Labor Law (Book 1-3)

Labor and Social Legislation

AUF School of Law

THE LABOR CODE OF THE PHILIPPINES

calculated to insure economic stability of all component elements of society

Chapter 1 GENERAL PROVISIONS

Constitutional provisions related to Labor:  Art. II o Sec. 9 “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.”

Art. 1-2 Labor Code – took effect on November 1, 1974; − charter of human rights and bill of obligation for every working man Labor legislation – statutes, regulations and jurisprudence governing the relations between capital and labor, by providing certain standards and a legal framework for negotiating, adjusting and administering those standards and other incidents of employment. • Labor standards – sets out the minimum terms, conditions and benefits of employment that employers must comply with o Minimum requirement required by law and regulations relating to wages, hours of work, COLA, and other monetary welfare benefits including occupational safety and health standards o Books 1 (Pre-Employment), Book 2 (Human Resources Development Program), Book 3 (Conditions of Employment),and Book 4 (Health, Safety & Social Welfare Benefits) of the Labor Code • Labor relations – defines the status, rights and duties and the institutional mechanisms that govern the individual and collective interactions of employers, employees, or their representatives. o Book 5 (Labor Relations) and Book 6 (Post-Employment)

o Sec. 10 “The State shall promote social justice in all phases of national development.” Sec. 18 “The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.” o

 Art. III, Sec. 8 “The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.”  Art. VI Along with other sectors, labor is entitled to seats allotted to party-list representatives fro 3 consecutive terms after the ratification of the Constitution

Social legislation – includes laws that provide particular kinds of protection or benefits to society or segments thereof in furtherance of social justice (the aim of labor laws)

 Art. IX-B, Sec 2[3], [5] and [6] “No officer or employee of the civil service shall be removed or suspended except for cause provided by law.”

social justice – the aim of labor laws; raison de’tre - promotion of the welfare of all the people, the adoption by the government of measures Jmvdg

“The right to self-organization shall not be denied to government employees.” 1

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“Temporary employees of the Government shall be given such protection as may be provided by law.”

making processes affecting their rights and benefits as may be provided by law. The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace. The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.

 Art, XII, o Sec. 1 “The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full of efficient use of human and natural resources.”

Basic rights of workers guaranteed by the Constitution are the right to…  organize themselves  conduct CBA  engage in peaceful concerted activities  enjoy security of tenure  work under humane conditions  receive a living wage  Participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

o Sec. 15 “The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development.”  Art. XIII o Sec. 3 Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to self-organizations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decisionJmvdg

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Sec. 4, 5, and 6 Regular farmworkers shall have the right to own directly or collectively the lands they till. Other farmworkers shall receive a just share of the fruits of the land they till. The state recognizes the right of farmworkers, along with other groups to take part in the planning, organization, and management of agrarian reform program. Landless farmworkers may be resettled by the Government in it sown agricultural estates. 1st Semester/ A.Y. 2010-2011

Labor and Social Legislation

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o Sec. 9 “The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to underprivileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.” o

responsibility employers.

7 principles underlying the Code (see pp. 14, The Labor Code with Comments and Cases Vol. I, C.A. Azucena, 2004 ed.) Other related laws:  Civil Code o Art. 1700, Art. 1701, Art. 1703, etc.  Revised Penal Code o Art 289  Special Laws o SSS law, GSIS law, Agrarian Reform Law, 13th month pay law, Magna Carta for Public Heal Workers ILO – International Labour Organization - UN specialized agency which seeks the promotion of social justice and internationally recognized human and labour rights. - Created in 1919; Robert Owen of Wales & Daniel Legrand of France - formulates international labor standards Art. 3 purpose: to place the workingman on an equal plane with management with all its power and influence in negotiating for the advancement of his interests and the defenses of his rights.

o Sec. 18 “At the earliest possible time, the Government shall increase the salary scales of the other officials and employees of the National Government.”

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suggests

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Birth of Labor Code:  Written in 1968 under the leadership of Mr. Blas Ople (father of the Labor Code)  Aim: consolidate the scattered labor laws & reorient these laws to the needs of economic development and justice.

Sec. 14 “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.”

constitution

workers

Police power is the basis of labor laws. Cases: PP vs. Pomar; Phil. Assoc. of Service Exporters vs. Drilon

 Art. XVIII o Sec. 16 Career civil service employees separated from the service not for cause but as a result of the reorganization shall be entitled to appropriate separation pay and to retirement and other benefits under existing laws. In lieu thereof, they may be considered for employment in the Government. Those whose resignation has been accepted in line with the existing policy shall have this right.

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between

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BOOK ONE PRE-EMPLOYMENT

Darvin vs. CA and PP G.R. No. 125044 July 13, 1998

Art. 12 Employment problem is multi-faceted and the solution is the concern of not only one or two government agencies but the concern of the entire governmental system.

By themselves, procuring a passport, airline tickets and foreign visa for another individual, without more, can hardly qualify as recruitment activities.

Art. 14 To pursue its responsibility to promote employment opportunities, the DOLE carries out programs for local and overseas employment. Effective allocation of manpower resources in local employment is assigned to the BLE and to POEA for overseas employment.

DOLE- the primary policy-making, programming, coordinating, and administrative body of the Executive Branch Purpose of Book One: TO regulate the activities of agencies authorized to recruit and deploy workers for overseas employment.

The information or data obtained by the DOLE and POEA will serve as guide in determining domestic labor needs.

TITLE I Recruitment & Placement of Workers

An employer with at least 6 employees is required to submit to the nearest public employment office the ffg: • list of existing job vacancies or opening • list of new employees, if any • termination, lay-off or retirement • total number of employed workers for the period, and • request for assistance, if needed, to fill the vacancies

Art. 13 Art. 13 (b):this provision creates a presumption that the individual or entity is engaged in recruitment and placement whenever he is dealing with 2 or more persons to whom in consideration of a fee, offer, or promise of employment is made in the course of the canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring of workers'

Art. 15 (Bureau of Local Employment) BLE & POEA were created by the mandate of E.O. 797

PP vs Panis 142 SCRA 664 The number of persons dealt with is not an essential ingredient of the act of recruitment and placement of workers. Any of the acts mentioned in the basic rule in Article 13(b) will constitute recruitment and placement even if only one prospective worker is involved. The proviso merely lays down a rule of evidence that where a fee is collected in consideration of a promise or offer of employment to two or more prospective workers, the individual or entity dealing with them shall be deemed to be engaged in the act of recruitment and placement. The words "shall be deemed" create that presumption.

PESO • RA 8759; intended to serve as employment service and information center in its area of operation. • regularly obtains list of job vacancies from employers, publicizes them, invites and evaluates applicants, and refers them for probable hiring. • Also provides training and educational guidance and employment counseling services.

PP vs. Goce 247 SCRA 780 There is illegal recruitment when one gives the impression of having the ability to send a worker abroad such that the latter were convinced to give her the money she demanded in order to be so employed.

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Art. 16 this provision sought to avoid commission of malpractice by fly-by-night or private recruiters against unsuspecting workers who intend to work locally or overseas.

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authorized entities to recruit and place workers for local & overseas employment: • public employment office • private recruitment entities • private employment agencies • shipping or manning agents or representatives • 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 POEA • other persons or entities as may be authorized by the DOLE secretary

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POEA: Functions and Powers • formulation, implementation, and monitoring of the overseas employment of Filipino workers and the protection of their rights to fair and equitable employment practices • participates in the deployment of Filipino workers through government-togovernment hiring • regulatory function: ◦ regulates the private sector participation in the recruitment and overseas placement of workers through its licensing and registration system. • adjudicatory function original and exclusive jurisdiction to hear and decide the ffg. cases ◦ recruitment violation and related cases consisting of all preemployment cases which are administrative in character, involving or arising out of recruitment laws, rules and regulation, violations of the conditions for issuance of license to recruit workers ◦ Disciplinary action cases (warning, repatriation, suspension, or disqualification from the overseas employment program, or inclusion in

Art. 17 (Overseas Employment Development Board) the powers and functions of the OEDB were taken over by the POEA composition of POEA • the Governing Board ◦ Sec. of DOLE - Chairman ◦ Administrator ◦ 3rd member (considered well-versed in the field of overseas employment, appointed by the Presodent for a term of 2 years) • Office of the Administrator • office of the Deputy Administrator • Office of the Directors legislative background of overseas employment: • Act. 2486 – provides for license issuance and license fee and welfare regulations. • PD 442 – created the OEDB & NSB to implement a more systematic deployment of and-based and sea-based workers to

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other countries. EO 797 – aimed at streamlining operations in the overseas employment program; OEDB & NSB were united in a single structure – the POEA. EO 247 – reorganization act of POEA, strengthening of the worker's protection and welfare and a tighter regulation of the private sector's recruitment activities RA 8042 – “Migrant Workers and Overseas Filipino Act of 1995”. institutes the policies on overseas employment and establishes a higher standard o protection and promotion of the welfare of migrant workers, their families, and of overseas Filipinos in distress. ◦ Requires certain guarantee of protection for the overseas workers before they are deployed in countries that meet some criteria

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the POEA blacklist) ▪ grounds: • commission of a felony punishable by Phil law or by laws of the host country • drug addiction or possession or trafficking of prohibited drugs • desertion or abandonment • drunkenness • gambling • initiating or joining a strike or work stoppage where the laws of the host country prohibit the same • creating trouble at the worksite • embezzlement of company funds • theft or robbery • prostitution • vandalism or destroying of company property • gunrunning or possession of deadly weapon • unjust refusal to depart for the worksite after all employment and travel documents have been approved by the appropriate government agency • violation of the laws and sacred practices of the host country and unjustified breach of government-approved employment contract by a worker.

Migrant worker – anybody who is engaged, or to be engaged in a remunerated activity in a state of which he or she is not a legal resident; OFW To promote the efficient and economic delivery of service, the POEA has the authority to set up regional extension units. And their functions are: • execute policies, plans, programs in regions outside Metro Manila • coordinate with loc gov officials in implementing overseas employment programs • advise the central office of the needs of the region for particular welfare and regulatory programs • establish linkage with other allied gov't agencies in the pursuit of the objectives of the overseas employment program • coordinate the anti-illegal recruitment campaign in the regions • perform other functions as the POEA may deem necessary

The POEA has no jurisdiction to hear and decide a claim for the enforcement of a foreign judgment. The function with regard to jurisdiction over money claims had been transferred to the NLRC pursuant to RA 8042, Sec. 10. this law also expanded the scope of such money claims involving Filipino workers for overseas employment. − RA 8042 allows claims for money or damages sustained during the period of deployment or before departure for abroad. − RA 8042 also allows recovery of actual, moral, exemplary and other forms of damages. Jmvdg

The ffg. are originally functions of the POEA but were transferred to NLRC pursuant to RA 8042 ◦ employer-employee relations cases consisting of all claims arising out of an employer-employee relationship by virtue of any law or contract involving Filipino workers in overseas employment, such as but not limited to: ▪ violation of the terms and conditions of employment ▪ disputes relating to the implementation and interpretation of employment contracts ▪ money claims of workers against their employers and duly authorized agents in the Philippines and vice versa ▪ claims for death, disability and other benefits ▪ violation of or non compliance with any compromise agreement entered into by and between the parties in an overseas employment contract.

