Labor (A2016)
Short Description
Labor reviewer...
Description
Last Updated: Oct. 15, 2013 _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Constitutional Mandate
Art. II. Sec. 10, Art. XIII, Secs. 1-3
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I. Labor: Concept -
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Labor is a physical toil, though it does not necessarily include the application of skill, thus there is skilled and unskilled labor Rendition of services and production of good Through mental / physical effort “Skill” = The familiar knowledge of any art or science, united with readiness and dexterity in execution or performance or in the application of the art or science to practical purposes (ART. 13(A))
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Labor includes all members of the labor force, employed and unemployed, as well as professionals “Workers” = Refers to self-employed people and those working in the service and under the control of another, regardless of rank, title, or nature of work “Employee” = A salaried person working for another who controls or supervises the means, manner and method of doing the work
Who are part of the Labor force? ILO: Persons 15 yrs. old and above PH: Persons 18 yrs. old and above, 15-17 yrs. old are covered by special laws
II. Labor Law -
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Pieces of legislation which govern the relationship between capital and labor It includes (1) Labor standards, (2) institutional mechanisms and (3) welfare legislations
Neither communism, nor despotism, nor atomism not anarchy but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated Means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extraconstitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. Must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about “the greatest good to the greatest number.
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7 Cardinal Rights 1. Self-Organization 2. Collective Bargaining + Negotiations 3. Peaceful and Lawful Collective Action (Right to Strike) 4. Security of Tenure 5. Humane conditions of work 6. Living Wage 7. Participation in relevant Policy & Decision Making Processes Rights granted in other provisions in the Constitution 1. Right to form unions, associations, societies for purposes not contrary to law. 2. Right to self-organization shall not be denied to government employees. 3. Regular farmworkers shall have the right to own directly or collectively the lands they till. 4. The State shall by law and for common good, undertake in cooperation with the private sector a continuing program of urban land reform and housing. 5. The State shall protect working women by providing safe and healthful working conditions taking into account their maternal functions. 6. Labor is entitled to seats allotted to party-list representatives 7. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform. 8. Congress shall create an agency to promote the viability and growth of cooperatives. 9. The Government shall increase salary scales of the other officials and employees of the National Government. 10. Career civil service employees shall be entitled to appropriate separation pay and to retirement and other benefits under existing laws.
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To promote Social Justice in all phases of national development Congress to give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good State shall regulate the acquisition, ownership, use, and disposition of property and its increments. State to create economic opportunities based on freedom of initiative and self-reliance. State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. State shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations.
The power of the government to enact laws within the constitutional limits, to promote order, safety, health, morals and general welfare of society The power inherent in government to protect itself and all its constituents, and for this purpose, to hold the government immune, as far as necessary from any limitations imposed in the past Right of every person to pursue a business, occupation, or profession is subject to the paramount right of the government as a part of its police power to impose such restrictions and regulations as the protection of the public may require. The exercise of the police power must not violate the safeguards of constitutional rights only insofar as is necessary to accomplish purposes justified by the public evil to be removed or the public good achieved
Calalang v. Williams (1940)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Consti., Art XIII, Sec III, Par 3
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The Constitution commands the State to promote the principle of shared responsibility between workers and employees and the preferential use of voluntary models of settling disputes to foster Industrial peace The Industrial peace Act was patterned after the US laws, and thus decisions interpreting those laws may be useful in interpreting our labor laws
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Consti., Art. II, Sec. 20; Art. XIII, Sec. 3, pars. 3 and 4
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Right by the owner of the company An employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of workers As long as the company’s exercise of the same is exercised in good faith for the advancement of the employer’s interest, and not for the purpose of defeating or circumventing the rights of the employees under special laws or valid agreements, the courts will uphold them. But this right can be regulated by the state
The exercise of management prerogatives is not unlimited. A line must be drawn between management prerogatives regarding business operations per se and those which affect the rights of employees. In treating the latter, management should see to it that its employees are at least properly informed of its decisions and modes of action. While the Constitution is committed to the policy of social justice and the protection of the working class, it should not be expected that every labor dispute will be automatically decided in favor of labor. Management also has its own rights which, as such, are entitled to respect and enforcement in the interest of simple fair play.2
Consti., Art XIII, Sec III, Par 3 and 4
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The state is mandated to regulate the relations of labor and capital, balancing the rights of the workers to a just share in the fruits of production and the right of the employer to a reasonable return on its investment
III. Classification 1. 2. 3.
Labor Standards Labor Relations Welfare Legislation
Labor standards which sets out the Minimum terms Conditions Benefits of employment that employers must provide or comply with and to which employees are entitled as a matter of legal right.
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Labor relations law which defines the Status Rights Duties Institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. Social Legislation vis-à-vis Labor Laws Social legislation provides particular kinds of protection or benefits to society or segments thereof in furtherance of social justice. Labor laws are necessarily social legislation. But to differentiate, labor laws directly affect employment while social legislation governs effects of employment. Labor laws are social legislation but not all social legislation are labor laws.
Coca-Cola v. Gacayna
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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IV. Basis -
Inherent inequalities between labor and capital Levelling of the playing field which is the work premises / work place
7 Principles underlying the code Labor relations must be made both responsive and responsible to national development Labor laws/labor relations during national emergency must substitute rationality for confrontation; strikes; lockouts give way to arbitration Labor justice can be expeditious without sacrificing due process Manpower development and employment must be regarded as a major dimension of labor policy There is a global labor market available to qualified Filipinos Labor laws must command adequate resources and acquire a capable machinery for effective and sustained implementation There should be popular participation in national policy-making through what is now called tripartism
Arts. 19, 20, 21, 1700, 1701
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Provides for responsibilities between employers and employees, for each other to respect the rights of the other in the performance of their duties and in the exercise of their rights It also acknowledges that the labor relationship is imbued with public interest and therefore subject to proper regulations by the State. Hence, the parties cannot disregard labor laws and regulations and insulate themselves from these restrictions simply by contracting with each other.4
Consti., Art. II, Sec. 2
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International law likewise proscribes discrimination. General principles of law include principles of equity, i.e., the general principles of fairness and justice, based on the test of what is reasonable. The Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, etc., all embody the general principles against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws.5
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The basic policy is to balance and coordinate the rights and interests of both workers and employers The perspective is the same as the 1987 Constitution which explicitly recognizes shared responsibility of employers and workers and the right of enterprise to reasonable returns on investment and to expansion and growth
Art. II, Secs. 5, 9, 10, 11, 13, 14, 18, 20; Art. III, Secs. 1,3, 4, 8, 18 (2) Art. XII, Secs. 1, 2, 3, 14 Labor Code, Art. 3
1. Right to Security of Tenure The guarantee of security of tenure under the Constitution means that an employee cannot be dismissed from the service for causes other than those provided by law and only after due process is accorded the employee.3 2. Right to Humane Conditions of Work 3. Right to a living wage
V. The Labor Code of the Philippines -
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The writing of the Labor Code began in 1968 under the Minister of Labor Blas Ople The objective was not merely to consolidate the then existing pieces of labor legislation but also to reorient them to the needs of economic development and justice Information had to be gathered from different departments and bureaus of the government, UP Law, IBP, NEDA, etc. Ratified on April 28, 1973 It was signed into law on May 1, 1974 and took effect on Nov 1, 1974 because it is designed to be a dynamic and rowing body of laws which will reflect continually the lessons of practical applications and experience
Art. 3
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Art. 4; Art. 1702 (NCC)
ART. 4 (LC) All Cases Labor Code + IRR All doubts
Art. 1
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Labor Code of the Philippines
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November 1, 1974
ART. 1702 (NCC) In cases in favor of safety and decent living Labor legislation & contracts In case of doubt
Art. 2
3 4
De Guzman vs. Comelec (2000) Innodata v. Quejada-Lopez (2006)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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International School Alliance of Educators v. Quisumbing (2000)
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Art. 217
Art. 5
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Unfair labor practice cases; Termination disputes; If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and Except claims for Employees Compensation, Social Security, PhilHealth and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding P5k regardless of whether accompanied with a claim for reinstatement.
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Art. 6, 282; Consti., Art. IX-B, Sec. 2 (1)
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Art. 221
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The rules of evidence prevailing in courts of law or equity shall not be controlling The Commission and the LAs shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure
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Scales of justice are tilted towards the employee Procedural laws may be relaxed in order to avoid injustice
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Rules of procedure should be relaxed when there is substantial and subsequent compliance. The Court has time and again relaxed the rigid application of the rules to offer full opportunity for parties to ventilate their causes and defenses in order to promote rather than frustrate the ends of justice.6
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VI. Work Relationship
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“Person” Either natural or juridical, individual or collectively Includes business trust and legal representatives
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Santos v. Litton Mills (2011)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Includes the Visitorial and Enforcement Powers of the Secretary of Labor and Employment (“SOL”) Penalties: o P1,000 – P10,000 OR 3 months – 3 years OR BOTH o Summary deportation to aliens after service of sentence Prescription of Offenses o 3 years o ULP must be filed within 1 year o Money claims must be filed within 3 years
“Employee”
Arts. 97 (a), (b), (c); 173 (f), (g), (h); 218 (e), (f)
“Employer” Includes any person acting directly or indirectly in the interest of an employer in relation to an employee Includes the government and all its branches, subdivisions and instrumentalities, all GOCCs and institutions, as well as non-profit private institutions, or organizations. The term shall not include any labor organization or any of its officers or agents except when acting as employer.
All rights and benefits under the Labor Code shall be applied to all kinds of workers BUT GOCCs incorporated under a general charter shall be governed primarily by their original charters
Art. 217 (a) (2), (3), (4), (6); 128, 129, 288, 289, 290, 291, 292, Consti., Art. III, Secs. 11 & 16
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A rule or regulation that exceeds the department’s rule-making authority is void Implementing rule has to be subordinate to the law The rulemaking power is exceeded when the implementing rule changes, wittingly or unwittingly, the content or meaning of the law which the rule aims to implement
Includes any individual employed by an employer The term shall not be limited to the employees of a particular employer, unless the Code so explicitly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.
Employer – Employee Test7 4-fold test: 1. Selection of employee 2. Payment of wages 3. Power to dismiss 4. Control on employee on means and methods
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Lirio v. Genovia 5
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Control Test For purposes of the test, Control refers to: a. Control as to the MEANS b. Control as to the RESULTS. Under this test an employer-employee relationship exist where the person for whom the services are performed reserves the right to control not only the end to be achieved, but also the manner and means to be used in reaching the end. This is to be distinguished from the control used in Independent Contractor (IC). In IC, control is used not to test ER-EE relationship, but WON there’s control (as to the means only) as would warrant a relationship with an IC. One need not actually exercise direct control, provided the ER reserves the right to control. It also need not be done personally or physically because it may be done through an intermediary (supervisor or manager, etc.) Control may be used as [a] guideline or [b] regulation.
Arts. 106, 107, 108, 109; OR: Book III, Rule VIII-A
INDEPENDENT CONTRACTOR Has sufficient substantial capital OR investment in machinery, tools or equipment directly or intended to be related to the job contracted Carries an independent business different from the employer’s Undertakes to perform the job under its own account and responsibility, FREE from the principal’s control NO ER-EE Relationship except when the contractor or subcontractor fails to pay the employees’ wages. LIMITED liability (Principal solidarily liable with contractor or subcontractor only when latter fails to comply with requirements as to unpaid wages and other labor standards violations.) Permissible
Economic Reality Test8 Measure: Economic dependence of the worker on his employer. The economic realities prevailing within the activity or between the parties are examined, taking into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. This is especially appropriate when there is no written agreement or contract on which to base the relationship.
LABOR-ONLY CONTRACTOR Has NO substantial capital NOR investment in the form of machinery, tools or equipment Has no independent business Performs activities directly related to the main business of the principal Principal treated as direct employer of the person recruited in all instances (contractor is deemed agent of the principal) Principal’s liability extends to all rights, duties and liabilities under labor standard laws including the right to self-organization
Prohibited
D.O. 18-A-11, Sec. 3(m), Sec. 5
PROVING ER-EE RELATIONSHIP
ILLEGAL DISMISSAL
BURDEN The party trying to establish the presence of the relationship Employee
QUANTUM OF EVIDENCE Substantial Evidence
“Substantial Evidence” = That amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion as sufficient
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Refers to the relationship in a contracting or subcontracting arrangement where there is a contract for a specific job/work/service between the principal and the contractor, and a contract of employment between the contractor and its workers.
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The contractor or subcontractor does not have substantial capital or investment which relates to the job, work or service to be performed The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal; or The contractor does not exercise the right to control over the performance of the work of the contractual employee.
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Piercing the corporate mask is only done when the corporation is just an alter ego of a person or of another corporation. For reasons of public policy and in the interest of justice, the corporate veil will justifiably be impaled only when it becomes a shield for fraud, illegality or inequity committed against third persons. Any application of the doctrine of piercing the corporate veil should be done with caution. A court should be mindful of the milieu where it is to be applied. It must be certain that the corporate fiction was misused to such an extent that injustice, fraud, or crime was committed against another, in disregard of rights. The wrongdoing must be clearly and convincingly established; it cannot be presumed.9
1. 2. 3. 4.
D.O. 18-A-11, Secs. 14, 15
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Orozco v. CA (2008)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Registered in accordance with rules Distinct and independent business Sufficient Capital Service Agreement
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The registration of contractors and subcontractors shall be necessary for purposes of establishing an effective labor market information and monitoring. Failure to register shall give rise to the presumption that the contractor is engaged in labor-only contracting.
Sarona v. NLRC (2012) 6
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VII. EMPLOYMENT CONTRACT D.O. 18-A-11, Sec. 27
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The Indirect Employer is only liable if there exists a Labor-Only Contracting relationship between an Indirect and Direct Employer, which is determined only by a competent authority o In these cases, the indirect employer is ultimately liable to the employee The joint and several liability of the employer or principal was enacted to ensure compliance with the provisions of the Code, principally those on statutory minimum wage. o The contractor or subcontractor is made liable by virtue of his or her status as a direct employer, and the principal as the indirect employer of the contractor's employees. o This liability facilitates, if not guarantees, payment of the workers' compensation, thus, giving the workers ample protection as mandated by the 1987 Constitution. This is not unduly burdensome to the employer. o Should the indirect employer be constrained to pay the workers, it can recover whatever amount it had paid in accordance with the terms of the service contract between itself and the contractor. The indirect employer's liability to the contractor's employees extends only to the period during which they were working for the petitioner, and the fact that they were reassigned to another principal necessarily ends such responsibility.
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In case of conflict between the text of the contract and the intent of the parties, it is the latter that prevails, and not the wording which is prone to mistakes, inadequacies and ambiguities. To hold otherwise would give life, validity and precedence to mere typo errors and defeat the very purpose of agreements.10
GROW v. Velasco (2012)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Allowed Private Agencies and Entities Arts. 12 (f), 16, 18, 25
I. Employment Policies, Recruitment and Placement of Workers and Agencies Arts. 3, 12 (a), (f); Consti., Art. II, Sec. 9; RA 8042, Secs. 2 (a), (b), in relation to (g), (c); 4, 5
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To promote and maintain a state of full employment through improved manpower training, allocation and utilization o BUT the State does not promote overseas employment as a means to sustain economic growth and achieve national development. To strengthen the network of public employment offices and rationalize the participation of the private sector in the recruitment and placement of workers, locally and overseas, to serve national development objectives The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. The State recognizes that the ultimate protection to all migrant workers is the possession of skills. Pursuant to this and as soon as practicable, the government shall deploy and/or allow the deployment only to skilled Filipino workers.
1. Parties “Worker” -
Any member of the labor force, whether employed or unemployed.
“Private Employment Agency” Means any person or entity engaged in recruitment and placement (R&P) of workers for a fee which is charged, directly or indirectly, from the workers or employers or both. “Private Recruitment Entity” Means any person or association engaged in the R&P of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers. 2. Recruitment and Placement Local Employment
1. 2. 3. 4. 5. 6. 7. 8.
Prohibited Business Agencies and Entities Arts. 16, 18, 25, 26; IRR of RA 8042, Rule II, Sec. 1 (i)
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Refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement.
Travel Agencies and Sales Agencies of Airlines o by companies without approval from SOL Direct hiring
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Those hired by international organizations Those hired by diplomatic corps Name hires / workers who are able to secure oversees employment opportunities with employers without support from an agency
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Licensing / Qualifications of Applicants Worker’s Fees, Filing Fees and License Fees Reports / Employment Information Regulations for illegal recruitment Enforcement Powers POEA Standard Employment Contract
Licensing Requirements: 1. Citizenship (Filipino) 2. Capitalization (P 3M) 3. Validity of License (4 years; 1 year provisional) 4. Non-Transferability 5. Registration / License Fees 6. Bonds (100k) 7. Placement / Documentation Fees Workers’ Fees
Art. 32; Part II, Rule V, Sec. 3
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Shall not be charged until worker has obtained employment through agency’s efforts or has actually commenced employment.
Reports/Employment Information Arts. 33, 14 (d), 34 (h); RA 8042, Sec. 6 (h)
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Art. 13 (b)
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Public employment offices Private recruitment entities Private employment agencies Shipping or manning agents or representatives The POEA Construction contractors if authorized to operate by DOLE and the Construction Industry Authority Members of the diplomatic corps although hirings done by them have to be processed through the POEA Other persons or entities as may be authorized by the DOLE secretary
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SOL may direct all persons or entities within the coverage of this Title to submit a report on the status of employment, including job vacancies, details of job requisitions, separation from jobs, wages, other terms and conditions and other employment data. Failure to do so = illegal recruitment
Overseas Employment RA 8042, Sec. 6
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Means any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers and includes referring, contact services, promising or advertising for employment abroad, whether for profit or not,
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Illegal Recruitment
Arts. 34, 38 (a) (b), RA 8042, Secs. 6, 7, 8, 9, 10, 11, 12
The following are acts of illegal recruitment, done by a non-license or nonholder of authority: (a) To charge or accept directly or indirectly any amount greater than the specified in the schedule of allowable fees prescribed by the SOL, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code; (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him another unless the transfer is designed to liberate a worker from oppressive terms and conditions of employment; (e) To influence or attempt to influence any persons or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment of placement of workers in jobs harmful to public health or morality or to dignity of the Republic of the Philippines; (g) To obstruct or attempt to obstruct inspection by the SOL or by his duly authorized representative; (h) To fail to submit reports on the status of employment, placement vacancies, remittances of foreign exchange earnings, separations from jobs, departures and such other matters or information as may be required by the SOL; (i) To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the DOLE from the time of actual signing thereof by the parties up to and including the period of the expiration of the same without the approval of the DOLE; (j) For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under the Labor Code and its implementing rules and regulations; (l) Failure to actually deploy without valid reasons as determined by the DOLE; and (m) Failure to reimburse expenses incurred by the workers in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered as offense involving economic sabotage. Qualified/Syndicated Illegal Recruitment This is carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. Sanctions Venue: RTC of place of commission / residence of offended party Money Claims: LA have original and exclusive jurisdiction
Enforcement Powers Rule Making Power Art. 36
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SOL is authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title.
Regulatory Power Art. 35, 36
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SOL shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title SOL shall have the power to suspend or cancel any license or authority to recruit employees for overseas employment for violation of rules and regulations.
Visitorial Power Art. 37
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SOL or his duly authorized representatives may, at any time, inspect the premises, books of accounts and records of any person or entity
POEA Standard Employment Contract To be integrated in every seafarer’s contract Liberal Construction Terms and Conditions shall include disability benefits Joint and Several Liability of Recruitment/Placement Agency and Principal/Employer Requires that a PEA submit a verified undertaking stating that it shall assume joint and solidary liability with employer for all claims and liabilities which may arise in connection with the implementation of the contract, including but not limited to payment of wages, death and disability compensation and repatriations Effect of Termination of Agency Agreement between Principal and Manning Agent The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification of the contract made locally or in a foreign country. For immediate and sufficient payment of claims Responsibilities of local recruitment agencies / liability for damages and attorney’s fees RA 8042, Sec. 10
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In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.
RTC for Criminal Action arising from illegal recruitment LA for money claims POEA over administrative cases
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Licensee Violator: 2 – 5 years OR P10k – P50k OR BOTH Non- Licensee Violator: 4 – 8 years OR P20k – P100k OR BOTH Automatic revocation of license and forfeiture of cash and surety bonds
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Suspension and/or Cancellation of authority Illegal recruitment Penalty: 6 years, 1 day – 12 years AND P200k – P500k o Life Imprisonment AND P500k – P1M if there is economic sabotage o Maximum penalty if person recruited is a minor Prescription: 5 years, 20 years if with economic sabotage
II. Alien Employment Registration Art. 40, Book I, Rule XIV, Sec. 1; DO 97-09, Sec. 1 as amended by DO 120-12; Rule I.1
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Any alien seeking admission to the Philippines for employment purposes Any domestic/foreign employer who desires to engage an alien for employment in the Philippines All foreign nationals who intend to engage in gainful employment Missionaries or religious workers who intend to engage in gainful employment Holders of special investors resident visa, special retirees resident visa, treaty traders visa, or special non-immigrant visa, who occupy any executive, advisory, supervisory, or technical position in any establishment Agencies, organizations or individuals whether public or private, who secure the services of foreign professionals to practice their professions in the Philippines under reciprocity and other international agreements Non-Indo Chinese refugees who are asylum seekers and given refugee status by the United Nations High Commissioner on Refugees or the Department of Justice under DOJ Department Order No. 94, series of 1998 Resident foreign nationals seeking employment in the Philippines
Book I, Rule XIV, Secs. 5, 6
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Requirements: o CV of applicant o Contract of Employment o Designation by employer of at least 2 understudies per alien worker Report of the Bureau Director as to the availability or nonavailability of any person in the Philippines who is competent, able, and willing to do the job for which the services of the applicant are desired BD’s assessment as to whether or not the employment of the applicant will redound to the national interest; Admissibility of the alien as certified by the Commission on Immigration and Deportation The recommendation of the Board of Investments or other appropriate government agencies if the applicant will be employed in preferred areas of investments or in accordance with imperatives of economic developments Payment of a P100.00 fee
Book I, Rule XIV, Sec. 7; DO 97-09, Sec. 11
1. 2. 3. 4. 5.
