Notes on Philippine Labor Code 1st Half of Labor Standards

LABOR CODE (1st exam) 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. Constitutional provision on Labor Labor Legislation consists of statutes, regulations, and jurisprudence governing the relations between capital and labor, by providing for some certain employment standards and a legal framework for negotiating, adjusting, and administering those standards and other incidents of employment. Purpose – consists of Labor laws that protect society. Labor standards laws are those which set out the least or basic terms, conditions and benefits of employment that employers must provide or comply with and to which employees are entitled as a matter of legal right. Labor relations laws are those which define the status, rights, and duties, and the institutional mechanisms that govern the individual and collective interactions of employers, employees or their representatives. Social Justice is the humanization of laws and the equalization of social and economic forces by the state so that justice in its rational and objectively secular conception may at least be approximated. - Raison d’etre of labor laws Police power is the power of Government to enact laws within constitutional limits, to promote the order, safety, health, morals and general welfare of society. - Basis/foundation of labor laws What is the purpose of Labor Legislation? Art. The State shall afford protection to Labor, …. What is the liberal concept in the interpretation of labor laws? Art 4. All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor. The right to obtain justice is enjoyed by all members of society, rich or poor, worker or manager, alien or citizen. It should not be supposed that every labor dispute will be automatically decided in favor of labor. Fundamental Management Rights (Management Prerogatives) 1. Right to return of investments and to make profit. 2. Right to make reasonable rules and regulations for the government of their employees. 3. Right to select employees and to decide when to engage them. 4. Right to transfer, reduce or lay-off personnel in order to minimize expenses and to insure stability of the business.

Limits to management prerogatives: Law, contract or CBA, and general principles of fair play. What is the kind of relationship for the Code to properly apply? Employer-employee relationship

Is employer-employee relationship a prerequisite for the Code to apply? No. Examples of this case are cases of indirect employer’s liability (indirect contractor), or illegal recruitment, or misuse of POEA license. Art 12 b and e ARTICLE 13. Definitions. -(b) “Recruitment and placement” refers to any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, That any person or entity which, in any manner, offers or promises for a fee, employment to two or more persons shall be deemed engaged in recruitment and placement. People v. Panis – the number of persons dealt with is not an essential ingredient…. P. 51 (c) “Private fee-charging employment agency” means any person or entity engaged in recruitment and placement of workers for a fee which is charged, directly or indirectly, from the workers or employers or both. (d) “License” means a document issued by the Department of Labor authorizing a person or entity to operate a private employment agency. (e) “Private recruitment entity” means any person or association engaged in the recruitment and placement of workers, locally or overseas, without charging, directly or indirectly, any fee from the workers or employers. How will you prove illegal recruitment? People v. Goce – it must be shown that the accused gave the complainant the distinct impression that ….p51 Darwin v. CA and PP – merely procuring passport, airline tickets and foreign visa for another individual can hardly qualify as recruitment activities. ARTICLE 15. Bureau of Employment Services. - (b) The regional offices of the Ministry of Labor (Labor Arbiter) shall have the original and exclusive jurisdiction over all matters or cases involving employer-employee relations including money claims, arising out of or by virtue of any law or contracts involving Filipino workers for overseas employment except seamen. (Appeal is with NLRC) 6.4c page 62, no more three months, check with ra 10022 Serrano v. gallant p 63 Failure to deploy recruited workers without valid grounds (illegal recruitment) are within the jurisdiction of regular courts. Labor Arbiter has no jurisdiction. 6.4e page 64 2 notice rule 6.5 page 64 Contracted but not deployed When is seafarer’s death compensable?

When the death occurred during the term of the contract it is compensable. The death need not be work related for him to be able to collect compensation. (NFD International vs. NLRC) page 67 Is a seafarer who has worked for 20 years (the duration of his contract) on board the same vessel a regular employee? No. The said seafarer is not a regular employee. This is because of the fact that he knows that his employment if fixed (fixed term employee) and will lapse after 20 years. (OFWs are fixed term employees) Thus, the contract prevails. Romero v. Jurisdiction Retained with POEA page 75 ARTICLE 18. Ban on direct-hiring. - No employer may hire a Filipino worker for overseas employment except through the Boards and entities authorized by the Secretary of Labor. Directhiring by members of the diplomatic corps, international organizations and such other employers as may be allowed by the Secretary of Labor is exempted from this provision. Is direct hiring of Filipino workers by employers allowed? No, direct Hiring of Filipino workers by foreign employer is not allowed except direct hiring by members of the diplomatic corps, international orgs, and “name hirees”. Who are name hirees? They are those individual workers who are able to secure contracts for overseas employment on their own efforts and representation without assistance or participation of any agency. Their hiring, nonetheless, has to be processed thru the POEA. OWWA page 87 Is remittance to their family by Filipino workers abroad mandatory? Yes, it shall be mandatory for all Filipino workers abroad to remit a portion of their foreign exchange earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor. (Thus, OFWs cannot refuse to remit a portion of their earnings) The exception to this mandatory rule is when the family of the OFW is with the OFW residing abroad. EO 857, as amended, prescribe the percentages of foreign exchange remittance ranging from 50% to 80% of the basic salary, depending on the workers kind of job.