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Minimum employment conditions: • guaranteed wages for regular working hours and overtime pay (not lower than the prescribed minimum wage [mw] in the host country, or mw standard set forth in bilateral agreement, or mw in the Phil, whichever is higher) • free transpo to and from worksite • free emergency medical and dental treatment and facilities • free food or accomodation • just cause for termination (taking into consideration the customs, traditions, norms, mores, practices, company policies, and the labor laws & soc. legislation of the host country) • workmen's compensation benefits and war hazard protection • repatriation of worker's remains and properties in case of death to the point of hire • assistance on remittance of worker's salaries, allowances, allotment to his beneficiaries There is freedom to stipulate other terms and conditions provided the whole employment package should be more beneficial to the worker than the minimum.

employment is terminated when the contract expires. Their employment is contractually fixed for a certain period of time. They fall under the exception of Article 280 whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.

On issue of Constitutionality of Sec. 10 of RA 8042 Marsaman Manning Agency vs. NLRC G.R. No. 127195, August 25, 1999 A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months' salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words "for every year of the unexpired term" which follows the words "salaries . . . for three months." To follow petitioners' thinking that private respondent is entitled to three (3) months salary only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some.

Serrano vs Gallant Maritime G.R. No. 167614March 24, 200 Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs x x x with employment contracts of less than one year vis-à-vis OFWs with employment contracts of one year or more, or those among OFWs with employment contracts or more than one year and OFWs vis-à-vis local workers with fixed period employment," the Court held. xxx The subject clause “or for three months for every year of the unexpired term, whichever is less” in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL;

In addition to the minimum requirements, the solidary liability of the employer and the recruitment agency for any and all claims shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The POEA is authorized to recruit and place workers primarily on government-to-government arrangements and thus service the hirings of foreign government ministries and instrumentalities. Millares & Lagda vs. NLRC G.R. No. 110524, July 29, 2002

Employer's nationality immaterial Eastern Shipping Lines, Inc. vs. POEA G.R. No. 77828 February 8, 1989

From the foregoing cases, it is clear that seafarers are considered contractual employees. They can not be considered as regular employees under Article 280 of the Labor Code. Their employment is governed by the contracts they sign everytime they are rehired and their

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The statute and the relevant regulations refer to employment of Filipino workers overseas, i.e., outside the Philippines. The statute and regulations do not limit their coverage to non-Filipino employers. Filipinos working

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AUF School of Law affecting Filipino overseas. It also formulates an integrated program for the promotion of the welfare of Filipinos overseas for implementation by suitable existing agencies. • Attached to the DFA ***superseded by BP 79 Art. 20 (National Seamen Board) powers and duty: • To provide free placement services for seamen; • To regulate and supervise the activities of agents or representatives of shipping companies in the hiring of seamen for overseas employment; and secure the best possible terms of employment for contract seamen workers and secure compliance therewith; and • To maintain a complete registry of all Filipino seamen.

overseas share the same risks and burdens whether their employers be Filipino or foreign. The underlying regulatory policy, as we see it, is that Filipino seamen working on ocean-going vessels should receive the same wages and benefits, without regard to the nationality or nationalities of the vessels on which they serve.

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Basis of Compensation: Dumez Co. vs. NLRC G.R. No. 74495 July 11, 1996 It is proper for the POEA to have taken judicial notice of foreign law applicable to a claim by a Filipino overseas contract worker. True, a foreign law, being a matter of evidence, must be alleged and proved, in order to be recognized and applied in a particular controversy involving conflicts of laws, jurisprudence on this matter was not meant to apply to cases before administrative or quasi-judicial bodies in the light of the well-settled rule that administrative and quasi-judicial bodies are not bound strictly by technical rules

Art. 18 (Ban on Direct Hiring ) General rule; Direct hiring of Filipino workers by a foreign employer is not allowed. Except: by members of diplomatic corps and other mentioned in Art. 13 and name hires

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An agreement that diminishes the employee's pay and benefits in a POEA-approved contract is void, unless such such subsequent agreement is approved by POEA.

name hiree – those individual workers who are able to secure contract for overseas without the assitance or participation of an agency. Their hiring nonetheless has to be processed through the POEA.

Wallem Shipping Inc. vs. Ministry of Labor G.R. No. L-50734-37 February 20, 1981 But even if there had been such a threat, respondents' behavior should not be censured because it is but natural for them to employ some means of pressing their demands for petitioner, who refused to abide with the terms of the Special Agreement, to honor and respect the same. They were only acting in the exercise of their rights, and to deprive them of their freedom of expression is contrary to law and public policy. There is no serious misconduct to speak of in the case at bar which would justify respondents' dismissal just because of their firmness in their demand for the fulfillment by petitioner of its obligation it entered into without any coercion, specially on the part of private respondents. On the other hand, it is petitioner who is guilty of breach of contract when they dismissed the respondents without just cause and prior to the expiration of the employment contracts. As the records clearly show, petitioner voluntarily entered into the Special Agreement with ITF

purpose of the law: to avoid diplomatic backlash. To protect the good name of the country by carefully processing or worker;s papers, thus eliminating the misfit, poorly trained and incompetent workers

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now the POEA jurisdiction on money claims (Art. 20, (b)) transferred to NLRC (RA 8042)

Art. 19 (Office of Emigrant Affairs) promote the well being of emigrants and maintain their close link to the homeland abolished and its function was transferred to the Commission on Filipinos Overseas (BP 79) CFO provides advice and assistance to the President and the Congress for the formulation of policies and measures 8

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and by virtue thereof the crew men were actually given their salary differentials in view of the new rates. It cannot be said that it was because of respondents' fault that petitioner made a sudden turn-about and refused to honor the special agreement.

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Art. 22 (Mandatory Remittance of Foreign Exchange Earnings) purpose: to boost the Philippine foreign exchange reserves. Mandatory remittance – amount or portion of the basic salary of OFW required under existing laws and regulations to be remitted by the workers to their beneficiaries in the Philippines and sold for pesos to the Philippine banking system

Read: Vir-jen Shipping and Marine Services vs NLRC (115 SCRA 347 and 125 SCRA 577) Art. 21 (Foreign Service Role and Participation) purpose: to inform the home country of the status of workers employed in their respective areas of assignment.

50%-80% of the basic salary – prescribed percentage of foreign exchange remittance (EO 857)

4 gov't agencies tasked to promote the welfare and protect the rights of migrant workers. • DFA ◦ Legal Assistant for Migrant Workers (LAMW) – tasked to provide and coordinate all legal assistant services to Filipinos in distress ▪ administers the Legal Assistance Fund for Migrant Workers • DOLE • POEA • OWWA

Art. 23. - repealed Art. 24. - repealed Chapter II REGULATION OF RECRUITMENT ANDPLACEMENT ACTIVITIES Art. 25 (Private sector participation in the recruitment and placement of workers)

Migrant Workers and other Overseas Filipinos Resource Center – in Philippine embassies where there are more than 20,000 migrant workers − provides assistance to migrant workers (health, welfare, conciliation of disputes from employer-employee relationship) − managed by a Labor Attaché

The POEA was granted the “power of subordinate legislation” The regulations issued by the administrative agencies have the force of law. Requirement of publication of the regulations issued by these administrative agencies is also mandatory.

Re-placing & Monitoring Center – promotion house for local employment of the returning workers − expected to develop livelihood programs for the returning workers and formulate a computer-based information system on skilled Filipino migrant workers.

Requirements for securing a license: • certified true copy of Articles of Incorporation or of Partnership registered with SEC or certificate of registration of the firm or business name with the DTI • proof of financial capacity • savings account certificate maintaining balance not less than P500,000.00 with authority to examine the same.

OWWA − intended to provide social and welfare services, including insurance coverage, legal assistance, placement assistance and remittance services to Filipino overseas Jmvdg

workers. Formerly known as the Welfund has a role in repatriation of migrant workers

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Art. 26 (Travel agencies prohibited to recruit) disqualified: • travel agencies and sales agencies of airline companies • officers or members of the board of any corporation or members in a partnership engaged in the business of a travel agency • • persons with derogatory records • any official or employee of DOLE, POEA, OWWA, DFA and other governent agencies directly involved in the implementation of RA 8042 • relatives of the preceding within the 4th civil degree.

Proof of market capability. NBI Clearance of all members of the BOD verified undertakings individual ITRs of propritors, partners, stockholders, etc. • proof of possession of AB/BS degree and 3 years business experience • list of all officials and personnels involved in the recruitment and placement, together with their appointment • copy of contract of lease or proof of building ownership (office address with at least 100sq.m office space) • proof of publication of notice of the application • certificate of attendance of owner in seminars conducted by the Administration upon approval of the application, the applicant shall pay a license fee of P50,000.00. It shall submit an Escrow Agreement in the amount of P1M and a surety bond of P100k

Art. 27 (Citizenship requirement) “Only Filipino citizens or corporations, partnerships or entities at least 75 percent of the authorized and voting capital stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas.”

provisional license • valid for a limited period of 1 year • to allow the applicant to comply with its undertaking to deploy 100 workers to its new principal.

Art. 28 (Capitalization) The required capitalization, accdg. to POEA Rules of 2002 is a minimum of 2million pesos in case of a single proprietorship or partnership and a minimum paid-up capital of the same amount for a corporation.

An agency that fails to renew its license within 30 calendar days from expiration thereof shall be deemed delisted and barred from engaging in recruitment and placement activities. Accreditation may be granted only when the foreign signatory to the recruitment agreement with the applicant agency is the direct employer of the workers to be recruited.

Purpose: to assure the public and the government that it is not a fly-by-night entity whose purpose of its being is to abuse and fool people.

The accreditation of a principal may be transferred to another agency provided that the transfer does not involve any diminution of wage and benefits of workers.

Art. 29 (Non-transferability of license or authority) A license to operate a business enterprise is a privilege which could be reasonable regulated by the State by virtue of its inherent police power.

Full accreditation shall be valid for a maximum period of 2 years from the date of the issuance, subject to renewal.

Limitations on the use of license: • licensees or holders of authority or their duly authorized representatives may, as a rule, undertake recruitment and placement activity only at their authorized official

Provisional accreditation may be granted for a period of 90 days Jmvdg

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addresses. Personal in nature, thus it cannot be used by any person other than one in whose favor it was issued intransferrable

The above-mentioned placement and documentation costs are the only authorized payments that may be collected from a hired worker. No other charges in whatever form, manner, or purpose, shall be imposed on and be paid by the worker without prior approval of the POEA.

Art. 30 (Registration fees) “The Secretary of Labor and Employment shall promulgate a schedule of fees for the registration of all applicants for license or authority.”

POEA has the power to order refund of illegally collected fees

license – P50,000.00 Escrow Agreement – P1million surety bond – P100,000.00

Art. 33 Reports on employment status the data obtained from these reports serves as guidelines in formulation of labor policies

Art. 31 (Bond) POEA possesses the power to enforce liability under cash or surety bonds.

Art. 34 (Prohibited practices) these acts are not only grounds for suspension or cancellation of license, but they likewise constitute illegal recruitment under RA 8042.

Bonds and escrow shall answer for all valid and legal claims arising from violations of the conditions for the grant and use of the license, and/ or accreditation and contracts of employment.

paragraph (a) • 1st part: ◦ prohibits the charging or accepting of fees than that allowed by regulations. ◦ “Fees shall be collected from a hired worker only after he has obtained employment through the facilities of the recruitment agency.”

