Spectra Labor Standards.unlocked
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Labor Standards Compilation Based on the outline by: Atty. Jefferson Marquez Updated as of: SY: 2012 - 2013
Societas Spectra Legis
Societas Spectra Legis Labor Standards Compilation
Table of Contents TOPIC 1: THE APPLICABLE LAWS ........................................................................................................................................... 9 Law: PD 442 as amended by RA 6715 approved on March 21, 1989..............................................................................................................................9 CONCEPT OF LABOR .......................................................................................................................................................................................................9 FOUR SYSTEMS OF LABOR (Sla-Ser-Free-Wage; Slasher Free Wage; S-S-F-W ) ..............................................................................................................9 THREE FIELDS OF LABOR LAW (S-R-S) ...........................................................................................................................................................................10 OMNIBUS RULES AS AMENDED ....................................................................................................................................................................................11 SUPREME COURT DECISIONS........................................................................................................................................................................................11 BASIS OF ENACTING LABOR LAWS (P-S-P-D).................................................................................................................................................................11 LIMITATIONS IN THE ENACTMENT OF LABOR LAWS (P-E-N-D-O) .................................................................................................................................12 SOURCES OF LABOR LAWS - LABOR STANDARDS (R-O-L-J) ...........................................................................................................................................13 SOURCES OF LABOR LAWS (LABOR RELATIONS) ...........................................................................................................................................................13 PROVISIONS ON THE EFFECTIVITY OF LABOR LAWS .....................................................................................................................................................13 RULES ON THE IMPLEMENTATION AND INTERPRETATION OF LABOR LAWS................................................................................................................14 TRIPARTISM ..................................................................................................................................................................................................................14
TOPIC 2: BASIC PRINCIPLES ................................................................................................................................................. 16 CONSTITUTIONAL AND STATUTORY RIGHTS OF WORKERS IN GENERAL ......................................................................................................................16 SPECIFIC RIGHTS OF WORKERS .....................................................................................................................................................................................16 ASPECTS OF LABOR STANDARDS ..................................................................................................................................................................................17 SOURCES OF LABOR STANDARDS .................................................................................................................................................................................18 CONCEPT OF EMPLOYER-EMPLOYEE (LABOR STANDARDS)..........................................................................................................................................18 CONCEPT OF EMPLOYER-EMPLOYEE (LABOR RELATIONS) ...........................................................................................................................................18 CONCEPT OF EMPLOYER-EMPLOYEE RELATIONSHIP ....................................................................................................................................................19 FOUR-FOLD TEST ..........................................................................................................................................................................................................19 ECONOMIC REALITY TEST .............................................................................................................................................................................................22 EMPLOYER-EMPLOYEE VS. PRINCIPAL-AGENT..............................................................................................................................................................22 PRINCIPAL-AGENT RELATIONSHIP ................................................................................................................................................................................23 EMPLOYER-EMPLOYEE VS. PRINCIPAL-CONTRACTOR (DO NO. 9) ...............................................................................................................................23 PRINCIPAL-INDEPENDENT CONTRACTOR RELATIONSHIP .............................................................................................................................................23 CHIEF CHARACTERISTICS OF AN EMPLOYEE .................................................................................................................................................................23
TOPIC 3: THE RIGHT TO HIRE .............................................................................................................................................. 24 NATURE: RIGHT OR PREROGATIVE? .............................................................................................................................................................................24 MANAGEMENT PREROGATIVE .....................................................................................................................................................................................24 EXERCISE OF RIGHT/PREROGATIVE: ABSOLUTE? ..........................................................................................................................................................24 LEGAL LIMITATIONS/PROHIBITIONS PRIOR TO HIRING ................................................................................................................................................24 COMPULSORY HIRING OF EMPLOYEES .........................................................................................................................................................................31 RA 7920 NEW ELECTRICAL ENGINEERING LAW ............................................................................................................................................................31
TOPIC 4: WAGES AND WAGE FIXING .................................................................................................................................. 33 CONCEPT OF WAGE AND SALARY .................................................................................................................................................................................33 PRINCIPLES ...................................................................................................................................................................................................................33 FACILITIES AND SUPPLEMENT ......................................................................................................................................................................................34 WORKER’S LIEN ............................................................................................................................................................................................................36 EXEMPTION FROM EXECUTION OR ATTACHMENT .......................................................................................................................................................36 METHODS OF FIXING COMPENSATION ........................................................................................................................................................................36
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Societas Spectra Legis Labor Standards Compilation RA 6727 ........................................................................................................................................................................................................................38 WAGE RATIONALIZATION ACT ......................................................................................................................................................................................38 POLICIES OF THE STATE ................................................................................................................................................................................................38 GOVERNMENT AGENCIES INVOLVED ...........................................................................................................................................................................39 PROHIBITION AGAINST INJUNCTION ............................................................................................................................................................................40 NWPC GUIDELINES NO.001-95, REVISED RULES OF PROCEDURE ON MINIMUM WAGE FIXING ..................................................................................40 MINIMUM WAGE FIXING PROCEDURE FLOW ..............................................................................................................................................................44 CONCEPTS: BASIC WAGE, STATUTORY MINIMUM WAGE, WAGE ORDER ....................................................................................................................45 PURPOSE OF MINIMUM WAGE ....................................................................................................................................................................................45 EMPLOYEE’S RIGHT TO A LIVING WAGE VS. RIGHT OF EMPLOYER TO REASONABLE RETURN OF INVESTMENT ..........................................................46 POWER TO ISSUE WAGE ORDERS .................................................................................................................................................................................46 TWO METHODS OF DETERMINING WAGES ..................................................................................................................................................................47 NON-DIMINUTION OF BENEFITS...................................................................................................................................................................................47 WAGE ORDERS APPLICABLE IN CEBU, MANDAUE & LAPU-LAPU CITIES [2012] ............................................................................................................47 EXEMPTION FROM WAGE ORDERS: .............................................................................................................................................................................47 EXEMPTION UNDER THE LABOR CODE (ART.98) ..........................................................................................................................................................48 RA 9178 (BARANGAY MICRO BUSINESS ENTERPRISES ACT OF 2002) ...........................................................................................................................49 POWER TO ISSUE RULES ON EXEMPTION - NWPC ........................................................................................................................................................49 POWER TO GRANT EXEMPTIONS – RTWPB ..................................................................................................................................................................49 PROCEDURE FOR EXEMPTION AND APPEAL .................................................................................................................................................................50 WAGE DISTORTION ......................................................................................................................................................................................................51 PROCEDURE FOR RESOLVING IN AN ORGANIZED ESTABLISHMENT .............................................................................................................................52 PROCEDURE FOR RESOLVING WAGE DISTORTION IN AN UNORGANIZED ESTABLISHMENT.........................................................................................53 WAGE DISTORTION RESOLUTION FLOWCHART ............................................................................................................................................................55 JURISDICTION OVER WAGE DISTORTION DISPUTES .....................................................................................................................................................56 SPECIAL CIVIL ACTIONS .................................................................................................................................................................................................57
TOPIC 5: VIOLATION OF WAGE ORDERS............................................................................................................................. 59 DOUBLE INDEMNITY AND IMPRISONMENT..................................................................................................................................................................59 DOLE D.O. No. 10, SERIES OF 1998 [GUIDELINES ON THE IMPOSITION OF DOUBLE INDEMNITY FOR NON-COMPLIANCE WITH THE PRESCRIBED INCREASES OR ADJUSTMENT IN WAGE RATES] ............................................................................................................................................................59 JURISDICTION ...............................................................................................................................................................................................................61
TOPIC 6: WAGE ENFORCEMENT AND RECOVERY ............................................................................................................... 64 TWO ENFORCEMENT TOOLS ........................................................................................................................................................................................64 JURISDICTION, SCOPE AND LIMITATIONS .....................................................................................................................................................................64 PROCEDURE ON VISITORIAL AND ENFORCEMENT POWER ..........................................................................................................................................65 VISITORIAL AND ENFORCEMENT POWER FLOWCHART ................................................................................................................................................67 PROCEDURE ON SIMPLE MONEY CLAIMS .....................................................................................................................................................................68 SIMPLE MONEY CLAIMS FLOWCHART ..........................................................................................................................................................................69 ENFORCEMENT POWER ON HEALTH/SAFETY OF WORKERS .........................................................................................................................................70 BONA FIDE SUSPENSION OF OPERATIONS ...................................................................................................................................................................70 ANTI-INJUCTION ...........................................................................................................................................................................................................71 MAINTENANCE OF EMPLOYMENT RECORDS, PLACE AND PRESERVATION OF RECORDS .............................................................................................72 COMPROMISE OF LABOR STANDARD CASES ................................................................................................................................................................72 GUIDELINES ON THE PROCEDURE FOR CLOSURE OF BUSINESS UNDER RA9231 (DOLE DEPT Circ. No. 3, Series of 2009) ...........................................72 REVISED RULES ON DISPOSITION OF LABOR STANDARDS CASES (SERIES OF 1987) .....................................................................................................73
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Societas Spectra Legis Labor Standards Compilation DO NO. 7-A, SERIES OF 1995 ........................................................................................................................................................................................76 FINDINGS OF FACTS, FINAL...........................................................................................................................................................................................76 UPDATES.......................................................................................................................................................................................................................77
TOPIC 7: WAGE PROTECTION PROVISIONS & PROHIBITIONS REGARDING WAGES ......................................................... 78 NON-INTERFERENCE IN THE DISPOSAL OF WAGES.......................................................................................................................................................78 WAGE DEDUCTION .......................................................................................................................................................................................................78 DEPOSITS FOR LOSS/DAMAGE......................................................................................................................................................................................78 WITHOLDING/KICKBACKS .............................................................................................................................................................................................79 DEDUCTION TO ENSURE EMPLOYMENT .......................................................................................................................................................................79 RETALIATORY MEASURES .............................................................................................................................................................................................79 FALSE REPORTING ........................................................................................................................................................................................................79 WITHOLDING OF WAGES (FROM THE CIVIL CODE) .......................................................................................................................................................79 PRINCIPLE OF ‘NON-DIMINUTION OF BENEFITS ...........................................................................................................................................................79
TOPIC 8: PAYMENT OF WAGES ........................................................................................................................................... 80 FORM: LEGAL TENDER ..................................................................................................................................................................................................80 PLACE OF PAYMENT .....................................................................................................................................................................................................81 RA 6727-PAYMENT THRU BANKS .................................................................................................................................................................................81 THRU ATM (DOLE Labor Advisory on Payment of Salaries Thru ATM, Series of 1996) .................................................................................................81 PAYEE ...........................................................................................................................................................................................................................82 TIME/FREQUENCY OF PAYMENT ..................................................................................................................................................................................83 UPDATES.......................................................................................................................................................................................................................83
TOPIC 9: CONDITIONS OF EMPLOYMENT ........................................................................................................................... 84 NORMAL HOURS OF WORK ..........................................................................................................................................................................................84 OTHER HOURS OF WORK..............................................................................................................................................................................................84 HOURS WORKED ..........................................................................................................................................................................................................85 KEEPING OF TIME RECORDS: ENTRIES, EXECUTIVES & WORKERS PAID BY RESULTS ....................................................................................................85 REST PERIODS ...............................................................................................................................................................................................................86 WORKWEEK ..................................................................................................................................................................................................................87 HEALTH PERSONNEL .....................................................................................................................................................................................................89 WEEKLY REST DAY ........................................................................................................................................................................................................89 METHODS OF FIXING COMPENSATION ........................................................................................................................................................................92 2012 DOLE BWC HANDBOOK ON WORKER’S STATUTORY MONETARY BENEFITS ........................................................................................................92 GUIDELINES IN THE COMPUTATION OF ESTIMATED EQUIVALENT MONTHLY RATES OF MONTHLY-PAID AND DAILY-PAID EMPLOYEES (DOLE Dept. Advisory No. 1, Series of 2010) .....................................................................................................................................................................................92 UPDATES.......................................................................................................................................................................................................................93
TOPIC 10: MINIMUM LABOR STANDARDS BENEFITS ......................................................................................................... 94 EMPLOYEES EXEMPTED ................................................................................................................................................................................................94 Rule I, Book III, Section 2 ..............................................................................................................................................................................................94 Employees not covered by this provision [Art 82] ........................................................................................................................................................94 OVERTIME WORK .........................................................................................................................................................................................................95 “DAY’” ..........................................................................................................................................................................................................................97 UNDERTIME NOT OFFSET BY OVERTIME; ANALOGOUS CASES .....................................................................................................................................98 PREMIUM PAY; CONCEPT .............................................................................................................................................................................................98 OVERTIME PAY; WAIVER OF OVERTIME; RULE; EXCEPTION .........................................................................................................................................99 SERVICE INCENTIVE LEAVE ......................................................................................................................................................................................... 100
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Societas Spectra Legis Labor Standards Compilation HOLIDAY PAY .............................................................................................................................................................................................................. 100 NIGHT SHIFT DIFFERENTIAL ........................................................................................................................................................................................ 103 SERVICE CHARGES ...................................................................................................................................................................................................... 103 UPDATES..................................................................................................................................................................................................................... 104
TOPIC 11: OTHER SPECIAL BENEFITS ................................................................................................................................ 105 13TH MONTH PAY (PD 851, as amended) .................................................................................................................................................................. 105 PATERNITY LEAVE ACT OF 1996 (R.A 8187) ................................................................................................................................................................ 106 DOMESTIC ADOPTION ACT OF 1998 (RA 8552) .......................................................................................................................................................... 106 RETIREMENT PAY LAW ............................................................................................................................................................................................... 107 SOLO PARENT WELFARE ACT (R.A.9872) .................................................................................................................................................................... 108 ANTI-VIOLENCE AGAINST WOMEN & THEIR CHILDREN ACT OF 2004 (R.A 9262) ....................................................................................................... 109 MAGNA CARTA OF WOMEN (RA. 9710) ..................................................................................................................................................................... 110 THE ROOMING-IN AND BREAST-FEEDING ACT OF 1992 (RA 7600) AS AMENDED BY EXPANDED BREASTFEEDING PROMOTION ACT OF 2009 (RA 10028) ........................................................................................................................................................................................................................ 111 SUMMARY OF STATUTORY LEAVE BENEFITS .............................................................................................................................................................. 112 UPDATES..................................................................................................................................................................................................................... 112
TOPIC 12: JURISDICTION OF THE LABOR ARBITER ........................................................................................................... 114 ORIGINAL AND EXCLUSIVE JURISDICTION................................................................................................................................................................... 114 CONCURRENT JURISDICTION OF OTHER AGENCIES .................................................................................................................................................... 115 LETTERS OF INSTRUCTION NO. 368, January 26, 1976 (LIST OF INDUSTRIES INDISPENSABLE TO NATIONAL INTEREST) ............................................ 116 JURISDICTION OF LOWER COURTS ............................................................................................................................................................................. 117 LABOR DISPUTES ........................................................................................................................................................................................................ 117 INTRA-CORPORATE DISPUTES .................................................................................................................................................................................... 117 INSTANCES WHERE THE LABOR ARBITER DOES NOT HAVE JURISDICTION ................................................................................................................. 117 UPDATES..................................................................................................................................................................................................................... 118