What did RA 8042 transfer from POEA to NLRC? Ra 8042 transferred from POEA to NLRC the jurisdiction over OFW’s claims arising from employer-employee relationship. But POEA retains original and exclusive jurisdiction over cases involving violations of POEA rules and regulations, disciplinary cases and other cases that are administrative in character involving OFWs. Thus, POEA performs regulatory, enforcement, and limited or special adjudicatory functions.

With the proliferation of specialized activities and their attendant peculiar problems, the national legislature has found it more and more necessary to entrust to administrative agencies the authority to issue rules to carry out the general provisions of the statute. This is called “the power of subordinate legislation.”

Are travel agencies and sales agencies of airline companies allowed to perform the business of recruitment and placement? No, travel agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not pursuant to Art 26 of the Labor Code. Who are the other persons disqualified from performing the business of recruitment and placement? They are persons with derogatory records such as those convicted for illegal recruitment or other crimes involving moral turpitude. The same prohibition extends to any official or employee of DOLE, POEA, OWWA, DFA, and other government agencies directly involved in the implementation of RA 8042 or any of their relatives within the fourth civil degree. What percent of Filipino citizen voting capital stock is required from a company to be authorized to engage in business of recruitment and placement? At least seventy-five percent (75%) of the authorized and voting capital stock of corporations or partnerships owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas. ARTICLE 29. Non-transferability of license or authority. - No license or authority shall be used directly or indirectly by any person other than the one in whose favor it was issued or at any place other than that stated in the license or authority be transferred, conveyed or assigned to any other person or entity. Any transfer of business address, appointment or designation of any agent or representative including the establishment of additional offices anywhere shall be subject to the prior approval of the Department of Labor. May a license to perform business of recruitment and placement be transferred? No, only the person authorized to do the business of placement and recruitment may use the license. Exception: If with prior approval of DOLE May a licensed person perform recruitment in his residence? No, Licenses or holders of authority or their duly authorized representatives may, as a rule, undertake recruitment and placement activity only at their authorized official (office) addresses. May a licensed person perform recruitment on a house-tohouse basis? No, recruitment of workers for overseas employment cannot be lawfully undertaken on a house-to-house basis, in residences, or secluded places.

ARTICLE 32. Fees to be paid by workers. - Any person applying with a private fee-charging employment agency for employment assistance shall not be charged any fee until he has obtained employment through its efforts or has actually commenced employment. Such fee shall be always covered with the appropriate receipt clearly showing the amount paid. The Secretary of Labor shall promulgate a schedule of allowable fees.

To constitute a violation of inducement (Art 34d), is it necessary that the employee was actually induced?

When may a private fee-charging employment agency charge a fee to a person?

What is the exception from the prohibition of inducement to quit an employee’s employment for another?

Fee may be obtained 1. When the person has obtained employment or 2. When the person has actually commenced employment

The act is not punishable if the transfer is designed to liberate the worker from oppressive terms and conditions of employment

ARTICLE 34. Prohibited practices. (Acts of Illegal Recruitment) - It shall be unlawful for any individual, entity, licensee, or holder of authority: (a) To charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance; (b) To furnish or publish any false notice or information or document in relation to recruitment or employment; (c) To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under this Code; (d) To induce or attempt to induce a worker already employed to quit his employment in order to offer him to another unless the transfer is designed to liberate the worker from oppressive terms and conditions of employment; (e) To influence or to 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; (g) To obstruct or attempt to obstruct inspection by the Secretary of Labor or by his duly authorized representatives; (h) To fail to file 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; (i) To substitute or alter employment contracts approved and verified by the Department of Labor from the time of actual signing thereof by the parties up to and including the periods of expiration of the same without the approval of the Secretary of Labor; (j) To become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency; and (k) To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations other than those authorized under this Code and its implementing rules and regulations. May a licensed person accept an amount grater than that allowed in the schedule of allowable fees prescribed? No, it is prohibited to charge or accept, directly or indirectly, any amount greater than that specified in the schedule of allowable fees prescribed by the Secretary of Labor, or to make a worker pay any amount greater than that actually received by him as a loan or advance pursuant to Art 34a of the Labor Code.

No, a mere attempt to induce a worker to quit his employment for the purpose of offering him to another is sufficient to constitute the offense. It is not necessary that the worker was actually induced or did quit employment.

Is the licensed person allowed to become a member or officer of a corporation engaged in travel agency? No, to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of a travel agency is prohibited pursuant to Art 34j of the Labor Code. May a licensed person withhold travel documents of applicant before departure for monetary considerations included under those authorized by the Code? Yes, be it noted that what is prohibited is the withholding of documents of applicant before departure for money considerations OTHER than those in the Code pursuant to Art 34k of the Labor Code. Art 34(a) of the Labor Code has two parts. The first part prohibits the charging or accepting of fees greater than that allowed by regulations. The second part of Art 34(a) is a deterrent to loan sharks who lend money at usurious interests. Under Art 34(b) the prohibition includes the act of furnishing fake employment documents to a worker, and the act of publishing false notice or information in relation to recruitment or employment. The act of advertising for employment is within the definition of recruitment and placement and the falsity of the notice or information published is immaterial in prosecution for illegal recruitment for unauthorized advertisement. There is no prohibition against stipulating in a contract more benefits to the employee than those required by law. Under POEA Rules, an applicant for a license to operate a private employment agency or manning agency should submit an undertaking under oath stating that the applicant: 3) Shall assume joint and solidary liability with the employer for all claims and liabilities which may rise in connection with the implementation of the contract; including but not limited to payment of wages, health and disability compensation and repatriation. 4) Shall guarantee compliance with the existing labor and social legislations of the Philippines and of the country of employment of recruited workers.