Should the bond/deposit in escrow or any part thereof be garnished, the same should be replenished within 15 calendar days from notice from POEA Art. 32 (Fees to be paid by workers) chargeable fees: to principals: (Sec. 2, POEA Rules & Regulations) • visa fee • air fare • POEA processing fee • OWWA membership fee

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2nd part: ◦ deterrent to loan sharks who lend money at usurious interests.

Paragraph (b) • includes the act of furnishing fake employment documents to a worker • includes the act of publishing false notice or information in relation to recruitment or employment

to workers: (Sec. 3, POEA Rules & Regulations) • passport • NBI/Police/Barangay Clearance • Authentication • Birth Certificate • Medicare • Trade test (if necessary) • inoculation Jmvdg

medical examination fees

paragraph (d) • mere attempt to induce the worker to quit his employment for the purpose of offering him to another is sufficient to constitute the 11

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offense.

agreement's termination was given to the employee. (in pursuant to Art. 1921, Labor Code)

Paragraph (e) • non-licensees cannot lawfully engage in recruitment & placement of workers • they are likewise prohibited from attempting to influence another not to employ a worker.

Required Undertakings by Agent: (POEA Rules. Part II, Rule II, Sec. f) • shall select only medically and technically qualified recruits • assume full & complete responsibility for all claims and liabilities which may arise in connection with the use of license • assume joint and solidary liability with the 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, health and disability compensation, and repatriation • guarantee compliance with the existing labor and social legislation of the Phil. and of the country of employment of recruited worker • assume full and complete responsibility for all acts of its officials, employees, and representatives done in connection with recruitment and placement • negotiate for the best terms and conditions of employment • disclose the full terms and conditions of employment to the applicant worker • deploy at least 100 workers to its new markets within 1 year from the issuance of the license • provide orientation on recruitment procedures, terms and conditions, and other relevant information to its workers and provide facilities therefor • repatriate the deployed workers and his personal belongings when the need arise

Paragraph (i) • purpose: to protect both parties • the law empowers the POEA to approve and verify a contract under this par. to insure that the employee shall not thereby be placed in a disadvantageous position and that the contract contains the minimum standard of such employment contract set by the POEA. The prohibitions under this article are designed to regulate of not totally eliminate malpractice regarding recruitment and placement. Art. 35 (Suspension and/or cancellation of license or authority) recruitment violations that may cause the imposition of administrative sanctions(including suspension and cancellation of licenses) • engaging in acts of misrepresentations for the purpose of securing a license or renewal thereof. • Engaging in the recruitment or placement of workers in jobs harmful to public health or morality or dignity of the RP • charging of any fee before employment is obtained for an applicant worker • charging of any fee in amount exceeding the allowable rate • obstructing inspections by DOLE

A foreign corporation which, through unlicensed agents, recruits workers in the country may be sued in and found liable by Philippine courts.

a recruitment agency is solidarily liable for the unpaid salaries of a worker it recruited for employment with a foreign principal.

RA 8042 envisions a phase out of POEA's regulatory functions so that the migration of the workers will become strictly a matter between the worker and his employer.

Even if the recruitment agency and the principal had already severed their agency agreement at the time the worker was injured, the recruitment agency may still be sued for violation of the employment contract, if no notice of the agency Jmvdg

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Chapter III MISCELLANEOUS PROVISIONS Art. 36 (Regulatory power) “The Secretary of Labor and Employment shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this Title and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this Title.”

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 person or entity not to employ any worker who has not applied for employment through his agency; (f) To engage in the recruitment or placement of workers in jobs harmful to public health or morality or to the dignity of the Republic of the Philippines as may be prohibited by law or duly constituted authority; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and Employment or by his/her duly authorized representative; (h) To fail to submit reports on the status of employment, placement vacancies, remittance of foreign exchange earnings, separation from jobs, departures and such other matters or information as may be required by the Secretary of Labor and Employment under penalty of law; (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 became 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) To fail to actually deploy without valid reason as determined by the DOLE; and (m) To fail to reimburse expenses incurred by the worker in connection with his/her

Art. 37 (Visitorial Power) “The Secretary of Labor and Employment or his duly authorized representatives may at any time inspect the premises, books of accounts and records of any person or entity covered by this Title, require it to submit reports regularly on prescribed forms, and act on violations of any provision of this Title.” Art. 38 (Illegal Recruitment) RA 8042 made clear than even licensees or holders of authority may be held guilty of illegal recruitment. Illegal recruitment - any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of the Labor Code of the Philippines. It shall likewise include the ffg acts: (a) To charge or accept directly or indirectly any amount Greater than the specified in the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or to make a worker pay the recruiter or its agents any amount greater than that actually loaned or advanced to him; (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 pr commit any act of misrepresentation for the purpose of Jmvdg

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documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the workers fault.

20 years – for illegal recruitment cases involving economic sabotage Title II Employment Of Non-Resident Aliens Art. 40 – Art. 42 Only non-resident aliens are required to secure employment permit.

4 types of illegal recruitment • simple • non-licensee • syndicated - carried out by a group of 3 or more conspiring with one another. • large scale - committed against 3 or more persons individually or as a group.

Resident aliens & immigrants are required an Alien Employment Registration Certificate (AERC) prohibitions on hiring foreigners: • Anti Dummy Law ◦ prohibits employment of aliens in entities that own or control a right, franchise, privilege, property or business whose exercise or enjoyment is reserved by law only to Filipinos or to a corporation whose capital should be at least 60% Filipino-owned • Art. XVI, Sec. 11, Constitution ◦ mass media enterprise can be owned or managed only by Filipinos or by a corporation or associations wholly owned or managed by them. • Omnibus Investment Code ◦ enterprises registered under this law may employ foreign nationals in technical, supervisory, or advisory positions.

If committed by a syndicate or in large scale shall be considered an offense involving economic sabotage. The POEA or the Sec. of Labor do not have the power to issue a warrant of search and seizure. However, the power of the Secretary or his duly authorized representatives to order the closure of illegal recruitment establishments still subsists, the same being considered essentially administrative and regulatory in nature. Procedure to order the closure of an illegal recruitment establishment (see VIII, Anti-Illegal Recruitment Programs, RA 8042) Art. 39 (Penalties) (see Section 7, RA 8042)

Department Order No. 12, Series of 2001 • Omnibus Guidelines for the Issuance of Employment Permits to Foreign Nationals • prvides a ◦ list if individuals required to apply for Alien Employment Permit (AEP) ◦ list of individuals exempt from the AEP requirement ◦ list of bases of the issuance of AEP

venue: RTC of the province where the crime was committed, or where the offended party actually resides, ti the exclusion of other courts period for resolution: • 30 days from filing – termination of preliminary investigation filing of information • 24 hours from termination of investigation – if investigation was conducted by a prosecutor • 48 hours from termination of investigation – if investigation was conducted by a judge

permits shall be valid for a period of 1 year application for renewal shall be filed 15 days prior to the expiration of the permit.

5 years – prescriptive period of illegal recruitment cases Jmvdg

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BOOK TWO HUMAN RESOURCES DEVELOPMENT Title I National Manpower Development Program

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Chapter 1 NATIONAL POLICIES AND ADMINISTRATIVE MACHINERY FOR THEIR IMPLEMENTATION

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(Arts. 43-56 have been superseded by RA 7796 or the TESDA Law)

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TESDA took over the functions of: • National Manpower and Youth Council (NMYC) • Bureau of Technical Skills and Vocational Education • regional offices of DECS in the field of vocational education • apprenticeship program of the BLE of DOLE

Powers and functions of the board The Authority shall primarily be responsible for formulating, continuing, coordinated and fully integrated technical education and skills development policies, plans and programs taking into consideration the following: • The State policy declared herein of giving new direction and thrusts to efforts in developing the quality of Filipino human resource through technical education and skills development; • The implementation of the abovementioned policy requires the coordination and operation of policies, plans, and programs of different concerned sectors of Philippine society; • Equal participation of representatives of industry groups, trade associations, employers, workers and government shall be made the rule in order to ensure that urgent needs and recommendations are readily addressed; and • Improved linkages between industry, labor and government shall be given priority in the formulation of any national-level plan.

composition: • TESDA board ◦ The Secretary of DOLE – Chairperson ◦ Secretary of DepEd – Co-Chairperson ◦ Secretary of DTI – Co-Chairperson ◦ Secretary of DA – Member ◦ Secretary of DILG – Member ◦ Director-General of the TESDA Secretariat – Member • TESDA secretariat ◦ headed by the Director General Salient Features Of The TESDA Act policy: 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 goals and priorities.

The Board, shall have the following powers: • promulgate, after due consultation with industry groups, trade associations, employers, workers, policies, plans, programs and guidelines as may be necessary for the effective implementation of this Act;

Goals: • Promote and strengthen the quality of technical education and skills development programs to attain international competitiveness; • Focus technical education and skills Jmvdg

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, self-reliance and nationalism.

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organize and constitute various standing committees, subsidiary groups, or technical working groups for efficient integration, coordination and monitoring technical education and skills development programs at the national, regional, and local levels; enter into, make, execute, perform and carry-out domestic and foreign contracts subject to existing laws, rules and regulations. restructure the entire sub-sector consisting of all institutions and programs involved in the promotion and development of middlelevel manpower through upgrading, merger and/or phase-out following a user-led strategy; approve trade skills standards and trade tests as established and conducted by private industries; establish and administer a system of accreditation of both public and private institutions; establish, develop and support institutions' trainors' training and/or programs; lend support and encourage increasing utilization of the dual training system as provided for by Republic Act. No. 7686; exact reasonable fees and charges for such tests and trainings conducted and retain such earnings for its own use, subject to guidelines promulgated by the Authority; allocate resources, based on the Secretariat's recommendations for the programs and subjects it shall undertake pursuant to approved National Technical Education and Skills Development Plan; determine and approve systematic funding schemes such as the Levy and Grant scheme for technical education and skills development purposes; create, when deemed necessary, an Advisory Committee which shall provide expert and technical advice to the Board to be chosen from the academe and the private sector: Provided, That in case the Advisory Committee is created, the Board is hereby authorized to set aside a portion of its appropriation for its operation; and

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perform such other duties and functions necessary to carry out the provisions of this Act consistent with the purposes of the creation of TESDA.

The Authority is mandated to establish Technical Skills Development Committees at the regional and local levels to coordinate and monitor the delivery of skills development activities. Middle-level manpower – who have acquired practical skills and knowledge through formal or non-formal education and training equivalent to at least a secondary education but preferably at postsecondary education with a corresponding degree of diploma or skilled workers who have become highly competent in their trade or craft as attested by industry training – systematic development of the attitude/knowledge/skill behavior pattern required for the adequate performance of a given task Incentive Scheme • developed by the TESDA to encourage industries and institutions to provide highquality technical education and skills development opportunities. • In the form of an additional deduction from the taxable income which is equivalent to a certain percentage of the value of labor training expenses incurred for development programs • conditions: ◦ the apprenticeship program is recognized by the DOLE ◦ apprentices should be paid the minimum wage; and ◦ the deduction shall not exceed 10% of the total direct labor wage expended by the employer during the taxable year Title II Training and Employment of Special Workers Chapter 1 APPRENTICESHIP Art. 57-Art. 60 apprentice – worker who is covered by an apprenticeship agreement with an individual employer or any of the entities recognized under 16

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the law. Apprenticeship • arrangement and the period when an upcoming worker undergoes hands-on training, more or less formal, to learn the ropes of a skilled job. •

Previous laws on apprenticeship: • Minimum Wage Law (RA 602) • National Apprenticeship Act of 1957 (RA 1826 as amended by RA 2628)

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Apprenticeship is significant as it fills the demand of employers for workers in certain trades or occupations which require special skills.

apprenticeable occupation – any trade, form of employment or occupation which requires for proficiency more than 3 months of practical training on the job with compulsory related theoretical instructions.