TOPIC 13: THE 2011 NLRC RULES OF PROCEDURE ........................................................................................................... 119 COMPULSORY ARBITRATION AND VOLUNTARY ARBITRATION .................................................................................................................................. 119 AGENCIES OF GOVERNMENT EXERCISING COMPULSORY ARBITRATION.................................................................................................................... 120 GUIDELINES ON THE SINGLE-ENTRY APPROACH PRESCRIBING A 30 DAY MANDATORY CONCIILIATION-MEDIATION SERVICES FOR ALL LABOR AND EMPLOYMENT AGENCIES (DOLE Department Order No, 107-10, Series of 2010) ...................................................................................................... 123 DOLE RULES OF PROCEDURE OF THE SINGLE ENTRY APPROACH (February 25, 2011) ............................................................................................... 124 SINGLE ENTRY APPROACH FLOWCHART ..................................................................................................................................................................... 128 COMPLAINT; CAUSE OF ACTION/S; REAL PARTIES-IN-INTEREST; AMENDMENT OF COMPLAINT; CERTIFICATE OF NON-FORUM SHOPPING ............ 129 VENUE AND JURISDICTION ......................................................................................................................................................................................... 129 SERVICE OF SUMMONS; NATURAL & JURIDICAL PERSON/S; MODE OF SERVICE OF NOTICES, RESOLUTION, ORDER OF DECISION .......................... 130 RAFFLE AND ASSIGNMENT OF CASES ......................................................................................................................................................................... 131 APPEARANCES OF LAWYERS AND NON-LAWYERS ...................................................................................................................................................... 131 PERMISSIBLE GROUNDS TO DISMISS COMPLAINT; PROHIBITED PLEADINGS & MOTIONS ......................................................................................... 132 MANDATORY CONCILIATION & MEDIATION CONFERENCE ........................................................................................................................................ 133 WAIVER OF RIGHT TO FILE POSITION PAPER & LIFTING OF ORDER OF WAIVER ......................................................................................................... 134 COMPROMISE BEFORE REGIONAL DIRECTOR AND LABOR ARBITER........................................................................................................................... 134 SIMULTANEOUS FILING OF POSITION PAPER; CONTENTS OF POSITION PAPER; REPLY POSITION PAPER & CONTENTS ............................................ 134 QUANTUM OF EVIDENCE & BURDEN OF PROOF ........................................................................................................................................................ 135 CONDUCT OF HEARING OR CLARIFICATORY CONFERENCE......................................................................................................................................... 135 INHIBITION ................................................................................................................................................................................................................. 136 CONTEMPT ................................................................................................................................................................................................................. 136
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Societas Spectra Legis Labor Standards Compilation APPEAL PROCEDURE................................................................................................................................................................................................... 137 FRIVOLOUS OR DILATORY APPEALS ............................................................................................................................................................................ 138 NEW SCHEDULE OF LEGAL FEES (NLRC En Banc Resolution No. 08-07, Series of 2007) ............................................................................................. 138 REQUISITES TO PERFECT APPEAL................................................................................................................................................................................ 139 PROHIBITED APPEALS, INTERLOCUTORY ORDER & FINAL ORDER .............................................................................................................................. 140 RULES ON REINSTATEMENT PENDING APPEAL........................................................................................................................................................... 140 THE NATIONAL LABOR RELATIONS COMMISSION (NLRC) .......................................................................................................................................... 140 EO No. 204, Series of 2003 – DELEGATING TO THE SECRETARY OF LABOR AND EMPLOYMENT THE POWER TO EXERCISE ADMINISTRATIVE SUPERVISION OVER THE NATIONAL LABOR RELATIONS COMMISSION ...................................................................................................................... 143 POWERS AND FUNCTIONS OF THE NLRC .................................................................................................................................................................... 143 FINALITY OF NLRC & LABOR ARBITER’S DECISION ...................................................................................................................................................... 144 2011 NLRC RULES OF PROCEDURE FLOWCHART ........................................................................................................................................................ 145 EXECUTION OF JUDGMENT ........................................................................................................................................................................................ 146 PRE-EXECUTION CONFERENCE; ISSUANCE & QUASHAL OF WRIT OF EXECUTION ...................................................................................................... 150 THIRD PARTY CLAIMS ................................................................................................................................................................................................. 150 EXTRAORDINARY REMEDIES FROM ORDER OR RESOLUTION OF LABOR ARBITER ..................................................................................................... 151 APPELLATE REMEDIES ................................................................................................................................................................................................ 152 UPDATES..................................................................................................................................................................................................................... 154
TOPIC 14: OTHER IMPORTANT LABOR PROVISIONS ........................................................................................................ 156 CONTRACTING ARRANGEMENT.................................................................................................................................................................................. 156 TRILATERAL RELATIONSHIP ................................................................................................................................................................................................................. 156 JOB CONTRACTING VS LABOR-ONLY CONTRACTING ........................................................................................................................................................................... 157 SCOPE AND NATURE OF LIABILITY OF PRINCIPAL AND CONTRACTOR ................................................................................................................................................. 158 DUTIES AND OBLIGATIONS OF PRINCIPAL AND CONTRACTOR ........................................................................................................................................................... 158 RIGHTS OF CONTRACTUAL EMPLOYEES .............................................................................................................................................................................................. 158 INDIVIDUAL INDEPENDENT CONTRACTOR .......................................................................................................................................................................................... 158 OMNIBUS RULES, as amended by DO No. 18-A, Series of 2011 .......................................................................................................................................................... 159 WAGE INCREASES; LEGISLATED & CONTRACTUAL; EFFECT ON PRINCIPAL & CONTRACTOR’S LIABILITY ............................................................................................. 162 EMPLOYMENT & WORKING CONDITIONS OF SECURITY GUARDS (Department Order No. 14, series of 2001) ................................................................................... 162 PRIVATE SECURITY AGENCY LAW (RA 5487 ........................................................................................................................................................................................ 162 CLARIFYING THE APPLICABILITY OF DO 18-A TO BPO, KPO & CONSTRUCTION INDUSTRY .................................................................................................................. 164 REVIEW QUESTIONS ........................................................................................................................................................................................................................... 164 UPDATES ............................................................................................................................................................................................................................................ 165
WORKER’S PREFERENCE ............................................................................................................................................................................................. 166 REVIEW QUESTIONS ........................................................................................................................................................................................................................... 167 UPDATES ............................................................................................................................................................................................................................................ 168
ATTORNEY’S FEES & APPEARANCE OF LAWYERS ........................................................................................................................................................ 168 UNLAWFUL AND LAWFUL WITHHOLDING OF WAGES; CONCEPT ....................................................................................................................................................... 168 ATTORNEY’S FEES; 2 CONCEPTS.......................................................................................................................................................................................................... 168 APPEARANCE OF LAWYERS AND NON-LAWYERS (ART. 222); REVISED RULES OF NLRC ...................................................................................................................... 168 AWARD OF ATTORNEY’S FEES: LIMITATIONS (ART. 2208, CIVIL CODE) ............................................................................................................................................... 170
TOPIC 15: MISCELLANEOUS PROVISIONS ......................................................................................................................... 171 SPECIAL TYPES OF WORKERS ...................................................................................................................................................................................... 171 APPRENTICES ...................................................................................................................................................................................................................................... 171 LEARNERS ........................................................................................................................................................................................................................................... 173 HANDICAPPED WORKERS ................................................................................................................................................................................................................... 174 REVIEW POINTS .................................................................................................................................................................................................................................. 175
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Societas Spectra Legis Labor Standards Compilation RA 7796 (TESDA ACT of 1994) .................................................................................................................................................................................... 177 EMPLOYMENT OF WOMEN ........................................................................................................................................................................................ 177 SEC. 14, ART II, CONSTITUTION & SEC. 14, ART. XIII ............................................................................................................................................................................ 177 FACILITIES FOR WOMEN ..................................................................................................................................................................................................................... 178
MATERNITY LEAVE BENEFITS ...................................................................................................................................................................................... 178 FAMILY PLANNING SERVICES .............................................................................................................................................................................................................. 179 PROHIBITED DISCRIMINATION ............................................................................................................................................................................................................ 179 CRIMINAL LIABILITY ............................................................................................................................................................................................................................ 179 PROHIBITED ACTS ............................................................................................................................................................................................................................... 179 WOMEN WORKING IN NIGHTCLUBS ................................................................................................................................................................................................... 180 ANTI-VIOLENCE AGAINST WOMEN & THEIR CHILDREN’S ACT OF 2004 (RA 9262) .............................................................................................................................. 180 OTHER SPECIAL LAWS ......................................................................................................................................................................................................................... 180 MAGNA CARTA OF WOMEN (RA 9710) ............................................................................................................................................................................................... 182 IMPLEMENTING RULES AND REGULATIONS OF RA 9710 (Philippine Commission on Women Board Resolution No. 1, S. 2010) ........................................................ 182 GUIDELINES GOVERNING THE IMPLEMENTATION OF SPECIAL LEAVE BENEFITS FOR WOMEN EMPLOYEES IN THE PRIVATE SECTOR (DOLE Department Order No. 11211, as amended by DOLE Department Order No. 112-A, Series of 2012) ............................................................................................................................................ 183 THE EXPANDED BREASTFEEDING PROMOTION ACT OF 2009 ............................................................................................................................................................. 184
EMPLOYMENT OF NIGHT WORKERS ........................................................................................................................................................................... 184 RA 10151: AN ACT ALLOWING THE EMPLOYMENT OF NIGHT WORKERS, THEREBY REPEALING ARTICLES 130 AND 131 OF PRESIDENTIAL DECREE NUMBER FOUR HUNDRED FORTY-TWO, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES........................................................................................... 184 IMPLEMENTING RULES AND REGULATIONS OF RA 10151 (DOLE Department Order No. 119-12, Series of 2012, January 20, 2012) ................................................. 185 WOMEN NIGHT WORKERS ................................................................................................................................................................................................................. 186
EMPLOYMENT OF NURSING EMPLOYEES ................................................................................................................................................................... 186 EXPANDED BREASTFEEDING PROMOTION ACT OF 2009 (RA 10028) .................................................................................................................................................. 186
EMPLOYMENT OF CHILDREN ...................................................................................................................................................................................... 189 LABOR CODE PROVISIONS .................................................................................................................................................................................................................. 189 SPECIAL LAWS..................................................................................................................................................................................................................................... 189
REVISED PENAL CODE ................................................................................................................................................................................................. 193 EMPLOYMENT OF HOUSEHELPER............................................................................................................................................................................... 194 SALIENT FEATURES ............................................................................................................................................................................................................................. 194 COVERAGE .......................................................................................................................................................................................................................................... 194 EMPLOYMENT CONTRACT/DURATION ............................................................................................................................................................................................... 194 WAGE RATES ...................................................................................................................................................................................................................................... 194 HOURS OF WORK................................................................................................................................................................................................................................ 194 OVERTIME .......................................................................................................................................................................................................................................... 195 RIGHTS OF A HOUSEHELPER ............................................................................................................................................................................................................... 196 TERMINATION OF CONTRACT ............................................................................................................................................................................................................. 196 EMPLOYMENT IN DELETERIOUS JOBS OF PERSONS BELOW 18 ........................................................................................................................................................... 197 REVIEW QUESTIONS ........................................................................................................................................................................................................................... 198
EMPLOYMENT OF HOMEWORKERS............................................................................................................................................................................ 198 LABOR CODE ....................................................................................................................................................................................................................................... 198 DO. NO. 5 SERIES 1992 (REGULATIONS ON EMPLOYMENT OF HOMEWORKERS) ............................................................................................................................... 199
EMPLOYMENT OF NON-RESIDENT ALIENS.................................................................................................................................................................. 200 LABOR CODE ....................................................................................................................................................................................................................................... 200 EMPLOYMENT OF ALIENS ................................................................................................................................................................................................................... 201 REVISED RULES FOR ISSUANCE OF EMPLOYMENT PERMITS TO FOREIGN NATIONALS (DOLE DO No. 97-09, Series of 2009, as amended by DOLE DO No. 120-12, Series of 2012) .................................................................................................................................................................................................................................... 202 RULES GOVERNING THE ISSUANCE OF SPECIAL WORK PERMIT (SWP); PROVISIONAL PERMIT TO WORK (PPW), and PRE-ARRANGED EMPLOYMENT VISA UNDER SECTION 9(G) ...................................................................................................................................................................................................................................... 203 SPECIAL VISA FOR EMPLOYMENT ....................................................................................................................................................................................................... 204
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Societas Spectra Legis Labor Standards Compilation OTHER SPECIAL LAWS: SPECIAL ECONOMIC ZONE ACT OF 1995 (RA 7916) ........................................................................................................................................ 205
Foreign Investments Act & Discussions ...................................................................................................................................................................... 205 EMPLOYMENT OF STUDENTS AND WORKING SCHOLAR ............................................................................................................................................ 206 WORKING SCHOLAR UNDER OMNIBUS RULE ..................................................................................................................................................................................... 206 REPUBLIC ACT NO. 7323, as amended by RA 9547, Series of 2009 ..................................................................................................................................................... 206 WORK APPRECIATION PROGRAM / YOUTH TRAINEE, STUDENT TRAINEE (EO 139) ............................................................................................................................ 207 REPUBLIC ACT NO. 7686: DUAL TRAINING SYSTEM ACT OF 1994 ....................................................................................................................................................... 207 REVIEW QUESTIONS ........................................................................................................................................................................................................................... 208
EMPLOYMENT OF ACADEMIC / NON-ACADEMIC PERSONNEL IN PRIVATE EDUCATIONAL INSTITUTION ................................................................... 208 2010 REVISED MANUAL OF REGULATIONS FOR PRIVATE SCHOOLS IN BASIC EDUCATION (DepEd Order No. 88, Series of 2010) ....................................................... 208 2008 MANUAL OF REGULATIONS FOR PRIVATE HIGHER EDUCATION (CHED Memorandum Circular No. 40, Series of 2008) ............................................................ 208 FULL TIME AND PART TIME TEACHING ............................................................................................................................................................................................... 208
EMPLOYMENT OF SENIOR CITIZENS ........................................................................................................................................................................... 209 EXPANDED SENIOR CITIZENS ACT OF 2010 (RA 9994) ......................................................................................................................................................................... 209 IMPLEMENTING RULES AND REGULATIONS OF RA 9994 .................................................................................................................................................................... 209
EMPLOYMENT OF DRIVERS AND CONDUCTORS IN THE PUBLIC UTILITY BUS TRANSPORT INDUSTRY........................................................................ 210 DOLE DO No. 118-12, Series of 2012 .................................................................................................................................................................................................. 210
MEDICAL, DENTAL AND OCCUPATIONAL SAFETY ....................................................................................................................................................... 211 MEDICAL AND DENTAL SERVICES........................................................................................................................................................................................................ 211 EMPLOYEE’S COMPENSATION ACT ..................................................................................................................................................................................................... 213 LIABILITY OF STATE INSURANCE FUND ............................................................................................................................................................................................... 214 RULE AGAINST DOUBLE RECOVERY .................................................................................................................................................................................................... 214 CIVIL LIABILITY OF EMPLOYERS ........................................................................................................................................................................................................... 214 RA 7875 NATIONAL HEALTH INSURANCE ACT OF 1995....................................................................................................................................................................... 215 OCCUPATIONAL HEALTH AND SAFETY STANDARDS ............................................................................................................................................................................ 216
MIGRANT WORKER’S ACT/ RECRUITMENT AND PLACEMENT .................................................................................................................................... 217 DEFINITIONS ....................................................................................................................................................................................................................................... 217 POLICIES ON OVERSEAS EMPLOYMENT .............................................................................................................................................................................................. 217 DEPLOYMENT BY LOCAL SERVICE CONTRACTOR AND MANNING AGENCIES ...................................................................................................................................... 218 GOVERNMENT AGENCIES INVOLVED .................................................................................................................................................................................................. 218 RECRUITMENT AND PLACEMENT ........................................................................................................................................................................................................ 218 ILLEGAL RECRUITMENT ....................................................................................................................................................................................................................... 219 BAN ON DIRECT HIRING ...................................................................................................................................................................................................................... 220 MONEY CLAIMS .................................................................................................................................................................................................................................. 220
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Societas Spectra Legis Labor Standards Compilation
TOPIC 1: THE APPLICABLE LAWS Law: PD 442 as amended by RA 6715 approved on March 21, 1989 “A DECREE INSTITUTING A LABOR CODE, THERBY REVISING AND CONSOLIDATING LABOR AND SOCIAL LAWS TO AFFORD PROTECTION TO LABOR, PROMOTE EMPLOYMENT AND HUMAN RESOURCES DEVELOPMENT AND ENSURE INDUSTRIAL PEACE BASED ON SOCIAL JUSTICE.”