ARTICLE 37. Visitorial Power. - The Secretary of Labor 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 violation of any provisions of this Title. ARTICLE 38. Illegal recruitment. - (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-

licensees or non-holders of authority, shall be deemed illegal and punishable under Article 39 of this Code. The Department of Labor and Employment or any law enforcement officer may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under the first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. What is illegal recruitment? Illegal recruitment shall mean 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-license or non-holder of authority contemplated under Art 13(f) of PD 442, as amended. Page 51, PP v. Panis. Is the number of persons essential element in prosecuting illegal recruitment When is illegal recruitment committed by a syndicate? Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons. When is illegal recruitment committed in large scale? Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group What are the two types of illegal recruitment? Two Types of Illegal Recruitment 1. Simple 2. Illegal recruitment involving economic sabotage  Syndicated  Large Scale Who has the exclusive original jurisdiction over illegal recruitment cases? Illegal recruitment cases falls within the exclusive original jurisdiction of the RTC. Who are criminally liable for illegal recruitment? The persons criminally liable for illegal recruitment are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable. May an agency employee of an illegal recruitment business escape liability? Yes, an agency’s employee who does not control, manage or direct the business may not be held liable for illegal recruitment.

Conversely, an employee of a company or corporation engaged in illegal recruitment may be held liable as principal, together with his employer, if it is shown that he actively and consciously participated in illegal recruitment. The absence of receipts cannot defeat a criminal prosecution for illegal recruitment. As long as the witnesses can positively show thru their respective testimony that the accused is the one involved in prohibited recruitment, she can be convicted of the offense despite the absence of receipts.

May an independent complaint for estafa be filed aside from illegal recruitment? Yes, a worker who suffers pecuniary damage, regardless of the amount, as a result of a previous or simultaneous false pretense resorted to by a non-license or non-holder of authority, may file a complaint for estafa (Art 315 p.2a of RPC), aside from illegal recruitment. The Secretary of Labor and Employment or his duly authorized representatives may cause the lawful arrest of illegal recruiters either: 1.

2.

By virtue of a judicial warrant issued by an RTC, MTC or MCTC judge, as the case may be. without judicial warrant, under the provisions of Sec 5, Rule 113 of the 1985 Rules on Criminal Procedure, as amended.

ARTICLE 39. Penalties. - (d) If the offender is a corporation, partnership, association or entity, the penalty shall be imposed upon the officer or officers of the corporation, partnership, association or entity responsible for violation; and if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings; (e) In every case, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity under this Title, and the forfeiture of the cash and surety bonds in favor of the Overseas Employment Development Board or the National Seamen Board, as the case may be, both of which are authorized to use the same exclusively to promote their objectives. Are alien officer offenders of illegal recruitment immediately deported without further proceedings? Yes, if such officer is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings pursuant to Art 39e of the Labor Code. What is the prescriptive period for illegal recruitment cases? Illegal recruitment cases under this Act shall prescribe in five years; Provided, however, That illegal recruitment cases involving economic sabotage as defined herein shall prescribe in twenty years. Is the revocation of license of authorized persons to perform recruitment and placement automatic upon conviction for illegal recruitment?

Yes, conviction shall cause and carry the automatic revocation of the license or authority and all the permits and privileges granted to such person or entity pursuant to Art 39e of the Labor Code? ARTICLE 40. Employment permit of non-resident aliens. Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. The employment permit may be issued to a non-resident alien or to the applicant employer after a determination of the nonavailability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. What shall a non-resident alien seeking employment obtain before being actually employed? An alien seeking admission for employment purposes and any domestic or foreign employer who desires to engage an alien for employment shall obtain an employment permit from DOLE. When may an employment permit be issued to an alien? After a determination of the non-availability of a person in the Philippines who is competent, able and willing at the time of application to perform the services for which the alien is desired. ARTICLE 41. Prohibition against transfer of employment. (a) After the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approval of the Secretary of Labor. (b) Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations shall be punished in accordance with the provisions of Articles 289 and 290 of the Labor Code. In addition, the alien worker shall be subject to deportation after service of his sentence. What must the alien acquire in order to be able to transfer to another job? The alien needs the prior approval of the Secretary of Labor. Are resident aliens required to acquire employment permit before employment? No, Art 40 requires only non-resident aliens to secure employment permit. Resident aliens are not so required. For immigrants or resident aliens what is required is an Alien Employment Registration Certificate. The 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 corporations or associations whose capital should be at least 60% Filipino owned. Under the Philippine Constitution, Art XVI, Sec 11, mass media enterprises can be owned only by Filipinos or by corporations or associations wholly owned or managed by them. Coverage and Exemption 1. All foreign nationals who intend to engage in gainful employment in the Philippines shall apply for Alien Employment Permit.