General rule: The organization of apprenticeship programs is primarily a voluntary undertaking pf employers. Exception: (compulsory apprenticeship) • when the national security or particular requirements of economic development so demand • where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up apprenticeship programs

Highly-technical industry – a trade, business, enterprise, industry or other activity which utilizes the application of advanced technology. Apprenticeship contract • an agreement whereby an employer undertakes to train the apprentice and the apprentice in turn accepts the terms of the training. • The period of the apprenticeship contract shall not exceed 6 months. • A copy should be submitted to TESDA within 5 working days from execution • no person shall institute any action for the enforcement of the apprenticeship agreement or for damages for breach thereof unless he has exhausted all the administrative remedies. • Valid causes for the termination of the apprenticeship agreement: ◦ by the employer: ▪ habitual absenteeism in the OJT with compulsory theoretical instructions ▪ willful disobedience of company rules or insubordination ▪ poor physical condition or prolonged illness which incapacitates the apprentice for

OJT – practical work experience through actual participation in productive activities given to or acquired by the apprentice. OJT may be undertaken in: • the plan, shop, or premises of the employer or firm concerned if the apprenticeship program is organized by an individual employer or firm. • In the premises of one or several firms designated for the purposes by the organizer of the program if such organizer is an association of employers, civic group or the like • in the DOLE Training Center Qualifications of an apprentice: • at least 15 years old ◦ Art. 59 of the Labor Code provides 14 Jmvdg

years old ◦ Sec. 11, Rule Vi, Book II of the Rules Implementing the Labor Code provides for 15 years old as apprenticeable age ◦ 15 years old0age requirement is also in accordance with Sec. 12 of RA 7610 as amended by RA 9231 be physically fit for the occupation in which he desires to be trained possess vocational aptitude and capacity for the particular occupation as established through appropriate tests possess the ability to comprehend and follow oral and written instructions

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work ▪ theft or malicious destruction of company property and/or equipment ▪ poor efficiency of performance ▪ engaging in violence or other forms of gross misconduct inside the employer's premises ◦ by the employee ▪ substandard or deleterious working conditions within the employer's premises ▪ repeated violation by the employer of the terms of the contract ▪ cruel of inhuman treatment by the employer or his subordinates ▪ personal problems which in the opinion of the apprentice shall prevent him from a satisfactory performance of his job ▪ bad health or continuing illness The wage rate of the apprentice shall start at 75% of the statutory minimum wage for the forst 6 months; thereafter, he shall be paid with the full minimum wage including the full COLA.

student is given real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement. Chapter 2 LEARNERS Art. 73-77 learner – person hired as a trainee in semi-skilled and other industrial occupations which are nonapprenticeable learnership & apprenticeship are similar because they both mean training periods for jobs requiring skills that can be acquired through actual work experience Apprenticeship

trains in a skilled job or in industrial occupations that require training for less than 3 months

Trains in a highly skilled job or in a job found only in a highly technical industry

Training need not be Theoretical instruction is supplemented by a a condition sine qua theoretical instruction non Training shorter

An apprenticehip program need prior approval by the DOLE. If employed without a pre-approved apprenticeship program, the “apprentice” is not an apprentice but a regular employee. (Nitto Ent. Vs NLRC, GR 114337) procedure in case of violation of apprenticeship contract: • investigation • appeal to the Secretary of Labor “doctrine of exhaustion of administrative remedies” - requires that were an administrative remedy is provided by law, relief must first be sough by exhausting remedies before the court will act There is no employer-employee relationship between students on one hand, and academic institutions on the other hand, where there is a written agreement between them under which the former agrees to work for the latter in exchange for the privilege to study free of charge, provided the Jmvdg

Learnership

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period

is Training period is longer because the job is not easily learned

Employer is committed to hire the learnertrainee as an employee after the training period

Employer is NOT committed to hire the learner-trainee as an employee after the training period

Learnership agreement do not need prior approval by DOLE but are subject to DOLE's inspection.

Employment of apprentice is legally allowed in highly technical industries and only in apprenticeable occupations approved by DOLE

Learners employed in piece or incentive rate jobs during the training period is paid in full for the work done

If training is prerequisite to graduation or a requirement in taking board exam, the hiring of apprentices without compensation is authorized

1st Semester/ A.Y. 2010-2011

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AUF School of Law BOOK THREE CONDITIONS OF EMPLOYMENT

The Secretary of Labor may cancel any learnership program if upon inquiry, it is found that the justification for the program no longer exists

Title I Working Conditions and Rest Periods

penalty for violation: fine: P1, 000.00 – P10, 000.00 range of imprisonment:3 months – 3 years

Chapter 1 HOURS OF WORK

Chapter 3 HANDICAPPED WORKERS

(Art. 82) Conditions of Employment right of control test • where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end. Four-fold test: • selection and engagement of the employee • payment of wages • power of dismissal • control test not covered by Book 3, of Labor Code: • Government employees ◦ refers to those employed by the National Government or any of its political subdivisions including those employed in government-owned or controlled corporations ◦ the are governed by the Civil Service Law ◦ government owned or controlled coporations ▪ with original charter – governed by civil service law ▪ without original charter – governed by the Labor Code

handicapped worker – one whose earning capacity is impaired by age or physical or mental deficiency or injury. Disabled worker – one whose earning capacity is impaired by mental, physical or sensory deficiency or injury. RA 7277 • Magna Carta for Disabled Persons • insures equal opportunities for disabled persons and prohibits discrimination against them. • Fundamentally it provides that no disabled person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, incentives or allowance as a qualified ablebodied person. Private entities that employ disabled persons who meet the required skill or qualifications either as regular employee, apprentice, or learner, shall be entitled to an additional deduction from their gross Income, equivalent to 25% of the total amount paid as salaries and wages to disabled persons.

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Handicapped workers are eligible for employment as apprentices or learners if their handicap is such that it does not impede the performance of ob operations in the particular trade or occupation which is the subject of the apprenticeship of learnership agreement.

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Managerial employees ◦ they refer to those who meet the ffg conditions: ▪ 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 fire or 1st Semester/ A.Y. 2010-2011

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hire other employees of lower rank ◦ they are employed b virtue of their special training or expertise, experience or knowledge and for positions which require the exercise of independent judgment and discretion. •

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officers and member of the managerial staff ◦ they are exempted if they perform the ffg duties and reponsibilities ▪ duties that consists in the performance of work directly related to management policies of their employers ▪ they customarily exercise discretion and independent judgment ▪ they regularly and directly assist a proprietor or managerial employee ▪ they do not devote more than 20% of their hours in a workweek to activities which are not directly or closely related to the abovementioned ◦ their powers are not subject to evaluation, review and final action by the department heads and other higher executives of the company

members of the family of the employer who are dependent on him for support ◦ includes husband and wife, parents and children, other descendants and ascendants, brothers and sisters

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domestic helpers and/or persons in the personal service of another ◦ those who performs services in he employer's home which are usually necessary or desirable for the maintenance and enjoyment thereof ◦ minister to the personal comfort, convenience, or safety of the employer as well as the members of his

workers paid by result ◦ payment of this type of worker is determined by the results of the work performed or the number of units produced ▪ piece work ▪ task work

(Art. 83) Normal Hours of Work day – workday of 24 hours beginning at the same time each calendar day week – workweek of 168 consecutive hours; 7 consecutive 24 hours; beginning at the same hour and the same calendar day each calendar week. The 8-hour work requirement does not preclude the employer to produce the working hours, provided that there is no concomitant reduction in pay. Purposes: • protect the health of the workers • assure adequate leisure to workers in order to enable them to lead richer and more fruitful lives • spread employment

field personnel ◦ refers to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer

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employer's household

shifts: 1st shift – 8am to 4pm 2nd shift – 4pm to 12mn 3rd shift – 12mn to 8am effects of shorter working hours: • increase in work output • improved health of workers • decrease in the amount of voluntary absenteeism • reduce of rate and severity of industrial accidents • increase mechanization and improved methods • greater pressure for employees to be more productive and efficient • promotion of good citizenship • alleviating unemployment

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(Art. 84) compensable hours worked • all time during which an employee is required to be on duty or to be at the employer's premises or to be at a prescribed place • all time during which an employee is suffered or permitted to work

provided with adequate breaks in the morning and afternoon (Art. 86) Night Shift Differential Rationale of night shift differential: • night work cannot be regarded as desirable, either from the point of view of the employer or the wage earner.

principles in determining hours worked:

Burden of proof of payment for nigh shift differential rests on the employer.

(Art. 85) Meal periods General rule: Employees are entitled to at least 1 hour time-off regular meals which can be taken inside or outside company premises exception: (at least 20 minutes meal period) • where the work is non-manual in nature • where an establishment regularly operates not less than 16 hours a day • in case of actual or impending emergencies or there is urgent work to be performed on machineries, installations, or equipments to avoid serious loss which the employer would otherwise suffer • where the work is necessary to prevent serious loss of perishable goods

Night shift differential cannot be waived. It is founded on public policy, hence cannot be waived (Art. 87) Overtime Work overtime compensation • additional pay for service or work rendered or performed n excess of 8 hours a day by the employees in employment covered by the 8-hour labor law. • Computed my multiplying the overtime hourly rate by the number of hours worked in excess of eight hours. • Amount equivalent to his regular wage plus at least 25% thereof • Rationale: to encourage employers to dispense with such works thus providing the employees an opportunity to satisfy their mental, moral, and spiritual needs. • Entitlement to overtime pay must first be established by sufficient proof that said overtime work was actually /performed before an employee may avail of said benefit. • For seamen, the criterion in determining Won they are entitled to overtime pay is that whether they actually rendered service in excess of said number of hours • right to claim overtime compensation cannot be waived because it is in the category of benefits and it is governed by law not by agreement of the parties. • Principles of estoppel and laches are not applicable

coffee breaks (5 to 20mins.)are considered as compensable working time. Where the lunch period is spent predominantly for the employer's benefit, and cannot be utilized in the employee's own intersts, such time constitutes work time. (31 Am. Jur. 881) shortened meal period is not compensable. conditions on arrangements on shorten meal time at employee's request: • the employees voluntarily agree in writing to a shortened meal period of 30 mins and are willing to waive overtime pay for such shortened meal period • there will be no diminution whatsoever in the salary and other fringe benefits of the employees • the work of the employees does not involve strenuous physical exertion and they re Jmvdg

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AUF School of Law the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer.

when the tour of duty of the employee is at night time, the receipt of overtime pay will not preclude the right to night differential pay. The latter is payment for work done while the other is payment for the excess of the regular 8-hour work.

If the worker willfully refuses to perform overtime work in any of the instances specified by law, he may be legally dismissed on the ground of insubordination.