Article 1. This Decree shall be known as the Labor Code of the Philippines o May 1, 1974 – PD 442 was signed into law o Took effect Nov. 1, 1974
Article 2. This Code shall take effect Six months after its promulgation o RA 6715 – Herrera-Veloso Law o Sen. Blas Ople – Father of Labor Code
Significance: Before the effectivity of the labor code, there was no provision on the terms and conditions of employment.
Significance of RA 6715: Computation of Backwages – after RA 6715 took effect, the award of backwages from the time compensation was withheld up to the actual reinstatement; However, Facilities should not be included in the computation of backwages for the reason that such are given free, to be used only for official tour of duty and not for personal use.
CONCEPT OF LABOR
Ordinary Sense: is understood as the physical toil although it does not necessarily exclude the application of skill, thus, there is skilled and unskilled labor; work; service General Sense: it is the exertion of human being by his mental or physical effort towards production of goods or services. Technical Sense: the working class or workingmen
Skill – the familiar knowledge of any art or science, united with readiness and dexterity in the execution or performance of the application such art or science to practical purposes. Work – it is broader than labor; covers all forms of physical or mental exertion or both combined, for the attainment of some object other than recreation or amusement per se. Worker – broader than employee; refer to self-employed people and those working in the service and under the control of another, regardless of rank, title, or nature of work. Employee – a salaried person working for another who controls or supervises the means, manner, or method of doing the work NOTE: It is the workers or the working class who exerts or labors.
FOUR SYSTEMS OF LABOR (Sla-Ser-Free-Wage; Slasher Free Wage; S-S-F-W ) 1.
Slavery Refers to the extraction of work or services from any person by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt bondage or deception. (DO 65-04 S2004) The worker is owned by another at his free disposal Prohibited in the Philippines
Section 18(2) of the Constitution: No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. Article 272, Revised Penal Code: Slavery. — The penalty of prision mayor and a fine of not exceeding 10,000 pesos shall be imposed upon anyone who shall purchase, sell, kidnap or detain a human being for the purpose of enslaving him. Section 4(a) of RA9208: Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (a) To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or
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Societas Spectra Legis Labor Standards Compilation apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
2.
Serfdom Worker, by customary right to his Lord, owes certain service Enforced labor of serfs on the fields of the landowners, in return for protection and the right to work on their leased fields. Prohibited in the Philippines
Article 274 of the RPC: Services rendered under compulsion in payment of debt. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer. Section 12-D, RA7610 as amended: No child shall be engaged in the worst forms of child labor. The phrase "worst forms of child labor" shall refer to any of the following: (1) All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict;
3.
Free Artisan A free person who offers his services to others subject to nobody’s will The same with modern independent contractorship wherein an independent contractor is engaged in a business separately distinct from the principal, the performed job, work or service, and works according to his own means and methods, free from the control and direction of the principal except as to the results thereof. Governed by Article 1713 of the Civil Code
4.
Wage System A person offers his services to another under an employment contract for which such service is paid by wages. The same with modern employer-employee system where there is an employee under the control and supervision of an employer as to the means, manner or method of which the work is to be accomplished including the result thereof and is paid for the work done in terms of wage. Covered by the Labor Code
NOTE: Only the Free Artisanship and Wage System of Labor are recognized in the Philippines.
Aim or justification: SOCIAL JUSTICE – those who have less in life should have more in law.
Article II, sec. 10 of the constitution The state shall promote social justice in all phases of national development. The state affirms labor as a primary social economic force. Therefore, it shall protect the rights of workers and promote their welfare.
THREE FIELDS OF LABOR LAW (S-R-S) 1.
Labor Standards Law – Sets out the minimum terms, conditions, and benefits of employment that employers must provide or comply with and to which workers are entitled as a matter of legal right; The minimum requirements prescribed by existing laws, rules and regulations and other issuances relating to wages, hours of work, cost of living allowances and other monetary and welfare benefits, including those set by occupational safety and health hazards. (Section 7, Rule I, Rules on the Disposition of Labor Standards Cases – September 16, 1987) Example: wages and hours of work, on safety and health of employees, employment benefits, overtime pay
2.
Labor Relations Law – Defines the status, rights, duties, as well as the institutional mechanism that govern the individual and collective interactions between employers, employees, and their representatives Refers to the interactions between the employers and employees or their representatives and the mechanism by which the employment standards are negotiated, adjusted and enforced. Marquez: process the terms, benefits and conditions to improve the same through collective bargaining or negotiation.
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Societas Spectra Legis Labor Standards Compilation Example: unionization, negotiation, dispute settlements Distinction: Labor standards Law is the material or substance of labor law; Labor Relations Law is the mechanism or the processes on enforcing the substance. 3.
Labor Legislation or Social or Welfare Legislation – Law governing the employer-employee relation while the latter is not at work due to the hazard arising from employment. Refers to a broader category of law that protects or promotes the welfare of society or segments of it in furtherance of social justice. Intended to substitute income Example: Social Security Law, Agrarian Reform Law, Law on Migrant Workers, or more recently, the New Tax Relief Law Distinction between Labor Standards and Social Legislation: In LS, the employee is actually at work; In SL, the employee is not at work or is unable to work.
OMNIBUS RULES AS AMENDED
Have the force and effect of laws. Provided, however, that these rules and issuances will not expand the law or strip the law. Otherwise, under the rules on statutory construction, these will be considered void. The DOLE is the lead agency in enforcing labor laws and it possesses rule-making power in the enforcement of the Code. But a rule or regulation that exceeds the department’s rule-making authority is void. The rule-making power is exceeded when the implementing rule changes, wittingly or unwittingly, the content or meaning of the law which the rule aims to implement. The implementing rule, on other words, must be subordinate to the law itself. Example: Policy Instruction No. 54-88 (issued by former Sec. Franklin Drilon) has been declared void by the Supreme Court because this has expanded Art. 83 of the Labor Code on Employment of Health Personnel by erroneously interpreting that health employees are entitled to a “full weekly wage for 7 days” if they have completed the 40-hour/5-day workweek.
SUPREME COURT DECISIONS A8NCC: Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. NOTE: Decisions of administrative bodies like the NLRC do not form part of the legal system of the Philippines. Only SC decisions set legal precedents.
BASIS OF ENACTING LABOR LAWS (P-S-P-D) 1.
POLICE POWER o Inherent power of the state to enact legislations that may interfere with personal liberty or property in order to promote the general welfare of the people (General Welfare Clause) o Consists of imposition of restraint upon liberty or property and in order to foster the common good. o General welfare clause deemed written into the employment contract. o Power to regulate personal liberty or property rights. o Labor Code contains several provisions that affect life and property. NOTE: Having a job is a property right Example: Article 263 LC: (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration…
Reason: SOLE may compel the employer to admit the employees and the employees to return to their work. 2.
SOCIAL JUSTICE
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Societas Spectra Legis Labor Standards Compilation o
o o o o
The promotion of the welfare of all the people, the adoption by the government of measures calculated to insure economic stability of all the component elements of society through the maintenance of proper economic and social equilibrium in the interrelation of the members of the community, constitutionally through the adoption of measures legally justifiable, or extra-constitutionally through the exercise of powers, underlying the exercise of all governments on the time honored principle of “salus populi est suprema lex”. (Dr. Jose P. Laurel) The law is geared towards the concern of labor because our legislators realize that social and economic imbalance between the employer and employee. Philippines is a signatory of ILO Convention (International Labor Organization) UN Declaration of Human Rights 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 Examples: Migrant worker’s act, retirement law, Art. Xix, sec. 19
3.
PROTECTION TO LABOR CLAUSE Article XIII, Section 3, 1987 Constitution. 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. Reason: Employer stands in a higher footing than the employee because of economic dependence of the employee on the employer and the greater supply of labor than the demand of it. Example: Migrant Worker’s Act
4.
DOCTRINE OF INCORPORATION Article II, Section 2, Constitution: The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Cite at least 5 International Labor Organization (ILO) Conventions: 1. C87 Freedom of Association and Protection of the Right to Organize to Convention (1948) 2. C99 Minimum Wage Fixing Machinery Convention (1951) 3. C105 Abolition of Forced Labor Convention (1957) 4. C17 Workmen’s Compensation (1925) 5. C149 Tripartite Consultation Convention (1976)
LIMITATIONS IN THE ENACTMENT OF LABOR LAWS (P-E-N-D-O) NON-IMPAIRMENT CLAUSE Article III, Section 10. No law impairing the obligation of contracts shall be passed.
Congress could not pass laws which would impair the obligations of the parties, however, the same can pass laws to regulate the obligations and contracts. May be impaired by the exercise of the state of police power.
EQUAL PROTECTION CLAUSE Article III, Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Individuals similarly situated must be treated equally under the3 law. Equality among equals
PROHIBITION AGAINST INVOLUNTARY SERVITUDE Article III, Section 18(2). No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. (e.g. anti-trafficking in persons act, forced labor, slavery) DUE PROCESS CLAUSE “Strike, but hear me first.” OTHER CONSTITUTIONAL PROVISIONS University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation SOURCES OF LABOR LAWS - LABOR STANDARDS (R-O-L-J) a) b) c) d)
The Labor Code , PD 442 as amended Judicial decisions Rules and regulations issued by administrative agencies Omnibus Rules as amended by DO No. 09, Series of 1997 & DO No. 40-03, Series of 2003, as amended by DO Nos. 40-A-03, 40-B-03, 40-C-05 Rules and regulations have the force and effect of law, provided they do not expand the law or strip the law. Otherwise, under the rules on statutory construction, these will be considered void.
SOURCES OF LABOR LAWS (LABOR RELATIONS) PRIMARY (C-S-D) a) Constitution b) Statutes ( NCC, RPC, Special Laws) c) Supreme court decisions
SECONDARY (D-R-O-R) a) Decisions of foreign courts (where our labor statutes are based or patterned after statutes in foreign jurisdictions, decisions in the high courts in those jurisdictions construing and interpreting should receive the careful attention of our courts in the application of our laws) b) Reviewers in labor laws/ textbooks c) Opinions of labor department or agencies d) Rules and regulations issued by DOLE ( department orders) NOTE: Labor laws do not only include PD 442 as amended but as well as decisions of the SC interpreting and applying the laws. Included as well are rules and regulations issued by the appropriate government agencies (e.g. DOLE)
PROVISIONS ON THE EFFECTIVITY OF LABOR LAWS A5LC: Rules and regulations. - The Department of Labor and other government agencies charged with the administration and enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of general circulation.
Publication is indispensable. Rules and regulations are still valid even if no publication, however, it is unenforceable.