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All members of the diplomatic services and foreign government officials accredited by the Philippine government Officers and staff of international organizations of which the Philippine government is a cooperating member, and their legitimate spouses desiring to work in the Philippines Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only one voting right in the corporation; and All foreign nationals granted exemption by special laws and all other laws that may be promulgated by the Congress Owners and representatives of foreign principals whose companies are accredited by the PEA, who come to the Philippines for a limited period and solely for the purpose of interviewing Filipino applicants for employment abroad; Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government; provided that the exemption is on a reciprocal basis; and Permanent resident foreign nationals, probationary or temporary resident visa holders
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Minimum 1 year, Maximum of 5 years
DO 97-09, Sec. 13
a. b. c. d. e. f.
Non-compliance with any of the requirements or conditions for which the AEP was issued; Misrepresentation of facts in the application; Submission of falsified or tampered documents; Meritorious objection of information against the employment of the foreign national The foreign national has been convicted of a criminal offense or a fugitive from justice; or Employer terminated the employment of the foreign national
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III. Development of Human Resources
Art. 57 Art. 44 (a); RA 7796, Sec. 4 (b), (c), (e)
“Manpower” Means that portion of the nation’s population which has actual or potential capability to contribute directly to the production of goods and services “Skills Development” Means the process through which learners and workers are systematically provided with learning opportunities to acquire or upgrade, or both, their ability, knowledge and behavior pattern required as qualifications for a job or range of jobs in a given occupational area “Technical Education” Refers to the education process designed at post-secondary and lower tertiary levels, officially recognized as non-degree programs aimed at preparing technicians, para-professionals and other categories of middle-level workers by providing them with a broad range of general education, theoretical, scientific and technological studies, and related job skills training “Middle-Level Manpower” -
Refers to those o Who have acquired practical skills and knowledge through formal or non-formal education and training equivalent to at least a secondary education but preferably a post-secondary education with a corresponding degree or diploma; or o Skilled workers who have become highly competent in their trade or craft as attested by industry.
RA 7796, Sec. 2
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To provide relevant, accessible, high quality and efficient technical education and skills development in support of the development of high quality Filipino middle-level manpower responsive to and in accordance with Philippine development goals and priorities. The State shall encourage active participation of various concerned sectors in providing technical education and skills development opportunities.
RA 7796, Sec. 3
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Promote and strengthen the quality of technical education and skills development programs to attain international competitiveness. Focus technical education and skills development on meeting the changing demands for quality middle-level manpower; Encourage critical and creative thinking by disseminating the scientific and technical knowledge base of middle-level manpower development programs; Recognize and encourage the complementary roles of public and private institutions in technical education and skills development and training systems; and Inculcate desirable values through the development of moral character with emphasis on work ethic, self-discipline, selfreliance and nationalism
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
1. 2.
3.
To help meet the demand of the economy for trained manpower; To establish a national apprenticeship program through the participation of employers, workers and government and nongovernment agencies; and To establish apprenticeship standards for the protection of apprentices.
Art. 58 (b); RA 7796, Sec. 4 (j), (k), (l), (m), (n)
“Apprentice” A person undergoing training for an approved apprenticeable occupation during an established period assured by an apprenticeship agreement They train in a highly skilled job or in a job found only in a highly technical industry that is why training period exceeds three months An apprentice is also a learner “Learner” Persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months. Learners are immediately hired after the training period as compared to an apprentice Learnership is allowed even for non-technical jobs
QUALIFICATIONS BUSINESS ENTERPRISE PERIOD AGREEMENT REGULATIONS COMPENSATION
LEARNER No qualifications needed Semi-Skilled business
APPRENTICE Qualifications may be set Highly Technical Industries 3 mos. 6 mos. Learnership Apprenticeship Approval of TESDA Approval of TESDA, Endorsed by a tripartite body Must not be lower than 75% of minimum wage
Arts. 60, 74; RA 7796, Sec. 4 (m)
“Apprenticeable Occupation” An occupation officially endorsed by a tripartite body Approved for apprenticeship by the Authority; Only employers in the highly technical industries may employ apprentices Learners may be hired when: -
No experienced workers are available The employment of learners is necessary to prevent curtailment of employment opportunities The employment does not create unfair competition in terms of labor costs or impair or lower working standards.
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Arts. 61, 72, 281, 75, 76; WO NCR-16, Sec. 6
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Apprenticeship agreements, including the wage rates of apprentices, shall conform to the rules issued by the SOL The period of apprenticeship shall not exceed 6 months. Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75% of the applicable minimum wage, may be entered into only in accordance with apprenticeship programs duly approved by the SOL The Department shall develop standard model programs of apprenticeship. Hiring of apprenticeship without compensation may be authorized by SOL if the job is required by the school or training program curriculum or as requisite for graduation or board examination Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. o May be terminated for just cause or if the employee fails to qualify as a regular employee in accordance with reasonable standards o An employee who is allowed to work after a probationary period shall be considered a regular employee.
RA 7277, Sec. 2
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Senate shall give full support to the improvement of the total wellbeing of PWDs and their integration into the mainstream of society. State shall adopt policies ensuring the rehabilitation, selfdevelopment and self-reliance of PWDs. It shall develop their skills and potentials to enable them to compete favorably for available opportunities. They should be able to live freely and as independently as possible. PWDs rights must never be perceived as welfare services by the Government. The rehabilitation of the PWDs shall be the concern of the Government in order to foster their capability to attain a more meaningful, productive and satisfying life. Ensure full participation of different sectors as supported by national and local government agencies The State also recognizes the role of the private sector in promoting the welfare of PWDs and shall encourage partnership in programs that address their needs and concerns. The State shall advocate for and encourage respect for PWDs. The State shall exert all efforts to remove all social, cultural, economic, environmental and attitudinal barriers that are prejudicial to PWDs.
RA 7277, Sec. 3 Arts. 65, 66, 67
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Investigation of violation of apprenticeship agreement. o Upon complaint of any interested person or upon its own initiative o Shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by SOL Appeals to the SOL o The decision of the authorized agency of the DOLE may be appealed by any aggrieved person to the SOL within 5 days from receipt of the decision. o The decision of the SOL shall be final and executory. Exhaustion of administrative remedies o No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies.
RA 7277, Sec. 4 (a), (b), (c), (d)
“Persons with Disabilities (PWDs)” -
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Art. 81; RA 7277, Secs. 4 (i), 5, 6, 7
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PWDs may be hired as apprentices/learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.
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Equal Opportunity for Employment o No PWDs shall be denied access to opportunities for suitable employment. o A qualified PWD employee shall be subject to the same terms and conditions of employment and the same compensation and benefits as a qualified able-bodied person. o 5% of all casual, emergency and contractual positions in government agencies, offices or corporations engaged in social development shall be reserved for PWDs.
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Sheltered Employment o The provision of productive work for PWDs through workshop providing special facilities, income producing projects or homework schemes with a view to give them the opportunity to earn a living thus enabling them to acquire a working capacity required in open industry. o If suitable employment for PWDs cannot be found through open employment, the State shall endeavor to provide it by means of sheltered employment. o In the placement of PWDs in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production.
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Apprenticeship o PWDs shall be eligible as apprentices or learners; o Provided, That their handicap is not much as to effectively impede the performance of job operations in the particular occupation for which they are hired; o Provided, further, that after the lapse of the period of apprenticeship if found satisfactory in the job performance, they shall be eligible for employment.
Are those suffering from restriction of different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for a human being
“Impairment” Is any loss, diminution or aberration of psychological, physiological, or anatomical structure of function “Disability” -
Shall mean: (1) A physical or mental impairment that substantially limits one or more psychological, physiological or anatomical function of an individual or activities of such individual; (2) A record of such an impairment; or (3) Being regarded as having such an impairment
“Handicap” Refers to a disadvantage for a given individual resulting from an impairment or a disability, that limits or prevents the functions or activity, that is considered normal given the age and sex of the individual _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
This Act shall cover all PWDs and, to the extend herein provided, departments, offices and agencies of the National Government or non-government organization involved in the attainment of the objectives of this Act.
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RA 7277, Secs. 32, 33
The following constitute acts of discrimination: (a) Limiting, segregating or classifying a PWD job applicant in such a manner that adversely affects his work opportunities; (b) Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out a PWD unless such standards, tests or other selection criteria are shown to be job related for the position on question and are consistent with business necessity; (c) Utilizing standards, criteria, or methods of administration that: 1. Have the effect of discrimination on the basis of disability; or 2. Perpetuate the discrimination of others who are subject to common administrative control; (d) Providing less compensation to a qualified PWD employee, by reason of his disability, than the amount to which a nonPWD performing the same work is entitled; (e) Favoring a non-PWD over a qualified PWD employee with respect to promotion, training opportunities, study and scholarship grants, solely on account of the latter’s disability; (f) Re-assigning or transferring a PWD employee to a job or position he cannot perform by reason of his disability; (g) Dismissing or terminating the services of a PWD employee by reason of his disability unless the employer can prove that he impairs the satisfactory performance of the work involve to the prejudice of the business entities; Provided, however, that the employer first sought provide reasonable accommodations for PWDs; (h) Failing to select or administer in the effective manner employment tests which accurately reflect the skills, aptitude or other factor of the PWD applicant or employee that such test purports to measure, rather than the impaired sensory, manual or speaking skills of such applicant or employee, if any; and (i) Excluding PWDs from membership in labor unions or similar organization.
Upon an offer of employment, a PWD applicant may be subjected to medical examination, on the following occasions: (a) All entering employees are subjected to such an examination regardless of disability; (b) Information obtained during the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, Provided, however, That: 1. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employees and necessary accommodations; 2. First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; 3. Government officials investigating compliance with this Act shall be provided relevant information on request; and 4. The results of such examination are used only accordance with this Act. RA 7277, Secs. 44, 45, 46
Enforcement by the Secretary of Justice. (a) Denial of Right 1. The Sec. of Justice shall investigate alleged violations of this Act 2. Shall also undertake periodic reviews of compliance of covered entities under this Act. (b) Potential Violations - The Sec. of Justice may commence a legal action in any appropriate court if he has reasonable cause to believe that: 1. Any person or group of persons is engaged in a pattern of practice of discrimination under this Act; or 2. Any person or group of persons has been discriminated against under this Act and such discrimination raises and issue of general public importance Authority of Court The court may grant any equitable relief that such court considers to be appropriate, including, to the extent required by this Act: (a) Granting temporary, preliminary or permanent relief; (b) Providing an auxiliary aid or service, modification of policy, practice or procedure, or alternative method; and (c) Making facilities readily accessible to and usable by individuals with disabilities. Penal Clause 1. 1st violation, P50k – P100k OR 6 mos. - 2 years OR BOTH 2. Subsequent violation, P100k – P200k OR 2 years - 6 years OR BOTH Any person who abuses the privileges granted herein: o 6 months OR P5k – P50k OR both
IV. Conditions of Employment
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The Eight-Hour Labor Law was designed not only to safeguard the health and welfare of the laborer or employee, but in a way to minimize unemployment by forcing employers, in cases where more than 8-hour operation is necessary, to utilize different shifts of laborers or employees working only for eight hours each.11
Art. 82, 276; Book III, Rule I, Secs. 1, 2
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Shall apply to employees in all establishments and undertakings whether for profit or not,
Exceptions to the General Rule 1. Government Employees 2. Managerial Employees 3. Officers of Management Staff 4. Field Personnel 5. Family members 6. Domestic Workers 7. Persons in the personal service of another 8. Workers paid by results Exception to the Exception Employees of GOCCs under the Corp Code
Manila Terminal v. CIR (1952)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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"Managerial employees" Those whose primary duty consists of the management of the establishment in which they are employed One who is vested with the powers or prerogatives to lay down and execute management policies Supervisory employees are those who, in the interest of the employer, effectively recommend such managerial actions if the exercise of such authority is not merely routinary or clerical in nature but requires the use of independent judgment. 1. 2. 3.
An employee is a Manager if meet all of the following conditions are met: Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof. They customarily and regularly direct the work of two or more employees therein. They have the authority to hire or fire employees of lower rank; or their suggestions and recommendations as to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight.
“Member of the managerial staff” An employee is an Officer or Member of a Managerial Staff if he performs the following duties and responsibilities: 1. The primary duty consists of the performance of work directly related to management policies of their employer; 2. Customarily and regularly exercise discretion and independent judgment; and 3. (i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of the management of the establishment in which he is employed or subdivision thereof; or (ii) execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (iii) execute, under general supervision, special assignments and tasks; and 4. Who do not devote more than 20 percent of their hours worked in a work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2) and (3) above. “Field Personnel’ -
(a) (b)
12 13
“Domestic Workers” Refers to any person engaged in domestic work within an employment relationship “Domestic Work” = service in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers Exception/Exclusions: Any person who performs domestic work only occasionally or sporadically and not on an occupational basis. The term shall not include children who are under foster family arrangement, and are provided access to education and given an allowance incidental to education Assignment to non-household work. o No DW shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or nonagricultural workers as prescribed herein. “Persons in the Personal Service of Another” Domestic servants and persons in the personal service of another if they perform such services in the employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience, or safety of the employer as well as the members of his employer's household. “Piece-rate Workers” Workers who are paid by results, including those who are paid on piece-work, "takay," "pakiao" or task basis, and other non-time work if their output rates are in accordance with the standards prescribed under Section 8, Rule VII, Book Three of these regulations, or where such rates have been fixed by the SOL in accordance with the aforesaid Section. Those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same13 Workers under piece-rate employment have no fixed salaries and their compensation is computed on the basis of accomplished tasks14
Refers to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty Test: Regularly performs work outside the work premises Actual hours of work in the field cannot be determined with reasonable certainty o WON employee’s time and performance are constantly supervised by the employer 12
Far East Agricultural Supply, Inc. v. Lebatique (2007) Labor Congress v. NLRC (1998)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
14
Best Wear v. De Lemos (2012)
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Art. 83
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The normal hours of work of any employee shall not exceed 8 hours a day. o This does not mean that an employer cannot employ a worker for less than 8 hours Health personnel in cities and municipalities with a population of at least 1M or in hospitals and clinics with a bed capacity of at least 100 shall hold regular office hours for 8 hours a day, for 5 days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for 6 days or 48 hours, in which case, they shall be entitled to an additional compensation of at least 30% of their regular wage for work on the sixth day. "Health personnel" = Includes resident physicians, nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel
On Duty
Art. 84 (a); Book III, Rule I, Secs. 3 (a), 4 (a)
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All time during which an employee is required to be on duty or to be at a prescribed workplace o Regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion. Preliminary and post-liminary activities are deemed performed during working hours, where such activities are controlled or required by the employer and are pursued necessarily and primarily for the employer’s benefit
Meal Period Regular Meal Period (1 hr.) Art. 85
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Shorter Meal Period (Less than an hour but not less than 20 min) Book III, Rule I, Sec 7, par 1
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Notes: -
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Art. 84 (b); Book III, Rule I, Secs. 3 (b)
All time during which an employee is suffered or permitted to work. Whether sleeping time is part of working time will depend upon the express or implied agreement of the parties o In the absence of which, it will depend upon the nature of the service and its relation to the working time o Conditions are less desirable than his home
Rest Period Short duration or “coffee break” (compensable) Art. 84, 2nd par; Book III, Rule I, Sec. 7, 2nd par.
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Rest periods of short duration during working hours shall be counted as hours worked. Rest periods or coffee breaks running from 5 - 20 minutes shall be considered as compensable working time.
More than 20 min (not compensable)
Every employer shall give his employees not less than 1 hour timeoff for regular meals, except in the following cases when a meal period of not less than 20 minutes may be given and is compensable hours worked of the employee
Exceptions to 1hr Meal period (Compensable) 1. Non-Manual work 2. 16 hrs. of work / operations 3. Emergencies, work on machineries to avoid serious loss 4. Perishable goods
At Work -
It shall be the duty of every employer to give his employees not less than 60 minutes time-off for their regular meals.
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When work is continuous for several shifts, the meal time breaks should be counted as working time for purposes of overtime compensation To shorten meal time to less than 20 minutes is not allowed. If it is then it becomes only a rest period and is considered working time The employees themselves may request that their meal period be shortened so that they can leave work earlier than the previously established schedule o The shortened meal here is not compensable o Conditions to be followed The employees voluntarily agree to a shortened meal period and are willing to waive the overtime pay There will be no diminution whatsoever in the salary and other fringe benefits The work of the employees does not involve strenuous physical exertion and they are provided with adequate coffee breaks in the morning and afternoon The value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them The overtime pay of the employees will become due and demandable if ever they are permitted or made to work beyond 4:30 PM The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the SOL Employers may change lunch break from paid to unpaid
Book III, Rule I, Sec. 4 (b)
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An employee need not leave the premises of the work place in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his work place, to go elsewhere, whether within or outside the premises of his work place.
Characteristics of More than 20 min break 1. Stops working 2. May leave workplace (either within/outside work premises) 3. May rest completely
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Book III, Rule I, Sec 5(a)
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Whether waiting time spent in idleness is so spent predominantly for the employer’s benefit or for the employee’s Whether waiting is considered an integral part of his work or if the employee is required or engaged by an employer to wait
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Working while On Call (compensable) Book III, Rule I, Sec 5(b)
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An employee who is required to remain on call in the employer's premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose
Not working while On Call (not compensable) Book III, Rule I, Sec 5(b)
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An employee who is not required to leave word at his home or with company officials where he may be reached
Notes: Although the laborers can rest completely and may not be actually at work, if they are required to be in their place of work before or after the regular working hours and within the call of his employers, the time they stay in the place of work should not be discounted from their working hours
Book III, Rule I, Sec 4(d)
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Inactivity is by reason of interruptions in his work beyond his control shall be considered working time either if: o Imminence of the resumption of work requires the employee's presence at the place of work o If the interval is too brief to be utilized effectively and gainfully in the employee's own interest. Semestral breaks are in the nature of work interruptions beyond the employees' control. They cannot be considered as "absences" for which deductions may be made from monthly allowances. o Thus, the "No work, no pay" principle does NOT apply. o Such hours are considered as “hours worked”15
Book III, Rule I, Sec. 4(c)
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If the work was with the knowledge of his employer or immediate supervisor, any of the following are compensable: 1. If the work performed was necessary 2. It benefited the employer 3. The employee could not abandon his work at the end of his normal working hours because he had no replacement
Book III, Rule I, Sec. 6
G.R.: Lectures, meetings and trainings are compensable E: (not compensable): -
It shall not be compensable if the following conditions are met: (a) Attendance is outside of the employee's regular working hours; (b) Attendance is in fact voluntary; and (c) The employee does not perform any productive work during such attendance.
G.R.: May not constitute working time Travel from home to work – normal incident of employment regardless if he works at different jobsites E: (compensable): o When an employee receives an emergency call outside of his regular working hours and is required to travel to his regular place of business or some other work site o Whether the employee is bound to travel in a conveyance furnished by the employer or is free to choose his conveyance, whether or not during the travel he is subject to the employer’s supervision and control, and whether or not the travel takes place under vexing and dangerous conditions o Travel that is all in the day’s work – travel as part of his principal activity Univ. of Pangasinan Faculty Union v Univ. of Pangasinan (1984) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Arts. 87, 88, 89, 90; Book III, Rule I, Sec. 8
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“Regular base pay” = Excludes the money received by an employee in different concepts The right to overtime pay cannot be waived OT pay in arrears retroacts to the date when services were actually rendered
Overtime in Ordinary Day 25% of regular hourly pay Rationale: He is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do Emergency/Compulsory overtime work: a. When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; b. When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; c. When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; d. When the work is necessary to prevent loss or damage to perishable goods; and e. Where the completion or continuation of the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. f. When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon. Undertime work/pay Shall not be offset by overtime work on any other day Permission given to the EE to go on leave on some other day of the week shall not exempt the ER from paying the required additional compensation. Additional Compensation If working on a special holiday/rest day: o First 8 hrs. is +30% of regular pay OT on special holiday/rest day: o 30% of the hourly rate of the 1st 8 hours If working on a regular holiday: o First 8 hrs. is 200% of regular pay OT on regular holiday: o +30% of the 1st 8 hours If working on a regular holiday falling on rest day: o First 8 hrs. is 200% of regular pay + 30% (260%) Art. 86; Book III, Rule II, Secs. 1, 2, 3, 4, 5, 6; RA 10151
Coverage Applies to all employees Exclusions: Government + GOCCs Retail and service establishments regularly employing not more than 5 workers DW and persons in the personal service Managerial employees Field personnel and performance based employees "Retail Establishment" = One principally engaged in the sale of goods to endusers for personal or household use; "Service Establishment" = One principally engaged in the sale of service to individuals for their own or household use and is generally recognized as such; Additional Compensation Working time for Night differential time o 10pm – 6am Night differential Pay: o +10% on hourly rate falling under the Night Differential Time
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SUMMARY OF RULES ON ADDITIONAL COMPENSATION BASIC PAY ON: SPECIAL HOLIDAY, REST DAY SPECIAL HOLIDAY FALLING ON A REST DAY REGULAR HOLIDAY REGULAR HOLIDAY FALLING ON A REST DAY DOUBLE REGULAR HOLIDAY
ADDITIONAL PAY +30% of basic daily rate +50% of basic daily rate
OVERTIME PAY REGULAR OT SPECIAL HOLIDAY, REST DAY, REGULAR HOLIDAY OT
ADDITIONAL PAY +25% of basic hourly rate +30% of special hourly rate
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See rules above. Where the nature of the work of the employee is such that he has no regular work days and no regular rest days can be scheduled, he shall be paid an additional compensation of at least 30% of his regular wage for work performed on Sundays and holidays.
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Special holiday + Rest day: o +50% of basic pay OT: o +30% of special rate
+100% of basic daily rate +160% of basic daily rate +200% of basic daily rate
NIGHT DIFFERENTIAL PAY NIGHT PREMIUM
ADDITIONAL PAY +10% on hourly rate (10pm – 5am) * Minimum wage is currently pegged at P466 / day (or P58.25 / hr.)
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If CBA imposes higher premiums, employer to follow that
Art. 94; E.O. 203 (1987); RA 9492; E.O. 292 (2007); Book III, Rule IV; PD 1083
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All employees
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Retail and Service establishments regularly employing less than 10 workers;
Art. 91, 92, 93, Book III, Rule III, Secs. 1, 2, 3, 4, 5, 6, 7, 8, 9
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All employers, whether for profit or not Includes public utilities operated by private persons
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Government employees (Except GOCCs) Managerial employees Members of the managerial staff Field personnel Members of the family dependent on support DW Persons in the personal service of another Workers paid by result
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24 consecutive hours after every 6 consecutive normal work days Subject to CBA and rules/regulations set by SOL
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G.R.:
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(a) (b)
(c) (d) (e) (f)
Employer to choose o Employer to inform 1 week before implementation E: Respect based on religious grounds o Employee to inform employer at least 7 days before effectivity of such rest day E.E.: If it will prejudice or obstruct operations and employer cannot normally be expected to resort to other remedial measures, the employer may so schedule the weekly rest day of his choice for at least 2 days in a month.