Chinese overtime – a system of overtime payment in which salaried employee's regular rate is calculated by dividing his salary by the total number of hours he work. Thus, the greater the number of hours, the lower the rate of pay per hour unduly reducing the take home pay of the employee.

(Art. 90) Computation of Additional Compensation Regular wage “All payments which the parties have agreed shall be received during the work week, including piecework wages, differential payments for working at undesirable times, and the cost of board and lodging customarily furnished the employee.” (NAWAS ruling) • said ruling was superseded in subsequent decisions of the SC “in the computation of overtime pay, the premium pay for work done on Sundays, holidays and at night inclusing fringe benefits, which are ocassionally and not regularly received and not by all employees SHOULD NOT be added to the basi pay. Such inclusion into the regular or basic pay militates agaisnt the basic rationale of overtime pay, which simply is the extra compensation for the additional work done beyond that contemplated in the employment contract. • Regular wage DO Not include COLA, longevity pay of other fringe benefits which item constitutes extra pay or additions to the regular or basic pay

Day – 24-hour period which commences from the time the employee starts to work. (Art. 88) Undertime not Offset by Overtime purpose: allowing this would result to unfairness. • Employer: will be exempt from paying additional pay for overtime work • Employee: would be allowed to schedule his working hours at will thereby destroying the regular working schedule. (Art. 89) Emergency Overtime Work compulsory overtime work: • When the country is at war or when any other national or local emergency has been declared by Congress 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, installation 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; • Where the completion or continuation of Jmvdg

“regularity and continuity test” of the benefits enjoyed by the employees – condition precedent before such additional payments or benefits are taken into account. (NAWASA ruling, already superseded) regular base pay – excludes money received by an employee in different concepts, such as Christmas bonus and other fringe benefits. 22

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Chapter 2 WEEKLY REST PERIODS

compensation for work performed on Sunday only when it is his established rest day.

(Art. 91) Right to Weekly Rest Period

If the employee has no regular workday or regular rest day, he shall be paid the additional compensation of at least 30% of his regular wage for work performed on Sundays and holidays.

>not less that 24 consecutive hours after every six consecutive normal days.

Special holiday + rest day = additional compensation of at least 50% of his regular wage.

The rest period is needed especially by a worker to rejuvenate and revitalize his lost energy in order to raise the rate of his output.

Premium pay • additional compensation granted to a covered employee for services rendered on holidays or rest day. • refers to the additional compensation required by law for work performed within eight (8) hours on non-working days, such as rest days and special days. (No. III, DOLE Handbook on Workers Statutory Monetary Benefits).

General rule: Employer shall determine and schedule the weekly rest day of his employees. Exception: the preference of the employee shall be respected if the same is based on religious grounds. Provided that he make known such preference in writing at least 7days before the desired effectivity of the initial rest day so preferred. (Art. 92) When Employer may Require Work on a Rest Day

Premium pay is not included in the computation of 13th month pay.

General rule: No employee shall be required against his will to work on his scheduled rest day. Exceptions: • in cases of actual or impending emergencies • in case of urgent work to be performed • in the event of abnormal pressure of work due to special circumstances • to prevent loss or damage to perishable goods • nature of the work requires continuous operations • other analogous circumstances

Waiver of compensation for work on rest days and holidays is not valid. Chapter 3 HOLIDAY: SERVICE INCENTIVE LEAVES AND SERVICE CHARGES (Art. 94) Right to Holiday Pay holiday – consecrated day, a religious festival, a day of exemption, that is cessation from work, a day of festivity, recreation or amusement

when an employee volunteers to work on his rest day, he shall express such desire in writing, subject to the provision regarding additional compensation.

legal holiday – day designated or set part by the legislature, for a purpose within the meaning of the term holiday, in order to commemorate an important event.

(Art. 93) Compensation for Rest day, Sunday or Holiday Work

Holiday pay • premium given to employees pursuant to law even if he is not suffered to work on a regular holiday. • If worker did not work on regular holiday,

additional compensation of at least 30% of his regular wage An employee shall be entitled to additional Jmvdg

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he is entitled to 100% of his basic pay; If he worked, he is entitled to 200% thereof.

of holiday pay benefits pursuant to the rule which excluded employees uniformly paid by the month from the same, was in compliance with such presumably valid rule until it was declared null and void.

Regular Holidays • New year’s Day-January 1 • Maundy Thursday-Movable date • Good Friday-Movable date • Eidul Fitr-Movable date • Araw ng Kagitingan- April 9 (Bataaan and Corregidor Day) • Labor Day- May 1 • Independence Day- June 12 • National Heroes Day-Last Sunday of August • Bonifacio Day- November 30 • Christmas Day-December 25 • Rizal Day-December 30

Divisor which indicates that the 11 legal holidays have already been included in the salary of monthly paid employees 6-day working schedule • 314 divisor 5-day working schedule • 261 divisor effects of absences on holiday pay Conditions on day entitlement to preceding the holiday holiday pay

Nationwide Special Holidays • Ninoy Aquino Day-August 21 • All Saints Day-November 1 • Last Day of the Year-December 31 Regular Holiday

Special Day

Covered employee who does not report for work during regular holidays is paid 100% of his regular wage

Covered employee who does not report for work during special day is not entitled to any compensation under the principle of “no work, no pay”

An employee who reports for work on a regular holiday is entitled to 200% of his regular wage

An employee who reports for work on a special day is entitled to an additional 30% of his basic pay.

On LOA with pay

Yes

On LOA without pay

No

Non-working day or rest Yes (provided he day of the employee work on the day immediately preceding the nonworking or rest day) 2 successive regular holiday if the employee absents Not entitled to holiday himself from work without pay for both holidays pay on the day immediately preceding the 1st regular holiday If he works on the 1st Yes, entitled to pay holiday on the 2nd holiday Holiday pay of certain employees private school teachers – may not be paid for the regular holidays during semestral vacations

Additional 50% if such special day falls on his rest day.

faculty member paid per lecture hour – not entitled to holiday pay employees paid by result – their holiday pay shall not be less than his average daily earnings for the last 7 working days preceding the regular holiday. Seasonal workers – may not be paid the required holiday pay during off-season when they are not at work

Monthly paid employees are not excluded from the benefits of holiday pay. Provisions of Section 2, Rule IV, Book III of IRR and Policy Instruction No 9 have been declared null and void in the case of IBAAEU vs Inciong et al (1984) under the operative fact doctrine, the nonpayment Jmvdg

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workers with no regular working days – shall be entitled to benefits.

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Where a regular 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. (Sec. 9, Rule IV, Book III, IRR Labor Code)

Under RA 9262, victims of “violence against women and children are entitled to take a paid leave of absence up to 10 days in addition to other paid leaves under the Labor Code. (Art. 96) Service Charge

rule on 2 regular holidays falling on the same day • If employee did not work: 200% of basic pay; • If employee worked: 300% of basic pay.

Service charges are distributed in accordance with the following percentage of sharing: • eighty-five percent (85%) for the employees to be distributed equally among them; and • fifteen percent (15%) for the management to answer for losses and breakages and distribution to managerial employees.

(Art. 95) Right to Service Incentive Leave purpose of the law: afford a laborer a chance to get a much needed rest to replenish his worn out energies and acquire a new vitality to enable him to efficiently perform his duties, and not merely to give him additional salary or bounty.

The shares shall be distributed to employees not less often than once every 2 weeks or twice a month at intervals not exceeding 16 days. TITLE II WAGES

If the employee unused the 5-days service leave incentive, this benefit is convertible to cash equivalent based on the salary rate at the date of commutation.

Chapter 1 PRELIMINARY MATTERS

"one year of service" • service within twelve (12) months, whether continuous or broken • reckoned from the date the employee started working, including authorized absences and paid regular holidays, unless the number of working days in the establishment as a matter of practice or policy, or that provided in the employment contract, is less than twelve (12) months, in which case, said period shall be considered as one (1) year for the purpose of determining entitlement to the service incentive leave. (Sec. 2 and 3, Rule V, Book III, IRR of Labor Code)

Wages

Salaries

Compensation for Denotes of a larger and manual labor, skilled or more important service unskilled, paid at stated times and measured by the day, week, month or season Cannot be subject to Can be subject garnishment or garnishment attachment attachment (Art. 1708, NCC)

to or

Twin attributes of wage • cash wage ◦ ready money paid by the employer for services rendered by the employee

exempted employees: • those enumerated in Art. 82, Labor Code • those enjoying vacation leave with pay of at least 5 days Jmvdg

employees in establishments regularly employing less than 10 employees.

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AUF School of Law (Art. 98) Application of Title Title II, Book III of LC does not apply to ffg: • farm tenancy or leasehold • domestic helpers • persons in the personal service of another • homeworkers engaged in needlework

facilities ◦ articles or services customarily given for the benefit of the employee and are voluntarily accepted by him ◦ chargeable only to employees if: ▪ there are proofs to show that such facilities are customarily furnished by the trade ▪ the provision of deductible facilities is voluntarily accepted in writing by the employee ▪ facilities are charged at fair and reasonable value

Chapter II MINIMUM WAGE RATES The minimum wage rates for agricultural and nonagricultural workers and employees in every region shall be those prescribed by the Regional Tripartite Wages and Productivity Boards (RTWPB) which shall in no case be lower than the statutory minimum wage rates.

supplements • extra remunerations or benefits given to an employee. • Their value cannot be deducted from the cash wage of an employee

Standards: • demand for living wage • wage adjustment vis-a-vis consumer price or cost of living index • cost of living and increase therein • needs of workers and their families • need to induce industries to invest in the countryside • improvements in the standards of living • prevailing wage levels • employer's capacity to pay • effects on employment generation and family income • equitable distribution of income and wealth along the imperatives of economic and social development

Purpose of the grant is the controlling test to know WON such grant is a facility or a supplement. Bonus • payment in excess of regular or guaranteed wages • not a legally demandable and enforceable obligation ◦ except: ▪ if it is given without any condition ▪ if it is a result of an agreement such as CBA ▪ if it is given on account of company policy or practice ▪ grant is mandated by law

2 methods on determining wages • floor wage method ◦ involves the fixing of a determinate amount that would be added to the prevailing statutory minimum wage • salary ceiling method ◦ involves a wage adjustment applied to employees receiving a certain denominated salary ceiling

The statutory benefit of 13th month pay is automatically vested in the employee who has at least worked for one month during the calendar year, and such benefit may not be lost or forfeited even in the event of the employee's subsequent dismissal for cause without violating his property rights. The required 13th month pay shall be paid not later than December 24 of each year.

2 methods of payment • time wages • production wages Jmvdg

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AUF School of Law Chapter III PAYMENT OF WAGES

the minimum wage fixed by law is mandatory; thus it is non-waivable and non-negotiable.

(Art. 102) Forms of Payment

Wage order • Order promulgated by the Regional Tripartite Wages and Productivity Board (RTWPB) pursuant to its wage fixing authority.

Under Art. 1705 of the Civil Code, it is mandated that the laborer’s wages shall be paid in legal currency. Under the Labor Code and its implementing rules, as a general rule, wages shall be paid in legal tender and the use of tokens, promissory notes, vouchers, coupons or any other form alleged to represent legal tender is prohibited even when expressly requested by the employee.

