Finals Reviewer_labor Standards

LABOR STANDARDS REVIEWER LABOR STANDARDS I. LABOR STANDARDS What is labor standards? • Giving what is due to the worker • Minimum terms and conditions of employment that an employer must provide to the workers • Labor standards are fluid. What may be true now may not be true in the future • LABOR STANDARDS are those labor statutes that prescribe standards relating to terms and conditions of employment for compliance by employers o like the laws on hours of work, weekly rest periods, holiday pay, wages, and laws dealing with women, minors, house-helpers, and industrial home-workers. Purpose of Labor standards (APIR) 1. Alleviate the plight of workers 2. Protection to workers against injustices 3. Impose sanctions on those who violate 4. Redress for violation of basic employee rights Coverage of labor laws on standards • Wages • Working conditions and rest periods o Hours of work o Weekly rest periods o Holiday, service incentive leaves and service charge o 13th month pay • Working conditions for special groups of employees o Women o Minors o Househelpers o Homeworkers o Apprentices

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o Learners o Handicapped Termination of employment o Substantive due process o Procedural due process o Compliance with the two notice requirement 1. Notice of the violation 2. Notice of termination

When can labor laws on standards apply? Labor laws can only apply when there is an employer-employee relationship When is there EMPLOYER-EMPLOYEE Relationship? • Jeepney driver and owners o The boundary system is only the mode of compensation o The owners of the jeepney still exercise control over the drivers in determining the route • There is NO employer-employee relationship in: o Company and agent of company paid in commission – the company does not have control over the agent o Resident physician and the training hospital – residency is simply a continuation of their medical course. It is a pursuit of further education on a specific discipline. How to determine the existence of the employer-employee relationship: The 4-Fold Test: When there is – 1. Selection and engagement of employees 2. Payment of wages 3. Power of dismissal 4. Power to control the employees conduct a. Control of employees conduct is the most crucial and determinative indicator of the existence of the employer-employee relationship The 2-Tiered Test for EMPLOYER-EMPLOYEE RELATIONSHIP –

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LABOR STANDARDS REVIEWER Economic reality test: • Find the employee if he is economically dependent on the other, then there is employer-employee relationship. • Orosco v. 5th Division of the Court of Appeals o Orosco was terminated. His case for illegal dismisal was dismissed.  Court held that he was an independent contractor.  Petitioner’s main occupation is not a columnist. She herself admits that she contributes articles to other publications. Thus she not fully dependent on Philippine Daily Inquirer. o Orosco was considered as a freelance writer. Economic reality test was applied. • Sonsa v. NLRC Contract of employment • Not an ordinary contract. It is also endowed with public interest. • Chavez v. NLRC o Can a contract between an employer and employee be determinative of an employeremployee relationship. o The contract stated that Chavez was not an employee. o Other provisions of the contract showed that it was a contract of employment between an employer and employee.

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Court held that existence of an employeremployee relationship cannot be repudiated in an employment contract when the facts clearly showed otherwise. Employment status is defined by law and not what the parties say it should be.

The exclusivity provision • Generally invalid, EXCEPT when:

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Position of the employee is such that it would be presumed that if he transfers to a competing employer, what he knows can be used by the competitor against the previous employer. (trade secrets) Consulta v. Court of Appeals o The appointment of the complainant provided that she must represent the company on an exclusive basis and must not directly or indirectly engage with other companies that compete against her employer. o Restriction was considered reasonable because it only limited transactions with other companies that competed with that of her employer. o What is prohibited is an encompassing restriction.  In another case, although the restriction was broad, it was held to be reasonable because it was only for a limited time and place. (Del Castillo v. Richmond)

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Retainership agreement – a work for hire contract. It falls between a one-time contract and full-time employment. Its distinguishing

feature is that the employer pays in advance for work to be specified later. Additional contracts regarding the performance of this work may also apply. • Coca-Cola Bottlers, Phil. v. Climaco o Whether employer-employee relationship exists under a retainership agreement. o Court held that the company lacked the power of control over the performance of the respondent by his duties. Dr. Climaco was declared not an employee for being udner a retainership agreement. o Dr. Climaco was not told how to conduct his physical examination. What is important is that the control refers to how the work should be done.

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LABOR STANDARDS REVIEWER General rule when it comes to resident physicians: there is employee-employer relationship. EXCEPT WHEN: • When there is a training agreement. The training program is duly accredited or approved by the government agency LABOR-ONLY CONTRACTING JOB-ONLY CONTRACTING When there is no sufficient The person is in an independent capital and equipment. Can only business BUT the capital and supply labor facilities belongs to the principal No relationship between Carries on an independent contractor and employee. The business and undertakes work relationship is between the on his own account employee and the principal employer Example: agencies who hire people and assign them to companies *An independent contractor has all the facilities. The person transacting with the independent contractor only has control over the result of the work of the independent contractor. II. WAGES A. Wages • Wages are defined as: 1. Renumeration or earnings 2. expressed in terms of money 3. fixed or acscertained on a: a. time b. task c. piece or d. commission basis 4. payable by an employer to an employee 5. under a written or unwritten contract 6. for work done or to be done. What are considered to be part of wages?

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All benefits of the employee under the CBA o Severance pay o Unpaid salaries for work done

The following determines the amount of wages: 1. Collective bargaining agreement – provided that what the wage prescribed is more than what is under the law. 2. employment contract – provided that what the wage prescribed is more than what is under the law. 3. Law Note: Collective bargaining agreement determines the rights of the employees. When there is a CBA, this becomes the law between the employer and employee provided that it does not violate law or public morals Facilities • articles or services for the benefit of the employee or his family • Items of expense necessary for the laborer’s and his family’s existence To allow deduction in the value of facilities from the employer’s wages a. proof that such facilities are customarily furnished by the trade

b. provision of deductible facilities is voluntarily accepted in writing by the employee

c. facilities are charged at fair and reasonable value Mere availment is not sufficient to allow deductions from employee’s wages. Food or snacks: supplements not facilities Supplements

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LABOR STANDARDS REVIEWER • • •

constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages. Independent of the wage and not deductible For the benefit of the employer

What an employee has worked for, his employer must pay. WAGES paid to blue collar workers, for skilled or unskilled manual labor paid at stated daily, weekly, monthly or seasonal periods.

SALARIES paid to white collar workers. denotes a higher grade of employment, a superior grade of services and a position of office.

NOT subject to execution or attachment except for debts incurred for food, shelther, clothing and, medical attendance (Rosario Gaa v Court of Appeals)

excluded in the computation of basic salary • sick, vacation and maternity leaves • nigh differentials • regular holiday pay • premiums for work done on rest days and special holidays

Living wage • economically feasible to maintain the minimum standards of living necessary for the health and efficiency and general wellbeing of the employees within the framework of the national economic and social development program. Exclusions from coverage a. persons in the personal service of another b. homeworkers engaged in needlework

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c. workers employed in cottage industries duly registered in accordance with law and who perform work in their homes d. workers duly registered cooperatives as recommended by the bureau of cooperative development and approved by the Secretary of Labor e. Farm Tenancy of lease hold Equal Pay for Equal Work • Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions should be paid similar salaries. •

If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. o

Presumption: Same position and rank, equal work

B. Minimum Wage Rates • Lowest basic wage rate fixed by law that an employer can pay his employees (statutory minimum wage) RA 6727 (Wage Rationalization Act) • Mandates the fixing of the statutory minimum wages applicable to different industrial sectors, namely, nonagricultural, agricultural plantation and non- plantation, cottage/handicraft, and retail/service, depending on the number of workers or capitalization or annual gross sales in some sectors •

Established the Regional Tripartite Wages and Productivity Boards which has the authority to fix the wage rates

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LABOR STANDARDS REVIEWER Coverage • Wage increases apply to all private sector workers and employees regardless of their position, designation, or status, and irrespective of the method by which their wages are paid

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financial condition of the company; the payment of minimum wages is not dependent on the employer’s ability to pay. Non Diminution

Exclusions 1. Househelpers, family drivers and workers in the personal service of another 2. Workers and employees o

In retail service establishments regularly employing not more than 10

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Distressed establishments

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Other firms or employers as determined by the board, when specifically exempted from compliance for a period fixed by the board.

3. Workers of registered Barangay Micro Business Enterprises with Certificates of Authority issued by the Office of the Municipal or City Treasurer Minimum wage of workers paid by results is determined through: a. Time and motion studies b. Consultation with representatives of employers and workers organizations in a tripartite conference called by the DOLE Secretary Ability to Pay is Immaterial • Serious business losses is not a defense to payment of labor standards benefits. Employer cannot exempt himself form liability to pay minimum wages because of poor

General Rule: Nothing in the Labor Code shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of the promulgation of this Code. Benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefit has become part of the employment contract, written or unwritten. Exception: To correct and error, otherwise, if the error is left uncorrected for a reasonable period of time, it ripens into a company policy and employees can demand for it as a matter of right. Bonuses does not form part of salary. Generally, they are not demandable. However, the following are demandable bonuses: 1. When given with condition 2. 13th month salary a. 14th or more are no longer demandable 3. When it forms part of the contract 4. When given as company policy for at least 6 months, customary or voluntary employer practice a. Requisites for voluntary employer practice such that the same cannot be unilaterally withdrawn anymore: i. Practiced over a long period of time ii. Consistent and deliberate Four Elements of Wage distortion a. Existing hierarchy of positions with corresponding salary rates

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LABOR STANDARDS REVIEWER b. Significant change in the salary rate of a lower pay class with a concomitant increase in the salary rate of a higher one

c. Elimination of the distinction between the two levels d. Existence of the distortion in the same region of the country C. Payment of Wages Art. 102 Forms of payment – An employee may only be paid by legal tender by the employer Art 1705 of the Civil Code – laborer’s wages shall be paid in legal currency. Promissory notes, vouchers, tokens, tickets, chits, or any object other than legal tender, even when expressly requested by the employee are not allowed. Legal tender – that currency sufficient under the law to effect payment of a debt or obligation (Sibal, Phil. Legal Encyclopedia, 608) All notes, coins, currencies issued by the Central Bank are legal tender for all debts, public and private. A check is not legal tender. WHEN PAYMENT OF CHECK WHEN PAYMENT THROUGH OR MONEY IS ALLOWED ATM IS ALLOWED • When such manner of • With the written consent of payment is customary on the the employee date of effectivity of this Code • Employees are given • Because of special reasonable time to withdraw circumstances in appropriate their wages from the bank regulations issued by the facility, and if done during Secretary of Labor and working hours, shall be Employment considered as compensable • When stipulated in the CBA or hours worked where all these conditions are met: • System shall allow the o There is a bank or other

facility for encashment within a radius of 1 kilometer from the workplace o The employer, or any of his agents or representative, does not receive any pecuniary benefit, directly or indirectly, from the arrangement. o The employees are given reasonable time during banking hours to withdraw their wages from the bank which time shall be considered as compensable hours worked if done during working hours o The payment by is with the written consent of the employees concerned if there is no collective agreement authorizing the payment of wages by bank checks.