2. a. b. c. d. e.

f.

g.

The following categories of foreign nationals are exempt from securing an employment permit: All members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the Philippine government; Officers and staff of international organizations of which the Philippines is a member, and their legitimate spouses desiring to work in the Philippines; Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in the corporation; All foreign nationals granted exemption by law; Owners and representatives of foreign principals whose companies are accredited by the POEA, who come to the Philippines for a limited period and solely for the purpose of interviewing Filipino applicants for employment abroad; Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government; provided that exemption is on a reciprocal basis; and Resident foreign nationals.

ARTICLE 58. Definition of Terms. - As used in this Title: (a) “Apprenticeship” means practical training on the job supplemented by related theoretical instruction. (b) An “apprentice” is a worker who is covered by a written apprenticeship agreement (Now already approved by TESDA) with an individual employer or any of the entities recognized under this Chapter. (c) An “apprenticeable occupation” means any trade, form of employment or occupation which requires more than three (3) months of practical training on the job supplemented by related theoretical instruction. (d) “Apprenticeship agreement” is an employment contract wherein the employer binds himself to train the apprentice and the apprentice in turn accepts the terms of training. ARTICLE 59. Qualifications of apprentice. - To qualify as an apprentice, a person shall: (a) Be at least fourteen (14) years of age; (b) Possess vocational aptitude and capacity for appropriate tests; and (c) Possess the ability to comprehend and follow oral and written instructions. Trade and industry associations may recommend to the Secretary of Labor appropriate educational requirements for different occupations. Who may hire apprentices? Only employers in the highly technical industries may employ apprentices and only in apprenticeable occupations approved by the Secretary of Labor and Employment. (As amended by Section 1, Executive Order No. 111, December 24, 1986). RA 7610, as amended by RA 7658, explicitly prohibits employment of children below 15 years of age. What are the exception to the prohibition of employment of children below 15 years of age? Children below fifteen (15) years of age may not be employed except: (1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's

family are employed: Provided, however, That his employment neither endangers his life, safety and health and morals, nor impairs his normal development: Provided, further, That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education; or (2) When a child's employment or participation in public & entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract concluded by the child's parent or guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment

ARTICLE 61. Contents of apprenticeship agreements. Apprenticeship agreements, including the wage rates of apprentices, shall conform to the rules issued by the Secretary of Labor and Employment. The period of apprenticeship shall not exceed six months. Apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75 percent of the applicable minimum wage, may be entered into only in accordance with apprenticeship programs duly approved by the Secretary of Labor and Employment. The Department shall develop standard model programs of apprenticeship. (As amended by Section 1, Executive Order No. 111, December 24, 1986).

ARTICLE 65. Investigation of violation of apprenticeship agreement. - Upon complaint of any interested person or upon its own initiative, the appropriate agency of the Department of Labor and Employment or its authorized representative shall investigate any violation of an apprenticeship agreement pursuant to such rules and regulations as may be prescribed by the Secretary of Labor and Employment. ARTICLE 66. Appeal to the Secretary of Labor and Employment. - The decision of the authorized agency of the Department of Labor and Employment may be appealed by any aggrieved person to the Secretary of Labor and Employment within five (5) days from receipt of the decision. The decision of the Secretary of Labor and Employment shall be final and executory. What is the doctrine of exhaustion of administrative remedies? No person shall institute any action for the enforcement of any apprenticeship agreement or damages for breach of any such agreement, unless he has exhausted all available administrative remedies.

The period of apprenticeship shall not exceed six months pursuant to Art 61.

ARTICLE 72. Apprentices without compensation. - The Secretary of Labor and Employment may authorize the hiring of apprentices without compensation whose training on the job is required by the school or training program curriculum or as requisite for graduation or board examination.

May apprenticeship agreements provide wage rate of less than the minimum?

What are the circumstances wherein an apprentice is allowed to be without compensation?

Yes, apprenticeship agreements providing for wage rates below the legal minimum wage, which in no case shall start below 75 percent of the applicable minimum wage, may be entered into pursuant to Art 61.

An apprentice may not be compensated when his training on the job is: 1. Required by school or training program 2. Requisite program for graduation 3. Requisite program for Board Exam

What is the period of apprenticeship?

ARTICLE 62. Signing of apprenticeship agreement. - Every apprenticeship agreement shall be signed by the employer or his agent, or by an authorized representative of any of the recognized organizations, associations or groups and by the apprentice. An apprenticeship agreement with a minor shall be signed in his behalf by his parent or guardian, if the latter is not available, by an authorized representative of the Department of Labor, and the same shall be binding during its lifetime. Every apprenticeship agreement entered into under this Title shall be ratified by the appropriate apprenticeship committees, if any, and a copy thereof shall be furnished both the employer and the apprentice. Who may sign in behalf of a minor in an apprenticeship program? An apprenticeship agreement with a minor shall be signed in his behalf by his parent or guardian, if the latter is not available, by an authorized representative of the Department of Labor pursuant to Art 62. What is the status of an employee if there is no apprenticeship program? In the absence of an apprentice program, a worker is deemed to be a regular employee.