Wage distortion • a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of service, or other logical bases of differentiation

Exceptions : A. Payment through automated teller machine (ATM) of banks provided the following conditions are met: 1. the ATM system of payment is with the written consent of the employees concerned; 2. The employees are given reasonable time to withdraw their wages from the bank facility which time, if done during working hours, shall be considered compensable hours worked; 3. The system shall allow workers to receive their wages within the period or frequency and in the amount prescribed under the Labor Code, as amended; 4. There is a bank or ATM facility within a radius of one (1) kilometer to the place of work; 5. Upon request of the concerned employee/ s, the employer shall issue a record of payment of wages, benefits and deductions for a particular period; 6. There shall be n additional expenses and no diminution of benefits and privileges as a result of the ATM system of payment; 7. The employer shall assume responsibility in case the wage protection provisions of law and regulations are not complied with under the arrangement. (Explanatory Bulletin issued by DOLE Secretary Leonardo Quisumbing dated November 25, 1996).

(Art. 100) Prohibition Against Elimination or Diminution of Benefits The principle of non-elimination or non-diminution of benefits mandates that the reduction or diminution or withdrawal by employers of any benefits, supplements or payments as provided in existing laws, individual agreements or collective bargaining agreements between workers and employers or voluntary employer practice or policy, is not allowed. (Art. 101) Payment by Results the purpose of the law is to insure the payment of fair and reasonable wage rate to worker paid by result who should be protected form unjust and unfair employers. Wage rates of employees paid by result may be determined through the use of time and motion studies or consultation with representatives of employer's and worker's organization.

B. Payment by check or money order, (the foregoing conditions on existence of bank facility Jmvdg

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and other factors should also concur).

writing by the employee to pay his wages to a member of his family; b. Where payment to another person of any part of the employee’s wages is authorized by existing law, including payments for the insurance premiums of the employee and union dues where the right to check-off has been recognized by the employer in accordance with a collective agreement or authorized in writing by the individual employees concerned; or c. In case of death of the employee, in which case, the same shall be paid to his heirs without necessity of intestate proceedings.

Penalty: Arresto mayor or a fine ranging from 200 to 500 pesos (Art. 288, RPC) (Art. 103) Time of Payment General rule: wages shall be paid not less often than once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. No employer shall make payment with less frequency than once a month. Exception: when payment cannot be made with such regularity due to force majeure or circumstances beyond the employer’s control, in which case, the employer shall pay the wages immediately after such force majeure or circumstances have ceased.

(Art. 106) Contractor or Subcontractor Contracting or subcontracting - It refers to an arrangement whereby a principal agrees to put out or farm out with a contractor or subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal.

(Art. 104) Place of Payment General rule: the place of payment shall be at or near the place of undertaking. Exceptions: • When payment cannot be effected at or near the place of work by reason of the deterioration of peace and order conditions, or by reason of actual or impending emergencies caused by fire, flood, epidemic or other calamity rendering payment thereat impossible; • When the employer provides free transportation to the employees back and forth; and • Under any other analogous circumstances, provided that the time spent by the employees in collecting their wages shall be considered as compensable hours worked.

Labor-only contracting • the contractor supplying workers to an employer ◦ does not have substantial capital or investment to actually perform the job, work or service under its own account and responsibility ◦ the workers recruited, supplied, and placed by such contractors are performing activities which are directly related to the principal business of the employer. • The third person or the intermediary is considered merely an agent of the employer. • The employer is made responsible to the employees of the “labor-only” contractor as if such employee had been directly employed by the employer. • The law holds both the employer and the “labor-only” contractor responsible to the latter's employees for the more effective

(Art. 105) Direct Payment of Wages General rule: payment of wages shall be made directly to the employee entitled thereto and to nobody else. Exceptions. a. Where the employer is authorized in Jmvdg

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safeguarding of the employee's right under the Labor Code (Ecal vs NLRC)

•

in house agency • refers to a contractor or subcontractor engaged in the supply of labor which: ◦ is owned, managed, or controlled by the principals, ◦ operates solely for the principal owning, managing, or controlling it. • Contracting out a job, work or service through an in0house agency is contrary to law or public policy (Sec. 2&7 Rule VIII-A, Dept. Order No. 10)

(Art. 108) Posting of Bond purpose of the law: • protect workers from economic exploits by unscrupulous contractors or subcontractors who may declare at will that they are losing due to financial difficulties; thus, employees may not be paid their wages. Bond shall be equal to the cost of labor under contract and should the contractor or subcontractor fail to pay the wages due the employees, the bind shall answer. (Sec. 7, Rule VIII, Book III, IRR LC)

job contracting: • allowed by law if the ffg conditions are met: ◦ the contractor carries on an independent business and undertakes to contract work on his own account, under his own responsibility, etc. ◦ the contractor has substantial capital or investment in the form of tools, equipments, machineries, work premises and other materials which are necessary in the conduct of business. • No employer-employee relationship exists between the owner of the project and the employees of the contractor • the principal employer is considered only an indirect employer.

The employer who fails to require the contractor to post a bond must answer for whatever liabilities the contractor may have incurred to his employees. (Art. 109) Solidary Liability in legitimate job contracting, the principal is jointly and severally liable with the contractor for the payment of unpaid wages. For purposes of determining the civil liability, the indirect employer or principal is considered as direct employer.

(Art. 107) Indirect Employer

Correlate to Art. 1278 of the Civil Code

indirect employer • one who enters into a contract with an independent contractor for the performance of any work, task, job or project not directly related to the employer's business.

purpose: to assure compliance of the provisions therein including the statutory minimum wage Nothing in Art. 106 indicates that the insolvency or unwillingness to pay by the contractor or direct employer is a prerequisite for the joint and several liability of the principal or indirect employer.

Independent contractor • those who exercise independent employment, contracting to do a piece of work according to their own methods and without being subject to control of their employer except as the result of their work.

Burden to prove that he/it has substantial capital, investment, tools, etc. lies on the contractor. The indirect employer is solidarily liable with the contractor. However, he can claim reimbursement from the contractor who is the direct employer of

“Not being an employer” Jmvdg

refers only to one who is not a direct employer under Art. 106

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the workers.

Applies only to claims Creates a charge on a which do not attach to specific property specific properties

(Art. 110) Workers preference in case of bankruptcy

Not an property

purpose: “It is but humane and partakes the divine that labor, as human beings, must be treated over and above chattels, machineries, and other kinds of properties and the interests of the employer who can afford to survive the hardships of life better than their workers.”

Preferred creditor has no cause of action against any other creditor

A declaration of bankruptcy or a judicial liquidation must be present before the worker's preference may be enforced. Art. 110 and its IRR cannot be invoked absent a formal declaration of bankruptcy or liquidation order. (DBP vs NLRC, 183 SCRA 328)

Lienor has a right of action against any person who takes the property upon which he has lien

(Art. 111) Attorney's Fees This provision envisions a situation where there is a judicial or administrative proceedings for recovery of wages.

Under Art. 110 of the LC, as amended, the unpaid wages and other monetary claims of the workers should be paid in full before the claims of the Government and other creditors. Thus, not even tax claims could have preference over worker's claim.

Attorney's fees may be awarded only when the withholding of wages is unlawful. Standards for payment of Attorney's fees • must be reasonable; must have a bearing on the importance of the subject matter in controversy; • extent of the services rendered • the professional standing of the lawyer

Claims for unpaid wages do not therefore fall at all within the category of specially preferred claims established under Art. 2241 and 2241 of the Civil Code, except to the extent that such claims for unpaid wages are already covered by Art. 2241, Number 6 or Art. 2242 number 3.

the financial capacity and economic status of the clients can be taken into account in fixing the reasonableness of the attorney's fees.

preference of credit • Bestows upon the creditor an advantage of having his credit satisfied first before other claims which may be established against the debtor

Cannot be awarded to non-members of the bar. CHAPTER IV PROHIBITIONS REGARDING WAGES

What this provision establishes is not a lien, but a reference of credit in favor of the employees.

Jmvdg

in An interest in a property

Cannot exist or operate May exists against the except where the debtor property of a solvent is unable to pay his debtor debts in full

this provision has been amended by RA 6715 and its IRR.

Preference of credit

interest

(Art. 112) non-interference in disposal of wages penalty (RPC): arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 113) Wage Deductions

Lien 30

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the evil sought to be prevented is to forestall the commission of unwarranted practices of employers by making unnecessary deductions without employee's knowledge or authorization.

•

•

Wage deductions allowed: • when they are authorized by law ◦ insurance premiums ◦ union dues ◦ facilities supplied ◦ loss or damage to tools, materials, equipment supplied by the employer in a trade, occupation or business ◦ taxes withheld pursuant to NIRC ◦ SSS, Philhealth, and Pagibig premiums ◦ employee's compensation premiums ◦ demandable debt due ◦ deductions made in case of judgment • when they are with the written authorization of the employees for payment to a 3rd person • when they are made pursuant to the order of the court (order of garnishment) • when deductions, as agency fees, are made against the salary wage of a nonmember of the union; provided he accepts the benefits of the CBA • when deductions are made for habitual tardiness or absence as a form of disciplinary measures (docking)

(Art. 116) Withholding of Wages and Kickbacks withholding of wages and kickbacks are unlawful acts, be they direct or indirect, by means of force, stealth, intimidation, threat, or dismissal, or by any means whatsoever without the worker's consent. Kickback – compulsory withholding of a portion of an employee's wages by the employer or his agent as a condition to maintain employment or as a bribe for obtaining job. Authorized withholding of wage: • debt that is due and demandable • execution or attachment for debts incurred for food, shelter, clothing, medical attendance (Art. 117) Deduction to Ensure Employment this is also a form of kickback This is punishable under Art. 288 of the Labor Code which can subject the employer to criminal liabilities

check-off • system by which union dues and other assessments are deducted from the employee's wage by the employer upon authorization from the worker or by mandate of law. • Valid only as the employees remain members of the union concerned

(Art. 118) Retaliatory Measures unlawful retaliatory acts include: • refusal to pay or reduction of wages and benefits due • illegal dismissal • discriminating an employee

(Art. 114-115) Deposits for Loss or Damages/Limitations

these can be treated as unfair labor practice under Art. 248 of the Labor Code.

Requisites: • employee concern is clearly shown to be responsible for the loss or damage • employee is given reasonable opportunity to show cause why deduction should not Jmvdg

be made the amount of the deduction is fair and reasonable and should not exceed the actual loss or damage the deduction should not exceed 20% of the employee's wage in a week.

Penalty: see Art. 288 of the Labor Code (Art. 119) False Reporting 31

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records to be kept: • payroll ◦ length of time to be paid ◦ rate of pay ◦ amount due for regular work ◦ amount due for OT ◦ deductions from the wages ◦ amount actually paid • time records ◦ through bundy clock ◦ timekeeper ◦ individual dtr

•

•

•

•

Managerial employees, officers or members of the managerial staff, as well as non-agricultural field personnel need not be required to keep individual DTRs, provided that a record of their daily attendance is kept and maintained by the employer

•

for employees paid by result, the employer shall keep a copy of their production records. Employment records shall be kept and maintained in or about the premises of the workplaces, and which shall be preserved for at least three (3) years from entry in he records.