When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; When the work is necessary to prevent loss or damage to perishable goods; and 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. When overtime work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
a) Regular Holidays New year’s Day January 1 Maundy Thursday Movable date Good Friday Movable date Eidul Fitr Movable date Araw ng Kagitingan Monday nearest April 9 Labor Day Monday nearest May 1 Independence Day Monday nearest June 12 National Heroes Day Last Monday of August Bonifacio Day Monday nearest November 30 Christmas Day December 25 Rizal Day Monday nearest December 30 b) Nationwide Special Holidays: Ninoy Aquino Day Monday nearest August 21 All Saints Day November 1 Last Day of the Year December 31 Notes: In the event the holiday falls on a Wednesday, the holiday will be observed on the Monday of the week. If the holiday falls on a Sunday, the holiday will be observed on the Monday that follows Provided, That for movable holidays, the President shall issue a proclamation, at least six months prior to the holiday concerned, the specific date that shall be declared as a nonworking day Provided, however, The Eidul Adha shall be celebrated as a regional holiday in the Autonomous Region in Muslim Mindanao.
Book III, Rule IV, Sec. 9
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Holiday pay is a one-day pay given by law to an employee even if he does not work on a regular holiday If the worker comes to work on a regular holiday, he earns extra pay equivalent to his regular rate Rationale: To prevent diminution of the monthly income of the workers on account of work interruption declared by state. Even if the worker is forced by law to take a rest he is not deprived of what he should earn. If the holiday falls on a Sunday, the following day shall be considered a special holiday for purposes of the Labor Code, unless said day is also a regular holiday. o But the Handbook on Workers Monetary Benefits, the following day shall not be a special holiday unless proclaimed. 17
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Faculty in Private School Book III, Rule IV, Sec. 8 (a)
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Includes faculty members of colleges and universities No regular holiday pay during semestral break But there is regular holiday pay during Christmas break For hourly paid teachers: o Schools are exempted from paying Holiday Pay during regular holidays (regardless if semestral break or not) o Schools are required to pay the regular hourly rate for special holidays, class cancellation or shortening, or class extensions 16
Divisor as Factor The divisor acts as the total number of regular days + regular holidays This is used to identify the hourly rate for monthly paid employees The higher the divisor, the less hourly rate the person would have o When an employee changes the way the divisor is computed, and as a result, an increase in the divisor occurs, this becomes a diminution of their wages, which is prohibited by the law.
Book III, Rule IV, Sec. 6 (c)
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Art. 95; Book III, Rule V
Sunday
Art. 93 (a) 2nd sentence, (b); Book III, Rule III, Sec. 2
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Where the day immediately preceding the holiday is a non-working day in the establishment or the scheduled rest day of the employee, he shall not be deemed to be on leave of absence on that day, in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the non-working day or rest day.
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5 days of leave with pay, as an incentive for the hard work and dedication of employees
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All employees who has rendered at least 1 year of service
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Those already enjoying such privilege Those enjoying vacation leave with pay of at least 5 days Those employed in establishments regularly employing less than 10 employees or in establishments exempted from granting this benefit by the SOL after considering the viability or financial condition of such establishment.
All establishments and enterprises may operate or open for business on Sundays and holidays provided that the employees are given the weekly rest day and the benefits as provided in this Rule.
Muslim holidays Arts. 169, 170, 171, 172; PD 1083; RA 9492
Official Muslim holidays: (a) 'Amun Jadid (New Year), which falls on the 1st day of the 1st lunar month of Muharram; (b) Maulid-un-Nabi (Birthday of the Prophet Muhammad), which falls on the 12th day of the 3rd lunar month of Rabi-ul-Awwal; (c) Lailatul Isra Wal Mi'raj (Nocturnal Journey and Ascension of the Prophet Muhammad), which falls on the 27th day of the 7th lunar month of Rajab; (d) 'Id-ul-Fitr (Hari Raya Pausa), which falls on the 1st day of the 10th lunar month of Shawwal, commemorating the end of the fasting season; and (e) 'Id-ul-Adha (Hari Raja Haji), which falls on the 10th day of the 12th lunar month of Dhu 1-Hijja.
"At least one-year service" 12 months service, whether continuous or broken Starts from the date the employee started working Including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contract is less than 12 months, in which case said period shall be considered as one year. Treatment of Benefits SIL shall be commutable to its money equivalent if not used or exhausted at the end of the year.
Book III, Rule IV, Sec. 6 (a), 10
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16
Employees who are on leave with pay shall be entitled to the benefit herein Employees who are on leave w/o Pay on the day immediately preceding a regular holiday = No pay if he did not work on the holiday. o If the day preceding the holiday is a non-working day, he is compensated on the regular holiday if he worked on the day immediately preceding the non-working day Where there are 2 successive regular holidays, an employee may not be paid for both holidays if he absents himself from work on the day immediately preceding the first holiday, unless he works on the first holiday, in which case he is entitled to his holiday pay on the second holiday.
Jose Rizal College v. NLRC (1987)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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17
In the grant of vacation leave privileges to an employee, the employer is given the leeway to impose conditions on the entitlement to and commutation of the same, as the grant of vacation leave is not a standard of law, but a prerogative of management. It is a mere concession or act of grace of the employer and not a matter of right on the part of the employee. Thus, it is well within the power and authority of an employer to impose certain conditions, as it deems fit, on the grant of vacation leaves, such as having the option to schedule the same.17
PNCC-PSTMSDWO v. PNCC Skyway Corp (2010) 18
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(e) RA 8187, Secs. 1, 2, 3, 4, 5, 6; Implementing Rules
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The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
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Every married male Either in private or public sector
a. b.
He is an employee at the time of delivery He has notified his employer of the pregnancy of his wife and her expected date of delivery Spouse either has given birth, suffers a miscarriage or an abortion He is cohabiting with his spouse at the time she gives birth / suffers a miscarriage As soon as the married male employee learns that his spouse is pregnant, he shall inform his employer of such pregnancy and the expected date of delivery within a reasonable period of time. The employee shall accomplish a Paternity Notification Form to be provided for by the employer and submit the same to the latter, together with a copy of his marriage contract, or where not applicable, any proof of marriage. Provided, that this notification requirement shall not apply in cases of miscarriage or abortion. Any employee who has availed of the paternity benefits shall, within a reasonable period of time, submit a copy of the birth certificate of the newly born child, death or medical certificate in case of miscarriage or abortion, duly signed by the attending physician or midwife showing actual date of childbirth, miscarriage or abortion, as the case may be.
c. -
-
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Before, during, or after, max 7 days per delivery
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Entitled to full pay for the 7 days absence for the 1st 4 deliveries, miscarriage or abortion Pay should not be below minimum wage
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Leave is not convertible to cash
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Penalty: P25k OR 30 days 6 months.
RA 8972 Consti., Art. XV, Sec. 1
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It is the policy of the State to promote the family as the foundation of the nation, strengthen its solidarity and ensure its total development. Towards this end, it shall develop a comprehensive program of services for solo parents and their children to be carried out by the different agencies of government
"Solo parent" (a) A woman who gives birth as a result of rape and other crimes against chastity even without a final conviction of the offender: Provided, That the mother keeps and raises the child; (b) Parent left solo or alone with the responsibility of parenthood due to death of spouse; (c) Parent left solo or alone with the responsibility of parenthood while the spouse is detained or is serving sentence for a criminal conviction for at least one (1) year; (d) Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity of spouse as certified by a public medical practitioner; _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
(f)
(g) (h) (i) (j)
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-
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Parent left solo or alone with the responsibility of parenthood due to legal separation or de facto separation from spouse for at least one (1) year, as long as he/she is entrusted with the custody of the children; Parent left solo or alone with the responsibility of parenthood due to declaration of nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the children; Parent left solo or alone with the responsibility of parenthood due to abandonment of spouse for at least one (1) year; Unmarried mother/father who has preferred to keep and rear her/his child/children instead of having others care for them or give them up to a welfare institution; Any other person who solely provides parental care and support to a child or children; Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance or prolonged absence of the parents or solo parent. A change in the status or circumstance of the parent claiming benefits under this Act shall terminate his/her eligibility for these benefits.
Employee has rendered service of at least 1 year Employee has notified employer of the availment of the leave within a reasonable time Employee has presented a Solo Parent Identification Card to the employer
A resident of the area where the assistance is sought, as certified by the barangay captain; Provided, that if the solo parent is a transferee from another barangay, he/she is required to secure a clearance from his/her previous barangay, indicating whether or not he/she has availed of any benefits for solo parents, and the nature of such benefits.
Flexible work schedule The flexi-schedule shall not affect individual and company productivity Any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds. In the case of employees in the government service, flexible working hours will be subject to the discretion of the head of the agency. o Weekly working hours shall not be reduced in the event the agency adopts the flexible working hours schedule format (flexi-time). Discrimination No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status. Leave -
7 working days every year Granted to any solo parent employee who has rendered service of at least 1 year. The seven-day parental leave shall be non-cumulative.
RA 9262, Sec. 43; IRR, Rule VI, Sec. 42
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Against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.
19
58
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Paid leave up to 10 days At any time during the application of any protection order, investigation, prosecution and/or trial of the criminal case. This period is extendible when the necessity arises as specified in the protection order. The availment of the ten day-leave shall be at the option of the woman employee, which shall cover the days that she has to attend to medical and legal concerns. Non-cumulative and non-convertible
Requirements The Punong Barangay/kagawad or prosecutor or the Clerk of Court, as the case may be, shall issue a certification at no cost to the woman that such an action is pending, and this is all that is required for the employer to comply with the 10-day paid leave. For government employees, in addition to the aforementioned certification, the employee concerned must file an application for leave citing as basis R.A. 9262.
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All employees regardless of position, designation, or employment status, and irrespective of method of payment of wages EXCEPT to managerial employees "Managerial employee" = One who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign, or discipline employees or to effectively recommend such managerial actions.
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85% employees, 15% management 85% distributed equally 15% shall be for the disposition by management to answer for losses and breakages and distribution to managerial employees at the discretion of the management in the latter case
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Not less than once every 2 weeks or 2x a month at intervals not exceeding 16 days
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The share of covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average monthly share of each employee for the past 12 months immediately preceding the abolition of withdrawal of such charges.
RA 9710
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A woman employee having rendered continuous aggregate employment service of at least 6 months for the last 12 months Special Leave Benefit of 2 months with full pay based on her gross monthly compensation following surgery caused by gynaecological disorders.
Art. 96; Book III, Rule VI, Secs. 1, 2, 3, 4, 5
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Art. 100
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Establishments collecting service charges such as hotels, restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses, and similar enterprises, including those entities operating primarily as private subsidiaries of the Government.
Nothing in this Book shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code.
V. Minimum Wages and Wage Fixing Machinery Form: Agreement for compensation of services Art. 97(f)
Right to a living wage
"Wage" -
Consti. Art. XIII, Sec. 3
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Must be fair and just Some margin or leeway must be provided, over and above the minimum, to take care of contingencies, such as increase of prices of commodities and increase in wants, and to provide means for a desirable improvement in his mode of living
No work, No pay / A fair day’s wage for a far day’ labor\
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Equal pay for work of equal value Art. 135 (a), 248 (e)
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Unlawful for women to receive lesser salary or wage for work of equal value ULP: To discriminate in regard to wages, hours of work, and other terms and conditions of employment
Means the remuneration or earnings, however designated, capable of being expressed in terms of money, Whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, Payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered Includes the fair and reasonable value, as determined by the SOL, of board, lodging, or other facilities customarily furnished by the employer to the employee.
"Fair and reasonable value" Shall not include any profit to the employer, or to any person affiliated with the employer. Exemption from income tax of Minimum Wage Earners RA 9504, Sec. 2
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_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Minimum wage earners shall be exempt from the payment of income tax on their taxable income: Provided, further, That the holiday pay, overtime pay, night shift differential pay and hazard pay received by such minimum wage earners shall likewise be exempt from income tax.
20
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Rates of Tax on Taxable Income of Individuals "Not over P10,000 ........ 5% "Over P10,000 but not over P30,000 ........ P500+10% of the excess over P10,000 "Over P30,000 but not over P70,000 ........ P2,500+15% of the excess over P30,000 "Over P70,000 but not over P140,000 ........ P8,500+20% of the excess over P70,000 "Over P140,000 but not over P250,000 ........ P22,500+25% of the excess over P140,000 "Over P250,000 but not over P500,000 ........ P50,000+30% of the excess over P250,000 "Over P5000,000 ........ P125,000+32% of the excess over P500,000
Facilities and Supplements/Allowances Book III, Rule VIII – A, Secs. 4, 5, 6, 7
"Facilities" Include articles or services for the benefit of the employee or his family Does not include tools of the trade or articles or service primarily for the benefit of the employer Value of Facilities = cost of operation and maintenance, + adequate depreciation + reasonable allowance (not more than 5 ½ % interest) If the fair rental value is lower than the computed value, fair rental value will be used "Supplements" Extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages. FACILITIES Forms part of the wages For the employee Deductible from Wage Necessary for the laborer and his family’s existence and subsistence
Arts. 97 (b), (c), (e), 98
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Employers = No one is exempted Employees = All employed by employers, except to farm tenants/lessees, DW engaged in needle work or in any cottage industry
What are the requirements for deducting value of facilities from employees’ wages? 1. Proof must be shown that such facilities are customarily furnished by the trade 2. The provision of deductible facilities must be voluntarily accepted in writing by the employee. 3. Facilities must be charged at fair and reasonable value.19
Coverage/Exclusions
Art. 98; Wage Order No. NCR-18, Sec. 2, 7; RA 9504
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Applicable to all minimum wage earners in the private sector in the Region Regardless of position, designation or status of employment and irrespective of the method by which they are paid. BUT does not cover: o DW, Personal services, workers of duly registered BMBEs, homeworkers engaged in needlework, farm tenancy or leaseholds Learners, Apprentices, PWDs: Shall have at least 75% of minimum wage Public Employees = Covered by the Salary Standardization Law
Does Salary include allowances? No. Existing laws exclude allowances from the basic salary or wage in the computation of the amount of retirement and other benefits payable to an employee.20 Cash Wages / Commission Art. 97(f); Book III, Rule VII-A, Sec. 4
"Wage" Paid to any employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece. “Commissions” Are intimately related to or directly proportional to the extent or energy of an employee's endeavors21
Exemptions Sec. 7
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Distressed Establishments; Retail/Service Establishments regularly employing not more than 10 workers; Establishments whose Total Assets including those arising from loans but exclusive of the land on which the particular business entity's office, plant and equipment are situated, are not more than P3 M Establishments Adversely Affected by Natural Calamities. Micro and small indigenous exporters as certified by the Export Development Council, subject to the criteria and requirements to be provided for in its Implementing Rules.
Determination of compliance with minimum wage Nature of work for a salesman and the reason for such type of remuneration for services rendered demonstrate clearly that commissions are part of salesman’s wage/salary When commissions equal to or even exceed the minimum wage, the employer need not pay, in addition, the basic minimum pay prescribed by law. It follows then that commissions are included in determining compliance with minimum wage requirements.18
Iran v. NLRC (1998) SLL v. NLRC (2011) 20 Cebu Institute of Technology vs. Ople
Gratuity and Salary/Wages, Difference22 SALARY GRATUITY Given as a form of compensation Freely given, or without recompense Linked to actual services performed Not intended for actual services or to be performed Mandatory Not mandatory -
18
21
19
22
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
SUPPLEMENTS Over and above the actual wage For the employer Non-Deductible from Wage Given through the employer’s liberality or own benefit
What other non-wage payments can therefore be made aside from Gratuity? o Emergency Allowance: But receipt of ECOLA is dependent on whether or not you are also entitled to basic if you get no basic pay for that day, you also get no ECOLA. o Representation/Transportation Allowance: This contemplates payment for expenses. o Per diem: This is actually allowance for each day that an officer or employee is out of the home. It answers for board, lodging, transportation and other related expenses.
Phil. Duplicators Inc v NLRC (1995) Plastic Town Center vs. NLRC (1989)
21
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Effect on Benefits Art. 100
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So that the rule against diminution of supplements or benefits may apply it must be shown that: o The grant of the benefit is founded on a policy or has ripened into a practice over a long period o The practice is consistent and deliberate o The practice is not due to error in the construction or application of a doubtful or difficult question of law o The diminution or discontinuance is done unilaterally by the employer Exceptions: o Not established practice o Mistake in the application of law o Negotiated benefits contained in a CBA as these are bilateral The giving of salary increase across-theboard to comply with a CBA provision cannot be said to have ripened into a company practice o Reimbursement benefits There can be an elimination of an existing benefit in exchange for an equal or better one o Reclassification of position; promotion However, this must be done in good faith. The personnel movement should not be intended to circumvent the law to deprive employees of the benefits they used to receive o Contingent or conditional benefits such as a bonus
RA 6727, Sec. 2;
Policies of State: -
-
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To rationalize the fixing of minimum wages and to promote productivity-improvement and gain-sharing measures to ensure a decent standard of living for the workers and their families To guarantee the rights of labor to its just share in the fruits of production; to enhance employment generation in the countryside through industry dispersal To allow business and industry reasonable returns on investment, expansion and growth.
Regional Tripartite Wages and Productivity Board RA 6727, Sec. 3; Art. 122, 126
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-
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RA 6727, Sec. 3; Art. 124
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Currently, we have 1 Commission and 17 Regional Boards
RA 6727, Sec. 3; Art. 120, 121 and 126
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23
Attached to DOLE for policy and program coordination Powers and functions: o Consultative and advisory body to the President and Congress o Policy and guideline formulation for wages o Minimum wage and productivity measures creation o Review of regional wages o Undertake studies, researches and surveys necessary for the attainment of its functions and objectives o Review plans and programs of the Regional Tripartite Wages and Productivity Boards o Technical and administrative supervision over the Regional Tripartite Wages and Productivity Boards o To call, from time to time, a national tripartite conference of representatives of government, workers and employers for the consideration of measures to promote wage rationalization and productivity o Other powers and functions necessary to implement objectives and goals SOL as ex-officio chair, Director General of NEDA as ex-officio vice-chair, 2 members each from workers and employers sector (appointed by President), 5 year terms
The demand for living wages; Wage adjustment vis-à-vis the consumer price index; The cost of living and changes or increases therein; The needs of workers and their families; The need to induce industries to invest in the countryside; Improvements in standards of living; The prevailing wage levels; Fair return of the capital invested and capacity to pay of employers; Effects on employment generation and family income; and The equitable distribution of income and wealth along the imperatives of economic and social development.
RA 6727, Sec. 3; Art. 123, 124
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National Wages and Productivity Commission (NWPC)
Powers and Functions o Develop plans, programs and projects relative to wages, incomes and productivity improvement o Determine and fix minimum wage rates applicable in their region o To undertake studies, researches and surveys necessary for the attainment of their functions, objectives and programs o To coordinate with the other Regional Boards o To receive, process and act on applications for exemption from prescribed wage rates o To exercise such other powers and functions as may be necessary Regional Director of DOLE as chair, Regional Director of NEDA and DTI as vice chairs and 2 members each from workers and employers sector (appointed by President), 5 year terms No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or other entity against any proceedings before the Commission or the Regional Boards.
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Within 30 days of the conclusion of the last hearing, Board shall decide and issue a WO Will last for 12 months and no petition for wage increase shall be entertained within this 12 months WO shall take effect 15 days after its publication in at least 1 newspaper of general circulation Board shall prepare the IRR not later than 10 days of WO's issuance. This shall be approved by the Sec. of Labor and Employment Appeals for review of WO o Non-conformity with prescribed guidelines and/or procedure o Questions of law o Grave abuse of discretion
Methods of Fixing Floor Wage Method -
The fixing of a determinate amount that would be added to the prevailing statutory minimum wage
Salary – Ceiling Method Wage adjustment is applied to employees receiving a certain denominated salary ceiling Validity -
The issue of the validity of the wage order subsists even after its implementation23
Metrobank v. NWPC (2007)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
22
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Wage Distortion
RA 6727, Sec. 3; Art. 124
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“Wage Distortion” = A situation where an increase in the wage rates will eliminate or severely diminish the differences between and among wage groups in an establishment
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Four elements of wage distortion:24 1. An existing hierarchy of positions with corresponding salary rates 2. A significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one 3. The elimination of the distinction between the two levels 4. The existence of the distortion in the same region of the country.
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For Organized Establishments, steps for fixing wage distortion: 1. Bargaining/Negotiations 2. Grievance Machineries 3. Voluntary Arbitration
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For Unorganized Establishments, steps for fixing wage distortion: 1. Endeavor to negotiate 2. National Conciliation and Mediation Board 3. NLRC
Art. 125; RA 6727, Sec. 2, 2nd par.
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WO cannot limit the freedom to bargain
Art. 127
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WO must provide wage rates higher than the statutory minimum wage prescribed by Congress
RA 8188, Sec. 12
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Art. 104; Book III, Rule VII, Sec. 4; Labor Advisory on Payment of Salaries thru ATM
G.R.: Shall be made at or near the place of undertaking E: Following circumstances: Payment cannot be made because of deterioration of peace and order conditions, or by reason of actual or impending emergencies (fire, flood, epidemic) Employer provides free transportation to the employees back and forth Under any other analogous circumstances; Provided, That the time spent by the employees in collecting their wages shall be considered as compensable hours worked NO PAYMENT in any bar, night or day club, drinking establishment, massage clinic, dance hall, or other similar places or in places where games are played with stakes of money or things representing money except in the case of persons employed in said places. Conditions for payment thru ATM: ATM system of payment is with the written consent of the employees The employees are given reasonable time to withdraw their wages from the banking facility (compensable hours, if during working hours) System shall allow workers to receive their wages within the period/frequency provided by law There is a bank/ATM facility within 1km radius from place of work Upon request of the concerned employee/s, the employer shall issue a record of payment of wages, benefits and deductions for a particular period There shall be no additional expenses and no diminution of benefits and privileges The employer shall assume responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement.