ARTICLE 73. Learners defined. - Learners are persons hired as trainees in semi-skilled and other industrial occupations which are non-apprenticeable and which may be learned through practical training on the job in a relatively short period of time which shall not exceed three (3) months. When may learners be hired? Learners may be employed when: 1. No experienced workers are available 2. Their employment is necessary to prevent curtailment of employment opportunities 3. The employment does not create unfair competition in terms of labor costs or impair or lower working standards. ARTICLE 75. Learnership agreement. - Any employer desiring to employ learners shall enter into a learnership agreement with them, which agreement shall include: (a) The names and addresses of the learners; (b) The duration of the learnership period, which shall not exceed three (3) months; (c) The wages or salary rates of the learners which shall begin at not less than seventy-five percent (75%) of the applicable minimum wage; and

(d) A commitment to employ the learners if they so desire, as regular employees upon completion of the learnership. All learners who have been allowed or suffered to work during the first two (2) months shall be deemed regular employees if training is terminated by the employer before the end of the stipulated period through no fault of the learners. The learnership agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representative. How are learners in a piece of work paid? Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. Distinguish an apprentice from a learner. Apprentice Not as productive as regular worker May wage lower than 25% of minimum wage Highly skilled jobs (require more than 3mos but less than 6mos training) Also a learner Jobs are in highly technical industries approved by DOLE (Now TESDA)

Learner Not as productive as regular worker May wage lower than 25% of minimum wage Semi-skilled jobs (require 3mos or less training) Not an apprentice Non-technical jobs

ARTICLE 78. Definition. - Handicapped workers are those whose earning capacity is impaired by (1) age or (2) physical or (3) mental deficiency or injury. When may handicapped workers be employed? Handicapped workers may be employed when: 1. Their employment is necessary to prevent curtailment of employment opportunities 2. It does not create unfair competition in labor costs or impair or lower working standards. ARTICLE 80. Employment agreement. - Any employer who employs handicapped workers shall enter into an employment agreement with them, which agreement shall include: (a) The names and addresses of the handicapped workers to be employed; (b) The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage; (c) The duration of employment period; and (d) The work to be performed by handicapped workers. The employment agreement shall be subject to inspection by the Secretary of Labor and Employment or his duly authorized representatives. ARTICLE 81. Eligibility for apprenticeship. - Subject to the appropriate provisions of this Code, handicapped workers may be hired as apprentices or learners if their handicap is not such as to effectively impede the performance of job operations in the particular occupations for which they are hired.

ARTICLE 82. Coverage. - The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not, but not to (1) government employees, (2) managerial employees, (3) field personnel, (4) members of the family of the employer who are dependent on him for support, (5) domestic helpers, (6) persons in the personal service of another, and (7) workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. As used herein, “managerial employees” refer to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. “Field personnel” shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. Four fold test in determining the existence of employer-employee relationship a. The selection and engagement of the employee; b. The payment of wages; c. The power of dismissal; and d. The employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished. It is the so-called “control test” that is the most important element.  Absent the power to control the employee with respect to the means and methods by which his work was to be accomplished, there is no employer-employee relationship between the parties. (Continental Marble Corp., et. Al. V. NLRC) Two-tiered Approached; the Economic Dependence Test 1. Involving the putative employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished; and 2. Involving the underlying economic realities of the activity or relationship.  This two-tiered test would provide us with the framework of analysis, which would take into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. Page 181, jeepney driver Employer-employee relationship exists between the owner of the jeepneys and the drivers even if the latter work under the boundary system. (Citizens’ League of Free Workers, et. al. vs. Abbas)

Employer-employee relationship Caddy Employer-employee relationship Contractor Employer-employee relationship Commission agents – spend time independently of their own will Are all commission agents considered as non-employee? No. When they receive a regular salary aside from the percentage received and not purely salary from commission. Page 193, supervisors, like managers, not entitled to overtime pay

Even handicapped persons, employed by the bank to accommodate the request of the social welfare secretary may become regular employees.

Page 199, workers paid by result

ARTICLE 83. Normal hours of work. - The normal hours of work of any employee shall not exceed eight (8) hours a day. What is the normal hours work of an employee? The normal hours of work of any employee shall not exceed eight (8) hours a day. What the law regulates is work hours exceeding eight. Therefore, parttime work or a day’s work of less than eight hours is not prohibited. The fair and general rule is that the wage and the benefits of a part-timer are in proportion to the number of hours worked.

May the normal hours of work be changed by the employer? Yes. The employer may change the shift or work schedule for improved production and efficient conduct of business. When is an employee considered to be working or in hours worked? Hours worked shall include 1. All time during which an employee is required to be on duty or to be at a prescribed workplace; and 2. All time during which an employee is suffered or permitted to work. Rest periods of short duration during working hours shall be counted as hours worked. (Art 84) Principle in Determining Hours Worked: 1. All hours are hours worked which the employee is required to give to his employer, regardless of whether or not such hours are spent in productive labor or involve physical or mental exertion; 2. An employee need not leave the premises of the workplace in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his workplace, to go elsewhere, within or outside the premises of his workplace; 3. If the work performed was necessary, or it benefited the employer, or the employee could not abandon his work at the end of his normal working hours because he had no replacement, all time spent for such work shall be considered as hours worked, if the work was with the knowledge of his employer and immediate supervisor; 4. The time during which an employee is inactive by reason of interruptions in his work beyond his control shall be considered time either if the imminence of the resumption of work requires the employees presence at the place of work or if the interval is too brief to be utilized effectively and gainfully in the employees interest.