6 employee to receive their wage within the period and in the amount prescribed under the Labor Code • There is a bank or ATM facility within a radius of 1 km

• Employer shall issue a

evidencing payment of wages, benefits and deductions for a particular period upon request of the concerned employee

• ATM system of payment will not result in diminution of benefits and privileges of the employee and neither the latter incurs additional expenses in the process • Employer shall assume full responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement

Penalty for Violation – Art 288 of the RPC imposes a penalty of arresto mayor or a fine ranging from 200-500 pesos or both to any person who shall pay the wages due a laborer employed by him by means of tokens or objects other than legal currency of the Philippines. Art. 103 Time of payment – wages shall be paid at least once every two weeks or twice a month at intervals not exceeding sixteen days.

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LABOR STANDARDS REVIEWER Exceptions:

1. Force majeure or circumstances beyond the employer’s control provided that he pays the wages immediately after

2. Wages of employees engaged to perform tasks that cannot be completed in two weeks. In the absence of a CBA or arbitration award: a. Payments are made at intervals not exceeding sixteen days , in proportion to the amount of work completed b. Final settlement shall be made upon completion of work Art. 104 Place of Payment – Payment of wages shall be made at or near the place of undertaking except as otherwise provided by such regulations Secretary of Labor and Employment may prescribe under conditions to ensure greater protection of wages Rule VIII, Section 4 a. As a general rule, the place of payment shall be at or near the place of undertaking unless: 1. Reason of the deterioration of peace and order conditions or of actual or impending emergencies caused by fire, flood, epidemic or other calamity rendering payment impossible 2. Employer provides free transportation back and forth 3. Time spent by the employees in collecting wages shall be considered compensable hours

b. No employer shall pay his employees in any bar, night or day club, drinking establishment, massage clinic, dance hall or other similar

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places or in places where games are played with stakes of money or thing reperesenting money except in the case of persons employed in said places. Art. 105 Direct Payment of Wages Wages shall be paid directly to the workers to who they are due Exceptions:

a. Force Majeure – during which case the wages may be paid to another person under a written authority given by the worker.

b. When the worker has died – payment to the heirs without need for intestate proceedings. Claimants shall execute an affidavit attesting to their relationship to the deceasese. c. In case of conflicting claims over the uncollected wages of deceased employee:” It should be borne in mind that in cases where the second wife had in good faith contracted marriage with the decedent notwithstanding the existence of his marriage with the first wife, the court has generally sought and applied a just and equitable solution and division of the decedent’s estate among the two innocent parties”. Payment through Contractor The leader who a contracted a stevedoring work may receive payment of wages for the workers. The wages was undertaken by not in their individual capacities but as a group through their leadercontractor. Contractor or subcontractor Art106 – When an employer enters into a contract for the performance of its work, the employees of the contractor and of the latter’s subcontractor shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor

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LABOR STANDARDS REVIEWER fails to pay the wages of his employees in accordance with this 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 same manner and extent that he is liable to employees directly employed by him. The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting-out of labor to protect the rights of workers. There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, 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. Purpose of the law – to protect the workers from some unscrupulous employers. Thus, the law creates an employeremployee relationship between the employer and the contractor’s workers. Directly related activities and activities necessary or desirable in the usual business or trade Directly related activities – those which are directly related to the principal business of the employer – covered by Art 106 Activities necessary or desirable in the usual business or trade – covered by Article 280 Legal effect of a finding that the contractor is merely a “labor only” contractor – employer is responsible to the employee of the the labor only contractor as though they were directly employed by him

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In house agency – a contractor or subcontractor engaged in the supply of labor which is: a.)owned and controlled by the principal: and b.) operates solely for the principal owning managing, or controlling it. This is contrary to law public policy. Job contracting – allowed by law if: a. Contractor carries out an independent business and undertakes the contract work on his own account, under his own responsibility, according to his own manner and method, from the contorl and direction of his employer or principal in all matters connected with the performance of work except as to results; b. The contract has substantial capital or investment in the form of tools, equipment, machineries, work premises and other materials which are necessary in the conduct of his business. There is no employer-employee relationship between contractors, employees and the principal. However, when a contractor fails to pay the wages of his employees, he becomes obliged to do so as though he were the employer, but only for this purpose. Indirect employer – one who contracts with an independent contractor for the performance of any work, task, job or project nor directly related to the employer’s business. Posting of bond – An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same. Solidary liability – Other provisions of the law notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers.

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LABOR STANDARDS REVIEWER Worker preference in case of bankruptcy – 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. (As amended by Section 1, Republic Act No. 6715, March 21, 1989). Attorney’s fees – (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of wages recovered; (b) It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed ten percent of the amount of wages recovered. D. Prohibitions Regarding Wages o o o

No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages; Oblige any of his employees to patronize any store or avail of the services offered by any person. Wage Deductions: No employer on his behalf or on behalf of any person make any deductions from the wages of his employees.

Note: Article 1706 allows deduction for a debt due the employer. Which law shall prevail? o Deduction from employee’s salary as the company’s share for job procurement, even if based on a contract in writing; [Commando Security Agency vs. NLRC, 211 SCRA 645 (1992)]. The contract is void ab initio being contrary to law and public policy. [Mercury Drug Co., Inc., vs. Dayao, 117 SCRA 99, 166 (1982)]; o An employee’s obligations arising from non-payment of stock subscription to the corporation cannot be deducted from the

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wages of the employee. [Apodaca vs. NLRC, 172 SCRA 442 (1989)]. Deductions to ensure employment – deductions in consideration of employment or retention in employment. Retaliatory measures – refusal to pay, or to reduce wages and benefits, discharge or in any manner discriminate against an employee who has filed any complaint or instituted any proceeding under this title or has testified or is about to testify in such proceedings. (P. D. 850).

Exceptions: 1. To recompense employer for payment of premiums in case employee is insured by the employer with his consent; 2. For union dues where the right of the worker or his union to check off is recognized by the employer and authorized by the individual worker;

3. In other cases where the deduction is authorized by law or regulation issued by the Secretary of Labor, ex.: taxes (withholding taxes); SSS contributions; Philhealth contributions; agency fees; Abad -deduction from employees’ wages of debt due the employer. Art. 1706, Civil Code, vs. Art. 114, Labor Code.

4. Illegal Deposits – [Five J Taxi vs. NLRC, 235 SCRA 556 (1994)] It was held that the P15 daily deposit made by taxi drivers to defray shortage in their “boundary” is covered by the general prohibition under Art. 114 of the Labor Code.  not an exception 5. Where the deductions are for the payment to a third person and the employer agrees to do so, provided that the latter does not receive any pecuniary benefit, directly or indirectly from the transaction; 6. Deductions to answer for loss of damage, under these conditions:

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LABOR STANDARDS REVIEWER a) Employer is engaged in a trade, occupation or business where the practice is recognized, to answer for loss or damage to tools, materials, or equipment supplied by the employer to the employee; b) The employee is shown to be responsible for the loss or damage; c) That the amount of such deductions is fair and reasonable shall not exceed the actual loss or damage; d) The deduction does not exceed 20% of the employee’s wages in a week. No Work-No Pay Principle o The age-old principle governing the relations between labor and capital, that is, a fair day’s work for a fair days’ labor remains as the basis in determining employees’ wages. (Aklan Electric Coop., Inc., vs. NLRC, 323 SCRA 258).If there is no work performed by the employee, there can be no wage paid unless the worker is able and willing to work but was illegally dismissed or locked-out or illegally prevented from working. o The doctrine of "no-work-no-pay" is a fundamental axiom in industrial relations. The philosophy is very simple. When a person is employed, it is expected that the work assigned will be carried out. When this work is not done, the employee is not eligible for payment of any salary. Even when a general strike or countrywide ban disrupts public transport systems, and consequently employees are unable to reach their workplaces, the same principle prevails. Even die-hard trade union leaders respect this principle of equity and natural justice. "No work, no pay" lays a strong foundation to industrial peace and harmony in the long run.[5] A person can be marked dies-non, if:

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1. Absent without proper permission. 2. When on duty left without proper permission. 3. While in office but refused to perform duties. In cases of such wilful and unauthorised absence from work, the leave sanctioning authority may decide and order that the days on which the work is not performed be treated as dies non on the principle of no work no pay. This will be without prejudice to any other action that the competent authority might take against the persons resorting to such practises. Lawyer hired on contingent basis – A lawyer dismissed by the clients because he refused to represent them in an out-of-court settlement has no right to interfere in the implementation of their claims in his efforts to collect attorney’s fees not due him. (Chua vs. NLRC 190 SCRA 558). The financial capacity and economic status of the clients can be taken into account in fixing the reasonableness of the attorney’s fees. However, where the clients are mere janitors whose fees are so low, the equivalent of 50% is excessive. (Atty. Taganas vs. NLRC, 64 SCAD 226, G. R. No.118746, 7Sept. 1995). When the issues are so simple, neither novel nor difficult, award of 10% attorney’s fees may be considered excessive. The Court may reduce the same. (D. M. Consunji vs. NLRC, 143 SCR 204). Attorney’s Fees Deleted – Where the award of moral and exemplary damages was eliminated, so to was the award of attorney’s fees. (Audion Electric Co., Inc., vs. NLRC, G.R. No. 106648, 17 June 1999). III. WORKING CONDITIONS AND REST PERIODS A. Working Hours Coverage

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LABOR STANDARDS REVIEWER • This shall apply to all employees in all establishments or undertakings, whether operated for profit or not. Exemptions 1. Government employees, including those employed in government-owned and/or controlled corporations 2. Managerial employees a. one who can lay down management policies, or who can fire, hire, demote or promote or who can effectively recommend the fore going courses of action. b. Rationale: such workers are not usually employed for evey hour of work but their compensation is determined considering their special training, experience or knowledge which requires the exercise of discretion and independent judgment, or perform work related to management policies. c. they are not feasibile to provide a fixed hourly rate of pay or maximum hours of labor. 3. Managerial Staff – vested with powers or perogatives to lay down and execute management policies a. primary duty consists of the performance of work directly related to management policies of their employer b. customarily and regularly exercise discretion and independent judgment c. regularly and directly assist the managerial employee d. they execute work along specialized or technical lines requiring special training, experience of knowledge e. they execute special tasks and assignments f. they do not devote more than 20% of their hours worked in a work-week activities g. A supervisor is deemed a member of the managerial staff because he oversees the operation of the business of the company and performance of the workers, which require discretion and independent judgment. 4. Field Personnel

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a. Since they work away from his employer’s place of business, hence not subject to personal supervision of employer. Employer has no knowledge of how many hours he works per day. 5. Family members 6. Domestic helpers and persons in the personal service of another 7. Workers paid by results a. Because they are paid by fixed amount for work done, regardless of the time spent in accomplishing the work Hours of Work • Normal hours of work shall not exceed 8 hours a day. • Health personnel in cities and municipalities with a population of at least 1 million or in hospitals and clinics with a bed capacity of at least 100 shall hold regular office hours for 8 hours a day for 5 days a week, exclusive for time of meals. o If exigencies of their service require that personnel work for 6 days or 48 hrs, they shall be entitled to 30^ % of their regular wage for work on the sixth day. • Who are health personnel? o resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel. Hours worked shall include: • all time during which an employee is required to be on duty or to be at a prescribed workplace; and • all time during which an employee is suffered or permitted to work. o Rest period of short duration during working hours shall be counted as hours worked. Meal Break • It shall be the duty of every employer to give his employees not less than 60 mins time-off for their regular meals.

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LABOR STANDARDS REVIEWER • • • •

If meal/rest period is less than 20 mins, it is credited as a compensable hours worked. If work is continuous, mealtime breaks should be counted as working time for purposes of computing overtime compensation. Meal break of more than one hour is part of hours worked. Employees on call – meal break is part of hours worked. o When the laborers are required to standby for emergency work or where such meal hour is not one complete rest, it is considered overtime. o This happens when employees are told to hurry up eating to perform work during emergency work.

When idle time not counted as working time: • The idle time that an employee may spend for resting and when he may leave the spot or place of work is not counted as working time when the work is broken or not continuous. • Even if laborers did not leave the premises, it being enough that he cease to work and rest completely, rest would not be counted as working hours. Waiting time • It is compensable if the employee is subject to the absolute control of the employer such that the employee is effectively deprived of the time to attend to other personal pursuits. • If waiting is an integral part of his work or he is required by the employer to wait, it shall be considered as working time. • An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call. Work interruption due to brownouts According to Policy Instruction No. 36 of DOLE: 1. Brownouts not exceeding 20 mins shall be treated as compensable working hours 2. Brownouts more than 20 mins may not be treated as

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working hours IF: a. employees can leave their workplace or go elsewhere b. employees can use their time effectively for their own interest c. Here, employers can extend working hours outside the regular schedule without being liable for overtime pay. Working time aboard a vessel • Since seamen are required to stay on board their vessels by the nature of their duties, the correct criterion for determining whether they are entitled to overtime pay is NOT whether they were on board and cannot leave ship beyond the regular 8 hrs a day BUT whether they actually rendered service in excess of the said 8 hrs. Commuting time • Normally, it is not hours of work. • However, it is compensated as working hours if employee is required to perform substantial work under the control and supervision of the employer. Travel time • Official travel away from the workplace is counted as working hours if: o within the regular scheduled administrative workweek o outside the hours of the employee’s regularly scheduled administrative workweek and meets one of the four conditions:  involves the performance or work (e.g. driving a loaded truck)  incident to travel that involves performance or work while traveling (e.g. driving an empty truck back)  carried out under arduous and unusual conditions (travel on rough terrain/ severe weather)

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LABOR STANDARDS REVIEWER 

results from an uncontrollable event (jobrelated court appearance required by court subpoena)

Overtime Work – work performed beyond 8hrs a day • Rationale: he puts in more effort and is delayed in going home to his family to enjoy the comfort, and might miss important prearranged engagement. • should be paid additional compensation equivalent to his regular wage plus at least 25% • during holidays or rest day – additional compensation equivalent to his regular wage plus at least 30% • Undertime on a particular day is not offset by overtime on any other day. • General Rule: Overtime pay cannot be waived. o Any quitclaim that a worker agrees to forego such payment is null and void • Exception: o Built-in overtime pay – Non-payment of overtime pay is valid here because it was already provided in the written contract with a “built-in” overtime pay and signed by Director of the Bureau of Employment Services and enforced by the employer. o Adoption of Compressed workweek (CWW) on voluntary basis.  Conditions of CWW scheme recognized by DOLE: • undertaken as a result of an express and voluntary agreement of majority of the covered employees. • In firms hazardous to one’s health (use of chemicals or other substances), there must be a certification from an accredited health and safety organization that work beyond 8 hours is tolerable. • The employer shall notify DOLE of the

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adoption of the scheme. Effects of CWW:  Work beyond 8 hours is not compensable by overtime premium unless there is a more favorable practice in the firm.  Reversion to the normal 8 hour workday shall not constitute a diminution of benefits.

Emergency overtime work – every employee required to render overtime work shall be paid additional compensation • When the country is at war or when there is any national or local emergency declared by congress or chief executive • Imminent danger to public safety due to accidents, fire ,flood, typhoon, etc • When there is urgent work to be performed on machines, installations, or equipment to avoid further damage to the employer • When work is necessary to prevent loss or damage to perishable goods • Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. • Claim of overtime pay is not justified if without written authority to render overtime after office hours during Sundays and holidays. • Proof of Overtime claim o Presentation of payrolls, daily time records and similar documents o In cases of OFWs, they should allege overtime pay with particularity. If n006Ft, the local recruitment agency who deployed the OFWs to the foreign principal could have obtained the records from the principal to refute the claim for overtime pay. The local recruitment agency is solidarily liable with the foreign principal for the overtime pay claims of the complainants. • CBA provision may oblige the workers to work beyond eight

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LABOR STANDARDS REVIEWER hours o Working hours may be changed at the discretion of the company if the change is necessary for its operations. o If employees assented to this arrangement, they are deemed to have waived the normal 8-hour schedule. Night shift/ Night differential – work staring from 10pm to 6am • every employee shall be paid of not less than 10% of his regular wage for each hour of work. • Based on public policy, hence it CANNOT BE WAIVED. B. Weekly Rest Periods Right to Weekly rest day • It is the duty of the employer, whether for profit or not, to provide each employees a rest period of not less than 24 consecutive hours after every 6 consecutive normal work days. • Employer shall determine and schedule the weekly rest day subject to CBA and the rules and regulations of Sec. of Labor and Employment. Preference of Employee • Employee shall make known his preferred weekly day rest to his employer in writing at least 7 days before the desired effectivity of the initial rest day. • If preferred schedule of rest day based on religious grounds that is in conflict with the operations, the employer may schedule the weekly rest day of his choice for at least 2 days in a month. Schedule of rest day – made known through written notice by the employer posted in the work place one week before it becomes effective When employer may require work on a rest day:

• • • •

• • •

14

Actual or impending emergencies caused by disasters or calamities to prevent loss of life, property or imminent danger Urgent work to be performed on machinery to avoid loss that employer might suffer Abnormal pressure of work due to special circumstances Prevent loss on perishable goods When the nature of work requires continuous operations and stoppage may result in irreparable injury or loss to the employer Under similar circumstances determined by Sec of Labor and Employment no employee may be compelled against his will to work for more than 8 hrs

Compensation for rest day, Sunday or holiday work • When required to work on a rest day o Additional compensation of at least 30% of his regular wage. An employee is entitled to such for work performed on Sunday only when it is his established rest day. • When the nature of work has no regular workdays and no regular rest days can be scheduled o Additional compensation of at least 30% of his regular wage performed on Sundays and holidays. • Work performed on special holiday o Additional compensation of at least 30% of his regular wage. If such holiday work is his scheduled rest day, the worker is entitled to an additional compensation of 50% of his regular wage. • Where CBA agreement or other employment contract stipulates higher premium pay than the prescribed one, employer shall pay such higher rate Holidays • Every employee covered by Holiday pay rule is entitled to his/her daily basic wage and ECOLA. Hence, employee is entitled to at least 100% of his/her basic wage (plus

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LABOR STANDARDS REVIEWER ECOLA) even if he did not report for work, PROVIDED he is present or is on leave of absence with pay on the work day immediately preceding the holiday. Right to holiday pay • Shall apply to all employees EXCEPT: o retail service establishments regularly employing less than (10) workers o government and any of political subdivision, including GOCC o domestic helpers and persons in the personal service o managerial employees o field personnel What are covered by holidays? The term ‘regular holiday’ shall exclusively refer to: 1. New Year’s Day, 2. Maundy Thursday, 3. Good Friday, 4. the ninth of April, 5. the First of May, 6. the twelfth of June, 7. the last Sunday of August, 8. the thirtieth of November, 9. the twenty-fifth and thirtieth of December. 10. Nationwide special days(special holiday) shall include the first of November and the last day of December Compensation for holiday work • Any employee permitted to work on any regular holiday, not exceeding 8 hours, shall be paid at least 200% of his regular daily wage. • If the holiday work falls on his scheduled rest day, he shall be entitled to an additional premium pay of at least 30% of his regular holiday rate of 200% based on his regular wage rate. Overtime pay for holiday work: • Additional compensation for the overtime work equivalent to

•

15

his rate for the first 8 hours on such holiday work plus at least 30%. When overtime work falls on his scheduled rest day, he is entitled to an additional compensation for the overtime work equivalent to his regular holiday rest day for the first 8 hours plus at least 30%.it shall consist of 200% of his regular daily wage rate plus 30%.