P25k – P100k OR 2 years – 4 years OR BOTH Art. 105; Book III, Rule VII, Secs. 5, 6
Art. 102; Art. 1705 (NCC); Book III, Rule VII, Secs. 1, 2
G.R.: Legal Tender only E: Check/Money Order if customary OR necessary because of special circumstances, as specified by SOL or the CBA Not allowed: Promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than legal tender, even when expressly requested by the employee Conditions for payment through check o Bank/Facility for encashment within 1km radius from workplace o Employer did not receive any pecuniary benefit because of said arrangement o The employees are given reasonable time during banking hours to withdraw their wages (compensable hours, if during working hours) o The payment by check is with the written consent of the employees concerned, in the absence of a CBA
Art. 103; Book III, Rule VII, Sec. 3
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24
At least once every 2 weeks/2x per month o Intervals must not be more than 16 days Force majeure = valid excuse for delayed payment o But must pay immediately after cessation of such For tasks which cannot be completed in 2 weeks: o Payments should be made with intervals not more than 16 days, in proportion to work completed o Final settlement is made upon completion of the work.
G.R.: Directly to the employee E: Following circumstances: Authorized member of the family A third person authorized by law (e.g. insurance companies for premiums) Force majeure, then to authorized person Worker has died, then to heirs, the latter executing an affidavit regarding their relationship
Art. 112; Book III, Rule VIII, Sec. 9
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No limitation/interference with the freedom of any employee to dispose of his wages. Employer shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person, or otherwise make use of any store or services of such employer or any other person.
Art. 113; Book III, Rule VIII, Sec. 10
G.R.: Employer cannot make any deduction from the wages of his employee E: Insurance premiums; Union Dues; Authorized by law / by SOL In case of Bankruptcy: Unpaid wages before declaration of such shall have first preference over creditors
Prubankers v. Prudential Bank (1999)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
23
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Arts. 114, 115; Book III, Rule VIII, Sec. 11
G.R.: No deposits where deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer E: Employer engaged in such trades, occupations or business with the practice of making deductions is a recognized one, or is necessary or desirable as determined by the SOL in appropriate rules and regulations. -
No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made unless: o The employee has been heard o His responsibility has been clearly shown. o Amount of the deduction is fair and reasonable and shall not exceed the actual loss of damage o Must not exceed 20% of weekly pay
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Attorney's fees in any judicial or administrative proceedings for the recovery of wages shall not exceed 10% of the amount awarded.
Art. 128 (d)
Art. 110; Book III, Rule VIII, Sec. 7; Arts. 1707, 2241(6), 2242(3), 2244(2), 2245, 2246, 2248, 2250 (NCC)
G.R.: First preference over creditors o Declaration is important before preference to exist Every employer or indirect employer shall be jointly and severally liable with his contractor or sub-contractor for the unpaid wages of the employees of the latter. o Such employer or indirect employer may require the contractor or sub-contractor 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. -
The laborer's wages shall be a lien on the goods manufactured or the work done.
Art. 113, 116; Art. 1706 (CC)
G.R.: Prohibition from withholding of wages and kickbacks E: Special circumstances: Deduction is for insurance premiums For Union dues Authorized by law / by SOL Due and Demandable debt to employer
Arts. 2241, 2242 (NCC)
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Art. 2241 [Specific movables of the employer] 6. Claims for laborers' wages, on the goods manufactured or the work done
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Art. 2242 [Specific immovable property and real rights of the employer] 3. Claims of laborers, masons, mechanics and other workmen, as well as of architects, engineers and contractors, engaged in the construction, reconstruction or repair of buildings, canals or other works, upon said buildings, canals or other works (preferred liens over immovable or real rights)
Art. 117
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No deduction from the wages for the benefit of the employer, representative or intermediary as consideration of a promise of employment or retention in employment.
Art. 118
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Prohibited to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to testify in such proceedings.
Art. 2244 (NCC)
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Art. 2244 [Other properties (real/personal)] 2. Credits for services rendered the insolvent by employees, laborers, or household helpers for one year preceding the commencement of the proceedings in insolvency shall be preferred
Art. 119; Book III, Rule X, Sec. 13
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It shall be unlawful for any person to make any false statement, report, or record filed or kept pursuant to the provisions of this Code It shall be unlawful for any employer or any person to make any false statement, report or record on matters required to be kept or maintained pursuant to the provisions of this Rule.
Art. 2245
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Notes: Book III, Rule X, Secs. 11, 12
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“Premises” = The main or branch office of the establishment, if any, depending upon where the employees are regularly assigned. All employment records of the employees shall be kept and maintained by the employer in or about the premises of the work place. All employment records required to be kept and maintained by employers shall be preserved for at least 3 years from the date of the last entry in the records.
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G.R.: The laborer's wages shall not be subject to execution or attachment E: Debts incurred for food, shelter, clothing and medical attendance.
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
The excess, if any, after the payment of the credits which enjoy preference with respect to specific property, real or personal, shall be added to the free property which the debtor may have, for the payment of the other credits. For special preferred credits, preferences listed will be given in pari passu, pro rata (in equal footing, proportionately)
Arts. 128, 129, 223, 111; Book III, Rule X, Secs. 1, 2, 3, 4, 5
Art. 1708 (NCC)
Art. 2245 o Credits of any other kind or class, or by any other right or title not comprised in the four preceding articles, shall enjoy no preference
An order issued by the duly authorized representative of the SOL under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the SOL in the amount equivalent to the monetary award in the order appealed from. 24
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Arts. 128 (a), (b), (c), (d), (e), (f)
Visitorial Powers The SOL or his duly authorized representatives, including labor regulation officers, shall have access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto. Enforcement Powers In cases where the relationship of employer-employee still exists, the SOL or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. The SOL may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. o Within 24 hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation. Power to Review The SOL may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code.
25
Jurisdictions Regional Director of DOLE / duly authorized hearing officers (Summary proceeding) To hear and decide on Recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed as a DW, arising from employer-employee relations Provided, That such complaint does not include a claim for reinstatement Provided further, that the aggregate money claims of each employee or DW does not exceed P5k. Power to enforce compliance with labor standards law Appeals: NLRC -
Exception Clause Elements (To divest RD of jurisdiction, give to Labor Arbiters)25 1. Employer contests the findings of the labor regulations officer and raises issues thereon 2. In order to resolve such issues, there is a need to examine evidentiary matters 3. Such matter are not verifiable in the normal course of inspection Labor Arbiters Original and Exclusive jurisdiction To hear and decide: o Unfair labor practice cases o Termination disputes o If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment o Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations o Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and o Except claims for Employees Compensation, Social Security, PhilHealth and maternity benefits, all other claims arising from employer-employee relations, including those of DWs, involving an amount exceeding P5k regardless of whether accompanied with a claim for reinstatement Appeals: NLRC
Meteoro v. Creative Creatures (2009)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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VI. Thirteenth Month Pay -
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PD 851 (13th Month Pay Law) was signed into law in 1975 by President Ferdinand Marcos o Originally, it was only for employees not receiving more than P1k basic salary PD 1364 was signed on 1978, to stop accepting applications for exemption under PD 851 Memorandum Order 28 was issued by President Cory Aquino in 1986, removing the P1k basic salary ceiling
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Revised Guidelines on the Implementation of the 13th Month Pay Law (1987), Secs. 1, 2, 3, 4, 5, 6, 7, 8; P.D. 851, Secs. 1, 2
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All rank and file employees, who have worked at least 1 month DWs are included (RA 10361, Art. IV, Sec. 25)
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PD 851 Whereas Clauses
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For the protection of the level of real wages from the ravage of worldwide inflation Absence of an increase in the legal minimum wage since 1970 Christmas Season is an opportune time for society to show its concern for the plight of the working masses
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1/12 of the total basic salary earned in a year o Shall not include the following in the basic salary26 COLA granted pursuant to Presidential Decree 525 and LOI No. 174. Profit sharing agreements All allowances and monetary benefits which are not considered or integrated as part of the regular basic salary of the employee at the time of the promulgation of the Decree on December 16, 1975. Cash and stock dividends, cost of living allowances and all other allowances regularly enjoyed by the employee, as well as non-monetary benefits27 th 13 month pay must be paid not later than Dec. 24 o Frequency of payment may be subject to agreement
The Government and GOCCs, except those corporations operating essentially as private subsidiaries Employers already paying their employees a 13th month pay or more in a calendar year or its equivalent at the time of issuance Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance thereof Except where the workers are paid on piece-rate basis
VII. Bonus Differences between Commission and Bonus28 COMMISSION PRODUCTIVITY BONUS Paid upon the specific results Generally tied to the productivity, or achieved employee capacity for revenue production, of a corporation A percentage of the sales closed by Closely resembles profit-sharing the employee and operates as an integral part the basic pay Intimately related to or directly No clear direct or necessary relation proportional to the extent or to the amount of work actually energy of an employee's endeavors done by each individual employee Demandable once earned Not a demandable and enforceable obligation Mandatory once earned; Management prerogative considered as wages Conditioned on contract on Conditioned on the profit or amount commission; automatic increment of productivity achieved and to each unit of work rendered by management decision salesmen Included in ‘basic salary’ for 13th Not included in ‘basic salary’ for 13th month pay computation month pay computation
Letran Calamba v. NLRC (2008) Framanlis Farms v. MOLE (1989) 28 Phil. Duplicators v. NLRC (1995) 29 Supra
Bonus -
-
-
-
26
30
27
31
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
An amount granted and paid to an employee for his industry loyalty which contributed to the success of the employer's business and made possible the realization of profits. It is an act of generosity of the employer for which the employee ought to be thankful and grateful. It is also granted by an enlightened employer to spur the employee to greater efforts for the success of the business and realization of bigger profits. 29 PART OF WAGE: If it is an additional compensation agreed to be given by the employer without condition NOT PART OF WAGE: If it is paid only after realization of profits or for a certain amount of productivity30
If it is made part of the wages and salary If it was included in the CBA without condition or qualification on how it is to be earned If it forms part of the company practice, in support of the NonDiminution of wages principle
Phil. Duplicators v. NLRC (1995) Eastern Telecommunications v. Eastern Telecoms Employees Union (2012)
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VIII. Working Conditions for Special Group of Workers Women Night Workers Art. 158 Consti., Art. II, Sec. 14; Art. XIII, Sec. 14
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The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.
(a) (b)
Book III, Rule XII, Sec. 1
G.R.: This Rule shall apply to all employers, whether operating for profit or not, including educational, religious and charitable institutions E: Government and to GOCCs and to employers of DW and persons in their personal service insofar as such workers are concerned.
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During the periods referred to in this article i. A woman worker shall not be dismissed or given notice of dismissal, except for just or authorised causes provided for in this Code that are not connected with pregnancy, childbirth and childcare responsibilities. ii. A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position.
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Pregnant women and nursing mothers may he allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the ease of pregnant employees, the period of the pregnancy that they can safely work. The measures referred to in this article may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave. The provisions of this article shall not have the effect of reducing the protection and benefits connected with maternity leave under existing laws.
RA 9710, Secs. 2 (1) and 12
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Recognizing that the economic, political, and sociocultural realities affect women's current condition, the State affirms the role of women in nation building and ensures the substantive equality of women and men. It shall promote empowerment of women and pursue equal opportunities for women and men and ensure equal access to resources and to development results and outcome. Further, the State realizes that equality of men and women entails the abolition of the unequal structures and practices that perpetuate discrimination and inequality. State shall endeavor to develop plans, policies, programs, measures, and mechanisms to address discrimination and inequality in the economic, political, social, and cultural life of women and men. The State shall take steps to review and, when necessary, amend and/or repeal existing laws that are discriminatory to women within 3 years from the effectivity of this Act. (2012)
Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work Before and after childbirth, for a period of at least 16 weeks, which shall be divided between the time before and after childbirth; For additional periods, in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or child (1) During pregnancy; (2) During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers.
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Discrimination
Art. 133; RA 9710, Sec. 2(2), Sec. 12 RA 10151; Arts. 154, 158
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RA 10151 repealed Arts. 130 – 131 of the LC It created a new Chapter V in Book III, Title III (Employment of Night Workers)
Employment of Night Workers Art. 154.
Coverage Applies to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation Period must be not less than 7 consecutive hours, including the interval from midnight to five o’clock in the morning “Night worker” = Any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. o This limit shall be fixed by the SOL after consulting the workers’ representatives/labor organizations and employers.
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
a. b.
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Prohibition on discrimination with sole basis on sex The following are acts of discrimination Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. The State condemns discrimination against women in all its forms and pursues by all appropriate means and without delay the policy of eliminating discrimination against women in keeping with the CEDAW and other international instruments consistent with Philippine law.
Stipulation against marriage Art. 134
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Prohibited to require as a condition of employment or continuation of employment that: o A woman employee shall not get married o To stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.
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Discharge to prevent enjoyment of benefits Art. 137(1)
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Prohibited to deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code.
Discharge on account of pregnancy Art. 135(2), (3); RA 9710, Sec. 13(c)
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It is prohibited for any employer o To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy o To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.
Discharge on account of testimony Book III, Rule XII, Sec. 13(d)
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Prohibited to discharge any woman or child or any other employee for having filed a complaint or having testified or being about to testify under the Code
Expulsion of women faculty/student due to pregnancy outside of marriage RA 9710, Sec. 13(c)
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Expulsion and non-readmission of women faculty due to pregnancy outside of marriage shall be outlawed.
Arts. 130, 132; Book III, Rule XII, Sec. 11
a.
b. c. d.
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The SOL shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer to Provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided they can perform their duties in this position without detriment to efficiency; To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; To establish a nursery in a workplace for the benefit of the women employees therein; and To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like. i. Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include, but not be limited to, the application or use of contraceptive pills and intrauterine devices. ii. In coordination with other agencies of the government engaged in the promotion of family planning, the DOLE shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment or enterprise. Employers who habitually employ more than 200 workers in any locality shall provide free family-planning services to their employees and their spouses which shall include but not limited to, the application or use of contraceptives.
Art. 136
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Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the SOL, shall be considered as an employee of such establishment for purposes of labor and social legislation.
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
SSS Law, Sec 14-A; RA 828
Coverage A female member who has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth or miscarriage. Benefit -
Daily maternity benefit equivalent to one 100% of her average daily salary credit for 60 days or 78 days in case of Caesarian delivery
Conditions: Notify ER of her pregnancy and the probable date of her childbirth, which will notify SSS Full payment of ER within 30 days from the filing of the maternity leave application Payment of daily maternity benefits shall be a bar to the recovery of sickness benefits Can only avail for the first 4 deliveries or miscarriages SSS to reimburse the employer 100% of maternity benefits advanced But if required contributions not remitted her employer to the SSS, or without the latter having been previously notified by the ER of the time of the pregnancy, the ER shall pay to the SSS damages equivalent to the benefits Sickness Benefit. A member who has paid at least 3 monthly contributions in the 12month period immediately preceding the semester of sickness or injury and is confined therefor for more than 3 days in a hospital or elsewhere with the approval of the SSS, shall, for each day of compensable confinement or a fraction thereof, be paid by his employer, or the SSS, if such person is unemployed or selfemployed, a daily sickness benefit equivalent to 90% of his average daily salary credit, subject to the following conditions: o Daily sickness benefit be paid must not be longer than 120 days in 1 calendar year o Any unused portion of the 120 days of sickness benefit is not carried forward and added to the total number of compensable days allowable in the subsequent year o The daily sickness benefit shall not be paid for more than 240 days on account of the same confinement o The employee member shall notify his employer of the fact of his sickness or injury within 5 calendar days after the start of his confinement
RA 7877, Secs. 3, 4
Definition Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act. Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act.
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When committed in a work-related/employment environment In a work-related or employment environment, sexual harassment is committed when (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employee's rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. Duty of the employer To prevent or deter the commission of acts of sexual harassment To provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. To promulgate appropriate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor. o Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. o The said rules and regulations issued pursuant to this subsection (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions. To create a committee on decorum and investigation of cases on sexual harassment. To disseminate or post a copy of this Act for the information of all concerned.
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Childhood is entitled to special care and assistance Children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity
Consti., Art. II, Secs. 13, 18; Art. XV, Sec. 3 (2)
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The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs The State shall defend: The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
RA 9231, Sec. 2(3)
“Child” -
Refers to any person under 18 years of age.
“Child Labor” -
Refers to any work or economic activity performed by a child that subjects him/her to any form of exploitation or is harmful to his/her health and safety or physical, mental or psychosocial development.
“Working Child” Refers to any child engaged as follows: i. When the child is below 18 years of age, in work or economic activity that is not child labor as defined in the immediately preceding sub-paragraph, and ii. When the child below 15 years of age, In work where he/she is directly under the responsibility of his/her parents or legal guardian and where only members of the child’s family are employed; or In public entertainment or information.
Art. 137; RA 7610, Sec.12 (as amended); DO 65-04, Sec. 6
Minimum Employable Age G.R. 15 years old Employment of Children Children below 15 years of age shall not be employed except When a child works directly under the sole responsibility of his/her parents or legal guardian & where only members of his/her family are employed o Provided, however, That his/her employment neither endangers his/her life, safety, health, & morals, nor impairs his/her normal development o Provided, further, That the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or Where a child’s employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential. o Provided, That the Employment contract is concluded by the child’s parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the DOLE o Provided, further, That the following requirements in all instances are strictly complied with The employer shall ensure the protection, health, safety, morals and normal development of the child The employer shall institute measures to prevent the child’s exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisitions of the child. In the above-exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the DOLE which shall ensure observance of the above requirements. o For purposes of this Article, the term "child" shall apply to all persons under 18 years of age.
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RA 9231, Sec. 3 on Sec. 12-A; DO 6504 Sec. 3(k)
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"Hours of work" (1) All time during which a child is required to be at a prescribed workplace (2) All time during which a child is suffered or permitted to work. Rest periods of short duration during working hours shall be counted as hours worked. Child’s age: < 15 o Max of 20 hrs./week o Max of 4 hrs./day o No work from 8PM – 6AM Child’s age: 15-17 o Max of 40 hrs./week o Max of 8 hrs./day o No work from 10PM – 6AM
Prohibition on the Employment of Children in Certain Advertisements No child below 18 years of age shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its by-products, gambling or any form of violence or pornography.
Art. 140
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RA 9231 Sec. 9 on Sec. 16-a
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RA 9231, Sec. 3 on Sec. 12-d, Sec. 5 on Sec. 14
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The phrase "worst forms of child labor" shall refer to any of the following o All forms of slavery, as defined under the "Antitrafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or o The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or o The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or o Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being or Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or Is performed underground, underwater or at dangerous heights; or Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive power-actuated tools; or Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or Is performed under particularly difficult conditions or Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes & other parasites; or Involves the manufacture or handling of explosives and other pyrotechnic products.
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The family court shall have original jurisdiction over all cases involving offenses punishable under this Act Provided. That in cities or provinces where there are no family courts yet, the regional trial courts and the municipal trial courts shall have concurrent jurisdiction depending on the penalties prescribed for the offense charged. The preliminary investigation of cases filed under this Act shall be terminated within a period of 30 days from the date of filing. If the preliminary investigation establishes a prima facie case, then the corresponding information shall be filed in court within 48 hours from the termination of the investigation. Trial of cases under this Act shall be terminated by the court not later than 90 days from the date of filing of information. Decision on said cases shall be rendered within a period of 15 days from the date of submission of the case.
RA 10361, Art. I, Sec. 2
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The State adheres to internationally accepted working conditions for workers in general, and establishes labor standards for domestic workers in particular, towards decent employment and income, enhanced coverage of social protection, respect for human rights and strengthened social dialogue; The State recognizes the need to protect the rights of domestic workers against abuse, harassment, violence, economic exploitation and performance of work that is hazardous to their physical and mental health; and The State, in protecting domestic workers and recognizing their special needs to ensure safe and healthful working conditions, promotes gender-sensitive measures in the formulation and implementation of policies and programs affecting the local domestic work.
Domestic Work
RA 10361, Art. I, Sec. 4 (c)
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Work performed in or for a household or households.
Domestic Worker/Kasambahay RA 10361, Art. I, Sec. 4 (d)
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Any person engaged in domestic work within an employment relationship such as, but not limited to, the following: general househelp, nursemaid or “yaya”, cook, gardener, or laundry person, but shall exclude any person who performs domestic work only occasionally or sporadically and not on an occupational basis. The term shall not include children who are under foster family arrangement, and are provided access to education and given an allowance incidental to education, i.e. “baon”, transportation, school projects and school activities.
Household RA 10361, Art. I, Sec. 4 (f)
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_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age.
The immediate members of the family or the occupants of the house that are directly provided services by the domestic worker
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Weekly Rest Period RA 10361, Art. I, Sec. 3, IRR, Rule I, Sec. 2
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Applies to all domestic workers employed and working within the country, whether live-in or live-out. All parties under the following service contract or work arrangements are not covered: o Service providers; o Family drivers; o Children under foster family arrangement; and o Any other person who performs work occasionally or sporadically and not on an occupational basis
RA 10361, Art. IV, Sec. 21; IRR, Rule IV, Sec. 12
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24 consecutive hours per week Employer to set, but must take into consideration religious beliefs The following arrangements may be set: o Offsetting a day of absence with a particular rest day o Waiving a particular rest day in return for an equivalent daily rate of pay o Accumulating rest days not exceeding five (5) days o Other similar arrangements.
Compensation Minimum Wage RA 10361, Art. IV, Sec. 24; IRR, Rule IV, Sec. 2
Standard of Treatment
RA 10361, Art. II, Sec. 5; IRR, Rule IV, Sec. 17
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Fairness and Respect Prohibition to any kind of abuse nor inflict any form of physical violence, harassment, verbal and psychological abuse or any act tending to degrade the dignity
Board, Lodging and Medical Attendance RA 10361, Art. II, Sec. 6; IRR, Rule IV, Sec. 18
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3 adequate meals a day Humane and safe sleeping arrangements Appropriate rest and assistance during illness, including first-aid medicine
Guarantee of Privacy
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Time and Form of Payment / Person to Pay RA 10361, Art. IV, Sec. 25; IRR, Rule IV, Sec. 4, 6
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Privacy to all forms of communication and personal effects
Pay Slip -
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Access to outside communication
RA 10361, Art. II, Sec. 8; IRR, Rule IV, Sec. 20
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Granted access to outside communication during free time Emergency Cases: Even during work time Costs to be charged to the Kasambahay, unless waived
Right to Education and Training
RA 10361, Art. II, Sec. 9; IRR, Rule IV, Sec. 21
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To afford opportunity to finish basic education Allow access to alternative learning systems As far as practicable, higher education and technical and vocational training Employer is to adjust work schedule to accommodate such Access to education may include financial assistance
Employment Contract
RA 10361, Art. II, Sec. 11; IRR, Rule II, Sec. 5
(a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k)
3 copies, in writing, in a language understood by the DW The following must be included: Duties and responsibilities of the domestic worker; Period of employment; Compensation; Authorized deductions; Hours of work and proportionate additional payment; Rest days and allowable leaves; Board, lodging and medical attention; Agreements on deployment expenses, if any; Loan agreement; Termination of employment; and Any other lawful condition agreed upon by both parties.