Waiting Time: Engaged to Wait or Waiting to be Engaged Page 204, Art 84 -if made for the interest of employer, then compensable Working while eating The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he is required to perform his duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his machine is working while eating. (Pan American World Airways System v. Pan American Employees Association) Working while sleeping

A worker sleeping may be working. This largely depends on the agreement of the parties. If there is no agreement then it will depend on the nature of the work. Sleeping time is considered as working time if the work takes place under conditions substantially less desirable than would be likely to exist at employee’s home. (Skidmore v. Swift and Co.) “On call” An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively as his own purposes is working while “on call.” An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.(Dept. of Labor Manual) With cellular phone or other contact device If an employee is kept within reach thru a mobile phone or other contact device, is the employee at work beyond his regular work hours? No. This is notwithstanding the fact that they are required to remain within a certain geographical area. (Allen v. US). Travel time 1. Travel from home to work – An employee who travels from home before his regular workday and returns to his home at the end of the day is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different jobsites.(It is not worktime) 2. Travel that is all in a day’s work – Time spent by an employee in travel as part of his principal activity, such as travel from jobsite to jobsite during the workday, must be counted as hours worked. 3. Travel away from home – Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across employee’s workday. Lectures, Meetings, and Training Programs Attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if the following criteria are met: 1. Attendance is outside of the employer’s regular working hours 2. Attendance is in fact voluntary 3. The employee does not perform any productive activity during such attendance Grievance Meeting Time spent in adjusting grievance between employer and employees during the time the employees are required by the employer to be on the premises is hours worked. Semestral Break Regular full-time monthly paid teachers in a private school are entitled to salary and emergency cost of living allowance during semestral breaks. NOTE: Not part-time teachers. Workhours of Seamen The rule is that a laborer need not leave the premises of the factory, shop or boat in order that his period of rest shall not be counted, it being enough that he “ceases to work,” may rest completely and leave or may leave at his will the spot where he actually stays while working, to go somewhere else, whether within or outside the premises of said factory, shop or boat. What is the Rule on working hours of children? a. b.

If child is below 15 years old – work must not be more than 4 hours at any given day and must not be more than 20 hours a week If child is 15 years of age – work must not be more than 8 hours at any given day and must not be more than 40 hours a week

c.

If the child is below 15yo he is not allowed to work between 8PM to 6AM. If the child is 15yo he is not allowed to work between 10PM to 6AM.

ARTICLE 85. Meal periods. - Subject to such regulations as the Secretary of Labor may prescribe, it shall be the duty of every employer to give his employees not less than sixty (60) minutes time-off for their regular meals. Where the lunch period is spent predominantly for the employer’s benefit, and cannot be utilized in the employees own interest, such time constitutes work time. Meal time of less than 60 minutes The implementing rules allow the mealtime to be less than 60 minutes, under specified cases and in no case shorter than 20 minutes. The situations where the meal break may be shortened to less than 60minutes, with full pay, are the following: 1. Where the work is non-manual or does not involve serious physical exertion. 2. Where the establishment regularly operates not less than 16 hours a day. 3. Where there is an actual or impending emergency or there is urgent work to be performed on machineries, equipment or installation to avoid serious loss which the employer would otherwise suffer. 4. Where the work is necessary to prevent the serious loss of perishable goods. Shortened meal breaks upon employees’ request The employees themselves may request that their meal period be shortened so that they can leave work earlier than the previous established schedule. The DOLE, in allowing such arrangement, imposes however, certain conditions, namely: 1. The employees voluntarily agree in writing to a shortened meal period of 30 minutes and are willing to waive the overtime pay for such shortened meal period. 2. There will be no diminution whatsoever in the salary and other fringe benefits of the employees existing before the effectivity of the shortened meal period. 3. The work of the employees does not involved strenuous physical exertion and they are provided with adequate “coffee breaks” in the morning and afternoon. 4. The value of the benefits derived by the employees from the proposed work arrangement is equal to or commensurate with the compensation due them for the shortened meal period as well as the overtime pay for 30 minutes as determined by the employees concerned. 5. The overtime pay of the employees will become due and demandable if ever they are permitted or made to work beyond 4:30PM. 6. The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Secretary of Labor and Employment.

ARTICLE 86. Night shift differential. - Every employee shall be paid a night shift differential of not less than ten percent (10%) of his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning. The burden of proving that payment of such benefit has been made rests upon the party who will suffer if no evidence at all is presented by either party.