Divisors • Divisor assumes an important role in determining W/N holiday pay is already included in the monthly paid employee’s salary. • General Rule: o A company with a 6-day working schedule, divisor 314 means that legal holidays are already included in the monthly pay of the employee o for company with a 5-day working schedule, divisor 261 means that the holiday pay is already included in the monthly salary. • If two regular holidays fall on the same date, the worker should be paid for both days • Art 94 affords workers the enjoyment of paid regular holidays. It is mandatory regardless whether an employee is paid on a monthly or daily basis. Service incentive leaves • Coverage – This shall apply to all employees EXCEPT: o government and any of its political subdivisions o domestic helpers and in the personal service of another o managerial employees o field personnel or any other employees whose performance is unsupervised by employer including task or contract basis, purely commission basis and those paid in fixed amount o those who are already enjoying this benefit o those enjoying vacation leave with pay if at least five days o those employed in establishments regularly employing

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LABOR STANDARDS REVIEWER o

o

less than 10 employees All employees who have rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.  “at least one year” shall mean service for not less than 12 months whether continuous or broken reckoned from the date the employee started working it is demandable after 1 yr of service

Payment shall be advanced by the employer in two equal instalments within 30 days from the filing of the application  In case of caesarean delivery, employee shall be paid the daily maternity benefit for 78 days  Payment of daily maternal benefits is a bar to recovery of sickness benefits for 60 days  Maternity benefit shall only be for the first four deliveries  SSS shall immediately reimburse the employer 100% of the advanced payment to the employee upon proving of such payment  If an employee should give birth or suffer abortion or miscarriage without the contributions remitted to them by the employer to the SSS, without SSS being notified by the employer, the employer shall pay to SSS damages equivalent to the benefits which the employee should have been entitled to, and the SSS shall pay such amount to the employee concerned. Paternity Leave o RA 8187 o Coverage – shall apply to every male employee in the private sector o Paternity leave benefits for 7 days with full pay for the first 4 deliveries by his lawful spouse o Conditions for entitlement  he is an employee at the time of the delivery of the child  he is cohabiting with his spouse at the time of birth or miscarriage  the wife has given birth or suffer miscarriage 

Commutation of unused service incentive leave credit • The employee may choose to either use his leave credits or commute it to its monetary equivalent if not used at the end of the year • If he does not use or commute it, he is entitled upon resignation or separation to its commutation Other leave benefits: • Vacation and Sick Leave o not mandated by law o once granted as a practice and policy, they can no longer be withdrawn o it must be demanded in its opportune time. If not, he waives it • Maternity Leave o RA 7322 – increased maternity benefits o "Maternity Leave Benefit. - A covered female employee who has paid at least three monthly maternity contributions in the twelve-month period preceding the semester of her childbirth, abortion or miscarriage and who is currently employed shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her present basic salary, allowances and other benefits or the cash equivalent of such benefits for sixty (60) days subject to the following conditions:  Employee should inform of her pregnancy and the probable date of her childbirth

16

•

Application for leave • shall apply within a reasonable period of time (walangsinabi kung ilan)

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LABOR STANDARDS REVIEWER •

apply within such period provided by CBA

availed after delivery by his wife total number of days shall not exceed 7 days for each delivery It shall be full pay consisting of basic salary for the seven days he is not allowed not to report for work • It is not convertible to cash in case it is not availed. Parental Leave • Granted to solo parents • Solo Parents Welfare Act – enacted on Nov 7 2000 o To promote the family as the foundation of the nation, strengthen its solidarity and ensure its total development o Covers the ff:  seven working days leave privilege for every year for every solo parents  flexible work schedule  prohibition against discrimination of solo parent employee with respect to the terms and conditions of employment on account of his/her status o Solo parent  Defined to include :any unmarried mother or father who has preferred to keep and rear her/his children instead of having others care for them or give them up to a welfare institution” • The Handbook on Workers’ Statutory Monetary Benefits of the Bureau of Working Conditions of DOLE (2006) provides guidelines on Parental Leave for Solo parents: o Coverage – granted to any solo parent who is left with the responsibility of parenthood due to:  Giving birth because of rape, or other crimes against chasitity  Death of spouse  Spouse is detained for criminal convicton for at least 1 yr

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Physical/mental incapacity of spouse certified by a public medical practitioner  Legal separation or de facto separation for 1 yr provided that he/she is entrusted of the children  Declaration of nullity/ annulment of marriage provided that he/she is entrusted the custody of children  Abandonment of spouse for at least 1 yr  Unmarried father/mother  Any other person who provides solely the parental care and support to children provided that he/she duly licensed as foster parent by DSWD or by court  Any family member who assumes responsibility of head of the family due to the death, abandonment, disappearance or prolonged absence of parents for 1 yr Conditions for entitlement  he/she has rendered 1 yr of service whether continuous or broken  he/she notified the employer within a reasonable period of time  he/she presented to the employer a Solo Parent Identification Card w/c may be obtained from DSWD If not availed, it shall not be convertible to cash unless specifically agreed. If there is a similar benefit under company policy or CBA, it shall be considered. If it is greater than 7 days, then the greater benefit shall prevail. Emergency or contingency leave provided in the company policy or CBA is not credited as parental leave under RA 8972 If a change of status occurs, such that he is no longer left alone with the sole responsibility of parenthood, his eligibility to the benefit is TERMINATED. for victims of violence against women and their children 

When • • •

o

o o o o •

Leave

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LABOR STANDARDS REVIEWER (RA 9262) o pertains to any act/s committed by any person against a woman, his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship o Covers private women sector employees who are victims defined in RA9262 (preceeding paragraph) o Leave benefits shall cover the days that the woman employee has to attend to medical and legal concerns o To be entitled:  To be entitled, victim-employee to present to her employer a certification from the Punong Barangay or prosecutor or the clerk of court Benefit • Shall be entitled up to ten days with full pay. It shall be extended when the need arises. • if not availed, it cannot be converted into cash. Military Leave • Under PD 183 – any employee with annual gross business of not less than P250,000 and with a personnel force of at least 20 employees, who is called to undergo refresher training, or mobilization or assembly test, or training in the AFP shall not lose his position due to absence in the fulfilment of military obligation provided that the employer shall be entitled to claim the salaries paid to the employee during such training as a deductible item in its income tax return. • Under Labor Code – The fulfilment by the employee of a military or civic duty shall not terminate employment • In such cases, employer shall reinstate the employee to his former position without loss of seniority rights if he indicates to resume his work not later than 1 month from relief from the military or civic duty Service charges

• • •

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All service charge collected by establishments shall be distributed at the rate of 85% equally for all covered employees and 15% for the management. Shares hall be distributed and paid to the employees not less than once every two weeks or twice a month at intervals not exceeding 16 days If the company stopped collecting service fees, the average share previously enjoyed for the past 12 months immediately preceding such stoppage shall be integrated into their basic wages. IV. THIRTEENTH MONTH PAY

A. Purpose • Under PD 851 which was enacted on Dec. 16, 1975, it required employers to pay a 13th month pay, it was issued to protect the level of real wages from inflation. • To alleviate the plight of the workers and to help them cope with the increases in the cost of living. o It is an additional income based on wage but not part of wage. • It is exempted from income tax. B. Time of payment • It is paid not later than dec. 24 of each year. o But employer may give ½ of the required 13th month pay before the opening of the regular school year and the other half on Dec. 24. • The frequency may be the subject of agreement between the employer and the recognized agent of the employees. C. Coverage • Only the rank and file employees are entitled to the 13th month pay provided that they have worked for at least 1month during the calendar year. o Rank and file employees – those who are not vested with powers or prerogative to lay down and execute

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LABOR STANDARDS REVIEWER

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management policies and/or to hire, transfer, suspend, layoff, recall, discharge, assign or discipline employees. o Simply those who are not managerial employees. Piece-rate workers are entitled also since they’re employees and not independent contractors. Those paid a fixed or guaranteed wage plus commission, based on their earnings during the calendar year. Employees with multiple workers. o Government employees working part time in priv. enterprises, including private educational institutions whether on full or part-time basis. 13th pay should be given to them by their private employers regardless of their total earnings from each of all their employers.

employee within a calendar year. The basic salary of an employee is used as the basis. Any compensation or remuneration not part of basic salary is excluded as basis. • Basic salary – all remuneration or earnings paid by his employer for his services rendered but does not include allowances and monetary benefits. o Commissions are included in the basis salary for purposes of computing 13th month pay. o Profit –sharing/productivity bonuses are not part of the computation for basic salary. The minimum amount required by law shall not be less than 1/12 of the total basic salary earned by an employee within a calendar year.