Employment Age
RA 10361, Art. III, Sec. 16; IRR, Rule VI, Sec. 1
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15 years and above
Health and Safety RA 10361, Art. IV, Sec. 19; IRR, Rule IV, Sec. 15
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Safeguarding of health and safety of DW
Daily Rest Period RA 10361, Art. IV, Sec. 20; IRR, Rule IV, Sec. 11
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Aggregate period of 8 hrs./day
Employer must give a copy of the DOLE-Form BK-3 containing: o Amount paid in cash every pay day o Deductions made Employer must keep copies of the pay slips for a period of 3 years
13th Month Pay RA 10361, Art. IV, Sec. 25, par. 2; IRR, Rule IV, Sec. 13
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DW is entitled to a 13th month pay DW must have worked for a t least 1 month Must be paid on or before December 24
Leave Benefits RA 10361, Art. IV, Sec. 29; IRR, Rule IV, Sec. 14
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A DW who has worked for at least 1 year is entitled to 5 days service incentive leave with pay Non-convertible and non-cumulative
Social and Other Benefits
RA 10361, Art. IV, Sec. 30; IRR, Rule IV, Sec. 16
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A DW who has worked for at least 1 month is entitled to SSS, PAGIBIG, PhilHealth benefits o These shall be shouldered by the employer If DW is receiving P5k or more per month: o DW to pay in proportion
Termination of Service Fixed Duration RA 10361, Art. V, Sec. 32, par. 1; IRR, Rule VII, Sec. 1, par. 1
Mutually agreement Not Fixed RA 10361, Art. V, Sec. 32, par. 2; IRR, Rule VII, Sec. 1, par. 2
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Give notice 5 days before termination
Grounds for Termination Initiated by the DW RA 10361, Art. V, Sec. 33; IRR, Rule VII, Sec. 2
(a) (b) (c) (d) (e) (f)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Directly to DW At least once a month Only through legal tender
RA 10361, Art. IV, Sec. 26; IRR, Rule IV, Sec. 5
RA 10361, Art. II, Sec. 7; IRR, Rule IV, Sec. 19
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P2.5k per month (NCR) P2k per month (Cities and Municipalities) P1.5k per month (Other municipalities)
Verbal or emotional abuse of the domestic worker by the employer or any member of the household; Inhuman treatment including physical abuse of the domestic worker by the employer or any member of the household; Commission of a crime or offense against the domestic worker by the employer or any member of the household; Violation by the employer of the terms and conditions of the employment contract and other standards set forth under this law; Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and Other causes analogous to the foregoing.
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Initiated by the Employer RA 10361, Art. V, Sec. 34; IRR, Rule VII, Sec. 3
(a) (b) (c) (d) (e) (f) (g)
Misconduct or wilful disobedience by the domestic worker of the lawful order of the employer in connection with the former’s work; Gross or habitual neglect or inefficiency by the domestic worker in the performance of duties; Fraud or wilful breach of the trust reposed by the employer on the domestic worker; Commission of a crime or offense by the domestic worker against the person of the employer or any immediate member of the employer’s family; Violation by the domestic worker of the terms and conditions of the employment contract and other standards set forth under this law; Any disease prejudicial to the health of the domestic worker, the employer, or member/s of the household; and Other causes analogous to the foregoing.
If Mutually Agreed RA 10361, Art. V, Sec. 32, par. 3; IRR, Rule VII, Sec. 1
-
None needed
Employment Certification
RA 10361, Art. V, Sec. 35; IRR, Rule VII, Sec. 4
-
Employer to issue such certification 5 days after request
Abused/Exploited DW
RA 10361, Art. IV, Sec. 31; IRR, Rule X
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Immediately rescued by a municipal or city social welfare officer in coordination with barangay officials Any of the following parties may report: o Offended Kasambahay o Parents/Guardians of the Kasambahay o Ascendants, Descendants and relatives within the 4th civil degree of consanguinity/affinity o Social workers o Barangay officials o Lawyer, counsellor, therapist, healthcare provider of the Kasambahay o At least 2 concerned neighbors who have personal knowledge
Mechanism for settlement of disputes Jurisdiction of DOLE Regional Office RA 10361, Art. VII, Sec. 37, par. 1; IRR, Rule XI, Sec. 1
Labor-related disputes Jurisdiction of Regular Couirts RA 10361, Art. VII, Sec. 37, par. 2; IRR, Rule XI, Sec. 3
Ordinary crimes or offenses Penalties RA 10361, Art. IX, Sec. 40; IRR, Rule XII
RA 10361, Art. IV, Sec. 23; IRR, Rule V, Sec. 6
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May mutually agree to perform task outside the household for another household Additional payment for this work Original employer to be liable for any liability incurred by DW
-
1st offense: P10k 2nd offense: P20k 3rd offense: P30k 4th and succeeding offenses:
P40k
RA 10361, Art. VIII, Sec. 39; IRR, Rule XIII, Sec. 2
-
January 18
Charging of recruitment and finder’s fees RA 10361, Art. III, Sec. 13; IRR, Rule II, Sec. 2
-
Cannot charge to DW
Deposits from which deductions shall be made
RA 10361, Art. II, Sec. 10; IRR, Rule V, Sec. 2
-
RA 10361, Art. III, Sec. 14; IRR, Rule V, Sec. 3
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Prohibited to ask for deposits for loss or damage to tools, materials, furniture and equipment in the household
Debt Bondage
-
RA 10361, Art. III, Sec. 15; IRR, Rule V, Sec. 4
Assignment to non-household work
All communication and information pertaining to the employer or members of the household shall be treated as privileged and confidential, and shall not be publicly disclosed by the domestic worker during and after employment. Such privileged information shall be inadmissible in evidence except when the suit involves the employer or any member of the household in a crime against persons, property, personal liberty and security, and chastity.
RA 10361, Art. IV, Sec. 22; IRR, Rule VII, Sec. 5
-
Prohibition on assigning DW, whether full-time or part-time, to any commercial, industrial or agricultural enterprise When assigned in such, must pay respective minimum wage
RA 10361, Art. III, Sec. 17; IRR, Rule IX, Sec. 1
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Charging by the original employer for temporary domestic service
Employer to register the DW at the Registry of Domestic Workers in the barangay
RA 10361, Art. IV, Sec. 23, 4th sentence
Deductions other than those mandated by law RA 10361, Art. IV, Sec. 25, 2nd sentence
Payment in forms other than cash RA 10361, Art. IV, Sec. 25, 3rd sentence
Arts. 153, 154, 155; Book III, Rule XIV, Sec. 1
-
Interference in the disposal of wages RA 10361, Art. IV, Sec. 27; IRR, Rule IV, Sec. 8
-
-
Forcing, compelling, or obliging the Kasambahay to purchase merchandise, commodities or other properties from the employer or from any other person Making use of any store or services of such employer or any other person.
-
Withholding of Wages RA 10361, Art. IV, Sec. 28; IRR, Rule IV, Sec. 7
-
Allowed forfeiture of wages: o If DW leaves without any justifiable reasons, any unpaid salary not exceeding 15 days shall be forfeited
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
-
The employment of industrial homeworkers and field personnel shall be regulated by the government through the appropriate regulations issued by the SOLE to ensure the general welfare and protection of homeworkers and field personnel and the industries employing them. The regulations or orders to be issued pursuant to this Chapter shall be designed to assure the minimum terms and conditions of employment applicable to the industrial homeworkers or field personnel involved. This Rule shall apply to any person who performs industrial homework for an employer, contractor or sub-contractor.
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D.O. No. 5, Sec. 2
"Industrial Homework" A system of production under which work for an employer or contractor is carried out by a homeworker at his/her home. Materials may or may not be furnished by the employer or contractor. o It differs from regular factory production principally in that, it is a decentralized form of production where there is ordinarily very little supervision or regulation of methods of work. "Industrial Homeworker" -
A worker who is engaged in industrial homework.
o
o o
Employer
D.O. No. 5, Sec. 5
-
"Home" -
Any room, house, apartment or other premises used regularly, in whole or in part, as a dwelling place, except those situated within the premises or compound of an employer, contractor or subcontractor and the work performed therein is under the active or personal supervision by or for the latter.
"Employer" Any natural or artificial person who, for his own account or benefit, or on behalf of any person residing outside the Philippines, directly or indirectly, or through any employee, agent, contractor, subcontractor; or any other person who: o Delivers or causes to be delivered any goods. articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his direction; or o Sells any goods, articles or materials for the purpose of having such goods or articles processed in or about a home and then repurchases them himself or through another after such processing. "Contractor" or "Subcontractor” Any person who, for the account or benefit of an employer, delivers or causes to be delivered to a homeworker goods or articles to be processed in or about his home and thereafter to be returned, disposed of or distributed in accordance with the direction of the employer.
-
D.O. No. 5, Sec. 7
-
-
-
"Cooperative: An association registered under the Cooperative Code of the Philippines.
D.O. No. 5, Sec. 3
Homeworkers shall have the right to form, join or assist organization of their own choosing, in accordance with law.
The Department shall, as soon as possible, conduct consultation meetings with government agencies requiring registration of employers and determine if the data being supplied by the registration forms of such agencies are the same as or similar to those needed by the Department in the implementation of this regulations. If the registration forms of other agencies do not provide the data needed by DOLE, it shall inquire into the possibility of adopting a common registration form with other agencies that will provide the data needed by all the agencies concerned.
Standard Output/Minimum Rates
"Processing" Manufacturing, fabricating, finishing, repairing, altering, packing, wrapping or handling in any way connected with the production or preparation of an article or material.
-
of the organizational meetings and the list of workers who participated in such meetings; The names of all its members comprising at least 20% of all the workers in the bargaining unit where it seeks to operate, if applicable; If the applicant has been in existence for one or more years, copies of its annual financial reports; and Four copies of the constitution and by-laws of the applicant organization, the minutes of its adoption or ratification and the list of members who participated in it
Motu proprio or upon petition of any interested party, the SOL/his authorized representative shall establish the standard output rate or standard minimum rate in appropriate orders for the particular work or processing to be performed by the homeworkers. The standard output rates or piece rates shall be determined through any of the following procedures o Time and motion studies; o An individual/collective agreement between the employer and its workers as approved by the SOL/his authorized representative; o Consultation with representatives of employers and workers organization in a tripartite conference called by the SOL. The time and motion studies shall be undertaken by the Regional Office having jurisdiction over the location of the premise/s used regularly by the homeworker/s. o However, where the job operation or activity is being likewise performed by regular factory workers at the factory or premises of the employer, the time and motion studies shall be conducted by the Regional Office having jurisdiction over the location of the main undertaking or business of the employer. o Piece rates established through time and motion studies conducted at the factory or main undertaking of the employer shall be applicable to the homeworkers performing the same job activity. o The standard piece rate shall be issued by the Regional Office within 1 month after a request has been made at said office.
Wage Deductions D.O. No. 5, Sec. 6
Homeworkers’ Organization D.O. No. 5, Sec. 4
-
Any applicant home worker organization or association shall acquire legal personality, and shall be entitled to the rights and privileges granted by law to legitimate labor organizations upon issuance of the certificate of registration based on the following requirements o P55.00 registration fee; o The names of its officers, their addresses, the principal address of the homeworkers organization, the minutes
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Immediately upon receipt of the finished goods or, articles, the employer shall pay the homeworker or the contractor or subcontractor, as the case may be, for the work performed less corresponding homeworkers' share of SSS, PhilHealth and PAGIBIG premium contributions which shall be remitted by the contractor/subcontractor or employer with the employers’ share. However, where payment is made to a contractor or subcontractor, the homeworker shall likewise be paid immediately after the goods or articles have been collected from the workers.
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Deductions for Materials D.O. No. 5, Sec. 8
-
Prohibition against any deduction from the homeworker's earnings for the value of materials which have been lost, destroyed, soiled or otherwise damaged unless the following conditions are met o The homeworker concerned is clearly shown to be responsible for the loss or damage; o The homeworker is given reasonable opportunity to show cause why deductions should not be made; o The amount of such deduction is fair and reasonable and shall not exceed the actual loss or damage; and o The deduction is made at such rate that the amount deducted does not exceed 20% of the homeworker's earnings in a week.
-
the contractor or subcontractor to the workers of the latter, to the extent that such work is performed under such contract, in the same manner as if the employees or homeworkers were directly engaged by the employer. The employer, contractor or subcontractor shall assist the homeworkers in the maintenance of basic safe and healthful working conditions at the homeworkers' place of work.
D.O. No. 5, Sec. 13
-
No homework shall be performed on the following: o Explosives, fireworks and articles of like character; o Drugs and poisons; o Other articles, the processing of which requires exposure to toxic substances.
Improperly executed work D.O. No. 5, Sec. 9
-
The employer may require the homeworker to redo once the work which has been improperly executed without having to pay the stipulated rate again.
Returned goods
D.O. No. 5, Sec. 9 (b)
-
An employer, contractor, or subcontractor need not pay the homeworker for any work which has been done on goods and articles which have been returned for reasons attributable to the fault of the homeworker.
D.O. No. 5, Sec. 11
-
-
Whenever an employer shall contract with another for the performance of the employer's work, it shall be the duty of such employer to provide in such contract that the employees or homeworkers of the contractor and the latter's subcontractor shall be paid in accordance with the provisions of this Rule. In the event that such contractor or subcontractor fails to pay the wages or earnings of his employees or homeworkers as specified in this Rule, such employer shall be jointly and severally liable with
D.O. No. 5, Sec. 10
-
-
The Regional Director shall have the power to order and administer compliance with the provisions of the law and regulations affecting the terms and conditions of employment of home workers and shall have the jurisdiction in cases involving violation of this Rule. Non-compliance with the order issued by the Regional Director can be the subject of prosecution in accordance with the penal provisions of the LC.
Jurisdiction Regional Director -
-
Complaints for violations of labor standards and the terms and conditions of employment involving money claims of homeworkers in an amount of not more than P5,000 per homeworker. He shall have the power to order and administer, after due notice and hearing, compliance with the provisions of this Rule.
Regional Arbitration Branch of NLRC Money claims due a homeworker exceed P5,000
IX. Medical, Dental and Occupational Safety Book IV, Rule I, Sec. 1
-
This Rule shall apply to all employers, whether operating for profit or not, including the Government and any of its political subdivisions and GOCCs, which employs in any workplace one or more workers.
Art. 163
-
Art. 162
-
-
Every employer shall keep in his establishment such first-aid medicines and equipment as the nature and conditions of work may require, in accordance with such regulations as the DOLE shall prescribe. The employer shall take steps for the training of a sufficient number of employees in first-aid treatment.
-
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
It shall be the duty of every employer to furnish his employees in any locality with free medical & dental attendance and facilities consisting of: o 50 – 200 employees Services of a full-time registered nurse A graduate first-aider, where no registered nurse is available, if workplace is not hazardous o 201 – 300 employees Services of a full-time registered nurse A part-time physician A part-time dentist An emergency clinic o 301 employees and above Services of a full-time physician Full-time dentist Full-time registered nurse A dental clinic and an infirmary or emergency hospital with one bed capacity for every 100 employees In cases of hazardous workplaces: o Part-time physician/dentist must stay in the premises of the establishment for at least 2 hours o Full-time physician/dentist must stay in the premises of the establishment for at least 8 hours
34
58
-
Where the undertaking is non-hazardous in nature: o The physician and dentist may be engaged on retainer basis, subject to such regulations as the SOLE may prescribe to insure immediate availability of medical and dental treatment and attendance in case of emergency.
Art. 164
-
The requirement for an emergency hospital or dental clinic shall not be applicable in case there is a hospital or dental clinic which is accessible from the employer’s establishment and he makes arrangement for the reservation therein of the necessary beds and dental facilities for the use of his employees.
Art. 167
-
It shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee in case of emergency.
Book IV, Rule II, Secs. 5(a)(d)
-
-
Every employer shall take steps to train a sufficient number of his supervisors or technical personnel in occupational safety and health. An employer may observe the following guidelines in the training of his personnel o In every non-hazardous establishment or workplace having from 50 - 400 workers each shift, at least 1 of the supervisors or technical personnel shall be trained in occupational health and safety and shall be assigned as part-time safety man. Such safety man shall be the secretary of the safety committee. o In every hazardous establishment or workplace having over 200 workers each shift, at least 2 of its supervisors or technical personnel shall be trained and one of them shall be appointed full-time safety man and secretary of the safety committee therein.
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Book IV, Rule II, Sec. 5 (e)
-
The employment of a full-time safety man not be required where the employer enters into a written contract with a qualified consulting organization which shall develop and carry out his safety and health activities o Provided, that the consultant shall conduct plant visits at least 4 hours a week and is subject to call anytime to conduct accident investigations and is available during scheduled inspections or surveys by the SOL or his authorized representatives.
Arts. 168, 169, 170. 171
Enforcement The SOL shall, by appropriate orders, set and enforce mandatory occupational safety and health standards to eliminate or reduce occupational safety and health hazards in all workplaces and institute new, and update existing, programs to ensure safe and healthful working conditions in all places of employment. The SOL may, through appropriate regulations, collect reasonable fees for the inspection of steam boilers, pressure vessels and pipings and electrical installations, the test and approval for safe use of materials, equipment and other safety devices and the approval of plans for such materials, equipment and devices. o The fee so collected shall be deposited in the national treasury to the credit of the occupational safety and health fund and shall be expended exclusively for the administration and enforcement of safety and other labor laws administered by the DOLE.
DOLE Responsibilities: To conduct continuing studies and research to develop innovative methods, techniques and approaches for dealing with occupational safety and health problems To discover latent diseases by establishing causal connections between diseases and work in environmental conditions To develop medical criteria which will assure insofar as practicable that no employee will suffer impairment or diminution in health, functional capacity, or life expectancy as a result of his work and working conditions. Shall develop and implement training programs to increase the number and competence of personnel in the field of occupational safety and industrial health. Shall be solely responsible for the administration and enforcement of occupational safety and health laws, regulations and standards in all establishments and workplaces wherever they may be located o However, chartered cities may be allowed to conduct industrial safety inspections of establishments within their respective jurisdictions where they have adequate facilities and competent personnel for the purpose as determined by the DOLE and subject to national standards established by the latter.
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SUMMARY OF COVERAGE AND EXCEPTIONS TO BENEFITS SUMMARY HOURS OF WORK
8 hours of work
OT PAY
See table of summaries for additional compensation 1 day rest after 6 consecutive days of work 10PM – 6am 10% Night Differential Pay
WEEKLY REST PERIODS NIGHT WORK
COVERAGE 1. Applies to all employees, whether for profit or not 2. Employees of GOCCs under Corp Code
EXCEPTIONS 1. 2. 3. 4. 5. 6. 7. 8.
Government Employees Managerial Employees Officers of Management Staff Field Personnel Family dependants Domestic Workers Personal Assistants Workers paid by results/Piece-rate workers
Same
Same
Same, WON for profit/not plus: Public utilities operated by private persons Same
Same 1. 2. 3. 4. 5. 6. 7. 8.
Government Employees Managerial Employees Officers of Management Staff Field Personnel a. Paid by results b. Paid on commission basis Domestic Workers Personal Assistants Family dependants Workers paid by results/Piece-rate workers
Additions: 9. Establishment with 5 or less employees 10. Those in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than 7 consecutive hours HOLIDAYS
Same
Same plus: Establishment with 9 or less employees Same plus: Those with vacation leave with pay of at least 5 days Establishment with 9 or less employees Depends on employer
SERVICE INCENTIVE LEAVE
5 days of leave with pay (only for private persons)
Same, who has rendered at least 1 year of service
VACATION / SICK LEAVE PATERNITY LEAVE
Depends on employer
Depends on employer
7 days leave with pay, for 1st 4 deliveries 60 days – natural born 78 days – caesarean section
Married Male employees, cohabiting with their legitimate spouse, either in public/private sector A female member who has paid at least 3 monthly contributions in the 12-month period immediately preceding the semester of her childbirth or miscarriage Qualified Solo Parent, with 1 year of service
None
A woman who suffers physical, sexual, psychological and economic abuse
None
Woman having rendered aggregate employment of at least 6 months for the last 12 months Must be following a surgery caused by gynaecological disorders All employees in the private sector
None
MATERNAL LEAVE
PARENTAL LEAVE VICTIM’S LEAVE SPECIAL LEAVE BENEFITS FOR WOMEN MINIMUM WAGE
Flexi Work Sched, 7 days of leave with pay 10 days leave with pay during the pendency of the case + medical attendance 2 months leave with pay
As set by the NLRC
13TH MONTH PAY
1/12 of annual pay
SERVICE CHARGE
85% - 15% Sharing
RETIREMENT PAY
22.5 days worth of salary for every year of service
1. All rank and file employees, who have worked at least 1 month 2. DWs 3. Piece Rate workers 4. Private subsidiaries of the Government Collectors of service charges such as hotels, restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses, and similar enterprises Any employee of the private sector who has served at least 5 years, upon reaching retirement age
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
None
1. DW + Family drivers 2. Personal services of another 3. Workers of duly registered BMBEs 4. Homeworkers engaged in needlework 5. Farm tenancy or leaseholds The following must apply for exemptions 6. Establishments with 10 or less employees 7. Distressed establishments 8. Establishments with less than P3M in assets 9. Establishments affected by natural calamities 10. Micro and small indigenous exporters 1. Government and GOCCs 2. Employers already paying 13th month pay 3. Employers of those who are paid on purely commission, boundary, or task basis and those who are paid a fixed amount
Establishments with 10 or less employees
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I. General Provisions Art. 284
-
Shall apply to all establishments/undertakings, for profit or not Including educational, medical, charitable and religious institutions and organizations For regular employment: The government and its political subdivisions including GOCCs
Note (from Prof. Daway): Regardless of classification, employees are entitled to security of tenure o It’s just that this right is limited by the type of employment
-
The language of the law evidently manifests the intent to safeguard the tenurial interest of the worker who may be denied the rights and benefits due a regular employee by virtue of lopsided agreements with the economically powerful employer who can maneuver to keep an employee on a casual status for as long as convenient.32
-
According to Prof. Daway, the employer’s designation or determination of the employment type on the contract is immaterial. What would govern is the nature of the employment according to the labor code.