A2NCC: Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. (As amended by EO 200). E.O. 292 – Administrative Code of the Philippines Sec. 18. When Laws Take Effect. - Laws shall take effect after fifteen (15) days following the completion of their publication in the Official Gazette or in a newspaper of general circulation, unless it is otherwise provided. Sec. 19. Prospectivity. - Laws shall have prospective effect unless the contrary is expressly provided. Sec. 20. Interpretation of Laws and Administrative Issuances. - In the interpretation of a law or administrative issuance promulgated in all the official languages, the English text shall control, unless otherwise specifically provided. In case of ambiguity, omission or mistake, the other texts may be consulted. Sec. 21. No Implied Revival of Repealed Law.- When a law which expressly repeals a prior law itself repealed, the law first repealed shall not be thereby revived unless expressly so provided. Sec. 22. Revival of Law Impliedly Repealed. - When a law which impliedly repeals a prior law is itself repealed, the prior law shall thereby be revived, unless the repealing law provides otherwise.
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Societas Spectra Legis Labor Standards Compilation Sec. 23. Ignorance of the Law. - Ignorance of the law excuses no one from compliance therewith.
Will not apply unless the people are informed through the required publication
RULES ON THE IMPLEMENTATION AND INTERPRETATION OF LABOR LAWS Article 4, LC. 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.
Reasons: Employer stands in a higher footing than the employees and the State affirms labor as the primary social economic force.
The policy is to apply the code to a greater number of employees to enable them to avail of the benefits under the law, in line with the State’s desire to give maximum aid and protection to labor.
It is not always correct to think that the aim of the law is always to favor labor. The mandate under Art 4 is simply to resolve doubt, if any, in favor of labor. If there is no doubt in implementing and interpreting the law, labor will enjoy no built-in advantage and the law will have to be applied as it is.
The law in protecting the rights of the laborer, authorizes neither oppression nor self destruction of the employer.
Court decisions adopt a liberal approach that favors the exercise of labor rights.
Article 1700,NCC. The relation between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special Lawson labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor, and similar subjects.
Labor disputes also affect the state and the public at large if employees are engaged in strike or other concerted activities. PARTIES TO EMPLOYMENT CONTRACT 1. Employer 2. Employee 3. State 4. Public Article 1701, NCC. Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public. (PRINCIPLE OF NON-OPPRESSION) Article 1702, NCC. In case of doubt, all labor legislations and all labor contracts shall be construed in favor of the safety and decent living of the laborer.
LABOR AND “CHATTEL” “Labor is not a chattel nor a commodity, but human, and must be dealt with from the standpoint of human interest.” (Asufrin vs. San Miguel Corporation, G.R. No. 156658. March 10, 2004)
TRIPARTISM Tripartism refers to the representation of workers and employers sectors in decision and policy making bodies of the government. Through tripartism, workers and employers on the one hand, representing their respective interests, and the government on the other hand, representing the interest of the public, help shape labor, social and economic policies and programs of the government. Tripartism is in place in government agencies like the the National Labor Relations Commission (NLRC), Employees Compensation Commission (ECC), National Wages and Productivity Commission (NWPC), Technical Education and Skill Development Authority (TESDA), Social Security System (SSS), Government Service Insurance System (GSIS), Philippine Overseas Employment Administration (POEA), Overseas Workers’ Welfare Administration (OWWA) and Pag-ibig Home Development Funds (Pag-ibig).
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Societas Spectra Legis Labor Standards Compilation Art. 275.Tripartism and tripartite conferences. — (a) Tripartism in labor relations is hereby declared a State policy. Towards this end, the State shall encourage the representation of workers and employers in policy-making bodies of the government. (b)The Secretary of Labor or his duly authorized representatives may from time to time call a national, regional, or industrial tripartite conference of representatives of government, workers and employers for the consideration and adoption of voluntary codes of principles designed to promote industrial peace based on social justice or to align labor movement relations with established priorities in economic and social development. In calling such conference, the Secretary of Labor may consult with accredited representatives of workers and employers.
Reason: Relations between capital and labor are not merely contractual. They are so impressed with public interest that representations from employer and employee in decision and policy-making bodies of the government are necessary. This is also in affirmation of the role of the State as the guardian of the people’s rights and the constitutional provision on protection to labor. Examples: Creation of Regional Tripartite Wages and Productivity Board (RTWPB) which is composed of government, employer and employee representatives. Composition of NLRC, chairman is government appointed, remaining 2 commissioners from employer and employee sectors.
Amendatory decree no. 850 (1975) adopted tripartism as a state policy Tripartism is a representation of three sectors in policy-making bodies of the government 1. public or the government 2. employees 3. workers
Such kind of representation is not ordained, not even by the Constitution. What is provided for, for the private sector is worker’s participation in policy and decision-making processes directly affecting their rights, benefits, and welfare.
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TOPIC 2: BASIC PRINCIPLES CONSTITUTIONAL AND STATUTORY RIGHTS OF WORKERS IN GENERAL ART XIII, Section 3, par 1 “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.” IN RELATION TO LABOR STANDARDS (Just-Live-Human/H-J-L) 1. Humane conditions of work.( ART XIII, Sec 3 par 2) 2. Living wage.( ART XIII, Sec 3 par 2) 3. Just share in the fruits of production. .( ART XIII, Sec 3 par 4) IN RELATION TO LABOR RELATIONS (SupremeCourtPSP/S-C-P-S-P) (ART XIII, Sec 3 par 2) 1. Self-organization 2. Collective bargaining and negotiations 3. Peaceful concerted activities including the right to strike in accordance with law. 4. Security of tenure 5. Participate in policy and decision making processes affecting their rights and benefits as maybe provided by law.
SPECIFIC RIGHTS OF WORKERS Security of tenure Workers cannot be dismissed without just and authorized causes Workers shall be made regular after 6 months probation unless a different period is agreed upon by the worker and the employee Hours of work Normal working hours of eight hours a day Meal and rest period: meal break of less than one hour shall be considered compensable working time Wage and wage related benefits A. Minimum Wage B. Holiday Pay – one day for every regular holiday even if unworked subject to certain conditions C. Premium pay for work within 8 hours on: Special Rest Day - 30% of the basic daily rate Rest Day falling on a Special Day - plus 50% Rest day falling on a Regular Holiday - plus 30% of the 200% of the basic daily rate Overtime pay Ordinary days: 25% of the basic hourly rate Special/rest/holiday: 30% of the regular hourly rate on said days Night shift differential pay 10% of the basic or regular rate between 10pm and 6am Service incentive leave 5 days with pay per year after one year of service Service charges 85 % (distribution to rank and file employees); 15% (losses, breakages, distribution to managerial employees) Separation pay ½ month pay for every year of service for authorized causes of separation th
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1/12 of the total basic salary earned within the calendar year
Payment of wages Shall be paid in cash, legal tender, at or near the place of work May be made through a bank upon written petition of majority of the workers in establishments with 25 or more employees and within one kilometer radius to a bank Shall be made direct to the employees Shall be given not less than once every 2 weeks or twice within a month at intervals not exceeding 16 days Labor-only contracting is prohibited and the person acting as contractor is merely an agent of the employer Preference of workers money claims over government and other creditors in case of bankruptcy or liquidation of business Safe and healthful conditions of work and welfare services Proper illumination and ventilation, fire exits and extinguishers, occupational health personnel services, family welfare or family planning services at the workplace) Employment of Young Workers Minimum employable age is 15 age A worker below 15 should be directly under the sole responsibility of parents or guardians; work does not interfere with child’s schooling and normal development No person below eighteen can be employed in hazardous or deleterious undertaking Employment of Women Nightwork prohibition unless allowed by the rules: o Industrial undertaking – from 10 pm to 6 am o Commercial – from 12 mn to 6 am o Agricultural – at nighttime unless given not less than 9 consecutive hours of rest Welfare facilities must be provided in the workplace Prohibition against discrimination with respect to pay, promotion, training opportunities, study, and scholarship grants Self-organization and collective bargaining Employees can form organizations such as union and welfare committees An employee can join a union on the very first day of his employment Collective Bargaining– a contract between workers and employers on terms and conditions of employment which are OVER and ABOVE those mandated by law Labor education through seminars, dialogues, and information, education and communication materials Peaceful concerted activities in accordance with law Participation an policy and decision-making processes affecting their rights and benefits Free access to the courts and quasi-judicial bodies and speedy disposition of their cases ECC benefits for work-related contingencies medical benefits for sickness and injuries disability benefits rehabilitation death and funeral SSS Benefits maternity sickness disability retirement death
ASPECTS OF LABOR STANDARDS Meliorative Labor Standard - Intended to expand the flow of income or benefits to workingman that are required for a decent living. overtime pay University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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premium pay
Protective Labor Standard - Intended to protect harsh and oppressive conditions of work that inimical to health, safety and wellbeing of the workers. Protect the health and safety and the well-being of the workers. Prescribed hours of work PURPOSE Remedial and humanitarian SOURCES OF LABOR STANDARDS 1. 2.
3. 4. 5. 6.
Employment Contract – employer hires an employee and gives a high salary, in effect the former provides the latter a labor standard plus car, allowances and other benefits. Company Policies and Practices – as a company policy, provision of sack of rice, it is meliorative. Practices could be unwritten, deliberately granted by employer for a long period of time, although it is not a policy but consistently and deliberately provided to workers such as vacation with pay. Administrative Order of DOLE - Also prescribes the terms and conditions of employment. Ex. Compressed workweek Compulsory or Voluntary Arbitration – the award given to the party, it is another source of a labor standard Collective Bargaining Agreement or CBA – can also be a source of Labor Standard because it provides terms and conditions of employment prescribed by law. Statutes - REASON: Principle of Non-diminution of benefits.
CONCEPT OF EMPLOYER-EMPLOYEE (LABOR STANDARDS) Art 97b. “Employer” includes any person directly or indirectly in the interest of an employer in relation to an employee and shall include the Government and all its branches, subdivision and instrumentalities, all government-owned or controlled corporations and institutions, as well as non-profit private institutions, or organizations.(expanded definition) Art 97c. “Employee” includes any individual employed by an employer.
CONCEPT OF EMPLOYER-EMPLOYEE (LABOR RELATIONS) Art 212e. “Employer” includes any person acting in the interest of an employer, directly or indirectly. The term shall not include any labor organization or any of its officers or agents except when acting as employer. Art 212f. “Employee” includes any person in the employ of the employer. The term shall not be limited to the employees of a particular employer, unless this code so expressly states. It shall include any individual whose work has ceased as a result of or in connection with any current labor dispute or because of any unfair labor practice if he has not obtained any other substantially equivalent and regular employment.(expanded definition)
COMMENTS: EMPLOYER May be NATURAL OR JURIDICAL, a single proprietorship, a partnership or a corporation. The Government is an employer within the meaning of the Labor Code in Labor Standards. So, a government agency with an original charter contracts with a security agency to supply security guards, and this security agency is unable to pay the wages of its guards. Q: Is principal government agency considered jointly and severally liable with the security agency? Will Article 106-109, LC apply to them? Can the guards file with the labor complaint with the nearest arbitration branch of the NLRC and sue both the security and government agency? A: YES, the Labor Code will govern. The government agency cannot move for the dismissal of the complaint for lack of jurisdiction on the part of the Labor Arbiter and say that they are governed by the Civil Service Law Rules and Regulations. The government agency contracted the services of an independent contractor, so they are considered principals. Therefore the LC will govern regarding the monetary claims of the security guards. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation A motion to dismiss filed by the government agency in the above-cited example will not prosper on the ground that the Labor Arbiter has no jurisdiction, because the term “Employer” includes government agencies. It does not make any qualifications whether it is one with or without original charter. EMPLOYEE An employee is always a NATURAL PERSON [may include Filipino citizens or foreigners Example: Dumon Sari-sari Store (single proprietorship). Q: Who is considered the employer? A: Wilbert Dumon will be the employer, because the sari-sari store does not have a separate juridical personality. So, if Dumon is made a defendant in a labor case, the caption will be - “Employee vs. Wilbert Dumon, doing business under the name and style of Dumon Sari-sari Store.” Hiring of employees
Foreigners – Art. 40-42, PD 442 applies Filipino- there is none. The Constitution and the Labor Code encourage the employment of Filipinos. Foreign Investment Code
Of those corporations owned by foreigners, if they want to employ alien as their employees, the following requirements must be complied with: 1. Such domestic or foreign companies should obtain a permit form the DOLE ( Alien Employment Permit) at the nearest regional office 2. There must be a determination of the non- availability of a person in the Philippines, who is competent, able, willing at the time of application to perform the services for which the alien is desired.
The purpose of the law is to protect the Filipinos.
CONCEPT OF EMPLOYER-EMPLOYEE RELATIONSHIP It is in personam, involves the rendition of personal service by the employee, and partakes of master and servant relationship.
FOUR-FOLD TEST 1. 2. 3. 4.
Selection and engagement of employees Payment of wages Power of dismissal Power of control over employee’s conduct and over the means and methods by which the work is to be accomplished
Tabas vs. California Mfg Co. GR 80680, 01/26/89 QUESTION OF LAW; QUESTION OF FACT “The existence or absence of employer-employee relationship is A QUESTION OF LAW AND A QUESTION OF FACTS, each in its defined sense. The character of relationship between the parties is not what they call it in their contract but what the law calls it after examination of the facts. The characterization by law prevails that in the contract. In this case the existence of employeremployee relationship is not a matter of stipulation; it is a QUESTION OF LAW. But the conclusion an employer-employee relationship exists depends upon the facts of each case. In one case an employeremployee relationship may be found to be present, but in another case with different facts, it may be absent. In this sense, the existence of an employer-employee relationship is a QUESTION OF FACT.” Philippine Fuji Xerox Corp vs. NLRC University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation GR 111501, 05/05/96 CORE OR NON-CORE JOBS “Depending on the applicability of the tests of employment, an employer-employee relationship may exist regardless of the nature of the activities involved. In other words, the kind of work is not the definitive test of whether the worker is an employee or not” Sevilla vs. CA GR 44182-3, 04/15/88 TITLE AS WEAK INDICATORS “The fact that one had been designated “branch manager” does not make such person an employee. Titles are weak indicators” Encyclopedia Britanica vs. NLRC GR 87098, 11/04/96 “Where a person who works for another does so more or less at his own pleasure and is not subject to definite hours or conditions of work and in turn is compensated according to the result of his efforts and not the amount thereof, we should not find that the relationship of employer-employee exists.” Dy Keh Beng vs. ILMUP GR 100665, 02/13/95 MERE EXISTENCE, NOT ACTUAL EXERCISE “But it should be borne in mind that the control test calls MERELY FOR THE EXISTENCE of the right to control the manner of doing the work, NOT THE ACTUAL EXERCISE of the right.” Insular Assurance Co. vs. NLRC GR 119930, 03/12/98 “Exclusivity of service to the company, control of assignments and removal of agents, collection of premiums, furnishing of facilities and materials as well as capital described as unit development fund are HALLMARKS OF A MANAGEMENT SYSTEM where there can be no escaping the conclusion that one is an employee of the insurance company.”