•

Chapter V WAGE STUDIES, WAGE AGREEMENTS AND WAGE DETERMINATION

•

(Art. 120) Creation of National Wages and Productivity Commission

•

composition: • Sec of DOLE – ex-officio Chairman • Dir. Gen of NEDA – ex-officio vice Chairman • 2 members form the workers and employers sector – with term of 5 years • executive Director of NWPC Secretariat – member

•

(Art. 122) Creation of regional Tripartite Wages and Productivity Boards The Regional Boards shall have the following powers and functions in their respective territorial jurisdiction: • To develop plans, programs and projects

(Art. 121) Powers and Functions of the Commission Jmvdg

To act as the national consultative and advisory body to the President of the Philippines and Congress on matters relating to wages, incomes and productivity; To formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levels; To prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial or industry levels; To review regional wage levels set by the Regional Tripartite Wages and Productivity Boards to determine if these are in accordance with prescribed guidelines and national development plans; To undertake studies, researches and surveys necessary for the attainment of its functions and objectives, and to collect and compile data and periodically disseminate information on wages and productivity and other related information, including, but not limited to, employment, cost-of-living, labor costs, investments and returns; To review plans and programs of the regional Tripartite Wages and Productivity Boards to determine whether these are consistent with national development plans; To exercise technical and administrative supervision over the Regional Tripartite Wages and Productivity Boards; 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; and To exercise such powers and functions as may be necessary to implement this Act.

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relative to wages, incomes and productivity improvement for their respective regions; To determine and fix minimum wage rates applicable in their respective regions, provinces or industries therein and to issue the corresponding wage orders, subject to guidelines issued by the Commission; To undertake studies, researches, and surveys necessary for the attainment of their functions, objectives and programs and to collect and compile data on wages, incomes, productivity and other related information and periodically disseminate the same; To coordinate with the other Regional Boards as may be necessary to attain the policy and intention of this Code; To receive, process and act on applications for exemption from prescribed wage rates as may be provided by law or any Wage Order; and To exercise such other powers and functions as may be necessary to carry out their mandate under this Code.

Wage order • specify the region, province, or industry to which the minimum wage rates prescribed therein • may not be distributed for a period of 12 months from its effectivity, and no petition for wage increase shall be entertained within the said period • shall take effect within 15days after its complete publication • may be appealed to the Commission by filing a verified appeal with the Board not later than 10 days from the date of publication of the Order ◦ the Commission shall decide on the appeal within 60 days from the filing thereof ◦ grounds for appeal ▪ non-conformity with prescribed guidelines or procedures ▪ questions of law ▪ grave abuse of discretion

Composition: • Regional Director of DOLE – Chairman • Regional Directors of NEDA – vice Chair • Regional Director of DTI – Vice Chair • 2 members each from workers and employers sector

The filing of the appeal does not operate to stay the order unless the person appealing such order shall file with the Commission, an undertaking with a surety or sureties satisfactory to the Commission for the payment to the employees affected by the order of the corresponding increase, in the event such order is affirmed.

the Board is a tripartite body composed of members from • government • labor • management

Wage order issued by the Regional Wage Board without the required public hearing or consultation, and without publication in newspapers of general circulation should be struck down for violation of Art, 123, LC. (Cagayan Milling Co vs Sec, of Labor)

•

•

•

•

•

the wage board system is a keystone to collective bargaining.

see RA 6727 punishment for non-compliance: fine of 25k – 100k or imprisonment of 2-4 years, or both

(Art. 123) Wage Order

perosns convicted under RA 6727 are not entitled to the benefits of the Probation Law.

Within 30 days after conclusion of the last hearing, the Board shall decide on the merits of the petition, and when appropriate, issue a wage order establishing the minimum wage rates to be paid by employers in the region. Jmvdg

Double indemnity • payment to a concerned employee of the prescribed increase or adjustment in the 33

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•

AUF School of Law

wage rate which was not paid by an employer in an amount equivalent to twice the unpaid benefits owing to such employee. Computation starts from the effectivity of the prescribed increases or adjustments as indicated in the wage order

•

•

(Art. 124) Standards/Criteria for Minimum Wage Fixing considerations: • The demand for living wages; • Wage adjustment vis-a-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 in employment generation and family income; and • The equitable distribution of income and wealth along the imperatives of economic and social development.

•

•

Disputes on wage distortions shall be referred to the NCMB which shall decide on it within 10 days from the time said dispute has been referred to voluntary arbitration

•

if it remains unresolved, the matter shall be referred to the NLRC which shall decide on it within 20 days from the day the case has been referred to compulsory arbitration.

•

(Art. 125) Freedom to Bargain when an employee may be paid a higher minimum wage: • CBA • voluntary or compulsory arbitration award • assumption of jurisdiction award • company policy or practice • productivity incentives

wage distortion • a situation where an increase in prescribed wage rates results in the elimination or severe contraction of intentional quantitative differences in wage or salary rates between and among employee groups in an establishment as to effectively obliterate the distinctions embodied in such wage structure based on skills, length of Jmvdg

service, or other logical bases of differentiation. Increase in the compensation of the lower pay class without a corresponding raise for high-level employees elements: ◦ existing hierarchy of positions with corresponding salary rates ◦ significant change or increase in the salary rate of a lower pay class without a corresponding increase in the salary of a higher one ◦ elimination of the distinction between the 2 groups or classes ◦ distortion exists in the same region of the country. Causes of wage distortion: ◦ government decreed increase ◦ merger of 2 companies ◦ effectivity dates of wage increases given to each of the 2 classes of employees had not been synchronized in their respective CBAs settlement of wage distortion ◦ unionized establishments ▪ negotiate to correct the distortions using the grievance machinery n the CBA ◦ non-unionized establishments ▪ NCMB; or ▪ NLRC formula for distortion adjustment ◦ minimum wage/actual salary - % x prescribed increase = distortion adjustment any issue involving wage distortion shall not be a ground for a strike or lockout

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(Art. 126) Prohibition against injunction

◦ necessary conditions: ▪ employer-employee relationship exists ▪ findings of labor regulation officers or industrial safety engineers were made in the course of inspection ▪ employer does not contest such findings which cannot be resolved without considering evidentiary matters ◦ limitations: (the jurisdiction is vested on the NLRC) ▪ cannot apply to those who were no longer employed with the establishment at the time the complaint was filed ▪ may not be exercised where the employer questions the findings of the labor enforcement officers and raises issues which cannot be determined without taking into consideration evidentiary matters not verifiable in the normal course of inspection ◦ persons who obstructs, impedes, delays or otherwise render ineffective the exercise of the enforcement power of the DOLE may be held criminally liable under Art. 288 of the Labor Code ◦ government employees who violate Art. 128 of the LC shall be dismissed summarily from the service. ◦ Appealable to Secretary of Labor within 10 days

purpose: for the Commission or Board to perform its powers and functions speedily without regard to unnecessary interventions which may tremendously affect the wage-fixing functions necessary to maintain peace and harmony in the working world. (Art. 127) Non-diminution of benefits any increase granted by the employer are over and above any increase that may be granted by law or a wage order. CHAPTER VI ADMINISTRATION AND ENFORCEMENT (Art. 128) Visitorial and Enforcement Power 2 complementary powers conferred upon Secretary of DOLE • visitorial power ◦ inspection power ◦ access to employers' records and premises whenever work is being undertaking therein ◦ right to copy therefrom ◦ right to question any employee's right to investigate any fact, condition or matter which may be necessary to determine violation of labor standards • enforcement power ◦ power to issue compliance orders to give effect to the labor standards provisions of the Code ◦ issue writs of execution to the appropriate authority for the enforcement of their orders ◦ order stoppage of work or suspension of operations of any unit or department of an establishment when noncompliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Jmvdg

(Art. 129) Recovery of Wages, Simple Money Claims and Other benefits adjudicatory power of the Regional Director of DOLE • claim for recovery of wages, simple money claims, and other benefits • requisites ◦ claim is filed by an employee or person employed in domestic or household service, or househelper ◦ claim arises from employer-employee relationship 35

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AUF School of Law RA 8042

◦ claimant, no longer employees, does not seek reinstatement ◦ aggregate money claim does not exceed 5k ◦ decision appealable to the NLRC within 5 calendar days ◦ grounds for appeal ▪ prima facie evidence of abuse pf discretion ▪ order/decision was secured through fraud, coercion, graft and corruption ▪ pure question of law ▪ serious errors in the findings of fact, which if not corrected would cause grave or irreparable damage or injury to the appellant 3 years prescriptive period

•

(Art. 130-Art. 133) Maternity Leave Under SSS Law (RA 1161) “Section 14-A. Maternity Leave Benefit. - A covered female employee who has paid at least three monthly maternity contributions in the twelvemonth period preceding the semester of her childbirth, abortion, or miscarriage and who is currently employed shall be paid a daily maternity benefit equivalent to one hundred per cent of her present basic salary, allowances and other benefits or the cash equivalents of such benefits for sixty days subject to the following conditions: (a) That the employee shall have notified her employer of her pregnancy and the probable date of her childbirth which notice shall be transmitted to the SSS in accordance with the rules and regulations it may provide; (b) That the payment shall be advanced by the employer in two equal installments within thirty days from the filing of the maternity leave application; (c) That in case of caesarian delivery, the employees shall be paid the daily maternity benefit for seventy-eight days; (d) That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided by this Act for the same compensable period of sixty days for the same childbirth, abortion, or miscarriage; (e) That the maternity benefits provided under this section shall be paid only for the first four deliveries after March 13, 1973; (f) That the SSS shall immediately reimburse the employer of one hundred per cent of the amount of maternity benefits advanced to the employee by the employer upon receipt of satisfactory proof of such payment and legality thereof; and (g) That if an employee should give birth or suffer abortion or miscarriage without the required contributions having been remitted for her by her employer to the SSS, or without the latter having been previously notified by the employer of time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits

Difference between Articles 128 and 129, LC: Articles 128 and 129 both involve money claims. In the former, the amount of claim is immaterial (there is no limit) while in the latter, the aggregate amount of the claim must not exceed P5,000.00. In Art. 128, it is necessary that there is still an employer-employee relationship, in Art. 129 the employer employee relationship is already severed for the provision to apply. TITLE III WORKING CONDITIONS FOR SPECIAL GROUPS OF EMPLOYEES Chapter 1 Employment of Women Sec. 14, Art. II, Constitution Sec. 3, Art. XIII Sec. 14, Art. XIII RA 6725 – expressly prohibits discrimination against women with respect to terms and conditions of employment, promotion, and training opportunities RA 6955 RA 7192 RA 7322 RA 7877 Jmvdg

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which said employee would otherwise have been entitled to, and the SSS shall in turn pay such amount to the employee concerned.”

(d) Where the woman employee holds a responsible position of managerial or technical nature, or where the woman employee has been engaged to provide health and welfare services; (e) Where the nature of the work requires the manual skill and dexterity of women workers and the same cannot be performed with equal efficiency by male workers; (f) Where the women employees are immediate members of the family operating the establishment or undertaking; and (g) Under other analogous cases exempted by the Secretary of Labor and Employment in appropriate regulations.