-
Where the employment of project employees is extended long after the supposed project has been finished, the employees are removed from the scope of project employees and considered regular employees.34
-
The fact that the employment has been a contract-to-contract basis cannot alter the character of employment, because contracts cannot override the mandate of law. Hence, by operation of law, an employee, who has been repeatedly re-hired on a contractual basis has become a regular employee.35
Art. 286, 287
1. 2. 3. 4. 5. 6.
Regular employment Project employment Seasonal employment Casual employment Fixed-Term employment Probationary employment
II. Regular Employees Art. 286 (1st, 2nd par.), 287 (last sentence), 75(d); Book VI, Rule I, Secs. 5 (a), b, 6
-
Employee has been engaged to perform activities which are usually necessary/desirable in the usual business/trade of the employer
-
Art. 286 merely distinguishes between two kinds of employees, i.e., regular employees and casual employees, for purposes of determining the right of an employee to certain benefits, to join or form a union, or to security of tenure. It doesn’t apply where the existence of an employment relationship is in dispute.33
III. Project Employees Art. 286 (1st par)
-
-
Test: WON the employee was assigned to carry out a specific project or undertaking, the duration and scope of which were specified at the time the employees were engaged in that project.36
There are two kinds of projects which a business/industry may undertake37: o A job or undertaking that is within the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company o A particular job or undertaking that is not within the regular business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer.
Romares v NLRC (1998) Atok Big Wedge v. Gison (2011) 34 Tomas Lao v. NLRC (1998) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
DO No. 19 of 1993
Indicators of Project Employment (a) The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable. (b) Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the employee at the time of hiring. (c) The work/service performed by the employee is in connection with the particular project/undertaking for which he is engaged. (d) The employee, while not employed and awaiting engagement, is free to offer his services to any other employer. (e) The termination of his employment in the particular project/undertaking is reported to the Department of Labor and Employment (DOLE) Regional Office having jurisdiction over the workplace within 30 days following the date of his separation from work, using the prescribed form on employees' terminations/dismissals/suspensions. (f) An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies.
32
35
33
36 37
Beta Electric v NLRC (1990) Hanjin v Ibañez (2008) Villa v. NLRC (1998) 37
58
Conditions of Employment Project employees who achieve a regular status shall enjoy security of tenure. Project employees entitled to separation pay: o Those whose aggregate period of continuous employment in a construction company is at least 1 year shall be considered as regular employees This rule only applies if there is no “day certain” agreed upon the parties for the termination of the relationship “Day certain” – May be a specific date or a day that will necessarily come, but may not be known exactly when o Those who are terminated without just/authorized cause and there is no showing that his services are unsatisfactory Entitled to reinstatement + backwages If reinstatement is not possible, then he is entitled to his salaries for the unexpired portion of the agreement Project employees not entitled to separation pay: o Those terminated because of completion of the project o Those terminated because they have no more work to do or their services are no longer needed Pro-rata bonus, if any o industry practice = ½ month for every 12 months of service
Notes: -
-
-
-
IV. Casual Employees
Art. 286 (2nd par), Book VI, Rule I, Secs. 5 (b)
-
-
-
-
A casual employee allowed to work for more than 1 year ipso facto considered as a regular employee This proviso was not designed to stifle small-scale businesses nor to oppress agricultural land owners to further the interests of laborers, whether agricultural or industrial. What it seeks to eliminate are abuses of employers against their employees and not, as petitioners would have us believe, to prevent small-scale businesses from engaging in legitimate methods to realize profit. Hence, the proviso is applicable only to the employees who are deemed "casuals" but not to the "project" employees nor the regular employees treated in paragraph one of Art. 280. 42
-
38
42
39
43
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Even though Policy Instruction No. 20/D.O. No. 19 regarding work pools specifically applies to construction businesses, there seems to be no impediment to applying the underlying principles to industries other than the construction industry. Neither may it be argued that a substantial distinction exists between the projects undertaken in the construction industry and the motion picture industry. On the contrary, the raison d' etre of both industries concern projects with a foreseeable suspension of work.41
V. Fixed Term Employment
Employment to perform a job, work or service which is merely incidental to the business of the employer. Such job, work, or service is for a definite period made known to the employee at the time of engagement. What determines regularity or casualness is not the employment contract, written or otherwise, but the nature of the job.
Hanjin v Ibañez (2008) Tomas Lao v. NLRC (1998) 40 Maraguinot v NLRC (1998) 41 supra
If an employee is only employed for a particular phase, he is considered to have completed a project upon completion of such phase The length of service or the re-hiring of construction workers on a project-to-project basis does not confer upon them regular employment status, since their re-hiring is only a natural consequence of the fact that experienced construction workers are preferred38 A work pool may exist although the workers in the pool do not receive salaries and are free to seek other employment during temporary breaks in the business, provided that the worker shall be available when called to report for a project. Although primarily applicable to regular seasonal workers, this set-up can likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned. o This is beneficial to both the employer and employee for it prevents the unjust situation of “coddling labor at the expense of capital” and at the same time enables the workers to attain the status of regular employees.39 o In order for a project employees or work pool employees to be considered as regular employees, the following conditions must concur40: 1. There is a continuous rehiring of project employees even after cessation of a project 2. The tasks performed by the “project employee” are vital, necessary and indispensable to the usual business/trade of the employer.
44
Jurisprudence had laid two conditions for the validity of a fixedcontract agreement between the employer and employee43: o The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; OR o It satisfactorily appears that the ER and the EE dealt with each other on more or less equal terms with no moral dominance exercised by either party. Logically, the decisive determinant in term employment should not be the activities that the employee is called upon to perform, but the day certain agreed upon by the parties for the commencement and termination of their employment relationship Seamen are considered contract workers, employed for a fixed period only, as per accepted maritime industry practice. Seafarers cannot stay for a long and indefinite period of time at sea, because it has been shown that limited access to shore affects them adversely. The diversity in nationality, culture, and language among the crew also necessitates that the period of employment be limited.44
Mercado v NLRC (1991) Lynvil v Ariola (2012) De la Cruz v Maersk (2008)
38
58
VI. Seasonal Employees -
-
There is seasonal employment when: o The nature of the work to be performed is seasonal in nature and o The employment is for the duration of the said season "The nature of their relationship . . . is such that during off season they are temporarily laid off but during summer season they are re-employed, or when their services may be needed. They are not strictly speaking separated from the service but are merely considered as on leave of absence without pay until they are reemployed."45 o Also, these workers are considered "in regular employment" in cases involving the determination of an employer-employee relationship and security of tenure.
-
-
In all cases involving employees engaged on probationary basis, the employer shall make known to its employees the standards under which they will qualify as regular employees at the time of their engagement. o Where no standards are made known to an employee at the time, he shall be deemed a regular employee, UNLESS the job is self-descriptive, like maid, cook, driver, or messenger.
-
A probationary period of not more than 3 years in the case of the school teaching personnel and not more than 6 months for nonteaching personnel shall be required for employment in all private schools. o A school personnel who has successfully undergone the probationary period herein specified and who is fully qualified under the existing rules and standards of the school shall be considered permanent.46 As a general rule, all private schools shall employ full-time school personnel. An applicant shall be eligible for a full-time employment in a private school whenever he: o Has the minimum qualifications prescribed in this Manual o Has no other remunerative employment requiring regular working hours elsewhere, and o Whose services to the extent of at least 8 hours during each working day are available during the entire time the school operates.47
VII. Probationary Employees Art. 287. 61 (2nd sentence), 75 (d); Book VI, Rule I, Sec. 6
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There is probationary employment when the employee upon his engagement 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
G.R.: The probationary period must not exceed 6 months E: If there is an apprenticeship or learnership agreement stipulating a longer period
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1. 2. 3.
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When they are allowed to work longer than their probationary period When a learner has worked for 2 mos. and was subsequently terminated without fault When the contract is devoid of any reasonable standards for qualifying as a regular employment (automatic regular at the time of engagement)
When an employee is allowed to work after a probationary period, he is deemed to be a regular employee. In Cebu Stevedoring v Regional Director (1988), the ex-probationary employees were considered to be absorbed regular employees when they were re-hired into their old positions. The court considered their experience and training in their defunct company in justifying their qualification to be regular employees.
The parties are free to renew the contract or not; or for the employer to extend to such employee a regular or permanent employment. If the employee is not given a permanent or regular employment contract on account of his unsatisfactory work performance, it cannot be said that he was illegally dismissed. In such case, the contract merely expired.
Phil. Tobacco v NLRC (1998) Sec. 63, Manual of Regulations for Private Schools (2010)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
47
Sec. 66, Manual of Regulations for Private Schools (2010)
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SUMMARY OF EMPLOYMENT CLASSIFICATIONS NATURE OF WORK
WHEN CONSIDERED REGULAR
NATURE OF WORK
WHEN CONSIDERED REGULAR
REGULAR EMPLOYMENT Engaged in activities which are usually necessary/desirable in the usual business/trade of the employer
PROJECT EMPLOYMENT 1. Employee was assigned to carry out a specific project or undertaking 2. The duration and scope were specified at the time of engagement
SEASONAL EMPLOYMENT 1. The nature of the work to be performed is seasonal in nature 2. The employment is for the duration of the said season
N/A
Those whose aggregate period of continuous employment in a construction company is at least 1 year
These workers are considered "in regular employment" in cases involving the determination of an ER-EE relationship and security of tenure.
CASUAL EMPLOYMENT 1. Employment to perform a job, work or service which is merely incidental to the business of the employer. 2. Such job, work, or service is for a definite period made known to the employee at the time of engagement.
FIXED-TERM EMPLOYMENT - The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure; OR - It satisfactorily appears that the ER and the EE dealt with each other on more or less equal terms with no moral dominance exercised by either party.
PROBATIONARY EMPLOYMENT 1. Employee is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment 2. This is based on reasonable standards made known to him at the time of engagement
A casual employee allowed to work for more than 1 year ipso facto considered as a regular employee
None. Perhaps if absorbed
1. When allowed to work longer than their probi period 2. When a learner has worked for 2 mos. and was subsequently terminated without fault 3. When the contract is devoid of any reasonable standards for qualifying as a regular employment (automatic regular at the time of engagement)
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the NLRC
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While it is true that compassion and human consideration should guide the disposition of cases involving termination of employment since it affects one's source or means of livelihood, it should not be overlooked that the benefits accorded to labor do not include compelling an employer to retain the services of an employee who has been shown to be a gross liability to the employer. The law in protecting the rights of the employees authorizes neither oppression nor self-destruction of the employer. It should be made clear that when the law tilts the scale of justice in favor of labor, it is but a recognition of the inherent economic inequality between labor and management. The intent is to balance the scale of justice; to put the two parties on relatively equal positions. There may be cases where the circumstances warrant favoring labor over the interests of management but never should the scale be so tilted if the result is an injustice to the employer. Justitia nemini neganda est (Justice is to be denied to none).51
I. General Concepts Art. 284; Book VI, Rule 1, Sec. 1
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The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not.
Art. 285, 283 (b)
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-
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In cases of regular employment, the employer shall not terminate the services of an employee except for a just or authorized cause Termination of employment is not anymore a mere cessation or severance of contractual relationship but an economic phenomenon affecting members of the family. o For most families the main source of their livelihood, employment has now levelled off with property rights which no one may be deprived of without due process of law.48
Art. 285
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As long as no arbitrary or malicious action on the part of an employer is shown, the wisdom of a business judgment to implement a cost saving device is beyond the court’s determination.49 The free will of management to conduct its own business affairs to achieve its purpose cannot be denied.50
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G.R.: Just/Authorized Cause + Due Process Substantive: The just and authorized causes are laid out in the Labor Code Procedural: In dismissing an employee, the employer has the burden of proving that the dismissed worker has been served the proper notices: For Dismissals through Just Causes: First Notice: o To inform the employee of the particular acts or omissions for which the employer seeks his dismissal o To give to said employee reasonable opportunity within which to explain his side o To inform him that an investigation will be conducted on the charges specified in such notice which, if proven, will result in the employee’s dismissal Second Notice: o To inform the employee of his employer's decision to terminate him because grounds have been established to justify such termination. For Dismissals through Authorized Causes: Notice to the employee and to the DOLE RD 30 days before the effectivity of the termination -
Alhambra v NLRC (1994) Pantoja v SCA Hygiene (2010) NAMADA-NFL v Davao Sugar Central (2006) 51 Mansion Printing v Bitara (2012) 52 Macasero v. Southern Industrial Gases Philippines (2009) 53 Bustamante v NLRC (1996) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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It is incumbent upon the employee to prove first that there was an employer-employee relationship and that this was severed without any just/authorized cause55
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The burden of proving that the termination was for a valid or authorized cause shall rest on the employer The employer must rely on the strength of its own evidence, and not the weakness of that adduced by the employee, pursuant to the principle that the scales of justice should be tilted in the worker’s favor, should there be doubt in the evidence presented by both parties. The quantum of proof that the employer must meet is substantial evidence, which is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.56
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The employer shall afford the employee ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the DOLE.
An employee who is unjustly dismissed from work shall be entitled to two reliefs: backwages and reinstatement. 52 o The two reliefs provided are separate and distinct. o Reinstatement is without loss of seniority rights + back wages o Separation pay is granted where reinstatement is no longer advisable because of strained relations between the employee and the employer. Full Backwages represent compensation that should have been earned but were not collected because of the unjust dismissal. o This is inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.53 o The basis for computing backwages is the actual period when the employee was unlawfully prevented from working while that for separation pay is usually the length of the employee’s service.54
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Corresponding penalties, when prescribed, must be commensurate with the act, conduct or omission imputed to the employee and must be imposed in connection with the disciplinary authority of the employer.57 Special circumstances should be properly taken into account in the imposition of the appropriate penalty.58
Golden Ace Builders v Talde (2010) Bitoy Javier v Fly Ace Corp (2012) Functional Inc v. Granfil (2011) 57 Negros Slashers v Teng (2012) 58 Moreno v San Sebastian College-Recoletos (2008)
48
54
49
55
50
56
41
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II. Termination of Employment by Employee 1. 2. 3. 4.
Resignation Performance of Military/Civic Duty Bona fide suspension of operations by employer Forced Resignation
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Resignation is the voluntary act of an employee who finds herself in a situation where she believes that personal reasons cannot be sacrificed in favor of the exigency of the service and that she has no other choice but to disassociate herself from employment.59 It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. o As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether he or she, in fact, intended to sever his or her employment.60
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Notes: -
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291 (a); Consti., Art. III, Sec. 18(2)
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Art. 292, Book VI, Rule I, Sec. 12
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An employee who voluntarily resigns from employment is not entitled to separation pay, except when it is stipulated in the employment contract or collective bargaining agreement (CBA), or it is sanctioned by established employer practice or policy.61 Expressions of gratitude cannot possibly come from an employee who is just forced to resign as they belie allegations of coercion.62 The resignation letter must be in a clear, concise and categorical language. Its content must be an unequivocal intent to resign.
-
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Art. 291 (b); Book VI, Rule I, Sec. 11
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Need to give a written notification at least 1 month in advance o Absence of such notice = ER may hold EE liable for damages Rationale: Constitutional right against involuntary servitude
No need to give notice to employer if there is: 1. Serious insult by the employer or his representative on the honor and person of the employee; 2. Inhuman and unbearable treatment accorded to 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; 4. Other causes analogous to any of the foregoing.
These are not grounds for termination of employment, but rather for the suspension of such o Except: If the suspension of operations was more than 6 months (may be a ground for illegal dismissal, if proven that this was used to circumvent the rights of the employee) Employer is to reinstate employee if the latter indicates his desire to resume work within 1 month from his relief from service or resumption of operations Payment of wages and grant of benefits shall be subject to special laws, CBA and voluntary employer practice/policy
Forced resignation is considered as an illegal dismissal, as it is done with the intention to circumvent labor laws by making the resignation to look like a voluntary act of the employee, thus exonerating the employer from liability Mere allegations of threat or force do not constitute evidence to support a finding of forced resignation. In order for intimidation to vitiate consent, the following requisites must concur: 63 1. The intimidation caused the consent to be given; 2. The threatened act be unjust or unlawful; 3. The threat be real or serious, there being evident disproportion between the evil and the resistance which all men can offer, leading to the choice of doing the act which is forced on the person to do as the lesser evil; 4. It produces a well-grounded fear from the fact that the person from whom it comes has the necessary means or ability to inflict the threatened injury to his person or property.
III. Termination of Employment by Employer Art. 288, 285, 283 (b)
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Consti., Art. XIII, Secs. 3 (3rd and 4th pars.)
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As a measure of self-protection against acts inimical to its interest, a company has the right to dismiss its erring employees. An employer cannot be compelled to continue employing an employee guilty of acts inimical to the employer’s interest, justifying loss of confidence in him.64 -
-
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The employer’s power to dismiss must be tempered with the employee’s right to security of tenure. Employers must be reminded to exercise the power to dismiss with great caution, for the State will not hesitate to come to the succor of workers wrongly dismissed by capricious employers.65 Employment cannot be terminated by an employer without any just or authorized cause. The Constitution guarantees security of tenure for workers and because of this, an employee may only be
Globe Teleco v Crisologo (2007) Auza v MOL Phil (2012) “J” Marketing Corp v Taran (2009) 62 Globe Teleco v Crisologo (2007) 63 Mandapat v Add Force (2010) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
terminated for just or authorized causes that must comply with the due process requirements mandated by law.66 The Court acknowledges and recognizes the right of an employer to transfer employees in the interest of the service. This exercise is a management prerogative which is a lawful right of an employer.67 o Hence, employers are barred from arbitrarily removing their workers whenever and however they want. The law sets the valid grounds for termination as well as the proper procedure to take when terminating the services of an employee. The managerial prerogative to transfer personnel must be exercised without grave abuse of discretion, bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which that right is exercised. Thus, it cannot be used as a subterfuge by the employer to rid himself of an undesirable worker. o In particular, the employer must be able to show that the transfer is not unreasonable, inconvenient or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. o It is also the burden of the employer to show that the employee was duly notified of the transfer. 68
Yabut v Meco (2012) Bascon v. Court of Appeals Alert v. Saidali (2011) 67 supra 68 Blue Dairy Corp v. NLRC, as cited in Alert v. Saidali
59
64
60
65
61
66
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2. Gross and Habitual Neglect of Duties Art. 288 (b)
Art. 288
-
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An employee may be validly terminated on any of the following just causes: 1. Serious Misconduct or Insubordination 2. Gross and habitual neglect of duties 3. Loss of trust and confidence 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 representatives; and 5. Other causes analogous to the foregoing
-
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1. Serious Misconduct or Wilful Disobedience Art. 288 (a)
Serious Misconduct It is improper or wrong conduct It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, wilful in character and implies wrongful intent and not mere error in judgment For serious misconduct to justify dismissal, the following requisites must be present: 1. It must be serious; o To be serious it should be of such grave and aggravated character and not merely trivial or unimportant 2. It must relate to the performance of the employee's duties; 3. It must show that the employee has become unfit to continue working for the employer. A series of irregularities may constitute serious misconduct, which could be a just cause for dismissal Use of accusatory language / gross discourtesy Accusatory and inflammatory language used by an employee to the employer or superior can be a ground for dismissal or termination.69 Wilful Disobedience It is the employer’s prerogative to prescribe reasonable rules and regulations necessary or proper for the conduct of its business, to provide certain disciplinary measures to implement said rules and to assure that the same be complied with The disobedience to be considered wilful must be resorted to without regard to its consequences
Elements (Gross negligence): 73 1. Want of even slight care 2. Acting/omitting to act in a situation where there’s duty to act 3. Wilful and intentional [as opposed to inadvertent] 4. Conscious indifference to consequences affecting other people Elements (Habitual Neglect):74 1. Failure to perform duties 2. For a period of time 3. Failure done repeatedly Respondeat Superior -
3. Loss of Trust and Confidence Art. 288 (c)
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Fraud must be committed against the employer or representative and in connection with the employee’s work The betrayal of this trust is the essence of the offense for which an employee is penalized.76
Requisites of a valid dismissal under Loss of Trust and Confidence77 1. The employee concerned must be one holding a position of trust and confidence. 2. There must be an act that would justify the loss of trust and confidence 3. Such act must be based on a wilful breach of trust and founded on clearly established facts 4. The basis for the dismissal must be clearly and convincingly established but proof beyond reasonable doubt is not necessary Guidelines for the Application of the Doctrine78 The employee involved holds a position of trust and confidence Loss of confidence should not be simulated It should not be used as a subterfuge for causes which are improper, illegal or unjustified It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary It must be genuine, not a mere afterthought to justify earlier action taken in bad faith
Notes: Management has the right to transfer or reassign an employee o Disobedience of valid transfer order may justify dismissal; disobedience of an invalid transfer order does not. o Unless it is vitiated by improper motive and is merely a disguised attempt to remove or punish the employee sought to be transferred.
Jumuad v Hi-Flyer Food (2011) Caingat v NLRC (2005) Prudential Guarantee Labor Union v NLRC (2012) 78 Villanueva v NLRC (2012)
69
75
70
76
71
77
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Acts by a subordinate may be attributed to the manager75
Gross v. Simple Negligence See elements above
Requisites of Wilful Disobedience: 1. The employee’s assailed conduct must have been wilful or intentional 2. The wilfulness being characterized by a wrongful and perverse attitude 3. The order violated must have been reasonable, lawful, made known to the employee 4. Must pertain to the duties which he had been engaged to discharge
Nissan v. Agenlo (2011) National Book Store v CA (2002) PNB v Padao (2011) 72 Supra. 73 Meralco v Beltran (2012) 74 Supra.
In order to constitute a just cause for the employee’s dismissal, the neglect of duties must not only be gross but also habitual. Thus, the single or isolated act of negligence does not constitute a just cause for the dismissal of the employee.70 Gross negligence has been defined as the "want or absence of or failure to exercise slight care or due diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them."71 o Ex. Tardiness and absenteeism Habitual neglect implies repeated failure to perform one’s duties for a period of time, depending on the circumstances.72 Fraud and wilful neglect imply bad faith of employee in failing to perform his job, to the detriment of the employer and its business.