Investment Planning Corp v. SSS [ 11/18/67] CONTROL TEST (most important element) “That is, whether the employer controls or has reserved the right to control the employee not only as to the result of the work to be done but also as to the means and methods by which the same is to be accomplished” Domasig vs. NLRC GR 118101 09/16/96 EVIDENCE OF EMPLOYMENT; ID, VOUCHERS, SSS REGISTRATION, MEMORANDUM “Substantial evidence is sufficient as a basis for judgment on the existence of employer-employee relationship. No particular form of evidence is required to prove the existence of such relationship.” Flores vs. Nuestra GR 66890 04/15/88 “That the respondent registered the petitioners with SSS is proof that the latter is the former’s employees. The coverage of SSS Law is predicated on the existence of an employer-employee relationship” “In a business establishment, an identification card is usually provided not only as a security measure but mainly to identify the holder thereof as a bona fide of the firm that issues it. Together with the cash vouchers covering the petitioner’s salaries for the University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation months stated therein, these matters constitute substantial evidence adequate to support a conclusion that the petitioner was indeed the employee of the respondent.” Philippine FUJI XEROX CORP vs. NLRC GR111501 03/05/96 “Appointment letters or employment contracts, payrolls, organization charts, personnel lists, as well as testimony of coemployees, may also serve as evidence of employee status.” Opulencia Ice Plant vs. NLRC GR 98368 12/1593 ABSENCE OF NAME IN THE PAYROLL; TESTIMONIAL EVIDENCE “If only documentary evidence would be required to show that relationship, no scheming employer would ever be brought before the bar of justice, as no employer would wish to come out with any trace of the illegality he as authored considering that it should take much weightier proof to invalidate a written instrument. Thus, as in this case where the employer-employee relationship between petitioners and Esita was sufficiently proved by testimonial evidence, the absence of time sheet, time record or payroll has become inconsequential.” Labor Congress of the Philippines vs. NLRC GR 123938 05/21/98 MODE OF COMPENSATION NOT A TEST OF EMPLOYMENT STATUS. “The presence or absence of employer-employee relationship is not determined by the basis of the employee’s compensation. Indeed, employment relationship is one thing, pay determination is another. The existence of employment relationship depends on whether the four-fold test is present or not.” Zamudio vs. NLRC GR 76723 03/25/90 ON “PAKIAO” BASIS “The nature of their employment i.e “pakiao” basis, does not make petitioners independent contractors. Pakiao workers are considered employees as long as the employer exercises control over the means by which such workers are to perform their work. Considering that the petitioners did their work inside private respondent’s farm, the latter necessarily exercised control over the work performed by petitioners. The seasonal nature of petitioner’s work does not detract from the conclusion that employer-employee relationship exists. Seasonal workers whose work is not merely for the duration of the season, but who are rehired every working season are considered regular employees.” Q: Why is it important to determine whether the relationship between the parties is that of employer and employee or that of principal and independent contractor or of principal-agent? A: To determine what laws will govern the rights and liabilities of the parties, and what tribunal will have jurisdiction over their disputes. Relationsh ip EmployerEmployee PrincipalIndepende nt Contractor PrincipalAgent
Governing Laws Labor laws obligations and Contracts [CC] Civil Code
Tribunal Labor tribunal Regular courts
Regular courts
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Societas Spectra Legis Labor Standards Compilation ECONOMIC REALITY TEST Francisco v. NLRC G.R. No. 170087; August 31, 2006 TWO-TIERED APPROACH “The better approach would be to adopt a TWO-TIERED TEST involving (1) 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) the underlying economic realities of the activity or relationship. This two-tiered test would provide us with a framework of analysis, which would take into consideration the totality of circumstances surrounding the true relationship between the parties. This is especially APPROPRIATE in this case where there is no written agreement or terms of reference to base the relationship on; and due to the complexities of the relationship based on the various positions and responsibilities given to the worker over the period of the latter’s employment. The determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity. The PROPER STANDARD OF ECONOMIC DEPENDENCE is whether the worker is dependent on the alleged employer for his continued employment in that line of business. Under the broader ECONOMIC REALITY TEST, the petitioner can likewise be said to be an employee of respondent corporation because she had served the company for six years before her dismissal, receiving check vouchers indicating her salaries/ benefits, 13th month pay, bonuses and allowances as well as deductions and SSS contributions. It is therefore apparent that petitioner is economically dependent on respondent for her continued employment in the latter’s line of business. “ Q: How to determine that a person is economically dependent? A: 1. Number of years in the company 2. Reported to SSS, good indicator of treating him as an employee. 3. Registered in the payroll 2. Identification card 3. Company uniform
Determine the underlying economic realities of the activity or relationships. The determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity 1. The (broad) extent to which the services performed are an integral part of the employer’s business. 2. The (limited) extent of the worker’s investment in the equipment and facilities 3. The nature (close supervision) and (high) degree of control exercised by the employer 4. The workers (limited) opportunities for profit and loss 5. The (small) amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise 6. The (high degree of) permanency and duration of the relationship between the worker and the employer 7. The degree of dependency of the worker upon the employer for his continued employment in that line of business.
Note: Unlike employee, independent contractor does not solely depend on the company for continued work as they can pursue other jobs.
EMPLOYER-EMPLOYEE VS. PRINCIPAL-AGENT ER-EE – governed by the Labor Code Principal-Agent – Civil Code AGENT (Art. 1868, NCC). By the contract of agency, a person binds himself to render some service or to do something in representation or on behalf of another with the consent or authority of the latter.
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Societas Spectra Legis Labor Standards Compilation PRINCIPAL-AGENT RELATIONSHIP Art 1868 NCC: By the contract of agency, a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter. It is the principal who selects the agent. An agent is compensated under the contract of agency of services rendered. He is disciplined by the principal as in the case of an employee because the agent is under the authority of the principal. The principal controls the means and methods of the work of an agent. In this relationship, there is only one party. The agent is merely an extension of the principal. They are regarded as one. So if there is a contractor relationship, it is not among three parties but is between the principal/agent and the other party. Thus, to make a distinction between a principal-agent and employer-employee, the four-fold test will not be used because the agent is selected by the principal and is also compensated by the principal and most oftentimes, the principal substitutes his own judgment for that of the agent. Note: To make a distinction between a principal-agent relationship and that of an employer-employee relationship, the fourfold test will not be used because the 1) agent is selected by the principal 2) compensated by the principal 3) and most oftentimes, the principal also substitutes his own judgment for that of the agent.
EMPLOYER-EMPLOYEE VS. PRINCIPAL-CONTRACTOR (DO NO. 9) Carries a distinct and independent business and undertakes to perform the job, work, or service on its own account and under its own responsibility, according to its own manner and method and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof.
PRINCIPAL-INDEPENDENT CONTRACTOR RELATIONSHIP The principal selects the contractor. The contractor is compensated for services rendered. The contractor is not under the discipline of the principal. The distinction says that aside from engaging in the business separately distinct from the principal, the performed job, work, or services is according to his own means and methods free from the control and direction of the principal except as to the results thereof. The definition says that aside from engaging in a business separately distinct from the principal, to perform job, work or service, according to his own means and methods, free from control and direction of the principal except as to the results thereof.
Contractor may be Individual, Corporate Juridical Entity – no need of protection from labor code because they earn better.
ARTICLE 1713, NCC By contract for a piece of work, the contractor binds himself to execute a piece of work for the employer, in consideration of a certain price or consideration. The contractor may either employ only his labor, skill, or also furnishes the materials. CHIEF CHARACTERISTICS OF AN EMPLOYEE
Economic Dependence by the Worker Employee cannot bargain the terms and conditions of employment. Medical doctors, lawyers, dentists, engineers in the exercise of their profession offer special services, the person engaging their services cannot exercise control over the means and methods of accomplishing the work except the results thereof. They are considered as independent contractors not needing protection from the Labor Code. Subordination in Work Relation Employer exercises control not only the means and methods but also the results thereof.
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TOPIC 3: THE RIGHT TO HIRE NATURE: RIGHT OR PREROGATIVE? Strictly speaking, the employer has no right to hire a person as his employee. The matter of selecting a person as one’s employee is more appropriately described as a prerogative. It is not a right in which you can go to court and enforce the right to hire a person, otherwise it will violate the constitutional provision against involuntary servitude, if one is compelled to be another’s employee. No person can be compelled against his will to do an act whether legal or illegal. Thus, an employer cannot go to court and get an injunction to compel a person to become his employee. If at all, the employee can only exercise the prerogative to invite that person and to hire him if he so desires. In that sense, the right to hire is essentially a management prerogative.
MANAGEMENT PREROGATIVE It is an act of the employer according to his own judgment or discretion to regulate his business. This includes hiring, transfer, dismissal, etc. SMC v. Ople “Except as limited by Special Laws, an employer is free to regulate, according to his own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner or work, tools to be used, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, layoff of workers and the discipline, dismissal and recall of workers.”(ONE RIGHT OF AN EMPLOYER) LIMITATIONS ON MANAGEMENT PREROGATIVE
Law Contract or CBA Principles of fair play and justice
RIGHTS OF MANAGEMENT
Right to ROI Right to prescribe rules Right to select employees Transfer or discharge of employees
EXERCISE OF RIGHT/PREROGATIVE: ABSOLUTE? The exercise of the right or prerogative to hire is not absolute. It is regulated by law. LIMITATIONS: 1. 2. 3.
Special Laws Contract Basic principles of equity and fair play
LEGAL LIMITATIONS/PROHIBITIONS PRIOR TO HIRING UNDER THE LABOR CODE: 1.
Art. 136. Prohibition Against Stipulation of Marriage It shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage.
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Societas Spectra Legis Labor Standards Compilation 2.
Art.139. Minimum Employable Age a) No child below fifteen (15) years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling. b) Any person between fifteen (15) and eighteen (18) yeas of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations. c) The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Sec. of Labor.
3.
Art. 248. Unfair Labor Practices of Employers It shall be unlawful for an employer to commit any of the following unfair labor practice: (b) To require as a condition of employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs
UNDER SPECIAL LAWS REPUBLIC ACT NO. 7658: PROHIBITING THE EMPLOYMENT OF CHILDREN BELOW 15 YEARS OF AGE IN PUBLIC AND PRIVATE UNDERTAKINGS Section 1. Section 12, Article VIII of R. A. No. 7610 otherwise known as the "Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act" is hereby amended to read as follows:
Sec. 12. Employment of Children. — Children below fifteen (15) years of age shall 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, 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)
Where a child's employment or participation in public entertainment or information through cinema, theater, radio or television is essential: Provided, The employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: and Provided, That the following requirements in all instances are strictly complied with: (a)
The employer shall ensure the protection, health, safety, morals and normal development of the child;
(b)
The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and
(c)
The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child.
In the above exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective implementation of this Section.
REPUBLIC ACT NO. 7610 Sec. 14. Prohibition on the Employment of Children in Certain Advertisements. – No person shall employ child models in all commercials or advertisements promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts and violence.
REPUBLIC ACT NO. 9231: THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR AND AFFORDING STRONGER PROTECTION FOR THE WORKING CHILD Sec. 12. Employment of Children. — Children below fifteen (15) years of age shall not be employed except: 1)
When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of his/her family are employed: provided, however, that his/her employment neither endangers his/her life, safety, health,
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Societas Spectra Legis Labor Standards Compilation and morals, nor impairs his/her normal development: provided, further, that the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or 2)
Where a child's employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential: provided, that the employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: provided, further, that the following requirements in all instances are strictly complied with: (a)
The employer shall ensure the protection, health, safety, morals and normal development of the child;
(b)
The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and
(c)
The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child.
In the above-exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age.
Sec. 12-A. Hours of Work of a Working Child. — Under the exceptions provided in Sec. 12 of this Act, as amended: (1)
A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: provided, that the work shall not be more than four (4) hours at any given day;
(2)
A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a week;
(3)
No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six o'clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work between ten o'clock in the evening and six o'clock in the morning of the following day.
Sec. 12-B. Ownership, Usage and Administration of the Working Child's Income. — The wages, salaries, earnings and other income of the working child shall belong to him/her in ownership and shall be set aside primarily for his/her support, education or skills acquisition and secondarily to the collective needs of the family: provided, that not more than twenty percent (20%) of the child's income may be used for the collective needs of the family. The income of the working child and/or the property acquired through the work of the child shall be administered by both parents. In the absence or incapacity of either of the parents, the other parent shall administer the same. In case both parents are absent or incapacitated, the order of preference on parental authority as provided for under the Family Code shall apply.
Sec. 12-C. Trust Fund to Preserve Part of the Working Child's Income. — The parent or legal guardian of a working child below eighteen (18) years of age shall set up a trust fund for at least thirty percent (30%) of the earnings of the child whose wages and salaries from work and other income amount to at least two hundred thousand pesos (P200,000.00) annually, for which he/she shall render a semi-annual accounting of the fund to the Department of Labor and Employment, in compliance with the provisions of this Act. The child shall have full control over the trust fund upon reaching the age of majority.
Sec. 12-D. Prohibition Against Worst Forms of Child Labor. — No child shall be engaged in the worst forms of child labor. The phrase "worst forms of child labor" shall refer to any of the following: (1)
All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or
(2)
The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or
(3)
The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or
(4)
Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it: (a)
Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
(b)
Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or
(c)
Is performed underground, underwater or at dangerous heights; or
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Societas Spectra Legis Labor Standards Compilation (d)
Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive power-actuated tools; or
(e)
Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or
(f)
Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or
(g)
Is performed under particularly difficult conditions; or
(h)
Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or
(i)
Involves the manufacture or handling of explosives and other pyrotechnic products.
Sec. 14. Prohibition on the Employment of Children in Certain Advertisements. — No child shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography.
RULES AND REGULATIONS IMPLEMENTING RA 9231, AMENDING R.A. 7610, AS AMENDED (DO NO. 65-04, SERIES OF 2004)
SECTION 3. Definition of Terms – As used in these Rules, the term: (a)
“Child” refers to any person under 18 years of age.