D. Not covered • Managerial employees but company policy or established practice may cover them. • Sea-farers are not entitled since they are contractual employees. PD 851 contemplates the situation of landbased workers and not sea-farers who earn more than the former. • The following employers are not covered: o government and any of its political subdivisions, government – owned and controlled corporations except corporations operating essentially as privates subsidiaries of the government o Employers already paying 13th month pay or more in a calendar year or its equivalent o Employers of household helpers or persons in the personal service of another o Those paid purely on commission, boundary or task basis and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance of it

F. Pro-rated 13th month pay • The pro-ration of 13th month pay is applied in cases of resignation or separation from work. • The computation should be based on the length of service and not on the actual wage earned by the worker. • EXCEPTION – Employees, who are paid a guaranteed minimum wage or commission earned, whichever is higher, entitled to the 13th month pay based on total earnings.

• • •

E. Computation • It is 1/12 of the total basic salary earned by an

•

G. Equivalents of 13th month pay • Mid-year bonus and Christmas bonus. • Bonus must be at least equal to the 13th month pay due the employee; otherwise, the employer shall pay the difference Benefits in form of food or free electricity are not proper substitute for 13th month pay including year-end rewards for loyalty and service. BONUS UNDER CBA 13th month pay Source: Contract between the Source: PD851. management and the employees. It is an obligation created from It is mandated by law. the contact. Gives higher reward to the senior Based only on the length of work

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LABOR STANDARDS REVIEWER employees.

within the calendar year.

H. Bonus • It is given out of gratuity of the employer but it is demandable or enforceable obligation when it is made part of the wage/salary of the employee. • If it is additional compensation which employer promised and agreed to give without any conditions imposed for its payment it is part of wages. (CONDITIONS: success of business, production output) o Simply: If it is stated in the employees contact, then it is mandatory. I. Non-inclusion in regular wage The mandated 13th month pay need not be credited as part of regular wage for purpose of determining overtime and premium payments, fringe benefits as well as SS, Medicare and private retirement plans. V. WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES A. Employment of Women ART. 130. NIGHTWORK PROHIBITION No woman, regardless of age, shall be employed or permitted or suffered to work, with or without compensation: (a) Industrial undertaking – between 10:00pm to 6:00pm (b) Commercial or non-industrial undertaking – between 10:00pm to 6:00pm (c) Agricultural undertaking – at nighttime unless she is given a period of rest of not less than nine consecutive hours. Exceptions on nightwork prohibition of women: (a) Disaster or force majeure, in order to prevent loss of life or property. (b) Urgent work on machineries to avoid serious loss.

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(c) To prevent serious loss of perishable goods. (d) Woman employee holds managerial or technical position, or where she has been engaged to provide health and welfare services. (e) The work requires the manual skill and dexterity of women. (f) The women employees are immediate members of the family operating the establishment. (g) Other analogous cases exempted by the Secretary of Labor. What are the facilities for women employees that an employer should provide? (a) Proper seats which they can use when they are free from work and during working hours, provided they are still efficient in this position. (b) Separate toilet room, lavatory and dressing room. (c) Nursery (d) Standards for retirement or termination in special occupation. ART. 133. MATERNITY LEAVE BENEFITS (a) Any pregnant women employee who has rendered an aggregate service of at least six months for the last twelve months is entitled to maternity leave benefits of at least two weeks prior to the expected date of delivery and another four weeks after normal delivery or abortion with full pay based on her regular or average weekly rates. (b) The maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion, or miscarriage. (c) Maternity leave is applicable only for the first four deliveries by a woman employee. MATERNITY LEAVE UNDER SSS LAW Qualifications: 1. The female member should be employed at the time of the delivery, miscarriage, or abortion. 2. She must have given the required notification to the SSS thru her employer.

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LABOR STANDARDS REVIEWER 3. Her employer must have paid at least three months of maternity contributions within the twelve-month period immediately before the semester of contingency. How much is the maternity benefit under SSS Law? 100% of her average daily salary credit for 60 days or 78 days in case of caesarian delivery. Every pregnant women in the private sector, whether married or unmarried, is entitled to the maternity leave benefits. (No. XI, DOLE Handbook on Worker’s Statutory Benefits) ART. 134. FAMILY PLANNING SERVICES; INCENTIVES FOR FAMILY PLANNING (a) Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include but not be limited to, the application or use of contraceptive pills and intrauterine devices. (b) DOLE shall develop bonus schemes to encourage family planning among female workers in any establishment. Discrimination of women employee is prohibited. What are considered acts of discrimination? 1. Payment of a lesser compensation 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. 3. To deny or discharge any women employee the benefits provided under the Labor Code. 4. To discharge a woman employee because of her pregnancy. 5. To refuse the admission of such woman employee upon getting to her work for fear that she may again be pregnant. ART. 136. STIPULATION AGAINST MARRIAGE It shall be unlawful for an employer to require as a condition of employment or continuation of employment that women employees shall not get married, or be deemed resigned upon getting married,

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or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of marriage. Any woman who is (1) permitted or suffered to work with or without compensation (2) in any night club, cocktail lounge, massage clinic, bar or similar establishment (3) under the effective control or supervision of the employer for a substantial period of time as determined by DOLE Secretary, is deemed an employee of such establishment.

B. Employment of Minors MINIMUM EMPLOYABLE AGE The minimum employable age is 15. A child below 15 years of age may be allowed to work for not more than 4 hours at any given day, nor more than 20 hours a week. A child 15 years of age but below 18 shall not be allowed to work for more than 8 hours a day, and in no case beyond 40 hours a week. (R.A. 7610) No child below 15 years of age shall be employed, except • when he works under the sole responsibility of his parents or guardian, and • his employment does not in any way interfere with his schooling. C. Employment of Househelp Domestic or household service shall mean services in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering

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LABOR STANDARDS REVIEWER to the personal comfort and convenience of the members of the employer’s household, including services of family drivers. The contract of domestic service shall not last for more than 2 years but may be renewed for such periods as may be agreed upon by the parties. A househelper shall not be assigned to non-household work. If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before expiration of the term except for just cause. If unjustly dismissed, he or she shall be paid the compensation already earned plus that for 15 days by way of indemnity. If he/she leaves without justifiable reason, he/she shall forfeit any unpaid salary due him/her not exceeding 15days. If there is no contract, the employer or househelper may give notice to put an end to the relationship 5 days before the intended termination of service. D. Apprentices Apprenticeship is the arrangement and the period when an upcoming worker undergoes hands-on training, more or less formal, to learn the ropes of a skilled job. Objectives: 1. To help the demand of the economy for trained manpower. 2. To establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies. 3. To establish apprenticeship standards for the protection of apprentices. LEARNERSHIP APPRENTICESHIP Both mean training periods for jobs requiring skills that can be acquired through actual work experience. Because both learner and apprentice are not as fully productive as regular workers, they receive paid wages 25% lower than

the applicable legal minimum Trains in a semi-skilled job or industrial occupations that require training for less than three months. Learnership is allowed even for non-technical jobs.

22 wage. Trains in a highly skilled job or in a job found only in a highly technical industry hence training period exceeds three months. Employment of apprentices is legally allowed only in highly technical industries.

Involves theoretical perspective. A learner is not an apprentice, but an apprentice is conceptually also a learner. Qualifications: 1. At least 15 but less than 18, only in nonhazardous occupations 2. Physically fit (need not be physically fit unless it is essential to the expeditious and effective learning of the occupation.) 3. Possess vocational attitude. 4. Ability to comprehend and follow oral and written instructions. • •

•

Apprenticeship period shall not exceed six months. Hours of work – 8 hours. o Time spent in a theoretical instructions shall be considered as hours of work and shall be reckoned jointly with on-the-job training time in computing in the agreement the appropriate periods for giving wage increases to the apprentice. o An apprentice may be allowed to work overtime provided there are no available regular workers to do the job, which overtime shall be credited to his training time. Previous training or experience shall be given due credit therefor.

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LABOR STANDARDS REVIEWER •

• •

Parties to the agreement – Partnership agreement shall be signed by the employer or his duly authorized representative and by the apprentice. If minor, it shall be signed by his parent or guardian, or by an authorized representative of the DOLE. Ratio of theoretical and on-the-job training – 100 hours of theoretical instructions for every 2000 hours of practical or onthe-job training Wages – Shall start at 75% of the statutory minimum wage for the first 6 months. Thereafter, he shall be paid the full minimum.

E. Learners Learner is a person hired as a trainee in industrial occupations which are nonapprenticeable and which may be learned through practical training on the job for a period not exceeding 3 months. • •

Wages – not exceeding 6 months. Thereafter he becomes regular worker. Minor below 15 cannot be employed as learner. Those below 18 may only be employed in nonhazardous occupations.

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Coverage – This rule applies to all establishments, 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 it political subdivisions including government owned or controlled corporations. Termination of employees: REGULAR EMPLOYEE Just cause Authorized cause provided by law

PROBATIONARY EMPLOYEE Just cause Authorized cause provided by law Failure to qualify in accordance with standards of the employer made known to him at the start of employment.