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58
Position of Trust and Confidence Employee concerned holds a position where greater trust is placed by management and from whom greater fidelity to duty is correspondingly expected. Loss of confidence should ideally apply only to cases involving employees occupying positions of trust and confidence or to those situations where the employee is routinely charged with the care and custody of the employer's money or property. o To the first class belong managerial employees, i.e., those vested with the powers or prerogatives to lay down management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions; o To the second class belong cashiers, auditors, property custodians, etc., or those who, in the normal and routine exercise of their functions, regularly handle significant amounts of money or property.79 Management Employees: Reason for the Rule The mere existence of a basis for the loss of trust and confidence justifies the dismissal of the managerial employee because when an employee accepts a promotion to a managerial position or to an office requiring full trust and confidence, such employee gives up some of the rigid guaranties available to ordinary workers. o However, the right of the management to dismiss must be balanced against the managerial employee’s right to security of tenure which is not one of the guaranties he gives up. o Although the standards for their dismissal are less stringent, the loss of trust and confidence must be substantial and founded on clearly established facts sufficient to warrant the managerial employee’s separation from the company. Substantial evidence is of critical importance and the burden rests on the employer to prove it.80
5. Analogous Causes Art. 288 (e)
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1. 2. 3. 4. 5. 6. 7. 8.
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Elements of Abandonment:87 o The failure to report for work or absence without valid or justifiable reason o A clear intention to sever the employer-employee relationship, manifested by some over acts.
Wilful Breach: o It is done intentionally, knowingly and purposely, without justifiable excuse. o It must rest on substantial grounds and not on the employer’s arbitrariness, whims, caprices or suspicion; otherwise, the employee would eternally remain at the mercy of the employer. Ordinary Breach: o An act done carelessly, thoughtlessly, heedlessly or inadvertently.
Breach of Company Rules Employees cannot take company rules for granted. Indeed, an employer may discharge an employee for refusal to obey a reasonable company rule. As a rule, although this Court leans over backwards to help workers and employees continue with their employment, acts of dishonesty in the handling of company property are a different matter.81 4. Commission of a Crime Art. 288 (d)
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Crime/Offense committed must be against the person of his employer or any immediate member of his family or his duly authorized representatives
Esguerra v. Valle Verde (2012) Manese v. Jollibee Foods Corp. (2013) Paulino v NLRC and PLDT (2012) 82 Lim v. NLRC (1996) 83 Supra. 84 Cathedral School of Technology v NLRC (1992) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Abandonment Courtesy Resignation Change of Ownership Habitual Absenteeism / Tardiness Past Offenses Habitual Infractions Immorality Conviction/Commission of a crime
Abandonment For abandonment to exist it is essential that the employee must have failed to report for work or must have been absent without justifiable reason and that there has been a clear intention to sever the ER-EE relationship manifested by overt acts.86
Distinction between Ordinary and Wilful breach -
One is analogous to another if it is susceptible of comparison with the latter either in general or in some specific detail; or has a close relationship with the latter.82 "Gross inefficiency" is closely related to "gross neglect," for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business.83 An employee’s unreasonable behavior and unpleasant deportment in dealing with people she closely works with in the course of her employment, is analogous to the other ‘just causes’ enumerated under the Labor Code.84 A cause analogous to serious misconduct is a voluntary and/or wilful act or omission attesting to an employee’s moral depravity. Theft committed by an employee against a person other than his employer, if proven by substantial evidence, is a cause analogous to serious misconduct.85
Notes: -
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The second element is the more determinative factor Mere absence is not sufficient. It is the employer who has the burden of proof to show a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning The immediate filing of a complaint for illegal dismissal against the employer with a prayer for reinstatement shows that the employee was not abandoning his work
Courtesy Resignation Resignation per se means voluntary relinquishment of a position or office. Adding the word "courtesy" does not change the essence of resignation.88 Change of Ownership In the exercise of such management prerogative, the employer may merge or consolidate its business with another, or sell or dispose all or substantially all of its assets and properties which may bring about the dismissal or termination of its employees in the process. The transferee is not liable for past unfair labor practices of the previous owner, except, when the liability therefor is assumed by the new employer under the contract of sale, or when liability
Cosmos Bottling v Fermin (2012) E.G. & I. Construction v. Sato (2011) Dimagan v Dacworks United (2011) 88 Batongbacal v. Associated Bank (1988)
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85
80
86
81
87
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arises because of the new owner's participation in thwarting or defeating the rights of the employees. Where such transfer of ownership is in good faith, the transferee is under no legal duty to absorb the transferor’s employees as there is no law compelling such absorption. The most that the transferee may do, for reasons of public policy and social justice, is to give preference to the qualified separated employees in the filling of vacancies in the facilities of the purchaser.89
Habitual Absenteeism / Tardiness Habitual tardiness is a form of neglect of duty. Lack of initiative, diligence, and discipline to come to work on time everyday exhibit the employee’s deportment towards work. Habitual and excessive tardiness is inimical to the general productivity and business of the employer. This is especially true when the tardiness and/or absenteeism occurred frequently and repeatedly within an extensive period of time.90
An employer has a right to transfer or assign its employees from one office or area of operation to another in pursuit of its legitimate business interest, provided there is no demotion in rank or diminution of salary, benefits and other privileges; and the transfer is not motivated by discrimination or bad faith, or effected as a form of punishment or demotion without sufficient cause.98 Also, an employer’s decision to transfer an employee, if made in good faith, is a valid exercise of a management prerogative, although it may result in personal inconvenience or hardship to the employee.99 In cases of a transfer of an employee, the rule is settled that the employer is charged with the burden of proving that its conduct and action are for valid and legitimate grounds such as genuine business necessity and that the transfer is not unreasonable, inconvenient or prejudicial to the employee. If the employer cannot overcome this burden of proof, the employee’s transfer shall be tantamount to unlawful constructive dismissal.100
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Immorality To constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in light of the prevailing norms of conduct and applicable laws.93
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Habitual Infractions A series of irregularities when put together may constitute serious misconduct, which under Art 282 of the Labor Code is a just cause for dismissal.92
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"Off-detailing" is not equivalent to dismissal, so long as such status does not continue beyond a reasonable time and that it is only when such a "floating status" lasts for more than 6 months that the employee may be considered to have been constructively dismissed.97
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Past Offenses Such previous offense may be used as valid justification for dismissal from work only if the infractions are related to the subsequent offense upon which the basis of termination is decreed.91
Conviction/Commission of a Crime The charge of drug abuse inside the company’s premises and during working hours against petitioner constitutes serious misconduct, which is one of the just causes for termination. Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not merely an error in judgment.94
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Book V, Rule XXIII, Secs. 8, 9 (Old Provisions, deleted by DO 40-03)
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Constructive dismissal is quitting because continued employment is rendered impossible, unreasonable or unlikely, or because of a demotion in rank or a diminution of pay. It exists when there is a clear act of discrimination, insensibility or disdain by an employer which becomes unbearable for the employee to continue his employment.95 -
Test: Whether a reasonable person in the employee's position would have felt compelled to give up his position under the circumstances.96 It is an act amounting to dismissal but is made to appear as if it were not. Constructive dismissal is therefore a dismissal in disguise. The law recognizes and resolves this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer.
Manlimos v. NLRC (1995) RBM Press v. Galit (2008) 91 Century Canning v. Ramil (2010) 92 Gustilo v Wyeth Phil (2004) 93 Santos v. NLRC (1998) 94 Eduardo Bughaw, Jr. v Treasure Island (2008) 95 Barroga v. Data Center (2011) 96 Tuason v Bank of Commerce (2012) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
The indispensable element for there to be a promotion is that there must be an “advancement from one position to another” or an upward vertical movement of the employee’s rank or position. Any increase in salary should only be considered incidental but never determinative of whether or not a promotion is bestowed upon an employee. An employee cannot be promoted, even if merely as a result of a transfer, without his consent. A transfer that results in promotion or demotion, advancement or reduction or a transfer that aims to ‘lure the employee away from his permanent position cannot be done without the employees’ consent.101
Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. o However, when it is determined that there is no sufficient basis to justify an employee’s preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension.102 Preventive suspension is justified where the EE’s continued employment poses a serious and imminent threat to the life or property of the employer or of the EE’s co-workers. Without this kind of threat, preventive suspension is not proper.103
Nippon v. Leynes (2011) Mojar v Agro Commercial (2012) Ruiz v Wendel Osaka (2012) 100 Morales v. Harbour (2012) 101 PT&T v CA (2003) 102 Gatbonton v NLRC (2006) 103 Artificio v NLRC (2010)
89
97
90
98 99
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Due Process Requirements: To serve a written notice on the workers and to DOLE 1 month before the intended date of termination
Art. 289; Book VI, Rule I, Sec. 9
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The law acknowledges the right of every business entity to reduce its work force if such measure is made necessary or compelled by economic factors that would otherwise endanger its stability or existence.104
1. 2. 3. 4. 5.
Installation of labor-saving devices Retrenchment to prevent losses Redundancy Closure of business Temporary Closure / Bona fide suspension of operations
Installation of Labor-Saving Devices The installation of labor-saving devices contemplates the installation of machinery to effect economy and efficiency in its method of production. o But where the introduction of these methods is resorted to not merely to effect greater efficiency in the operations of the business but principally because of serious business reverses and to avert further losses, the device could then verily be considered one of retrenchment. 105 Due Process Requirements: -
To serve a written notice on the workers and to DOLE 1 month before the intended date of termination
Separation Pay 1 month pay OR 1 month pay per year of service (whichever is higher) A fraction of at least 6 months is considered as a year. Retrenchment to Prevent Losses Retrenchment is the termination of employment initiated by the employer through no fault of and without prejudice to the employees. Is used interchangeably with the term "lay-off" It is resorted to during periods of business recession, industrial depression, seasonal fluctuations, or during lulls occasioned by lack of orders, shortage of materials, conversion of the plant to a new production program, or automation.106
Separation Pay 1 month pay OR ½ month pay per year of service (whichever is higher) A fraction of at least 6 months is considered as a year. Notes on the elements:108 The law speaks of serious business losses or financial reverses. Sliding incomes or decreasing gross revenues are not necessarily losses, much less serious business losses, within the meaning of the law. Financial statements must be prepared and signed by independent auditors; otherwise, they may be assailed as selfserving. In selecting employees to be dismissed, fair and reasonable criteria must be used, such as but not limited to: (a) less preferred status (e.g., temporary employee), (b) efficiency and (c) seniority. The employer must also exhaust all other means to avoid further losses without retrenching its employees. Retrenchment is a means of last resort; it is justified only when all other less drastic means have been tried and found insufficient. Redundancy Redundancy exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. A position is redundant where it is superfluous, and superfluity of a position or positions may be the outcome of a number of factors, such as overhiring of workers, decreased volume of business, or dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise.109 An employer is not precluded from adopting a new policy conducive to a more economical and effective management even if it is not experiencing economic reverses. Neither does the law require that the employer should suffer financial losses before he can terminate the services of the employee on the ground of redundancy.110 It is however not enough for a company to merely declare that positions have become redundant. It must produce adequate proof of such redundancy to justify the dismissal of the affected employees.111 Elements of a valid Redundancy:112 1. Written notice served on employees and DOLE at least one month prior to date of termination; 2. Payment of separation pay equivalent to at least 1 month pay for every year of service; 3. Good faith in abolishing the redundant positions; 4. Fair and reasonable criteria in ascertaining what positions are to be declared redundant and abolished.
Elements of a valid Retrenchment:107 1. The retrenchment is reasonably necessary and likely to prevent business losses which, a. if already incurred, are not merely de minimis, but substantial, serious and real; or b. only if expected, are reasonably imminent as perceived objectively and in good faith by the employer; 2. The employer serves written notice both to the employee/s concerned and the DOLE at least 1 month before the intended date of retrenchment; 3. The employer pays the retrenched employee separation pay in an amount prescribed by the Code; 4. The employer exercises its prerogative to retrench in good faith; 5. The employer uses fair and reasonable criteria in ascertaining who would be retrenched or retained.
Edge Apparel v. NLRC Supra. Lambert v Binamira (2010) 107 FASAP v PAL (2008) 108 Supra.
Due Process Requirements: To serve a written notice on the workers and to DOLE 1 month before the intended date of termination Separation Pay -
Smart v Astorga (2008) Supra. Andrada v. NLRC 112 Morales v Metrobank (2012)
104
109
105
110
106
111
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
1 month pay OR 1 month pay per year of service (whichever is higher) A fraction of at least 6 months is considered as a year.
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Redundancy v. Retrenchment REDUNDANCY Reduction of employees due to an excess of such, which is reasonably demanded by the actual requirements of the enterprise. 1 month pay / 1 month pay per year of service
Temporary Closure / Bona Fide suspension of operations RETRENCHMENT Reduction of employees usually due to poor financial returns, aimed to cut down costs for operation particularly on salaries and wages. 1 month pay / ½ month pay per year of service
Closure of Business A closure or cessation of business is the complete or partial cessation of the operations and/or shut-down of the establishment of the employer. It is carried out to either stave off the financial ruin or promote the business interest of the employer. Unlike retrenchment, closure or cessation of business, as an authorized cause of termination of employment, need not depend for validity on evidence of actual or imminent reversal of the employer's fortune.113 Requisites of a valid closure of business:114 1. That the closure/cessation of business is bona fide, i.e., its purpose is to advance the interest of the employer and not to defeat or circumvent the rights of employees under the law or a valid agreement; 2. That written notice was served on the employees and the DOLE at least 1 month before the intended date of closure or cessation of business; and 3. In case of closure/cessation of business not due to financial losses, that the employees affected have been given separation pay equivalent to ½ month pay for every year of service or one month pay, whichever is higher.
Art. 295
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Art. 290
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An employer may terminate the services of 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
1.
The disease is of such nature of at such a stage that it cannot be cured within a period of 6 months even with proper medical treatment. There is a certification by competent public health authority
2.
Separation Pay 1 month pay OR ½ month pay per year of service (whichever is higher) A fraction of at least 6 months is considered as a year. Notes: -
Due Process Requirements: To serve a written notice on the workers and to DOLE 1 month before the intended date of termination Separation Pay 1 month pay OR ½ month pay per year of service (whichever is higher) A fraction of at least 6 months is considered as a year. Rules on Award of Separation Pay:115 RESULTS OF DISMISSAL BAD FAITH CLOSURE OF Illegal termination BUSINESS FINANCIAL LOSSES + GOOD Valid dismissal and no separation benefits FAITH CLOSURE NOT DUE TO FINANCIAL Valid dismissal + separation pay LOSSES + GOOD FAITH CLOSURE It is done to either stave off the financial ruin or promote the business interest of the employer. Need not depend on any evidence of actual/imminent reversal of employer’s fortune
RETRENCHMENT Reduction of employees usually due to poor financial returns, aimed to cut down costs for operation particularly on salaries and wages. Must prove substantial, real/reasonably imminent financial losses justifying such termination
EGCI v. ELU (2008) Supra. 115 Supra. 116 JPL Marketing v. CA (2005) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Must not exceed 6 months When that "floating status" of an employee lasts for more than six months, he may be considered to have been illegally dismissed from the service. Thus, he is entitled to the corresponding benefits for his separation, and this would apply to suspension either of the entire business or of a specific component thereof.116
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If the disease or ailment can be cured within the period, the employee shall not terminate the employee but shall ask the employee to take a leave of absence. The employer shall reinstate such employee to his former position immediately upon the restoration of his normal health.
A closed-shop agreement is an agreement whereby an employer binds himself to hire only members of the contracting union who must continue to remain members in good standing to keep their jobs. It is "the most prized achievement of unionism." It adds membership and compulsory dues. By holding out to loyal members a promise of employment in the closed-shop, it welds group solidarity. It is a very effective form of union security agreement. A closed-shop is a valid form of union security, and such a provision in a collective bargaining agreement is not a restriction of the right of freedom of association guaranteed by the Constitution.
In terminating the employment of an employee by enforcing the Union Security Clause, the employer needs only to determine and prove that: 1. The union security clause is applicable; 2. The union is requesting for the enforcement of the union security provision in the CBA; and 3. There is sufficient evidence to support the union's decision to expel the employee from the union or company.
113
117
114
118
Crayons v Pula (2007) Inquilllo v. FPSI (2009)
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Book VI, Rule 1, Sec. 2
Art. 271 (a)
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No labor organization or employer shall declare a strike or lockout without either: o First having bargained collectively; or o First having filed the notice required; or o First obtaining and reporting the necessary strike or lockout vote to the DOLE. Any worker whose employment has been terminated as a consequence of any unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be declared to have lost his employment status o Provided, that mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even if a replacement had been hired by the employer during such lawful strike.
SLMCEA-AFW v NLRC (2007) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination. While the right of workers to security of tenure is guaranteed by the Constitution, its exercise may be reasonably regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and the general welfare of the people.119
119
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SUMMARY OF JUST CAUSES FOR DISMISSAL
CONCEPT
RESIGNATION
SERIOUS MISCONDUCT / WILFUL DISOBEDIENCE
GROSS AND HABITUAL NEGLECT
LOSS OF TRUST OF CONFIDENCE
COMMISSION OF CRIME
Voluntary act of employee of relinquishing the office
Serious Misconduct: 1. Must be serious 2. Must relate to the performance of an EE’s duties 3. Must show that the EE has become unfit to continue work
Gross Negligence 1. Want of even slight care 2. Acting/omitting to act in a situation where there's duty to act 3. Wilful and intentional 4. Conscious indifference to consequences affecting other people
Crime or offense against: 1. Person of the employer 2. Any immediate member of his family 3. His duly authorized representative
Habitual Neglect 1. Failure to perform duties 2. For a period of time 3. Failure done repeatedly
Elements: 1. The EE must be one holding a position of trust and confidence. 2. An act that would justify the loss of trust and confidence 3. Such act must be based on a wilful breach of trust and founded on clearly established facts 4. The basis for the dismissal must be clearly and convincingly established
None
None
None
Wilful Disobedience 1. Conduct was wilful/intentional 2. Characterized by a wrongful and perverse attitude 3. Order violated was known, reasonable and lawful 4. Order must pertain to the duties of the EE SEPARATION PAY
None, unless stipulated in CBA or is company practice
None
SUMMARY OF JUST AND AUTHORIZED CAUSES FOR DISMISSAL INSTALLATION OF LABOR SAVING DEVICES
REDUNDANCY
RETRENCHMENT
CLOSURE OF BUSINESS
DISEASE
CONCEPT
Contemplates the installation of machinery to effect economy and efficiency in its method of production.
Elements: 1. Written notice to EE and DOLE 1 month before date of termination 2. Payment of separation pay 3. Good faith in abolishing redundant positions 4. Fair and reasonable criteria
Elements: 1. Purpose is to advance the interest of the employer and not to defeat or circumvent the rights of employees 2. Written notice to EE and DOLE 1 month before date of termination 3. Payment of separation pay in case of closure not due to financial losses
Elements: 1. The disease is of such nature of at such a stage that it cannot be cured within a period of 6 months even with proper medical treatment. 2. There is a certification by competent public health authority
SEPARATION PAY
1 month OR 1 month per year of service
1 month OR 1 month per year of service
Elements: 1. Reasonably necessary and likely to prevent business losses 2. Written notice to EE and DOLE 1 month before date of termination 3. Payment of separation pay 4. Retrenchment in Good Faith 5. Use of fair and reasonable criteria 1 month OR ½ month per year of service
1 month OR ½ month per year of service
1 month OR ½ month per year of service
* Note that those causes that only award ½ month pay have a financial issue related to the termination
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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IV. Procedural Requirements Art. 283 (b); Book VI, Rule I, Secs. 1, 2, 3
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The Constitution, statutes and jurisprudence uniformly mandate that no worker shall be dismissed except for a just or valid cause provided by law, and only after due process is properly observed.120 In dismissing an employee from service, the employer has the burden of proving its observance of the two-notice requirement and its accordance to the employee of a real opportunity to be heard.121
PROCEDURAL REQUIREMENTS
LIABILITY ENTITLEMENT
Twin Notice Requirement: 1. First Notice: o To inform the employee of the particular acts or omissions for which the employer seeks his dismissal o To give to said employee reasonable opportunity within which to explain his side o To inform him that an investigation will be conducted on the charges specified in such notice which, if proven, will result in the employee’s dismissal 2. Second Notice: o To inform the employee of his employer's decision to terminate him because grounds have been established to justify such termination.