(b)
“Child labor” refers to any work or economic activity performed by a child that subjects him/her to any form of exploitation or is harmful to his/her health and safety or physical, mental or psychosocial development.
(c)
“Working Child” refers to any child engaged as follows: i.
when the child is below eighteen (18) years of age, in work or economic activity that is not child labor as defined in the immediately preceding sub-paragraph, and
ii.
when the child below fifteen (15) years of age, (i) in work where he/she is directly under the responsibility of his/her parents or legal guardian and where only members of the child’s family are employed; or (ii)in public entertainment or information. xxxxxx
(g)
“Employer” refers to any person, whether natural or juridical who, whether for valuable consideration or not, directly or indirectly procures, uses, avails itself of, contracts out or otherwise derives benefit from the work or services of a child in any occupation, undertaking, project or activity, whether for profit or not. It includes any person acting in the interest of the employer. xxxxxx
(j)
“Work permit” refers to the permit secured by the employer, parent or guardian from the Department for any child below 15 years of age in any work allowed under Republic Act No. 9231.
(k)
“Hours of work” include (1) all time during which a child is required to be at a prescribed workplace, and (2) all time during which a child is suffered or permitted to work. Rest periods of short duration during working hours shall be counted as hours worked.
(l)
“Workplace” refers to the office, premises or worksite where a child is temporarily or habitually assigned. Where there is no fixed or definite workplace, the term shall include the place where the child actually performs work to render service or to take an assignment, to include households employing children.
(m) “Public entertainment or information” refers to artistic, literary, and cultural performances for television show, radio program, cinema or film, theater, commercial advertisement, public relations activities or campaigns, print materials, internet, and other media. (q)
“Forced labor and slavery” refers to the extraction of work or services from any person by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt bondage or deception.
(r)
“Child pornography” refers to any representation of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.
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Societas Spectra Legis Labor Standards Compilation Chapter 2 – Prohibition on the Employment of Children SECTION 4. General Prohibition – Except as otherwise provided in these Rules, no child below 15 years of age shall be employed, permitted or suffered to work, in any public or private establishment. SECTION 5. Prohibition on the Employment of Children in Worst Forms of Child Labor – No child shall be engaged in the worst forms of child labor. The phrase “worst forms of child labor” shall refer to any of the following: (a)
All forms of slavery, as defined under the “Anti-trafficking in Persons Act of 2003”, or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment children for use in armed conflict.
(b)
The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances;
(c)
The use, procuring or offering of a child for illegal or illicit activities, including the production or trafficking of dangerous drugs or volatile substances prohibited under existing laws; or
(d)
Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it: i.
Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
ii.
Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or
iii.
Is performed underground, underwater or at dangerous heights; or
iv.
Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive poweractuated tools; or
v.
Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or
vi.
Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels or vibrations; or
vii.
Is performed under particularly difficult conditions; or
viii.
Exposes the child to biological agents such as bacteria, fungi, viruses, protozoa, nematodes and other parasites; or
ix.
Involves the manufacture or handling of explosives and other pyrotechnic products.
SECTION 6. Prohibition on the Employment of Children in Certain Advertisements – No child below 18 years of age shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography. Chapter 3 – Exceptions to the Prohibition SECTION 7. Exceptions and Conditions – The following shall be the only exceptions to the prohibition on the employment of a child below 15 year of age: (a)
When the child works under the sole responsibility of his/her parents or guardian, provided that only members of the child’s family are employed.
(b)
When the child’s employment or participation in public entertainment or information is essential, regardless of the extent of the child’s role.
Such employment shall be strictly under the following conditions: i.
The total number of hours worked shall be in accordance with Section 15 of these Rules;
ii.
The employment does not endanger the child’s life, safety, health and morals, nor impair the child’s normal development;
iii.
The child is provided with at least the mandatory elementary or secondary education; and
iv.
The employer secures a work permit for the child in accordance with Section 8-12 of these Rules. Chapter 4 – Requirements to Avail of Exception To Employment Prohibition
SECTION 8. Work Permit – Except as provided is Section 13, no child below 15 years of age shall be allowed to commence work without a work permit. An employer must first secure a work permit from the Regional Office of the Department having jurisdiction over the workplace of the child. In cases where the work is done in more than one workplace falling under the
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Societas Spectra Legis Labor Standards Compilation jurisdiction of more than one Regional Office, the application shall be made with the Regional Office having jurisdiction over the principal office of the employer. However, at least two days prior to the performance of the work, the employer shall inform the Regional Office having jurisdiction over the workplace of the activities to be under taken involving the child. Chapter 6 – Working Child’s Income SECTION 16. Ownership and Use of the Working Child’s Income – The wages, salaries, earnings and other income of the working child belong to him/her in ownership and shall be set aside primarily for his/her support, education, or skills acquisition and secondarily to the collective needs of the family: Provided, That not more than twenty percent (20%) of the child’s income may be used for the collective needs of the family. SECTION 22. Grounds for Suspension and Cancellation of Work Permit – The Regional Director shall suspend or cancel the work permit issued to a working child under the following instances: (a)
If there is fraud or misrepresentation in the application for work permit or any of its supporting documents;
(b)
If the terms and conditions set forth in the child’s employment contract and/or employer’s undertaking have been violated;
(c)
If the employer fails to institute measures to ensure the protection, health, safety, morals, and normal development of the child as required in Section 7 (b) ii;
(d)
If the employer fails to formulate and implement a program for the education, training and skills acquisition of the child; or
(e)
If a child has been deprived access to formal, non-formal or alternative learning systems of education.
RA 7877 (ANTI-SEXUAL HARASSMENT ACT) Sec. 3. Work, Education or Training-related Sexual Harassment Defined. – Work, education or training-related sexual harassment is committed by an employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainer, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a)
In a work-related or employment environment, sexual harassment is committed when: (1)
The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in a way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee;
(2)
The above acts would impair the employee’s rights or privileges under existing labor laws; or
(3)
The above acts would result in an intimidating, hostile, or offensive environment for the employee.
RA 8504 (PHILIPPINE AIDS PREVENTION AND CONTROL ACT OF 1998) SECTION 35. Discrimination in the Workplace - Discrimination in any from pre-employment to post-employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual is prohibited. Termination from work on the sole basis of actual, perceived or suspected HIV status is deemed unlawful.
RA 9208 (ANTI-TRAFFICKING IN PERSONS ACT OF 2003; FORCED LABOR) Forced Labor and Slavery - refer to the extraction of work or services from any person by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt-bondage or deception.
Sec. 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (a)
To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
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Societas Spectra Legis Labor Standards Compilation (b)
To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
SEC.32, TITLE 3, CHAP.1, RA 7277 (MAGNA CARTA FOR DISABLED PERSON) Discrimination on Employment. No entity, public or private, should discriminate against qualified disabled person in terms of job application procedures, hiring, promotion, discharge, compensation and other benefits.
SEC.55.4, RA 8791 (GEN. BANKING LAWS OF 2000) No bank shall employ casual or non-regular personnel or too lengthy probationary personnel in the conduct of its business involving deposits.
ART. 1703, CIVIL CODE (INVOLUNTARY SERVITUDE) Art. 1703. No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid.
UNDER REVISED PENAL CODE Art. 272. Slavery. — The penalty of prision mayor and a fine of not exceeding 10,000 pesos shall be imposed upon anyone who shall purchase, sell, kidnap or detain a human being for the purpose of enslaving him. If the crime be committed for the purpose of assigning the offended party to some immoral traffic, the penalty shall be imposed in its maximum period. Art. 273. Exploitation of child labor. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon anyone who, under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall, against the latter's will, retain him in his service. Art. 274. Services rendered under compulsion in payment of debt. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer. Art. 278. Exploitation of minors. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon:
Any person who shall cause any boy or girl under sixteen years of age to perform any dangerous feat of balancing, physical strength, or contortion;
Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or engaged in a similar calling, shall employ in exhibitions of these kinds children under sixteen years of age who are not his children or descendants;
Any person engaged in any of the callings enumerated in the next paragraph preceding who shall employ any descendant of his under twelve years of age in such dangerous exhibitions;
Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar. If the delivery shall have been made in consideration of any price, compensation, or promise, the penalty shall in every case be imposed in its maximum period. In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority.
Any person who shall induce any child under sixteen years of age to abandon the home of its ascendants, guardians, curators, or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 hereof, or to accompany any habitual vagrant or beggar.
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Societas Spectra Legis Labor Standards Compilation DO NO. 4, SERIES OF 1999AND DOLE MEMO. CIR. NO.2, & DOLE MEMORANDUM CIRCULAR NO. 2-1998 Technical Guidelines for Classifying Hazardous and Non-Hazardous Establishments, Workplaces and Work Processes.
Sec 3. Criteria for Classifying Hazardous Establishments or Workplaces. – An establishment or workplace may be classified as hazardous if any of the conditions provided under Rule 1013 of the OSHS has been confirmed, as follows: a)
Where the nature of the work exposes the workers to dangerous environment elements, contaminants or work conditions including ionizing radiations, chemicals, fire, flammable substances, noxious components and the like;
b)
Where the workers are engaged in construction work, logging, fire-fighting, mining, quarrying, blasting, stevedoring, dock work, deep sea fishing and mechanized farming;
c)
Where the workers are engaged in the manufacture or handling of explosives and other pyrotechnic products;
d)
Where the workers use or are exposed to power-driven or explosive powder actuated tools; and
e)
Where the workers are exposed to biologic agents like bacteria and fungi, viruses, protozoa, nematodes and other parasites.
DO NO. 65-04, SERIES OF 2004 (SEE RIGHT TO HIRE ON PROHIBITIONS TO HIRING)
COMPULSORY HIRING OF EMPLOYEES RA 7920 NEW ELECTRICAL ENGINEERING LAW AN ACT PROVIDING FOR, A MORE RESPONSIVE AND COMPREHENSIVE REGULATION FOR THE PRACTICE, LICENSING, AND REGISTRATION OF ELECTRICAL ENGINEERS AND ELECTRICIANS SEC. 33. Personnel Required. Except as otherwise provided in this Act, every electric plant, industrial plant or factory, commercial establishment, institutional building, watercraft, electric locomotive or in any other installation where persons and properties are exposed to electrical hazards shall not have less than the following complement of professional electrical engineer, registered electrical engineer, and registered master electrician: (b)
Industrial plants or factories, commercial establishments, or institutional buildings having a connected kVA load of any size and employing voltages of any standard rating one (1) professional electrical engineer or one (1) registered electrical engineer. However, for connected loads up to five hundred kilovolt amperes (500 kVA) and employing voltages up to six hundred volts (600 V) one (1) registered master electrician;
RA 8495 PHILIPPINE MECHANICAL ENGINEERING ACT OF 1998 AN ACT REGULATING THE PRACTICE OF MECHANICAL ENGINEERING IN THE PHILIPPINES Sec. 34. Personnel Required in Mechanical Plant. — Every mechanical work project or plant in operation shall have not less than the following complement of resident licensed professional mechanical engineer, mechanical engineer or certified plant mechanic: (a)
100 kw or over but not more than 300 kw: one (1) certified plant mechanic, or more mechanical engineer or one (1) professional mechanic engineer: Provided, That every mechanical work, project, or plant in this category operating in more than one shift every twenty-four hours, shall have in addition to the minimum personnel herein required, one (1) certified plant mechanical, or one (1) mechanical engineer, or one (1) professional mechanical engineer in-charge of each and every additional shift.
(b)
300 kw or over, but not more than 2000 kw: one (1) mechanical engineer or one (1) professional mechanical engineer or one (1) professional mechanical engineer: Provided, That every mechanical work, project, or plant in this category operating in more than one shift every twenty-four (24) hours shall have, in addition to the minimum personnel herein required at least one (1) mechanical engineer, or one (1) professional mechanical engineer in-charge of each and every additional shift.
(c)
Over 2000 kw: one (1) professional mechanical engineer: Provided, That every mechanical work, project or plant in this category operating in more than one shift every twenty-four (24) hours shall have, in addition to the minimum personnel herein required at least one (1) professional mechanical engineer in-charge of each and every additional shift.
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Societas Spectra Legis Labor Standards Compilation BONA FIDE QUALIFICATION RULE To justify a bona fide occupational qualification, the employer must prove two factors: (1) that the employment qualification is reasonably related to the essential operation of the job involved; and, (2) that there is a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job.
TWO THEORIES OF EMPLOYMENT DISCRIMINATION A. DISPARATE TREATMENT – Plaintiff must prove that an employment policy is discriminating on its face. B. DISPARATE IMPACT – Complainant must prove that a facial neutral policy has a disproportionate effect on a part of the class. ANTI-NEPOTISM Banning all immediate family members including spouse from working in the same company
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TOPIC 4: WAGES AND WAGE FIXING CONCEPT OF WAGE AND SALARY WAGE VS. SALARY WAGE Applies to the compensation for manual labor, skilled or unskilled, paid at stated times, and measured by the day, week, month, or season. Indicates inconsiderable pay for a lower and less responsible character of employment. SALARY Denotes a higher degree of employment or a superior grade of services, and implies a position or office. Suggestive of a larger and more permanent or fixed compensation for more important service. By some of the authorities, the word “wages” in its ordinary acceptance, has a less extensive meaning than the word “salary”, “wages” being ordinarily restricted to sums paid to artisans, mechanics, laborers, and other employees of like class, as distinguished from the compensation of clerks, officers of public corporations, and public offices. In many situations, however, the words “wages” and “salary” are SYNONYMOUS. *35 Am. Jur. Sec. 63, p. 496-497] Our SC reached the same conclusion, the words “wages” and “salary” are in essence synonymous. Equitable PCIB vs. Sadac G.R. No. 164772, June 8, 2006 WAGE SYNONYMOUS WITH SALARRY; DISTINCTION MERELY SEMANTICS The distinction between salary and wage in Gaa was for the purpose of Article 1708 of the Civil Code which mandates that, “the laborer’s wage shall not be subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance.” In labor law, however, the distinction appears to be merely semantics. Paramount and Evangelista may have involved wage earners, but the petitioner in Espejo was a General Manager with a monthly salary of P9, 000.00 plus privileges. That wage and salary are synonymous has been settled in Songco v. National Labor Relations Commission. We said: Broadly, the word “salary” means a recompense or consideration made to a person for his pains or industry in another man’s business. Whether it be derived from “salarium,” or more fancifully from “sal,” the pay of the Roman soldier, it carries with it the fundamental idea of compensation for services rendered. Indeed, there is eminent authority for holding that the words “wages” and “salary” are in essence synonymous (Words and Phrases, Vol. 38 Permanent Edition, p. 44 citing Hopkins vs. Cromwell, 85 N.Y.S.839, 841, 89 App. Div. 481; 38 Am. Jur. 496). “Salary,” the etymology of which is the Latin word “salarium,” is often used interchangeably with “wage”, the etymology of which is the Middle English word “wagen”. Both words generally refer to one and the same meaning, that is, a reward or recompense for services performed. Likewise, “pay” is the synonym of “wages” and “salary” (Black’s Law Dictionary, 5th Ed)
Q: Is there an instance outside labor law when wage and salary is distinguished? A: Yes. In Article 1708 of the Civil Code where wage and salary are distinguished with regards to execution and attachment.
