF POOR BUT DESERVING STUDENTS #140. PROHIBITION AGAINST CHILD DISCRIMINATION •

#139. MINIMUM EMPLOYABLE AGE •

No child below 15 years shall be employed, except where he works directly under the sole responsibility of his parents or guardian, and his employment does not un any way interfere with his schooling. Provided: 1. That his employment doesn’t endanger his life, health morals or impairs his normal development 2. That he is provided with the prescribed primary/secondary education • Where a child’s employment in public entertainment or info is essential, the employment contract must be concluded by the child’s parents or legal guardian with the express agreement of the child concerned, and with the approval of DOLE.

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Child below 15 may work for more than 20 hours a week, provided this shall not be more than 4 hours on any given day No child below 15 but below 18 shall be allowed to work for more than 8 hours a day and in no case, beyond 40 hours a week No child below 15 shall be allowed to work between 8pm and 6am of the ff day and no child 15yrs of age but below 18 shall be allowed to work between 10pm and 6am in the morning of the ff day.

PROHIBITION AGAINST WORST FORMS OF CHILD LABOR • • • •

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All forms of slavery Using, exposing of a child for prostitution Use, etc. for illicit activities, including the production and trafficking of illegal drugs and volatile substances Work which is by its nature or by the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children No child shall be employed in any advertisment directly or indirectly promoting alchoholic beverage, tobacco, gambling or any for of violence or pornography. Any person between the ages 15-18 and up may be employed in hazardous work

RIGHT TO SELF-ORGANIZATION •

Working children have the same freedom as adults to join the collective bargaining union of their own choosing

No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age.

CHAPTER III- EMPLOYMENT OF HOUSEHELPERS #141. COVERAGE •

Definition of “Domestic or Household Service”- mean services in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment, including ministering to the personal comfort and convenience of the members of the employer’s household, including service of family drivers

#142. CONTRACT OF DOMESTIC SERVICE •

HOURS OF WORK OF A WORKING CHILD •

The management may allow time without loss or reduction of wages for working children with special talents to enable them to pursue formal studies

Must not last for more than 2 years but may be renewed for such periods as may be agreed upon by the parties

#143. MINIMUM WAGE • •

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800 for those in urbanized cities 600 in other chartered cities & first-class municipalities... Provided that the employers shall review the employment contracts of their household helpers every 3 years with the end of improving the terms and conditions Those household helpers who are receiving at least P1thousand shall be covered by SSS and be entitled to all the benefits provided thereunder

#144. MINIMUM CASH WAGE •

Basic cash wages which shall include lodging, food and medical attendance

#145. ASSIGNMENT TO NONHOUSEHOLD WORK •

No household helper shall be assigned to work in a commercial, industrial, or agricultural enterprise at a wage or salary lower than that provided for agri or non-agri workers as prescribed

#146. OPPORTUNITY FOR EDUCATION •

If under 18, the employer shall give this. The cost for education shall be part of the househelper’s compensation unless there is a stipulation to the contrary.

#147. TREATMENT OF HOUSEHELPERS

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Just and humane manner. In no case shall employer use physical violence on househelper

#148. BOARD, LODGING & MEDICAL ATTENDANCE •

Employer shall furnish this free of charge

#149. INDEMNITY FOR UNJUST TERMINATION OF SERVICE •

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If the period of service is fixed, neither employer or househelper may terminate before the term’s expiration of the term, except for a just cause. If he is unjustly dismissed, he shall be paid the compensation already earned plus that for 15 days by way of indemnity. If the househelper leaves without justifiable reason, he shall forfeit any unpaid salary due him not exceeding 15 days.

CHAPTER IV- EMPLOYMENT OF HOMEWORKERS #153. REGULATION OF INDUSTRIAL HOMEWORKERS #154. REGULATIONS OF SEC OF LABOR •

Designed to assure the minimum terms and conditions of employment applicable to industrial homeworkers or field personnel involved

#155. DISTRIBUTION OF HOMEWORK •

The “employer” of homeworkers includes any person, natural or artificial, who for his account or benefit, or on behalf of any person residing outside the country, directly or indirectlyor through any employee, agent, contractor, subcontractor or anyother person: 1. Delivers, or causesto be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or disposed of in accordance with his directions. 2. Sells any goods, articles, materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication either himself or through some other person. •

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It is the employer’s duty to pay and remit SSS, Medicare and ECC premiums Complaints for violation of labor standards and the terms and conditions for employment involving money claims of homeworkers not exceeding P5T per homeworker shall be heard and decided by the Regional Director. Beyond this amount, the case falls under the jurisdiction of a Labor Arbiter in the NLRC.