ARTICLE 87. Overtime work. - Work may be performed beyond eight (8) hours a day provided that the employee is paid for the overtime work, an additional compensation equivalent to his regular wage plus at least twenty-five percent (25%) thereof. Work performed beyond eight hours on a holiday or rest day shall

be paid an additional compensation equivalent to the rate of the first eight hours on a holiday or rest day plus at least thirty percent (30%) thereof. What is overtime pay? It is an additional compensation for work rendered in excess of eight hours a day by employees in employment covered by the Eight hour Labor Law and not exempt from its requirement. How much is the required compensation for overtime work during: 1. Regular day – regular wage + 25% thereof 2.

Holiday or rest day – rate on 1st 8 hours + 30% thereof

When the tour of duty of a laborer falls at night time (between 10PM6AM), the receipt of overtime pay will not preclude the right to night differential pay. The latter is payment for work done during the night while the other is payment for the excess of the regular eight hour work. The minimum normal hours fixed by the Act need not be continuous to constitute as the legal working day of eight hours as long as the eight hours is within the workday. For example, an employee may be required to work four hours in the morning and four hours in the evening of the same work day to complete an eight hour working period. Work in excess of eight hours within a work day is considered as overtime regardless of whether this is performed in workshift other than that which the employee regularly works. For example, a situation may happen in an establishment which operates 24 hours a day when a worker takes a shift of another who is absent. For instance, a worker whose regular tour of duty is from 10PM to 6PM the following day is asked to take the place of another whose working hours are from 2PM to 10PM, the second shift in the establishment. The work performed by the substituting worker during the second shift is overtime work if this is rendered after completing his regular tour of duty since the second shift is still within his workday from 10PM to 10PM.

Is an express instruction from the employer required for the employee to be entitled to overtime pay? No, an express instruction from the employer to the employee to render overtime work is not required for the employee to be entitled to overtime pay, it is sufficient that the employee is permitted or suffered to work. Neither is an express approval by a superior a prerequisite to make overtime work compensable. A verbal instruction to render overtime work prevails over a memorandum prohibiting such work.

Is the claim for overtime pay on Sundays or Holidays justified even without a written authority? No, a claim for overtime pay is not justified in the absence of a written authority to render overtime after office hours during Sundays and Holidays. Neither is overtime pay justified for days where no work was required and no work could be done by employees on account of shutdown due to electrical power interruptions, machine repair and lack of raw materials.

May estoppel or laches be invoked against the claim for overtime pay? No, the principles of estoppel and laches cannot be invoked against employees or laborers in an action for the recovery of compensation for past overtime work because it is contrary to the

spirit of the Eight-Hour Labor Law, under which the employees cannot waive the right to extra compensation. May the right to overtime pay be waived? No, the right to overtime pay cannot be waived. Any stipulation in the contract that the laborer shall work beyond the regular eight hours without additional compensation for the extra hours is contrary to law and is null and void. However, when the alleged waiver of overtime pay is in consideration of benefits and privileges which may be more than what will accrue to them in overtime pay, the waiver may be permitted. Compressed Work Week Under this scheme the number of workdays is reduced but the number of work hours in a day is increased to more than eight, but no overtime pay may be claimed. Thus, a CWW scheme is an alternative arrangement whereby the normal workweek is reduced to less than six days but the total number of work hours per week shall remain at 48 hours. Condition for compressed Work Week: 1. Expressly supported by majority of employees 2. No diminuition of salary 3. Approved by DOLE Flexible Work Arrangements (Better alternative than outright termination) 1. Reduction of workdays 2. Rotation of workers 3. Forced leave 4. Broken-time schedule 5. Flexi-holiday schedule

ARTICLE 88. Undertime not offset by overtime. - Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter. The proper method should be to deduct the undertime hours from the accrued leave and to pay the employee the overtime compensation which he is entitled. Where the employee has exhausted his leave credits, his undertime hours may simply be deducted from his days wage, but he should still be paid his overtime compensation for work in excess of eight hours a day.

ARTICLE 89. Emergency overtime work. - Any employee may be required by the employer to perform overtime work in any of the following cases: (a) When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; (b) When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; (c) When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; (d) When the work is necessary to prevent loss or damage to perishable goods; and (e) Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter.

When may overtime work be required? Overtime work may be required when there is: 1. National or local emergency 2. Necessity to prevent loss of life due to an actual or impending emergency (same) 3. An urgent work to be performed on machines (same) 4. Work is necessary to prevent loss of perishable goods (same) 5. Necessity of continuation of work to prevent obstruction to operations (business) Aside from the mentioned instances, the IRR of the Code authorizes compulsory overtime work when it is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.

ARTICLE 90. Computation of additional compensation. - For purposes of computing overtime and other additional remuneration as required by this Chapter, the “regular wage” of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer. ARTICLE 91. Right to weekly rest day. - (a) It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four (24) consecutive hours after every six (6) consecutive normal work days. (b) The employer shall determine and schedule the weekly rest day of his employees subject to collective bargaining agreement and to such rules and regulations as the Secretary of Labor and Employment may provide. However, the employer shall respect the preference of employees as to their weekly rest day when such preference is based on religious grounds. ARTICLE 92. When employer may require work on a rest day. - The employer may require his employees to work on any day: (a) In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemic or other disaster or calamity to prevent loss of life and property, or imminent danger to public safety; (b) In cases of urgent work to be performed on the machinery, equipment, or installation, to avoid serious loss which the employer would otherwise suffer; (c) In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures; (d) To prevent loss or damage to perishable goods; (e) Where the nature of the work requires continuous operations and the stoppage of work may result in irreparable injury or loss to the employer; and (f) Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment. When may work be required on a rest day? Work may be required on a rest day when there is: 1. An actual or impending emergency (same) 2. An urgent work to be performed on the machinery (same) 3. An abnormal pressure of work 4. A necessity to prevent loss of perishable goods (same)

5. 6.