Article 98. Application of Title. This Title shall not apply to farm tenancy or leasehold, domestic service and persons working in their respective homes in needlework or in any cottage industry duly registered in accordance with law.
PRINCIPLES FAIR DAY’S WAGE FOR A FAIR DAY’S LABOR A fair day’s wage for a fair day’s labor continues to govern the relation between labor and capital and remains a basic factor in determining employees’ wages. PAL vs. NLRC GR 55159 June 22, 1989 “If there is no work performed by the employee there can be no wage or pay unless the laborer was able, willing and ready to work but was prevented by management or was illegally locked out, suspended or dismissed. Where the employee’s dismissal was for a just cause, it would neither be fair nor just to allow the employee to recover something he has not earned and could not have earned.” University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation SSS v. SSS Supervisor’s Union GR L-31832 10/23/82 “Where the failure of workers to work was not due to the employer’s fault, the burden of economic loss suffered by the employees should not be shifted to the employer. Each party must bear his own loss.” EQUAL PAY FOR EQUAL WORK ISAE v. Quisumbing G.R. No. 128845 June 1, 2000 “This doctrine/legal truism means that persons who work with substantially equal qualification, skill, effort & responsibility, under similar conditions should be paid similar salaries, notwithstanding its international character. If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. There is no evidence that foreign-hires perform 25% more efficiently or effectively than local-hires. Both groups have similar functions and responsibilities, which they perform under similar conditions. The “dislocation factor” and the foreign-hires “limited tenure” also cannot serve as valid bases for the distinction in salary rates. The dislocation factor and limited tenure affecting foreign-hires are adequately compensated by certain benefits accorded to them which are not enjoyed by the local-hires such as housing, transportation, shipping cost, taxes, and home leave travel allowance. We find the point-of-hire classification employed by respondent school to justify the distinction in the salary rates of foreignhires and local-hires to be an invalid classification. There is no reasonable distinction between the services rendered by foreignhires and local-hires.” Employees in the Philippines, if they are performing similar functions and responsibilities under similar working conditions, should be paid under this principle. RIGHT TO A “LIVING WAGE” Section 3, Art 8, 1987 Constitution xxx State shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. Xxx
FACILITIES AND SUPPLEMENT FACILITIES; defined Book III, Rule 7, Sec. 5 “FACILITIES” shall include articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or service primarily for the benefit of the employer or necessary to the conduct of the employer’s business.
Atok-Big Wedge Assn v. Atok-Big Wedge Co. 97 phil 294 “FACILITIES are items of expense necessary for the laborer’s and his family’s existence and subsistence so that by express provision of law, they form part of the wage and when furnished by the employer are deductible therefrom, since if they are not so furnished the laborer would spend and pay for them just the same.” Mabeza vs. NLRC GR 118506 04/18/97 REQUISITES FOR FACILITIES TO BE CONSIDERED AS AN INTEGRAL PART OF AN EMPLOYEE’S WAGE (deductibility) 1. Must be customarily furnished by the employer to the employee; 2. Must be charged at fair and reasonable value; and University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation 3.
The provision on deductible facilities must be voluntarily accepted by the employee in writing.
More significantly, the food and lodging, or the electricity and water consumed by the petitioner were not facilities but supplements. A benefit or privilege granted to an employee for the convenience of the employer is not facility. The criterion in making a distinction between the two not so much lies in the kind (food, lodging) but the purpose. Considering therefore that hotel workers are required to work different shifts and are expected to be available at various odd hours, their ready availability is a necessary matter in the operations of a small hotel, such as the private respondent’s hotel.”
If the requisites are all present, that facilities may take the place of the cash payment of the employee’s wage. This is one exception of the requirement that an employee’s wage shall be paid in legal tender, you cannot pay it in kind.
Art 97f provides that “wage” includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee.
This means that an employer may provide, for instance, food and housing to his employees but he may deduct their values from the employees’ wages. STEPS TO DETERMINE IF A FACILITY OR NOT:
Ascertain the purpose For whose benefit? Employer or employee? If for employee, is it deductible or not?(apply the 3 requisites for deductibility)
SUPPLEMENTS; defined Atok-Big Wedge Assn v. Atok-Big Wedge Co. 97 phil 294 “SUPPLEMENTS constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages.” Facilities – are items of expense necessary for the laborer’s and his family’s existence and subsistence. Requisites: 1. Must be customarily furnished by the employer to the employees Customary – is founded on long-established and constant practice connoting regularity. 2. Must be charged at a fair and reasonable value 3. The provision on deductible facilities must be voluntarily accepted by the employee in writing. (Mabeza vs. NLRC) Facilities (Section 5, Rule VII, Book III)- articles or services for the benefit of the employee or his family but shall not include tools of the trade or articles or services primarily for the benefit of the employer or necessary to the conduct of the employer’s business. Supplement – Constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages. The classification of an item of expense as a facility or a supplement will depends on the purpose and not on the kind. So, if it is principally or mainly for the benefit of the employee, classify as facilities, and the fair and reasonable value of that can be considered as deductible from the employee’s wage. An employer can validly pay the employee in the form of cash or in kind. And that kind refers to facilities. If the requisites are all present, that facilities may take the place of the cash payment of the employee’s wage. This is one exception to the requirement that an employee’s wage shall be paid in legal tender; you cannot pay it in kind. If it classifies under facilities, it shall include the fair and reasonable value of board, lodging, etc. as long as it is mainly and principally for the benefit of the employee. FACILITIES VS. SUPPLEMENTS Facilities are wage-deductible, supplements are not. The classification of an item of expense as a facility or a supplement will depend on the purpose and not on the kind. So if it is principally or mainly for the benefit of the employee, classify as facilities, and the fair and reasonable value of that can be considered as deductible from the employee’s wage. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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FACILITIES Items of expense necessary for the laborer’s and his family’s existence and subsistence.
SUPPLEMENTS Constitute extra remuneration or privileges or benefits given to or received by the labors over and above their ordinary earnings wages.
Part of the wage
Independent of the wage
Deductible from the wage
Not wage deductible
WORKER’S LIEN Art 1707 CC: The laborer’s wages shall be a lien on the goods manufactured or the work done.
Reason: By virtue of this new lien, the laborers who are not paid by an unscrupulous and irresponsible industrialist or manager may by legal means have the goods manufactured thru the sweat of their brow sold, and out of the proceeds get their salary, returning the excess, if any [Report Code Commission, p.14] Goods Manufactured or the work done Refers to personal property, not real property. And even here, the lien is allowed the laborer only if he was directly employed or engaged by the owner. The rule does not apply if contractor, with men under him, had undertaken the job.
EXEMPTION FROM EXECUTION OR ATTACHMENT Art 1708 CC: The laborer’s wages shall not be subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance. GR: Wages are not subject to execution. Exception: Debts incurred for support such as food, shelter, clothing, medical attendance. The rule applies even when the wages are still in the possession of the employer whose properties may have been attached. Salaries due to government employees cannot be garnished before they are paid to the employees concerned because: 1. 2. 3.
The incentive for work would be lost Generally, the state cannot be sued; and Finally, technically, before disbursements, the money still belongs to the government.
Art 1709 CC: The employer shall neither seize nor retain any tool or other articles belonging to the laborer. No seizure or retention by the employer NOTE: Articles 1707 and 1708 of the Civil Code distinguish wage from salary METHODS OF FIXING COMPENSATION A. B. C. D.
Time [daily and monthly paid workers] Commission Job or task basis Piece-rate basis [payment by results]
IMPORTANCE OF METHODS OF FIXING COMPENSATION
Not determinative of employer-employee relationship.
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There are certain laws which exclude certain employees from enjoying certain benefits depending on the methods of fixing their compensation. Ex. 13th mo. Pay which excludes job or task basis and purely on commission employees, under Art 82, workers paid by results are exempted from overtime pay, service incentive leave, etc. (conditions of employment).
WAGE; defined Art 97(f) “WAGE paid to employee shall mean the remuneration or earnings, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee.” A.
TIME SPENT
Once the agreed period of work is completed, the compensation is earned and becomes due regardless of result. The standard forms of compensation based on time spent are salaries or wages by the day, week, or monthly.
2 CLASSIFICATIONS OF EMPLOYEES BASED ON TIME SPENT 1. 2.
Daily-paid Monthly-paid
DAILY-PAID EMPLOYEES
Those employees who are paid on the days actually worked except unworked regular holidays when they are paid their basic wage if they are present or a leave with pay on the working day preceding the regular holiday. “No work no pay” Advantage: Flexibility in the reduction of work force fro any given period according to circumstances such as slack in demand, non-availability of materials, etc.
REMEDY FOR DOWNSIZING
Compressed workweek Reduce working days Temporary suspension of operations of not more than 6 months (no work no pay)
MONTHLY-PAID EMPLOYEES
B.
JOB OR TASK RATE
C.
A flat or fixed sum for each particular job or task completed, without regard to the number f hours actually spent in the performance or completion.
PIECE WORK, OR BY THE OUTPUT IN TERMS OF WORK UNITS
D.
Paid everyday of the month including unworked rest days, special days and regular holidays. It is the standard compensation rate for managerial personnel, professionals, administrative employees and other white collar workers, including clerical employees and higher grade skilled workers. ADVANTAGE: relative economy in recordkeeping, and higher morale of employees resulting from association of this method with tenure and permanency.
Without regard to time spent. Labor contributed by each determinable and separable from each other The value of the labor input for any particular stage is standard.
More advantageous from those paid on time spent.
COMMISSION
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ADVANTAGE: Encourage the worker to be more productive. Fixed percentage is effected on sales.
TAKE NOTE: Workers shall be paid the minimum wage even if paid on job or piece rate basis. FIXING EMPLOYEES WAGE a. b.
wage increase resolving wage distortion
RA 6727 WAGE RATIONALIZATION ACT IMPORTANCE: this law which amended the labor code will tell us the different government agencies involved in the fixing of wages and also how to resolve wage distortion(procedure in case wage distortion results in fixing wage) PURPOSE: was intended to rationalize the fixing wages; FIRST, by providing for full-time boards to police wages round-the-clock. SECOND, by giving the boards enough powers to achieve this objective. POLICIES OF THE STATE 1.
TO RATIONALIZE THE FIXING OF THE MINIMUM WAGE.
It has been rationalized because article 124 of this RA provides for the standards and criteria that should guide the agency of government when it comes to fixing the minimum wage. It is noted that under the standard criteria, that the congress has tried to weigh the factors involving the employers, as well as the factors involving the laborers when it comes to fixing of employee’s wage in order to rationalize it.
Before RA 6727, it was only Malacañang through a PD that dictates how much should be the minimum wage in the Philippines. Most often than not, those employers in the far-flung areas are adversely affected because the fixing of minimum wage is not rationalized. It does not take into consideration, for example, the capitalization of the employer, the profit expected, the cost of living in a particular area.
With the advent of RA 6727, the law deems it necessary that there shall be standard criteria in fixing the employee’s wage. Standards or Criteria for Minimum Wage Fixing Art 124 RA 6727 a. The demand for living wages; b. Wage adjustment vis-à-vis the consumer price index; c. The cost of living and changes or increases therein; d. The needs of workers and their families e. The need to induce industries to invest in the countryside; f. Improvements in standards of living g. The prevailing wage levels; h. Fair return of the capital invested and capacity to pay of employers; i. Effects on employment generation and family income; and j. The equitable distribution of income and wealth along the imperatives of economic and social development. 2. TO PROMOTE PRODUCTIVITY-IMPROVEMENT AND GAIN-SHARING MEASURES TO ENSURE A DECENT STANDARD OF LIVING FOR THE WORKERS AND THEIR FAMILY. 3. TO GUARANTEE THE RIGHTS OF LABOR TO ITS JUST SHARE IN THE FRUITS OF PRODUCTION 4.
TO ENHANCE EMPLOYMENT GENERATIONS IN THE COUNTRYSIDE THROUGH INDUSTRY DISPERSAL.
5.
TO ALLOW BUSINESS AND INDUSTRY REASONABLE RETURNS ON INVESTMENT, EXPANSION AND GROWTH.
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Societas Spectra Legis Labor Standards Compilation 6. THE STATE SHALL PROMOTE COLLECTIVE BARGAINING AS THE PRIMARY MODE OF SETTING WAGES AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT; AND WHENEVER NECESSARY, THE MINIMUM WAGE RATES SHALL BE ADJUSTED IN A FAIR AND EQUITABLE MANNER, CONSIDERING EXISTING REGIONAL DISPARITIES IN THE COST-OF-LIVING AND OTHER SOCIAOECONOMIC FACTORS AND THE NATIONAL ECONOMIC AND SOCIAL DEVELOPMENT PLANS. [IMPORTANT]
This is an important policy because it promotes collective bargaining as a mode of settling labor disputes
Ilaw at Buklod ng Manggagawa vs. NLRC GR 91980, 06/27/91 “The policy of the state is promoting collective bargaining as a mode of settling labor dispute. There was a wage distortion affecting the establishment and what the employees did was to stage a strike in order to compel the employer to solve wage distortion. The SC said NO. If RA 6727 is examined, strike is not provided as a solution in resolving wage distortion. It should be through collective bargaining. Therefore, the SC declared the strike as illegal because the Rules Implementing RA 6727 provides for a specific and detailed approach on how to resolve wage distortion short of strike or lockout.”