JUST CAUSE

AUTHORIZED CAUSE

F. Handicapped Workers

• •

•

•

Those whose earning capacity is impaired by age or physical or mental deficiency or injury. They may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair working standards. Wage shall at least 75% of the minimum wage. They shall not be precluded from employment if their handicap is not such as to effectively impede in the performance of job operations in the particular trade or occupation. VI. TERMINATION OF EMPLOYMENT

Neglect of duties Disobedience Attempt against the life of the employer Breach of trust Other analogous

Redundancy Retrenchment Installation of labor saving devices Closure of business

Separation pay, as a rule, will NOT be paid

Separation pay required

TERMINATION BY EMPLOYEE W/O JUST CAUSE Serious insult by the employer Inhuman or unbearable treatment Commission of crime against the employee Other analogous

Types of employment:

1. Regular employment - when an employee has been engaged to

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LABOR STANDARDS REVIEWER perform activities which are usually necessary or desirable in the usual business or trade of the employer except: a. where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee; or b. where the work or service to be performed is seasonal in nature and the employment is for the duration of the season. c. a probationary employee who is allowed to work beyond the probationary period shall be considered a regular employee.

2. Casual employment - Employment shall be deemed casual in nature if it is not covered by the preceding paragraph UNLESS the employee has rendered at least one year (six months) of service whether such service is continuous or not, with regard to the activity in which he is employed and his employment shall continue while such activity exists.

3. Probationary employment - There is probationary employment where the employee, upon employment is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement. Rules on probationary employment: a. Where the work for which the employee was engaged is learnable or apprenticeable, in accordance with the standards prescribed by the DOLE, the probationary period shall be limited to the authorized learnership or apprenticeship period, whichever is applicable; b. Where the work is neither learnable or apprenticeable, the probationary period shall not exceed six (6) months reckoned from the date the employee actually started; c. The services of a probationary employee may be terminated only

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for a just cause or authorized cause, or when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer; and d. In all cases involving probationary employees, the employer shall make known the standards under which he will qualify as a regular employee at the time of his engagement. Employees covered by contracting or subcontracting arrangement may NOT be dismissed prior to the expiration of the contract between the principal and the contractor or subcontractor as defined in Rule VIII-A, Book III. NOTE: Trilateral Relationship in Contracting Arrangements – In a legitimate contracting there exists a trilateral relationship under which there is: a. a contract for a specific job, work or service between the principal and the contractor or subcontractor; b. an employment contract between the contractor or subcontractor and its workers. Parties 1. The principal which decides to farm out a job or service to a contractor; 2. The contractor or subcontractor which has the capacity to independently undertake the performance of the job, work, or service; and 3. The contractual workers engaged by the contractor or subcontracot to accomplish the job, work or service. Exceptions: • for just and authorized causes; • completion of the phase of the contract for which the employee was engaged. BUT – subject to the requirements of due process and notice. IN ALL CASES, the standards of due process shall be observed: • A written notice served on the employee specifying the

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LABOR STANDARDS REVIEWER

•

•

ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side; A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him; and, A written notice of termination served on the employee indicating that upon due consideration of all circumstances, grounds have been established to justify his termination.

For probationary employees – due to completion of a contract or phase thereof - notice of failure to meet standards of the company within a reasonable time before effectivity of termination. The following are just causes for termination of employment: 1. Serious misconduct or wilful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; 2. Gross and habitual neglect by the employee of his duties; 3. Fraud or wilful breach by the employee of the trust reposed in him by his employer his duly authorized representative; 4. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and, 5. Other causes analogous to the foregoing. (Batas Pambansa Blg. 130) Art. 283 Closure of establishment and reduction of personnel Termination due to: • the installation of labor-saving devices, redundancy; • retrenchment to prevent losses; • closing or cessation of operation of the establishment or undertaking o UNLESS the same is for the purpose of circumventing the provisions of this Title.

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Requirement: Service of formal notice to the employees affected and the Department of Labor and Employment at least one (1) month before intended date of closure or cessation of operation. Separation pay for terminated employees as to the cause: REDUNDANCY OR CLOSURES OR TERMINATION DUE LABOR SAVING RETRENCHMENT TO DISEASE DEVICES at least one (1) one (1) month pay or one (1) month pay or month pay or to at at least one-half at least one-half least one (1/2) (1/2) month pay for (1/2) month pay for month pay for every every year of every year of year of service, service, whichever is service, whichever is whichever is higher. higher. higher. A fraction of at least six (6) months shall be considered one (1) whole year. (BP Blg. 130). Art. 284 Disease as ground for termination - An employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees. Book VI Rule I Sec. 8. – The employer shall not terminate the employment unless there is a certification issued by a competent public health authority that the disease is of such nature or at such stage that it cannot be cured within a period of six (6) months even with proper medical treatment. If the ailment can be cured within the period, the employee shall not be terminated. Instead, the employer shall ask him to take leave, to be reinstated later to his former position immediately upon restoration of his normal health. Basis of termination pay – The last salary of the employee unless it was reduced by the employer to defeat the law in which case the salary before the reduction shall be the basis.

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LABOR STANDARDS REVIEWER Art. 285 Termination by employee – An employee may terminate without just cause the employer-employee relationship by serving a written notice at least a month in advance. Without such notice, the employer may hold the employee liable for damages. No notice is required under the following circumstances: 1. Serious insult by the employer or his representative on the honor and person of the employee; 2. Inhuman and unbearable treatment accorded the employee by the employer or his representative; 3. Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and, 4. Other causes analogous to any of the foregoing. Art. 286 When employment not deemed terminated – 1. Bona fide suspension of the operation of a business or undertaking for a period not exceeding 6 months; 2. Fulfilment by the employee of a military or civic duty. In all such cases the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations OR from his relief from the military or civic duty. Notes: Substantive and Procedural due process – • Legality of the ground as provided under Art. 282; • Legality of the manner of dismissal – observance of the procedural requirements. (due process).(Aurelio vs. NLRC, 221 SCRA 432 [1993]); Shoemart, vs. NLRC 176 scra 385 [1989])

3. Failure to qualify as regular employee –International Catholic Migration Committee vs. NLRC, 169 SCRA 606 [1989])

4. Abandonment as ground for termination – to constitute a valid cause for termination must be a deliberate unjustified

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refusal of the employee to resume his employment. (Nueva Ecija Electric Cooperative vs. Minister of Labor, 184 SCRA 25 [1990]), coupled with a clear absence of any intention of returning to his or her work (C. Planas Commercial vs. NLRC, 303 SCRA 49 [1999]). a. Filing of a complaint for illegal dismissal negates employer’s theory of abandonment. – (Rizada vs. NLRC 315 SCRA 316 [1999]) An employee entitled to immediate reinstatement per Labor Arbiter’s order but refuses the reinstatement, not deemed to have abandoned job. – (Jardin Davis vs. NLRC, 225 SCRA 757 [1993]) When closure is due to serious business losses or financial reverses, financial bankruptcy, not obliged to pay separation pay. (North Davao Mining & Development Corporation vs. NLRC, 254 SCRA 721 [1996]) Distinction between Redundancy and Retrenchment – Burden of proof upon employer to show compliance with the twin requirements of notices and hearing. (Viola Cruz vs. NLRC, 324 SCRA770 [2000]) Farrol v. Court of Appeals, 325 SCRA 331 [2000]}; Savellana vs. I.T. [International] Corporation, 356 SCRA 451 [2001].

SOCIAL LEGISLATION RA 9710 MAGNA CARTA FOR WOMEN What is discrimination against women? The Magna Carta of Women defines discrimination against women as: • any gender-based distinction, exclusion, or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by

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women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field; any act or omission, including by law, policy, administrative measure, or practice, that directly or indirectly excludes or restricts women in the recognition and promotion of their rights and their access to and enjoyment of opportunities, benefits, or privileges; a measure or practice of general application that fails to provide for mechanisms to offset or address sex or gender-based disadvantages or limitations of women, as a result of which women are denied or restricted in the recognition and protection of their rights and in their access to and enjoyment of opportunities, benefits, or privileges; or women, more than men are shown to have suffered the greater adverse effects of those measures or practices; and discrimination compounded by or intersecting with other grounds, status, or condition, such as ethnicity, age, poverty, or religion.

Principles of human rights and rights of women Human rights are: 1. universal and inalienable 2. indivisible 3. inherent to the dignity of every human being 4. interdependent and interrelated What are the rights of women guaranteed under the Magna Carta of Women? • All rights in the Philippine Constitution and those rights recognized under international instruments duly signed and ratified by the Philippines, in consonance with Philippine laws. These rights shall be enjoyed without discrimination since the law prohibits discrimination against women, whether done by public and private entities or individuals.

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The Magna Carta of Women also spells out every woman's right to: • Protection from all forms of violence, including those committed by the State. • Protection and security in times of disaster, calamities and other crisis situations, especially in all phases of relief, recovery, rehabilitation and construction efforts, including protection from sexual exploitation and other sexual and gender-based violence. • Participation and representation, including undertaking temporary special measures and affirmative actions to accelerate and ensure women's equitable participation and representation in the third level civil service, development councils and planning bodies, as well as political parties and international bodies, including the private sector. • Equal treatment before the law, including the State's review and when necessary amendment or repeal of existing laws that are discriminatory to women; • Equal access and elimination of discrimination against women in education, scholarships and training. o This includes revising educational materials and curricula to remove gender stereotypes and images, and outlawing the expulsion, non-readmission, prohibiting enrollment and other related discrimination against women students and faculty due to pregnancy outside of marriage; • Equal participation in sports. o This includes measures to ensure that gender-based discrimination in competitive and non-competitive sports is removed so that women and girls can benefit from sports development; • Non-discrimination in employment in the field of military, police and other similar services. o This includes according the same promotional privileges and opportunities as their men counterpart, including pay increases, additional benefits, and awards, based on competency and quality of performance.