JUST CAUSES
AUTHORIZED CAUSES
Written notice of grounds of termination, give EE opportunity to explain Grant hearing to EE, w/ counsel if latter so desires + opportunity to respond to charges, to present evidence, and to rebut evidence presented against her Written notice of termination indicating all the circumstances that show the grounds justifying termination have been established Acts or omissions attributable to EE If termination is illegal: reinstatement and full backwages If reinstatement is impossible: separation pay
Written notice to EE and DOLE 30 days prior to effectivity of termination
Authorized grounds for termination under LC, not attributable to EE Separation pay If termination is illegal, REINSTATEMENT and FULL BACKWAGES If reinstatement impossible, separation pay
History of the 4th Situation Doctrine (Compliance with substantive due process but not with procedural due process) PERIOD STATUS OF DISMISSAL PRIOR TO 1989 Illegal Dismissal or Termination if EE is not given notice WENPHIL CORP Valid dismissal V. NLRC (1989) ER pays fine if there is termination for just cause, but non-compliance with procedural requisites EE not entitled to reinstatement and backwages (to grant such would encourage worse behavior and constitute mockery of the rules of dismissal) Imposed a fine of 1k SERRANO, JAN. Ineffectual Dismissal 2000 Procedural non-compliance is not a denial of due process that will nullify the termination, but the dismissal is ineffectual and the ER must pay full backwages from the time of termination ‘til judicial declaration that dismissal was for just or authorized cause
AGABON, NOV. 2004
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Rationale: the mere fine imposed by Wenphil failed as deterrent against ERs who did not comply with procedural requisites; thus the penalty upgrade to full payment of backwages to confront the practice by ERs to “dismiss now and pay later”
Problem: it does not implement the true meaning of Art.279 on Security of Tenure, that is, termination is illegal only if there is no just or authorized cause; payment of backwages and other benefits including reinstatement is justified only if the EE is illegally dismissed (i.e. no just or valid cause)
The Serrano ruling can cause unfairness and injustice Valid Dismissal Procedural infirmity cannot be cured, but dismissal is not invalidated ER’s liability for non-compliance with procedural requirements of due process is in the form of nominal damages The sanction should be in the nature of indemnification or penalty and should depend on the facts of each case, taking into special consideration the gravity of the due process violation of the employer
Failure to qualify in accordance with the standards prescribed by the employer does not require notice and hearing. Due process of law for this second ground consists of making the reasonable standards expected of the employee during his probationary period known to him at the time of his probationary employment.122
Baron v NLRC (2010) JARL v Atencio (2012) 122 PDI v Magtibay, Jr. _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway 120
Art. 283 (b), 1st sentence
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123
Administrative and quasi-judicial bodies are not bound by the technical rules of procedure in the adjudication cases. However, the right to counsel, a very basic requirement of substantive due process, has to be observed.123
Salaw v NLRC (1991)
121
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Cardinal Primary Rights which must be respected even in proceedings of administrative character:124 (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. (2) The tribunal must consider the evidence presented, the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. (3) Having something to support its decision (4) Evidence must be "substantial." (5) The decision must be rendered on the evidence presented the hearing, or at least contained in the record and disclosed to parties affected. (6) Act on its or his own independent consideration of the law and facts of controversy, and not simply accept the views of a subordinate arriving at a decision (7) Act on its or his own independent consideration of the law and facts of controversy, and not simply accept the views of a subordinate arriving at a decision
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Art. 283 (b), 1st sentence
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Notes: -
A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. In case of termination, the foregoing notices shall be served on the employee’s last known address. In dismissing an employee, the employer has the burden of proving that the dismissed worker has been served two notices
Consti., Art. VIII, Sec. 14
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A verbal appraisal of the charges against an employee does not comply with the first notice requirement.125
Art. 283 (b), 1st sentence
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The first written notice to be served on the employees should contain a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. o “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. o This should be construed as a period of at least 5 calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Should the parties fail to agree upon an amicable settlement, either in whole or in part, during the conferences, the Labor Arbiter shall issue an order stating therein the matters taken up and agreed upon during the conferences and directing the parties to simultaneously file their respective verified position papers.127 Immediately after the submission by the parties of their position papers/memorandum, the Labor Arbiter shall motu proprio determine whether there is a need for a formal trial or hearing. At this stage, he may, at his discretion and for the purpose of making such determination, ask clarificatory questions to further elicit facts or information, including but not limited to the subpoena of relevant documentary evidence, if any from any party or witness.128
The employer shall furnish the worker a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. o "Ample opportunity to be heard" means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way. o A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it. o A hearing means that a party should be given a chance to adduce his evidence to support his side of the case and that the evidence should be taken into account in the adjudication of the controversy. o "To be heard" does not mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations, submissions or pleadings. o The existence of an actual, formal "trial-type" hearing, although preferred, is not absolutely necessary to satisfy the employee’s right to be heard. 126 Employer may provide an employee with ample opportunity to be heard and defend himself in ways other than a formal hearing. Due process is not violated where a person is given the opportunity to be heard but chooses not to give his side of the case
Ang Tibay v CIR (1940) King of Kings v Mamac (2007) Perez v PT&T (2008) 127 Sec. 3, Rule V of the New Rules of Procedure of the NLRC 128 Sec. 4, Rule V of the New Rules of Procedure of the NLRC 129 ABD Overseas v NLRC (1998) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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Due process requires that the parties to a litigation be informed of how it was decided, with an explanation of the factual and legal reasons that led to the court’s conclusion. The losing party is entitled to know why he lost, so he may appeal to a higher court if he believes proper. A decision that does not clearly and distinctly state its factual and legal bases leaves the parties in the dark and is especially prejudicial to the losing party.129
In illegal dismissal cases, the onus of proving that the employee was not dismissed or, if dismissed, that the dismissal was not illegal, rests on the employer, failure to discharge which would mean that the dismissal is not justified and, therefore, illegal.130 Before respondent company could be burdened with proving the legality of dismissal, “there has to be details of acts attributed to respondents constituting illegal dismissal if only to give petitioner the opportunity to adduce evidence to defend himself from or disprove occurrence of such act or inaction”131
Substantial evidence is necessary for an employer to effectuate any dismissal. Uncorroborated assertions and accusations by the employer do not suffice, otherwise the constitutional guaranty of security of tenure of the employee would be jeopardized.132 o Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise.133 Respondents must not, however, only rely on the seeming weakness of petitioner’s evidence, but must stand on the merits of their own defense
Macasero v Southern Industrial Gases (2009) Phil. Rural Reconstruction Movement v Pulgar (2010) Kulas Ideas v Alcoseba (2010) 133 Abosta Shipmanagement Corp. v. NLRC (2011)
124
130
125
131
126
132
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Neither a criminal prosecution nor a conviction beyond reasonable doubt for the crime is a requisite for the validity of the dismissal. It is not necessary that the employer should await the employee’s final conviction in the criminal case involving such fraud or breach of trust before it can terminate the employee’s services. In fact, even the dropping of the charges or an acquittal of the employee therefrom does not preclude the dismissal of an employee for acts inimical to the interests of the employer. Unlike a criminal case, which necessitates a moral certainty of guilt due to the loss of the personal liberty of the accused being the issue, a case concerning an employee suspected of wrongdoing leads only to his termination as a consequence. The quantum of proof required for convicting an accused is thus higher – proof of guilt beyond reasonable doubt – than the quantum prescribed for dismissing an employee – substantial evidence.
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Technical requirements should be relaxed in the interest of substantial justice140
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The longer that an employee stays in the service of a company, the greater the expectation that he will comply with the norms of conduct and the code of discipline in the company; prolonged employment militates against the defense of good faith.141
Art. 229
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Art. 1146 (CC); Art. 296, 297 (LC)
ACTIONS UPON AN INJURY TO THE RIGHTS OF THE PLAINTIFF OFFENSES PENALIZED UNDER THE LC MONEY CLAIMS UNFAIR LABOR PRACTICES
PRESCRIPTIVE PERIOD 4 years 3 years -
1 year
Based on Article 1155 of the Civil Code, the 3-year prescriptive period for money claims in labor cases can be interrupted by the following:135 A claim filed with the proper judicial or quasi-judicial forum An extrajudicial demand on the employer The employer's acknowledgment of its debt or obligation.
Concept -
Has to be a voluntary act as there is no showing that the employee was coerced into executing the instrument. While the law looks with disfavor upon releases and quitclaims by employees who are inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities, a legitimate waiver representing a voluntary settlement of a laborer's claims should be respected by the courts as the law between the parties. 136 o Absent any evidence that any of the vices of consent is present and considering the petitioner’s position and education, the quitclaim executed by the petitioner constitutes a valid and binding agreement. 137
Requisites for perfection of appeal:143 1. Payment of appeal fees 2. Filing of memorandum of appeal 3. Payment of required cash/surety bond
Art. 229
Appeals to the NLRC involving a monetary award are only perfected upon posting of a cash/surety bond in the amount equivalent to the monetary award in the judgement appealed from. o The bond is also a jurisdictional requirement that must be complied with in order for NLRC to acquire jurisdiction. Non-compliance renders the decision of LA final and executory.144 The amount of the bond may be reduced only on meritorious grounds and upon posting of a partial bond in a reasonable amount in relation to the monetary award. o The exercise of this authority is not a matter of right on the part of the appellant, but lies within the discretion of the NLRC upon showing of meritorious grounds145 Meritorious grounds:146 1. Substantial compliance with the rules 2. Surrounding facts and circumstances constituting meritorious grounds to reduce the bond 3. When a liberal interpretation of the requirement of an appeal bond would serve the desired objective of resolving controversies on the merits 4. The appellants exhibited willingness or good faith by posting a partial bond during the reglementary period Instances when a reduction of the bond is not warranted: No meritorious ground Appellant failed to comply with requirement of posting even a partial bond Circumstances show the ER’s unwillingness to ensure satisfaction of EE’s valid claims. -
Requisites of a valid quitclaim138 1. The EE executes a deed of quitclaim voluntarily 2. There is no fraud or deceit on the part of any of the parties 3. The consideration of the quitclaim is credible and reasonable 4. The contract is not contrary to law, public order, public policy, morals or good customs or prejudicial to a third person with a right recognized by law. When quitclaims may be annulled "Dire necessity" may be an acceptable ground to annul quitclaims if the consideration is unconscionably low and the employee was tricked into accepting it, but is not an acceptable ground for annulling the release when it is not shown that the employee has been forced to execute it.139
Concepcion v Minex Import Corp. (2012) PLDT v Reus (2008) 136 Talam v NLRC (2010) 137 Aujero v Phil. Communications Satellite Corp. (2012) 138 Universal Robina Sugar Milling v Caballeda (2008) 139 Supra. 140 Jobel Enterprises v NLRC _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
Appeals from LA: 10 calendar days after receipt of such decision Grounds for Appeal: o If there is prima facie evidence of abuse of discretion on the part of the LA; o If the decision, order or award was secured through fraud or coercion, including graft and corruption; o If made purely on questions of law; and o If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. The proper remedy to question the decisions or orders of the Secretary of Labor is via Petition for Certiorari under Rule 65, not via an appeal to the Office of the President. o Only those of national interest may be appealed to the Office of the President142
Cruz v Coca-Cola Bottlers Barairo v MST Marine (2011) 143 Ramirez v CA 144 Mindanao Times v Confesor (2010) 145 University Plans v Solano (2011) 146 Nivol v. Footjoy Industrial Corp
134
141
135
142
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V. Reliefs/Remedies in Illegal Dismissal
Economic Business Conditions Economic business conditions are valid grounds to not reinstate an employee who was with management during its downhill economy. It is inevitable that these be reflected in the desire for efficient and productive management. Instead of reinstatement to the previous position, illegally dismissed employee must be reinstated to a substantially equivalent position without loss of seniority rights.150
Art. 285, 229
1. 2. 3. 4. 5.
Reinstatement / Separation Pay Backwages Damages Attorney’s Fees Other Indemnity
Employee’s Unsuitability While the employee is innocent, her continued presence as a teacher in the school may well be met with antipathy and antagonism by some sectors in the school community.151
G.R.: Remedy for illegal dismissal is reinstatement of employee to his former position w/o loss of seniority rights and payment of backwages E: Doctrine of Strained Relations In lieu of reinstatement, separation pay + full backwages should be given Separation pay and full backwages are cumulative not alternative remedies.
Employee’s Retirement/Overage -
Art. 285
Antipathy and Antagonism – Doctrine of Strained Relations Payment of separation pay is an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. It liberates the employee from what could be a highly oppressive work environment and it releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust.153
Definition Reinstatement means restoration to a state or condition from which one had been removed or separated. It presupposes that the previous position from which one had been removed still exists, or that there is an unfilled position which is substantially equivalent or of similar nature as the one previously occupied by the employee. Reinstatement does not mean promotion.147 The decision of the LA reinstating a dismissed employee shall be immediately executory, even pending appeal.
Job with a totally different nature An assignment to a different job, as well as transfer of work assignment without any justification therefor, cannot be deemed as faithful compliance with a reinstatement order.154
Types of Reinstatement 1. Actual reinstatement 2. Payroll reinstatement Intent of the law in making a reinstatement order immediately executory: To restore the status quo in the workplace in the meantime that the issues raised and the proofs presented by the contending parties have not yet been finally resolved. It is a legal provision which is fair to both labor and management because while execution of the order cannot be stayed by the posting of a bond by the employer, the workers also cannot demand their physical reinstatement if the employer opts to reinstate them only in the payroll.148 Exceptions 1. Closure of Business 2. Economic Business Conditions 3. Employee’s Unsuitability 4. Employee’s Retirement/Overage 5. Antipathy and Antagonism – Doctrine of Strained Relations 6. Job with a totally different nature Closure of Business Absent any showing that its business was deliberately stopped to avoid reinstating the complaining employees, the amount of back wages shall be computed from the time of their illegal termination up to the time of the cessation of the business operations. Computing backwages beyond the date of cessation of business, would not only be unjust but confiscatory as well as violative of the Constitution depriving the [respondent] of his property rights.149
Asian Terminals v. Villanueva (2006) Composite Enterprises v. Caparoso (2007) Retuya v. Dumarpa (2003) 150 Union of Supervisors v. Secretary of Labor (1984) 151 Divine Word High School v NLRC (1986) 152 Espejo v NLRC (1996) 153 Martos v New San Jose Builders (2012) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
An illegally dismissed employee cannot be reinstated if he reaches 60 by the time his second complaint is filed with the Labor Arbiter. He is only entitled to back wages computed from when he was illegally dismissed until the time he turned 60.152
Offer to reinstate At any rate, sincere or not, the offer of reinstatement could not correct the earlier illegal dismissal of the employer.155 Payroll Reinstatement/Wages pending Appeal A form of constructive reinstatement where the employer does not physical work again but is still receiving his regular salary and benefits. Even if the employee is able and raring to return to work, the option of payroll reinstatement belongs to the employer – an exercise of its management prerogative. In case of strained relations or non-availability of positions, the employer is given the option to reinstate the employee merely in the payroll, precisely in order to avoid the intolerable presence in the workplace of the unwanted employee.156 No Refund Doctrine If the employee has been reinstated during the appeal period and such reinstatement order is reversed with finality, the employee is not required to reimburse whatever salary he received for he is entitled to such, more so if he actually rendered services during the period.157 Reinstatement as Interim Relief, when applicable Article 223 concerns itself with an interim relief, granted to a dismissed or separated employee while the case for illegal dismissal is pending appeal. It does not apply where there is no finding of illegal dismissal.158
DUP Sound Phils. V CA and Pial (2011) Ranara v NLRC (1992) Radio Phil Network v YAP (2012) 157 Roquero v PAL 158 Lansangan v Amkor (2009)
147
154
148
155
149
156
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Art. 285
Purpose -
It is to restore an EE’s income that was supposed to be earned but was lost because of his unjust dismissal.
Computation: Moment compensation was withheld -> Time of reinstatement Includes the following: o Basic Wage/Salary o Allowances o 13th month pay o Other benefits Does not include the following: o Salary increases after termination o Benefits not yet awarded before termination Legal Interest shall be awarded on top of the backwages after final judgement.159 Effect of Failure to Order The failure of the LA and the NLRC to award backwages to an employee who is legally entitled thereto having been illegally dismissed, amounts to a "plain error" that the Court may rectify, although the employee did not bring any appeal regarding the matter, in the interest of substantial justice.160 Fringe Benefits Fringe benefits are included in the phrase “full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent.
Art. 111; Art. 2208 (7) (CC)
Concept -
Awarded to validly dismissed employees as a measure of social justice and equity.163 Also awarded to unjustly dismissed employees if reinstatement is not feasible.
Separation pay may be awarded only in cases when the termination of employment is due to: Installation of labor-saving devices Redundancy Retrenchment Closing or cessation of business operations, (e) d Disease of an employee and his continued employment is prejudicial to himself or his co-employees When an employee is illegally dismissed but reinstatement is no longer feasible. A valid dismissed for just causes other than serious misconduct, wilful disobedience, gross and habitual neglect of duty, fraud or wilful breach of trust, commission of a crime against the employer or his family, or those reflecting on his moral character.164 Separation Pay for Resigned Employees165 G.R.: An employee who voluntarily resigns from employment is not entitled to separation pay E: When it is stipulated in the employment contract or CBA It is sanctioned by established employer practice or policy.
CONCEPT
Attorney’s Fees 10% of amount of wages recovered It is unlawful to demand more than 10% attorney’s fees Damages Moral Damages: o Recoverable only where the dismissal of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy.161 Nominal Damages: o 30,000 – In case of valid dismissals attended with a violation of the EE’s Procedural Due Process Rights o This form of damages would serve to deter employers from future violations of the statutory due process rights of employees. At the very least, it provides a vindication or recognition of this fundamental right granted to the latter under the Labor Code and its Implementing Rules.162 Exemplary Damages: o Exemplary damages may avail if the dismissal was effected in a wanton, oppressive or malevolent manner.
Eastern Shipping v CA Aurora Land v NLRC (1997) M+W Zander v Enriqez (2009) 162 Agabon v NLRC (2004) 163 BPI v NLRC (2010) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
BACKWAGES To restore withheld income because of unjust dismissal
WHEN AWARDED
Upon finding of LA of unjust dismissal
COMPUTATION
From time compensation was withheld up to time of reinstatement
EFFECT OF RECEIPT
Not returnable
SEPARATION PAY Awarded to validly dismissed employees as a measure of social justice and equity. Also awarded to unjustly dismissed employees if reinstatement is not feasible. Upon termination of employee When reinstatement is no longer feasible Will depend upon the CBA, agreement between the ER and EE or the cause of the termination Time it can be claimed that the ER-EE relationship has formally ceased. Not a bar from contesting the legality of dismissal.
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Must be based on employee’s basic wage + transportation + ECOLA Commissions earned shall also be included in the computation o Must be based on the average commissions earned during their last year of employment.166
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Employees who received their separation pay are not barred from contesting the legality of their dismissal. The acceptance of those benefits would not amount to estoppel.167
Toyota Motor Phils. Corp. Workers Association v. NLRC “J” Marketing Corp v Taran (2009) Songco v NLRC (1990) 167 San Miguel Corp v Javate (1992)
159
164
160
165
161
166
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Generally allowed as a measure of social justice and equity May also be awarded in case of exception circumstances, such as recurring illness preventing the employee from working168
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Employee is validly dismissed for the following causes: o Serious misconduct o Wilful disobedience o Gross and habitual neglect of duty o Fraud or wilful breach of trust o Commission of a crime against the employer or his family, or those reflecting on his moral character
Paduata v Meralco (2012) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway 168
G.R.: Corporate Officers are not personally liable for their official acts, because a corporation, by legal fiction, has a personality separate and distinct from its officers, stockholders, and members. E: Unless they have exceeded their authority or where terminations of employment are done with malice or in bad faith o In this case, they should be held solidarily liable with the corporation169
169
AMA Computer College v Ignacio (2009) 55
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VII. Voluntary Retirement I. Coverage Art. 293, par. 1; Book VI, Rule II, Sec. 1; Labor Advisory on Retirement Pay Law
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Applies to all employees in the private sector, regardless of their position, designation or status an d irrespective of the method by which their wages are paid
1. 2.
Voluntary Retirement Compulsory Retirement
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Retirement by virtue of EE’s intention to severe the ER-EE relationship upon reaching retirement age In the absence of any agreement, an employee may retire upon reaching the age of 60 years If the intent to retire is not clearly established or if the retirement is involuntary, it is to be treated as a discharge.174
Sec. 2
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Employees of the National Government and its political subdivisions GOCCs if they are under the Civil Service Law Employees of retail, service and agricultural establishments employing not more than 10 employees
II. Definition -
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Retirement is the result of a bilateral act of the parties, a voluntary agreement between the employer and the employee whereby the latter, after reaching a certain age agrees to sever his or her employment with the former.170 Took effect on Jan. 7, 1993
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VIII. Forfeiture of Benefits -
III. Retroactive Application of RA 7641 Requisites in order for RA 7641 may be given a retroactive effect171 1. Claimant was still in the employ of the employer at the time the statute took effect; and 2. Claimant had complied with the requirements for eligibility for such retirement benefits under the statute.
IV. Components of ½ Month Pay/Salary Rules Implementing the New Retirement Law, Rule II, Sec. 5.2, Guidelines 5.2
15 days of salary 5 days service incentive leave 1/12th of 13th month pay Other benefits Total Notes: -
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The Courts may order the payment of retirement benefits not because there is legal basis for such but on the basis of equity o It serves as a measure of what should be paid as “equitable solution”177
X. Retirement Pay Differential If the benefits in a CBA or Company-provided retirement scheme are less than those provided in the law, the employer shall pay the difference.
XI. Management Prerogative 172
Salary shall not include the following: o ECOLA o Profit-Sharing payments o Other monetary benefits which are not considered as part of or integrated into the regular salary of the employees
V. When RA 7641 is applicable
G.R.: The company’s retirement scheme shall apply E: Art. 293 shall apply in the following cases: o There is no CBA or other applicable employment contract providing retirement benefits o There is a CBA but such provides retirement benefits below requirement set by law
Rules Implementing the New Retirement Law, Rule II, Sec. 6
Requisites in order for the Retirement Plan to be Tax-Exempt 1. The benefit plan must be approved by the Bureau of Internal Revenue; 2. The retiring official or employee must have been in the service of the same employer for at least 10 years and is not less than 50 years of age at the time of retirement; and 3. The retiring official or employee shall not have previously availed of the privilege under the retirement benefit plan of the same or another employer. Note: -
170
Jaculbe v Silliman University (2007) Universal Robina Sugar Milling v Caballeda (2008) Reyes v NLRC (2007) 173 Banco Filipino v Lazaro (2012) 174 Ariola v Philex Mining (2005) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
175
171
176
172
177
Compulsory and Contributory in character (Art. 293) CBA / Agreed retirement schemes Voluntarily provided retirement schemes a. Announced company policy b. Implied in its failure to contest the employee’s claim for retirement benefits
Retirement of an employee may be done upon initiative and option of the management. And where there are cases of voluntary retirement, the same is effective only upon the approval of management.178
XII. Exemption from Tax
VI. Three Kinds of Retirement Plans173 1. 2. 3.
Under the Labor Code, only unjustly dismissed employees are entitled to retirement benefits and other privileges including reinstatement and backwages. 175 o Employees who are validly dismissed from service by reason of timely discovered offenses are deprived of retirement benefits.176
IX. Equitable Solution
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15 days 5 days 2.5 days ________ 22.5 days
In the absence of any agreement, an employee shall be retired upon reaching the age of 65 years
An agreement to pay the taxes on the retirement benefits as an incentive to prospective retirees and for them to avail of the optional retirement scheme is not contrary to law or to public morals.179
Sy v. Metrobank (2006) Equitable PCI Bank v Caguioa (2005) PLDT v Reus (2008) 178 PAL v ALPAP (2002) 179 Intercontinental Broadcasting Corp. v Amorilla (2006) 56
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XIII. Gratuity vis-à-vis Retirement Pay -
Gratuity pay is separate and distinct from retirement benefits. It is paid purely out of generosity.180
BASIS PURPOSE
RETIREMENT PAY Loyalty of EE Help EE enjoy his remaining years Release EE from burden of worrying for his financial support
GRATUITY PAY Generosity of Grantor/ER Reward for satisfactory service
Sta. Catalina College v NLRC (2003) _______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway 180
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Jamie Chan’s Reviewer (A 2015) A2016 Digests
_______________________________________________________________ LABOR STANDARDS and SOCIAL LEGISLATION Reviewer || Prof. P. R. P. Salvador-Daway
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