Qualifications for entitlement to maternity benefit: • female member should be employed at the time of delivery, miscarriage, or abortion • she must have given the required notification to the SSS through her employer • her employer must have paid at least 3 months of maternity contributions within 12month period immediately before the semester of contingency any pregnant woman whether married unmarried is entitled to maternity leave

required facilities for women Employers are required to: (a) 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; (b) To establish separate toilet rooms and lavatories for men and women and provide at least a dressing room for women; (c) To establish a nursery in a workplace for the benefit of the women employees therein; and (d) To determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like. (Art. 134-Art. 135)

or

maternity benefit not included in the 13th month pay Prohibition against nightwork: General rule: Regardless of age, no woman shall be employed or permitted or suffered to work, with or without compensation: (a) In any industrial undertaking or branch thereof between 10:00 o’clock at night and 6 o’clock in the morning of the following day; (b) In any commercial or non-industrial undertaking or branch thereof, other than agricultural, between midnight and 6 o’clock in the morning of the following day; or (c) In any agricultural undertaking at nighttime unless she is given a period of rest of not less than nine (9) consecutive hours. Exceptions:The nightwork prohibition shall not apply in any of the following cases: (a) In cases of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disasters or calamity, to prevent loss of life or property, or in cases of force majeure or imminent danger to public safety; (b) In case of urgent work to be performed on machineries, equipment or installation, to avoid serious loss which the employer would otherwise suffer; (c) Where the work is necessary to prevent serious loss of perishable goods; Jmvdg

acts of discrimination under Art. 135: • discrimination in pay: Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employee as against a male employee, for work of equal value; and • discrimination in employment opportunity: Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grant solely on account of their sexes. • Discrimination in hiring: favoring a male 37

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applicant with respect to hiring where the particular job can equally be handled by a woman (HB 4198) Discrimination in dismissal: favoring a male employee with respect to dismissal of personnel or the application of the last in/first out principle or other retrenchment policy of the employer.

Prohibited acts unlawful acts against women • discharge any woman employed by him for the purpose of preventing such woman from enjoying the maternity leave, facilities and other benefits provided under the Code. • Discharge such woman on account of her pregnancy or while on leave or in confinement due to her pregnancy • discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant • discharge any woman or any other employee for having filed a complaint of having testified or being about to testify under the Code. • Require as a condition for or continuation of employment that a woman employee shall not get married or to stipulate expressly or tacitly that upon getting married a woman employee shall be deemed resigned or separated or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. • Deny any woman the benefits of employment or other statutory benefits under our laws by reason of her sex, age, ethnic origin or beliefs, or relations, either by affinity or consanguinity.

RA 7192: Sec. 2. Declaration of Policy. — 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 provide women rights and opportunities equal to that of men. To attain the foregoing policy: • A substantial portion of official development assistance funds received from foreign governments and multilateral agencies and organizations shall be set aside and utilized by the agencies concerned to support programs and activities for women; • All government departments shall ensure that women benefit equally and participate directly in the development programs and projects of said department, specifically those funded under official foreign development assistance, to ensure the full participation and involvement of women in the development process; and • All government departments and agencies shall review and revise all their regulations, circulars, issuances and procedures to remove gender bias therein.

RA 9262: “Anti-Violence Against Women and their Children Act of 2004” • State's policy: ◦ The State values the dignity of women and children and guarantees full respect for human rights. The State also recognizes the need to protect the family and its members particularly women and children, from violence and threats to their personal safety and security. (Sec. 2, RA 9262) • violence against women and their children: ◦ any act or series of acts committed by any person agaisnt a woman xxx or against her child xxx which result in or is likely to result in physical, sexual,

(Art. 136) Stipulation Against Marriage stipulations against marriages assaults good morals and public policy, tending as it is to deprive the woman the freedom to choose her status, a privilege that inheres in the individual as an intangible and inalianable right. It may even be said that such regulations would indeed encourage illicit or common-law relatons and subvert the sacrament of marriage (PT &T Co. vs NLRC, 272 SCRA 596) (Art. 137) Jmvdg

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psycholigical harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment, or arbitrary deprivation of liberty. (Sec. 3, ibid) physical violence ◦ acts that include bodily or physical harm sexual violence ◦ rape, sexual harassment, acts of lasciviousness, treating the woman or her child a sex object, making demeanung and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcingher to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films tehreof, forcing the wife or mistress to live in the conjugal home or sleep together in the same room with the abuser ◦ acts causng or attempting to cause the victim to engage in any sexual activity by force, threat or force, physical or ther harm or threat of physical or other harm of coercion ◦ prostituting the woman or child psychological violence ◦ acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimudation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. economic abuse ◦ refers to act that make or attempt to male a woman financially dependent ▪ withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity; except on valid, serious, and moral grounds under Art. 73, Family Code ▪ deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the

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conjugal community or property owned in common ▪ destroying household property ▪ controlling the victim's own money or properties or solely controlling the conjugal money or properties. Battery ◦ acts of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress battered woman syndrome ◦ scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationship as a result of cumulative abuse. dating relationship ◦ refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. acts of violence against women and their children ◦ causing physical harm to the woman or her child ◦ threatening to cause the woman or her child physical harm ◦ attempting to cause the woman or her child physical harm ◦ placing the woman or her child in fear of imminent physical harm ◦ attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist ◦ causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape ◦ engaging in purposeful, knowing or reckless conduct, personally or through another, that alarms or causes substantial distress to the woman ◦ causing mental or emotional anguish (Art. 138)

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Classification of Certain Women Workers They shall be considered employees of establishments mentioned in the article purposes of labor and social legislation if they under the effective control or supervision of employer for a substantial period of time.

• the for are the

Rules governing the hours of work of a working child: • below 15 y.o – not more than 20 hours a week, not more than 4 hours at any given day; no work between 8pm to 6 am in he morning of the following day • 15-18 y.o – not more than 40 hours a week; not more than 8 hours a day; no work between 10pm to 6am in the morning of the following day

Chapter 2 EMPLOYMENT OF MINORS (Art. 139) Minimum Employable Age General rule: employment of children below 15 years of age is prohibited Exceptions: • when the child works directly under the responsibility of his/her parents or legal guardians who employ his/her family members only ◦ the employment does not endanger the child's life, safety, health, and morals ◦ the employment does not impair the child's normal development ◦ the employer-parent or legal guardian provides the child with primary and/or secondary education • when the child's employment or participation in public entertainment is essential ◦ the employment does not involve advertisements or commercials promoting alcohol, beverages, intoxicating drinks, tobacco and its byproducts or exhibiting violence ◦ there is a written contract approved by the DOLE

the wages, salaries, earnings and other income of the working child shall belong to him/her I ownership and shall be set aside primarily for his/her support, education, skills acquisition and secondarily to the collective needs of the family. Provided that not more than 20% of the child's income may be used for the collective needs of the family. A trust fund of at least 30% of the child's earnings and other income to at least 20k shall be set up (Art. 140) Prohibition against Child Discrimination There is discrimination when one is denied privileges given to the other under identical or similar conditions. RA 9231: state Policy: It is the policy of the State to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination and other conditions prejudicial to the development including child labor and its worst forms.

The employer who engages a child for employment under the above exceptions is required to first secure a work permit issued by DOLE having jurisdiction over the workplace.

State acts as a parens patriae on behalf of the child • exempt from paying filing fees • 'has the right to free legal, medical, and psycho-social services to be provided by the State.

Absolutely prohibited employment • hazardous or deleterious in nature ◦ one where the employee is exposed to any risk which constitutes an imminent danger to his safety and health Jmvdg

employment of child models in all commercial promoting alcohol, beverages, intoxicating drinks, tobacco and its byproducts, and violence.

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Worst forms of labor • all forms of slavery • the use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances • 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 • work which is hazardous or likely to be harmful to the health, safety, or morals of children

the employer is mandated by law to provides househelpers with free lodging, food, and medical attendance (Art. 148 and 169, NCC) services rendered shall no be more than ten hours a day (Art. 1695, NCC) the househelper is entitled to 4 days vacation each month with pay. (Art. 145) Assignment to Non-Household Work Househelpers may be assigned to work in a commercial, industrial or agricultural enterprise provided they receive a wage or salary rate provided for agricultural and non-agricultural workers.

Chapter 3 EMPLOYMENT OF HOUSEHELPERS (Art. 141) Coverage

(Art. 146) Opportunity for Education

househelper – any person who renders services in and about the employer's home and which services are unusually necessary or desirable for the maintenance and enjoyment thereof and include ministering to the personal comfort and convenience of the members of the employer's household.

relate to Art. 1691 of the Civil Code (Art. 147) Treatment of Househelpers the right to just and humane conditions of work is a constitutionally mandated right (Sec. 3, Art. XIII, 1987 Constitution) • the right to regular working hours • right to regular working days • right to overtime work • right to weekly rest periods • right to additional compensation on scheduled rest day/special holiday • right to compensation for holiday work rules if househelper dies • Funeral expenses ◦ employer shall bear the funeral expenses commensurate to the standards of life of the deceased • disposition of househelper's body ◦ the transfer or use of the body of the househelper for purposes other than burial is prohibited, unless so desired by the househelper or by his guardian

(Art. 142) Contract of Domestic Service reiteration of Art. 1692, NCC the law requires no formality for the execution of an employment contract of household service. Even if the term of the employment exceeds 1 year, the statute of frauds will not apply. (Art. 143) Minimum Wage any stipulation that household service is without compensation is void (Art. 1689, NCC) wages of househelpers shall be paid directly to the househelper at least once a month. (Art. 144) Jmvdg

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with court approval

•

(Art. 148) Board, Lodging and Medical Attendance The medical attendance refers to medical treatment of the injury or illness that arose out of and in the course of employment, that is, an ailment contracted by the househelper while he or she is in the service of the employer. Hospitalization is excluded from the coverage.

Prohibition against homework • explosives, fireworks or similar articles • drugs and poisons • other articles, the processing of which requires exposure to toxic substances

(Art. 149) Indemnity for Unjust Termination of Services

homeworker's organization acquire legal personality upon issuance of the certificate of registration.

The 15-day salary is awarded in the form of an indemnity due to unjust dismissal of a househelper, hat is dismissal without just cause and notice before the lapse of the contract term, and the amount is in addition to and not a substitute for the househelper's salary for the unexpired portion of the contract.

(Art. 154) Regulations of the Secretary of Labor the Regional Director shall have the power to order and administer compliance with the provisions of law and regulations affecting the terms and conditions of employment of homeworkers.

(Art. 150) Service of Termination Notice

If the money claim exceeds 5k, the NLRC shall have jurisdiction over such case.

this provision seems to be in conflict with Art. 1698 of the Civil Code. The provision of the Labor Code shall prevail I the light of the repealing clause in Art. 303 of the Labor Code.

(Art. 155) Distribution of Homework employer of homeworkers • any person, natural or artificial, who for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly or through any employee, agent, contractor, subcontractor, or any other person. The employer delivers or sells goods, articles or materials to be processed or fabricated in or about a home and thereafter repurchases the finished products.

(Art. 151-Art. 152) Employment Certification - Employment Records keeping of employment records is basically for the safety and protection of the employers from househelpers with criminal motives Chapter 4 EMPLOYMENT OF HOMEWORKERS (Art. 153) Regulation of Industrial Homeworkers

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 or, or distributed in accordance

industrial homework • a system of production under which work for an employer or contractor is carried out by a homeworker at his home. • Material may or may not be furnished by the employer or contractor Jmvdg

it differs for regular factory production in that it is ia decentralized form of production where there is ordinarily very little supervision or regulation of methods of work.

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with the direction of the employer. Immediately upon receipt of the finished goods, the employer shall pay the homeworker or the contractor or subcontractor, as the case may be, for the work performed.

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