A necessity for continuous operations due to the nature of the work Other circumstances analogous

ARTICLE 93. Compensation for rest day, Sunday or holiday work. - (a) Where an employee is made or permitted to work on his scheduled rest day, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage. An employee shall be entitled to such additional compensation for work performed on Sunday only when it is his established rest day. (b) When the nature of the work of the employee is such that he has no regular workdays and no regular rest days can be scheduled, he shall be paid an additional compensation of at least thirty percent (30%) of his regular wage for work performed on Sundays and holidays. (c) Work performed on any special holiday shall be paid an additional compensation of at least thirty percent (30%) of the regular wage of the employee. Where such holiday work falls on the employee’s scheduled rest day, he shall be entitled to an additional compensation of at least fifty per cent (50%) of his regular wage. (d) Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate. What is the required compensation when an employee is required to work on: 1. Scheduled rest day - +30% of regular wage 2. Sunday or Holiday (if there is no established rest day) - +30% of regular wage 3. Special Holiday - +30% of regular wage 4. (Special) Holiday on a rest day - +50% of regular wage When may a higher pay be required for work on a Sunday, Holiday, or Rest day? Where the collective bargaining agreement or other applicable employment contract stipulates the payment of a higher premium pay than that prescribed under this Article, the employer shall pay such higher rate.

Those retail and service establishment regularly employing less than ten (10) workers are exempted from the said mandate. What is the general rule on compensation on a regular holiday? 1. 2. 3.

If unworked – 100% of wage If worked – 200% of wage If worked with overtime – 1st 8 hours + 30% of hourly rate on said day

What is the condition for the employee to be entitled to 100% pay during the regular holiday? The employee must have worked a day before such regular holiday. If such employee is on leave with pay a day before such regular holiday then he shall also be entitled to such 100% pay on the regular holiday. What must be the compensation if the regular holiday falls on a rest day? 1. 2. 3.

If unworked – 100% of wage If worked – 200% of wage + 30% thereof If worked with overtime - 1st 8 hours + 30% of hourly rate on said day

What are the regular holidays under EO 292, as amended? New Year’s Day Maundy Thursday Good Friday Araw ng Kagitingan Labor Day Independence Day National Heroes Day Bonifacio Day Eidul Fitr Christmas Day Rizal Day

Jan 1 Movable Movable April 9 May 1 June 12 Last Sunday of August Nov 30 Movable Dec 25 Dec 30

Is an employee entitled to ECOLA on a regular holiday? What are the Special Holidays under EO 203, as amended? ARTICLE 94. Right to holiday pay. - (a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers; (b) The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate; and (c) As used in this Article, “holiday” includes: New Year’s Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and thirtieth of December and the day designated by law for holding a general election. What is a worker entitled to receive during regular holidays? Every worker shall be paid his regular daily wage during regular holidays. Is there an exception to this mandate? Who?

All Saint’s Day Nov 1 Last day of the year Dec 31 Ninoy Aquino Day Aug 21 Day before Christmas Dec 24 EDSA Revolution Feb 25 Yes, an employee is entitled to ECOLA if he is paid his basic pay during regular holiday, regardless of whether or not work is performed. Double Holiday Pay Rule (300% pay), page 253 Successive Regular Holidays, page 254 ARTICLE 95. Right to service incentive leave. - (a) Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. (b) This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the

Secretary of Labor and Employment after considering the viability or financial condition of such establishment. (c) The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action. Who are entitled to the 5 day incentive leave with pay? Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay. To whom does the right to incentive leave do not apply? This provision shall not apply to those who are: 1. Already enjoying the benefit 2. Enjoying vacation leave with pay of at least five days 3. Employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labor and Employment NOTE: Addition to this is piece rate employees Leaves enjoyed by workers: 1. Service incentive leave (mandatory) 2. Sick leave (voluntary) 3. Paternity and maternity leave Conditions for paternity leave: a. He is an employee at the time of delivery b. Cohabiting with spouse c. Applied in accord with Sec 4 (apply within reasonable period of time) d. Wife has given birth or suffered miscarriage NOTE: Applicable only to first four deliveries with legitimate spouse. Can’t be availed of again with the children of the 2nd legitimate spouse. Conditions under maternity leave: a. (search SSS law) 4. 5.

Parental (Solo parent) leave Battered woman leave

ARTICLE 96. Service charges. - All service charges collected by hotels, restaurants and similar establishments shall be distributed at the rate of eighty-five percent (85%) for all covered employees and fifteen percent (15%) for management. The share of the employees shall be equally distributed among them. In case the service charge is abolished, the share of the covered employees shall be considered integrated in their wages. Tips are handled similarly as service charges.