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Non-discriminatory and non-derogatory portrayal of women in media and film to raise the consciousness of the general public in recognizing the dignity of women and the role and contribution of women in family, community, and the society through the strategic use of mass media; Comprehensive health services and health information and education covering all stages of a woman's life cycle. Leave benefits of two (2) months with full pay based on gross monthly compensation, for women employees who undergo surgery caused by gynecological disorders, provided that they have rendered continuous aggregate employment service of at least six (6) months for the last twelve (12) months; Equal rights in all matters relating to marriage and family relations. o The State shall ensure the same rights of women and men to: enter into and leave marriages, freely choose a spouse, decide on the number and spacing of their children, enjoy personal rights including the choice of a profession, own, acquire, and administer their property, and acquire, change, or retain their nationality.

The Magna Carta of Women also guarantees the civil, political and economic rights of women in the marginalized sectors, particularly their right to: • Food security and resources for food production, including equal rights in the titling of the land and issuance of stewardship contracts and patents; • Localized, accessible, secure and affordable housing; • Employment, livelihood, credit, capital and technology; • Skills training, scholarships, especially in research and development aimed towards women friendly farm technology; • Representation and participation in policy-making or decisionmaking bodies in the regional, national, and international levels; • Access to information regarding policies on women, including programs, projects and funding outlays that affect them; • Social protection;

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Recognition and preservation of cultural identity and integrity provided that these cultural systems and practices are not discriminatory to women; Inclusion in discussions on peace and development; Services and interventions for women in especially difficult circumstances or WEDC; Protection of girl-children against all forms of discrimination in education, health and nutrition, and skills development; and Protection of women senior citizens.

Marginalized refers to the disadvantaged or vulnerable persons or groups who are mostly living in poverty and have little or no access to land and other resources, basic social and economic services. These include but not limited to women in the following sectors and groups: (SFU-WWM-IMC-SDS) • Small farmers and rural workers, • Fisherfolk, • Urban poor, • Workers in the formal economy, Workers in the informal economy, • Migrant workers, • Indigenous Peoples, • Moro, Children, Senior citizens, • Disabled persons • Solo parents Who’s primary duty is it to implement and give force and effect to the magna carta of women? • The State, the private sector, society in general, and all individuals shall contribute to the recognition, respect and promotion of the rights of women defined and guaranteed in the Magna Carta of Women. What are the specific duties of government under the magna carta of women?

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The Philippine Government shall be the primary duty-bearer in implementing the said law. This means that all government offices, including local government units and governmentowned and controlled corporations shall be responsible to implement the provisions of Magna Carta of Women that falls within their mandate, particularly those that guarantee rights of women that require specific action from the State. As the primary duty-bearer, the Government is tasked to: o refrain from discriminating against women and violating their rights; o protect women against discrimination and from violation of their rights by private corporations, entities, and individuals; o promote and fulfill the rights of women in all spheres, including their rights to substantive equality and nondiscrimination. The Government shall fulfill these duties through the development and implementation of laws, policies, regulatory instruments, administrative guidelines, and other appropriate measures, including temporary special measures. It shall also establish mechanisms to promote the coherent and integrated implementation of the Magna Carta of Women and other related laws and policies to effectively stop discrimination against Filipino women.

Pura’s tips: The MCW focuses on providing equal opportunities for men and women. • See Chapter 1, Sec. 2 of RA 9710 • The MCW is also in compliance with the CEDAW Implications on Labor Laws: • Sec, 13 • Sec. 17 • Right to decent work standards for women

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MIGRANT WORKERS AND OVERSEAS FILIPINO ACT OF 1995 (RA 8042) AS AMENDED AND FURTHER AMENDED BY RA 10022 Date of effectivity: August 13, 2010 Overseas Filipino Worker (OFW) • Interchangeably used with migrant workers • Person who is (1) to be engaged, (2) is engaged or (3) has been engaged in a remunerated activity in a state of which he is not a citizen. • Person who works on a vessel navigating the foreign seas o except: government ship used for military or noncommercial purposes. • Person working on an installation located offshore or on the high seas Deployment of Migrant Workers • State may only allow deployment of migrant workers only in countries where the rights of the Filipino Migrant Workers are protected. • The following are considered as sufficient guarantees for the protection of the OFWs: 1. Has existing labor and social laws 2. Signatory to multilateral conventions, declarations or resolutions relating to the protection of OFWs 3. Concluded a bilateral agreement with the government 4. Taking positive and concrete measures to protect the rights of the OFWs Note: no permit for deployment shall be issued by the POEA in the absence of a clear showing that any of the mentioned guarantees exists. In the case of MWs, the employment contract has to be approved by the POEA. The State shall also allow the deployment of overseas Filipino workers to: 1. Vessels navigating on the foreign seas or to installations

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LABOR STANDARDS REVIEWER located offshore whose owners or employers are compliant with internationalo laws. 2. Companies and contractors with international operations a. Provided that they are compliant with standards, conditions and requirements as embodied in the employment contracts prescribed by the POEA. Termination or Ban on Deployment • The POEA may impose a ban or termination of deployment to countries that may be found not complying with the aformentioned conditions and guarantees. • In pursuit of national interest or when public welfare so requires. What is illegal recruitment? • Art. 38 of RA 10022 defines such as; o Any act of: (CECTUHP)  Canvassing  Enlisting  Transporting  Contracting  Hiring  Utilizing  Procuring workers o Including  Referring contract services  Promising or  Advertising for employment o Whether for profit or not, when undertaken by nonlicensee or non-holder of authority. The following are prohibited acts: • Charge or accept directly or indirectly any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance.

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Furnish or publish any false notice or information or document in relation to recruitment or employment. Give any flase notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code or for the purpose of documenting hired workers with the POEA. Induce or attempt to induce a worker already employed to quit his employment. o Unless the transfer will liberate the worker from oppresive terms and conditions of employment. Influence or attempt to influence any person or entity not to employ any worker who has not applied for employment through his agency. Engage in the recruitment or placement of workers in jobs harmful to public health or morality.

Who are liable? • Principals, accomplices and accessories • In case of juridical persons, the officers who has ownership, control, management or direction of the business who are responsible for the commission of the offense and the responsible employees/agents. SYNDICATED ILLEGAL RECRUITMENT Carried out by (3) or more persons conspiring or confederating with one another. Look at the number of the people who committed.

LARGE SCALE ILLEGAL RECRUITMENT Committed against (3) or more persons individually or as a group. Look at the number of people who were victimized.

Jurisdiction 1. Labor Arbiter (NLRC) has original and exclusive jurisdiction over: a. Money claims arising out of an ER-EE relationship b. By virtue of any law or contract involving Filipino

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LABOR STANDARDS REVIEWER workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. 2. POEA – responsible for promoting overseas employment and protect rights. a. Retains original and exclusive jurisdiction to hear and decide: i. Administrative cases involving violation of rules and regulations relating to licensing and registration of recruitment and employment agencies or entities; ii. Disciplinary action cases and other special cases which are administrative in character involving employers, principals, contracting partners and Filipino MWs. Pura’s tip: the regulatory functions of the POEA will be faced out within 5 years. 3. RTC a. Criminal action arising from illegal recruitment shall be filed with the RTC of the province or city where the offense was committed or where the offended party actually resides at the time of the commission of the offense. b. Once the RTC acquires jurisdiction, other courts are excluded. Effects of termination of overseas employment WITHOUT JUST, VALID OR AUTHORIZED CAUSE • Worker shall be entitled to the following: o Full reimbursement of his placement fee o Deductions made with interest at 12% per annum o Salaries for the unexpired portion of his employment contract or for the three months for every year of the unexpired term, whichever is less. SOCIAL SECURITY SYSTEM (RA 1161 AS AMENDED BY RA 8282)

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Declaration of policy: • It is the policy of the RP to establish a sound and viable social security service • Promote social justice to members and prevent hazards • Resulting in loss of income or financial burden • The main beneficiaries of the law are the workers and subsidiary beneficiaries. Powers and duties of SSS – Sec. 4 • Proprietary powers. It is a juridical person that’s why it has the power and right to acquire properties through its semi facilities. • They can project how much they should be collecting and how much they can provide to their members through their actuary. Settlement of disputes – Sec. 5 • Because of the functions of SSS, it is not a remote possibility that somehow it will be involved in disputes; or its members be involved in one dispute or another. • These disputes arising under this act, with respect to coverage, shall be cognizable by the comission. • These disputes may be heard either by the comission or by any of its members o They also have a legal department. • The decision of the comission shall be appealable to the Court of Appeals. o Same procedure as if the decision was from a trial court. Definition of terms – Sec. 8 • Dependents – the following are considered to be dependents: o Legal spouse entitled by law to receive support from the member o Legitimate, legitimated, legally adopted child o Illegitimate child  Unmarried

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LABOR STANDARDS REVIEWER Not employed Has not reached 21 y/o If over 21 y/o, he is congenitally or while still a minor has been permanently incapacitated and incapable of self-support, physically or mentally o Parent who is receiving regular support Monthly salary credit – compensation base for contributions and benefits as indicated in the schedule o If for example, you have 2 employers and you have a salary under the monthly salaray credit for both jobs. Under the law, there is only 1 membership entitiled per person. o 1ER = P6,000 and 2ER = P6,000 o The member shall use the same SS number. The 2E shall only pay for the contribution proportional to that of the salary he is paying. o If the 2ER shall pay a salary that will exceed the monthly maximum salary credit, the 2ER shall only pay for the salary up to the amount that meets the monthly maximum salary credit. Remittance of contribution o If the employer fails to remit on time, they shall pay for additional 3% o If the employer habitually fails to remit, an estafa case may be filed against the employer  This is estafa because of the contributions that should be yours. Coverage of SSS o Compulsory upon all employees not over 60 years of age and their employers o Spouses may be covered on a voluntary basis o Filipinos recruited by foreign-based employers for employment abroad may be covered by the SSS on a voluntary basis. Beneficiaries – the dependent spouse until he or she remarries, the dependent legitimate, legitimated or legally adopted and illegitimate children who shall be the primary beneficiaries:

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That the dependent illegitimate children shall be entitled to 50% of the share of the legitimate, legitimated or legally adopted children. o In the absence of the legitimate, legitiamated or legally adopted children, illegitimate children shall be entitled to 100% of the benefits o In their absence, the dependent parents shall be the secondary beneficiaries o In the absence of all the foregoing, any person designated by the employee as their secondary beneficiary. Contingency – the retirement, death, disability, injury or sickness and maternity of the member. o

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RA 7875 AN ACT INSTITUTING A NATIONAL HEALTH INSURANCE PROGRAM FOR ALL FILIPINOS AND ESTABLISHING THE PHILIPPINE HEALTH INSURANCE CORPORATION FOR THE PURPOSE. Dependents – legal dependents of a member are: • Legitimate spouse WHO IS NOT A MEMBER • Legitimate, legitimated, illegitemate, legally adopted children o Provided acknowledged with evidence o Under 21 years o If over 21, must be suffering from a disability rendering him totally dependent for support • Parents who are 60 y/o or above whose monthly income is below or above P5,000 Benefit package • The following categeries: o In patient hospital care o Out patient hospital care Entitlement to benefits • A member whose premium contributions for at least 3 months have been paid within 6 months prior to the 1st day of

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availment shall be entitled to the benefits of the program. Provided that he pays contributions with sufficient regularity. o Provided further the he is not currently subject to legal penalties. o “sufficient regularity” pertains to the history of the payment of premiums. At least 3 months contribution 6 months prior to availment/ confinement You have to be employed for 6 months prior to confinement and you have at least 3 months contribution to avail.

Quasi judicial powers • Render deicisions • Shall conduct proceedings or any part thereof in public or executive manner depending on the case • They are more of an administrative body with regard to procedure. But they have a quasi judicial function. RA 9241 AN ACT AMENDING REPUBLIC ACT NO. 7875, OTHERWISE KNOWN AS “AN ACT INSTITUTING A NATIONAL HEALTH INSURANCE PROGRAM FOR ALL FILIPINOS AND ESTABLISHING THE PHILIPPINE HEALTH INSURANCE CORPORATION FOR THE PURPOSE.” • •

In the old law, those suffering from congenital diseases were not included. Provisions are almost just the same with RA7875 1987 CONSTITUTION ARTICLE XIII, Section 3

Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They

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shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decisionmaking processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth. 3 parts of the provision • Economic o Full protection to labor:  Local  Overseas  Organized  Unorganized o Promote full employment and equality of employment opportunities o Guarantee the rights of workers:  Self-organization  Collective bargaining and negotiations  Peaceful concerted activities  Right to strike o Entitlement to:  Security of tenure  Humane conditions of work  Living wage • Dispute settlement o Promote principle of share resposibility between workers and employers o Preferential use of voluntary modes of settling disputes

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o Enforce mutual compliance to foster industrial peace State regulation of employee-employer relationship o Recognize the right of labor to its just share in the fruits of production o Right of enterprises to reasonable returns on investments, expansion and growth NATIONAL LABOR RELATIONS COMMISSION AS AMENDED BY RA 9347 CHAPTER I: CREATION AND COMPOSITION ART. 213: NATIONAL LABOR RELATIONS COMMISSION (as amended by RA 9347)

National Labor Relations Commission (NLRC) • an administrative body with quasi-judicial functions and the principal government agency that heards and decides labor management disputes. • attached to the DOLE for program and policy coordination only. • Composed of the following: o 1 chairman o 23 members Jurisdiction of the NLRC EXCLUSIVE AND ORIGINAL Certified cases – cases certified to it for compulsory arbitration by the Secretary of Labor under Art. 263 or the President under Art. 264 Injunction cases under Art. 218 and 264

EXCLUSIVE APPELLATE Cases decided by Labor Arbiters under Art. 217(b) of the Labor Code and Sec. 10 of RA8042 (Migrant Workers Act) Cases decided by the Regional Offices of DOLE in the exercise of its adjudicatory function under Art. 129 of the Labor Code over monetary claims of workers

34 amounting to NOT MORE THAN P5,000

Contempt cases CHAPTER II: POWERS AND DUTIES Art. 217: JURISDICTION OF LABOR ARBITERS AND THE COMMISSION Exclusive and original jurisdiction of Labor Arbiters – the following cases involving all workers, whether agricultural or nonagricultural (UTR-DVO-DCDO) 1. ULP casses 2. Termination disputes 3. Claim for reinstatement that workers (including overseas workers) file involving the following: a. Wages b. Rates of pay c. Hours of work d. Other terms and conditions of employment This is limited only to those arising from statutes or contracts other than the CBA. 4. Claims for damages arising from ER-EE relations a. Actual b. Moral c. Exemplary d. Other forms 5. Cases arising out of violation of Art. 264, including questions involving legality of strikes and lockouts 6. Monetary claims of overseas contract workers arising from EREE relations under the Migrant Workers Act 7. Wage distortion disputes in unorganized establishments not voluntarily settled by the parties 8. Enforcement of compromise agreements when there is noncompliance by any of the parties 9. Other cases as provided by law

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LABOR STANDARDS REVIEWER Note: Although the provision speaks of exclusive and original jurisdiction of Labor Arbiters, the cases enumerated may be submitted to a voluntary arbitrator by agreement of parties under Art. 262. THE LAW PREFERS VOLUNTARY OVER COMPULSORY ARBITRATION. The Labor Arbiters has jurisdiction over controversies involving employers and employees only if there is a REASONABLE CAUSAL CONNECTION BETWEEN THE CLAIM ASSERTED AND THE ER-EE RELATIONSHIP. Without such link, the complaint is cognizable by the regular court. The following cases must be disposed of the Labor Arbiter by referring the same to the greivance machinery and voluntary arbitration: • Disputes over the interpration or implementation of the CBA • Disputes over the interpretation or enforcement of the company personnel policies 2005 NLRC Rules of Procedure on Venue of Filing Cases 1. All cases which Labor Arbiters have authority to decide may be filed in the Regional Arbitration Branch (RAB) having jurisdiction over the workplace of the complainant/petitioner. a. WORKPLACE is understood to be the place or locality where the employee is regularly assigned when the cause of action arose. i. In case of field employees, ambulant or itinerant workers, their workplace is: 1. Where they are regularly assigned 2. Where they are supposed to regularly receive their salaries and wages 3. Where they receive their work instructions from 4. Where they report the results of their assignments to their employers

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2. Where 2 or more RABs have jurisdiction over the workplace, the first to acquire jurisdiction shall exclude others. 3. Improper venue when not objected to before filing of position papers shall be deemed waived. 4. Venue may be changed by written agreement of the parties or when there Commission or Labor Arbiter so orders, upon motion by the proper party in meritorious cases. 5. For overseas contract workers, where the complainant resides or where the principal office of the respondent employer office is located, at the option of the complainant. Pura’s tip: When you file a case for illegal dismissal, always include backwages. Always pray for reinstatement. So that if the dismissal is ruled as illegal, there is reinstatement. As long as there is no ruling, the backwages shall continue to accrue. On the complaint: • Look into how the labor standards are being violated? Does the employer observe the minimum standards of employment? o Are they being paid holiday pay? o Are they being paid their night differential? The Labor Arbiter will schedule the case for compulsory concillation. Efforts will be exerted to settle the case amicably. Section 4. Prohibited pleadings 1. Motion to dismiss the case 2. Bill of particulars 3. Relief for new judgement 4. Motion for new trial 5. Petition for review from judgement 6. Certiorari, mandamus or prohibition When the decision is adverse to you, file a notice of appeal with a memorandum of appeal within 10 days with the NLRC. The employer also files a bond.

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LABOR STANDARDS REVIEWER Art. 221: TECHNICAL RULES NOT BINDING AND PRIOR RESORT TO AMICABLE SETTLEMENT Quasi-judicial bodies like the NLRC are not bound by technical rules of procedure of adjudication of cases. The following are prohibited pleadings and motions under 2005 NLRC Rules of Procedure 1. Motion to dismiss, except: a. on the ground of lack of jurisdiction over the subject matter b. Improper venue c. Res judicata d. Prescription and forum shopping 2. Motion for bill of particulars 3. Petition for relief from judgement when filed with the labor arbiter 4. Petition for Certiorari, Prohibition and Mandamus 5. Motion to declare respondent in default 6. Motion for reconsideration or appeal from any interlocutory order Amicable settlement – the Labor Arbiter shall exert all efforts to arrive at an amicable settlement of a labor dispute within its jurisdiction on or before its first hearing or during the mandatory conferences set for the purpose.

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Note: No motion for reconsideration is available in questioning the Labor Arbiter’s decision. Period for appeal is NOT EXTENDIBLE – the perfection of an appeal within the statutory/reglementary period is not only mandatory but also jurisdictional. Failure to do so renders the questioned decision final and executory as to deprive the appellate court of jurisdiction to alter the final judgement of the Regional Directors and Labor Arbiters. Requisites for the perfection of an appeal to the NLRC: 1. Verified memorandum of appeal a. Containing the grounds, issues raised and arguments propounded and reliefs sought within the required period of appeal b. Statement of the date appellant received the appealed decisio, order or resolution 2. In (3) legibly typewritten or printed copies 3. Proof of payment of the required appeal fee 4. In case of monetary award, an appeal by the employer may be perfected only by the posting of a bond (appeal bond). 5. Proof of service upon the other parties 6. Certificate of non-forum shopping

CHAPTER III; APPEAL TO THE NLRC Art. 223: appeal Grounds for an appeal (FLEP): • If the discussion, order or award was secured through Fraud or coercion, including graft and corruption • If made purely on questions of Law • If serious Errors in the findings of facts are raised which would cause grave or irrepairable damage to the appellant • If there is Prima facie evidence of abuse of discretion on the part of the Labor Arbiter

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