GOVERNMENT AGENCIES INVOLVED A. NATIONAL WAGES AND PRODUCTIVITY COMMISSION [NWPC] ART. 120 LC. Creation of National Wages and Productivity Commission. - There is hereby created a National Wages and Productivity Commission, hereinafter referred to as the Commission, which shall be attached to the Department of Labor and Employment (DOLE) for policy and program coordination. (As amended by Republic Act No. 6727, June 9, 1989).
Determines the offices/headquarters of the respective Regional Tripartite Wages and Productivity Boards. Art 121C (As amended by Republic Act No. 6727, June 9, 1989) grants the NWPC the power to prescribe rules and guidelines for the determination of appropriate wages in the country.
Note: Guidelines issued by the RTWPB without the approval of, or worse, contrary to those promulgated by the NWPC are ineffectual, void and cannot be the source of rights and privileges. Composition: Art 121 LC (As amended by Republic Act No. 6727, June 9, 1989). 1. Ex-Officio Chairman Secretary of DOLE 2. Ex-Officio Vice-Chairman Director-General of NEDA 3. Two (2) members each from Worker and Employer sectors Shall be appointed by the President of the Phil upon recommendation of the Secretary of DOLE to be made on the basis of the list of nominees submitted by the workers and employers sectors, respectively. 4. The Executive Director shall also be a member of the Commission Secretariat [headed by Executive Director] Executive Director Shall be appointed by the President of the Phil upon recommendation of the Secretary of DOLE
2 Deputy Directors shall be appointed by the President of the Phil upon recommendation of the Secretary of DOLE
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Societas Spectra Legis Labor Standards Compilation ART. 122 LC. Creation of Regional Tripartite Wages and Productivity Boards. - There is hereby created Regional Tripartite Wages and Productivity Boards, hereinafter referred to as Regional Boards, in all regions, including autonomous regions as may be established by law. The Commission shall determine the offices/headquarters of the respective Regional Boards. (As amended by Republic Act No. 6727, June 9, 1989).
The SC is of the opinion that Congress meant the boards to be creative in resolving the annual question of wages without labor and management knocking on the legislature’s door at every turn. The Court’s opinion is that if RA 6727 intended the board alone to set floor wages, the Act would have no need for a board but an accountant to keep track of the latest consumer price index, or better would have Congress done it as the need arises, as the legislature, prior to the Act has done so for years.
Metropolitan Bank and Trust Company, Inc. vs. NWPC and RTWPB- Region II G.R. No. 144322, 02/26/07 “In line with RA No. 6727’s policy, NWPC was created to prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial or industry levels. It authorized RTWPB to determine and fix the minimum wage rates in their respective regions, provinces or industries therein and issue the corresponding wage orders, subject to the guidelines issued by the NWPC. Pursuant to its wage- fixing authority, the RTWPB may issue wage orders which set the daily minimum wage rates based on the standards or criteria set by Art. 124 of the Labor Code.
Composition Art 122 LC (As amended by Republic Act No. 6727, June 9, 1989). 1. Chairman Regional Director of DOLE 2. Vice-Chairmen Regional Director of NEDA Regional Director of DTI 3. Two (2) members each from workers and employers sectors Shall be appointed by the President of the Phil, upon the recommendation of the Secretary of DOLE, to be made on the basis of the list of nominees submitted by the workers and employers sectors, respectively. 4. Each Regional Board to be headed by its Chairman shall be assisted by a Secretariat
PROHIBITION AGAINST INJUNCTION RA 6727, Sec. 7. Prohibition Against Injunction. No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or any other entity against any proceeding before the Commission or Board. Art. 126. Prohibition Against Injunction. No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or any other entity against any proceeding before the Commission or Board.
NWPC GUIDELINES NO.001-95, REVISED RULES OF PROCEDURE ON MINIMUM WAGE FIXING (j) "Region" refers to a geographical area composed of a group provinces and/or cities as defined under Presidential Decree No. 1, as amended, including those that may be subsequently established by law; (k) "Regional Minimum Wage Rates" refer to the lowest basic wage rates that an employer can pay his workers, as fixed by the Board which shall not be lower than the applicable statutory minimum wage rates; (l) "Statutory Minimum Wages" refer to the lowest basic wages as provided by law; (m) "Wage Distortion" shall mean 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; (n) "Wage Order" refers to the Order promulgated by the Board pursuant to its wage fixing authority.
RULE II MINIMUM WAGE FIXING Section 2. Standards/Criteria for Minimum Wage Fixing. – The minimum wage rates to be established by the Board shall be as nearly adequate as is economically feasible to maintain the minimum standards of living necessary for the health, efficiency and general wellbeing of the workers within the framework of national economic and social development goals. In the determination of regional minimum
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Societas Spectra Legis Labor Standards Compilation wages, the Board shall, among other relevant factors, consider the following: (a) Needs for workers and their families 1) Demand for living wages 2) Wage adjustment vis-à-vis the consumer price index 3) Cost of living and changes therein 4) Needs of workers and their families 5) Improvements in standards of living (b) Capacity to Pay 1) Fair return on capital invested and capacity to pay of employers 2) Productivity (c) Comparable wages and incomes 1) Prevailing wage levels (d) Requirements of economic and social development 1) Need to induce industries to invest in the countryside 2) Effects on employment generation and family income 3) Equitable distribution of income and wealth along the imperatives of economic and social development Section 3. Procedures in Minimum Wage Fixing. – (a)
Motu Proprio by the Board Whenever conditions in the region, province or industry so warrant, the Board may, motu proprio or as directed by the Commission, initiate action or inquiry to determine whether a wage order should be issued. The Board shall conduct public hearings in the manner prescribed under this Rule and Rule III. The Board may also conduct consultations with concerned sectors/ industries.
(b)
By Virtue of a Petition Filed 1.
Form and Content of Petition Any party may file a verified petition for wage increase with the appropriate Board in ten (10) typewritten legible copies which shall contain the following: (a) name/s, and address/es of petitioner/s and signature/s of authorized official/s; (b) grounds relied upon to justify the increase being sought; (c) amount of increase being sought; (d) area and/or industry covered. PROPER PARTY
Legitimate labor organization or the employer
If employed in an establishment, the employee cannot go to court and file a petition for a wage increase because the employee is not considered a proper party. It must be an employer or a legitimate labor organization.
BOARD
2.
May deny, grant or not take an action
Wage Order if granted, maybe issued by the Board pursuant to its rule-making power and takes effect 15 days after publication.
Board Action. If the petition conforms with the requirements prescribed in the preceding sub-section b.1., the Board shall conduct public hearings in the manner prescribed under this Rule and Rule III, to determine whether a wage order should be issued. The Board may also conduct consultations with concerned sectors/industries.
3.
Publication of Notice of Petition/Public Hearing. A notice of the petition and/or public hearing shall be published in a newspaper of general circulation in the region and/or posted in public places as determined by the Board. The notice shall include the name/s and address/es of the petitioner/s, the subject of the petition and the date/s, place/s and time of the hearings. The publication or posting shall be made at least fifteen (15) days before the date of initial hearing and shall be in accordance with the suggested form PUBLIC HEARINGS AND PUBLICATION, MANDATORY Cagayan Sugar Milling Co. vs. Secretary of Labor G.R. No. 128399, January 15, 1998 “The record shows that there was no prior public consultation or hearings and newspaper publication insofar as WOR02-02-A is concerned. In fact, these allegations were not denied by public respondents in their Comment. Public respondents’ position is that there was no need to comply with the legal requirements of consultation and newspaper publication as the WO merely clarified the ambiguous provision of the original wage order. The Court was not persuaded. To begin with, there was no ambiguity in the provisions of the WO as it provided in clear and categorical terms for an increase in statutory minimum wage or workers in the region. Hence, the subsequent passage of the WO providing instead for an across-the-board increase in wages did not clarify the earlier order but amended the same. Xxxx Hence, the WO was struck down as a violation of A123LC.”
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Societas Spectra Legis Labor Standards Compilation 4.
Opposition. Any party may file his opposition to the petition on or before the initial hearing, copy furnished the petitioner/s. The opposition shall be filed with the appropriate Board in ten (10) typewritten legible copies which shall contain the following:
5.
(a)
name/s and address/es of the oppositor/s and signature/s of authorized official/s;
(b)
reasons or grounds for the opposition; and
(c)
relief sought.
Consolidation of Petitions. If there is more than one petition filed, the Board may, motu propio or on motion of any party, consolidate these for purposes of conducting joint hearings or proceedings to expedite resolutions of petitions. Petitions received after publication of an earlier petition need not go through the publication/posting requirement.
6.
Assistance of Other Government and Private Organizations. The Board may enlist the assistance and cooperation of any government agency or private person or organization to furnish information in aid of its wage fixing function.
CONDUCT OF HEARINGS Section 4. Manner and Duration of Hearings. – Public hearings shall be conducted in a manner that shall ensure that all sectors and parties who stand to be directly affected by the decisions and orders of the Board are given the widest opportunity to be heard. Pursuant to this, the hearings shall be conducted in each province in the region as far as practicable. Hearings shall be conducted within forty five (45) days from the date of initial hearing except when conditions in the region warrant otherwise. Section 6. Non-applicability of Technical Rules. – The Board shall not be bound strictly by technical rules evidence and procedures. Section 7. Prohibition Against Injunction. – No preliminary or permanent injunction or temporary restraining order may be issued by any court, tribunal or any other entity against any proceeding before the Commission or Board. WAGE ORDER Section 1. Issuance of Wage Order. – Within thirty (30) days after conclusion of the last hearing, the Board shall decide on the merits of the petition, and where appropriate, issue a wage order establishing the regional minimum wage rates to be paid by employers which shall in no case be lower than the applicable statutory minimum wage rates. The Wage Order may include wages by industry, province or locality as may be deemed necessary by the Board provided, however, that such wage rates shall not be lower than the regional minimum wage rates unless expressly specified in the Wage Order. The Board shall furnish the Commission a copy of the decision on the petition or the Wage Order. Section 3. Frequency of Wage Order. – Any Wage Order issued by the Board may not be disturbed for a period of twelve (12) months from its effectivity, and no petition for wage increase shall be entertained within the said period. In the event, however, that supervening conditions, such as extraordinary increase in prices of petroleum products and basic goods/services, demand a review of the minimum wage rates as determined by the Board and confirmed by the Commission, the Board shall proceed to exercise its wage fixing function even before the expiration of the said period. Section 4. Effectivity. A Wage Order shall take effect fifteen (15) days after its publication in at least one (1) newspaper of general circulation in the region. Section 5. Implementing Rules/ Regulations. – The Board shall prepare, for approval of the Secretary of Labor and Employment upon recommendation of the Commission, the necessary Implementing Rules and Regulations not later than ten (10) days from the issuance of a Wage Order. The Secretary of Labor and Employment shall act on the Implementing Rules within a period of twenty (20) days from receipt of the said Implementing Rules by the Commission. Once approved, the Board shall cause the publication of the Implementing Rules and Regulations in at least one (1) newspaper of general circulation in the region. Section 6. Review of Wage Order. – The Commission may review the Wage Order issued by the Board motu propio or upon appeal. Section 7. Correction of Error. The Board may, motu propio or upon manifestation of any party, proceed to correct any patent error, errors in computation or typographical errors in any Wage Order. Section 8. Amendments to Wage Order. – In case of substantive changes in the Wage Order, the Board must comply with the required procedures provided under Section 1 of Rule II and Section 4 of Rule IV.
NOTE: A wage order issued by the BOARD may not be disturbed for a period of 12 months from its effectivity and no petition for wage increase shall be entertained during said period. EXCEPT: When Congress itself passes a national minimum law increase wages. Q: Remedy for the issuance of Wage Order A: Appeal to NWPC not later than ten (10) days from the date of publication of the Order. Q: Grounds?
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(a) non-conformity with prescribed guidelines and/or procedures; (b) questions of law; (c) grave abuse of discretion.
Q: Does it suspend the effectivity of the WO? A: No, post a bond equivalent to the increase embodied in the wage order if you want it suspended. Pag-asa Steel Works v. CA GR 166647; 03/31/06 “No right to wage increase for employees already receiving minimum wage; no across the board effect.” Metrobank. vs. NWPC & RTWPB- Region II GR 144322, February 26, 2007 “When it issues a wage order, the RTWPB exercises a quasi-legislative power and not quasi-judicial power. The decision of RTWPB is appealable to NWPC, not to CA. The Court finds that Sec. 1, Wage Order No. R02-03 is void insofar as it grants a wage increase to employees earning more than the minimum wage rate and valid with respect to employees earning the prevailing minimum wage rate. The Court in Employers Confederation of the Philippines v. National Wages and Productivity Commission declared that there are two ways of fixing the minimum wage: the “floor-wage” method which involves the fixing of a determinate amount to be added to the prevailing statutory minimum wage rates and the “salary-ceiling” method in which the wage adjustment was to be applied to employees receiving a certain denominated salary ceiling. In the instant case, the RTWPB did not set a wage level nor a range to which a wage adjustment or increase shall be added. Instead it granted an across-the-board wage increase of P15 to all employees and workers of Region II. In doing so, it exceeded its authority by extending the coverage of the Wage Order to wage earners receiving more than the prevailing minimum wage rate, without a denominated salary ceiling. It granted additional benefits not contemplated by RA No. 6727.”
APPEAL PROCEDURE [NWPC]
The Commission may review the Wage Order issued by the Board motu proprio or upon appeal No more appeal from NWPC Remedy is Rule 65 (grave abuse, CA), then Rule 45 (questions of law, SC); note: not Rule 43 (because it excludes NWPC)
Section 1. Appeal to the Commission. Any party aggrieved by a Wage Order issued by the Board may appeal such Order to the Commission by filing a verified appeal with the Board in three (3) typewritten legible copies,. The appeal shall be accompanied by a memorandum of appeal which shall state the grounds relied upon and the arguments in support of the appeal. The Board shall serve notice of the appeal to concerned parties. Failure to file an appeal within the reglementary period fixed under this section or to submit the required documents shall be a ground for dismissal of the appeal. Section 2. Grounds for Appeal. An appeal may be filed on the following grounds: (a) non-conformity with prescribed guidelines and/or procedures; (b) questions of law; (c) grave abuse of discretion. Section 3. Transmittal of Records. Immediately upon receipt of the appeal, the Board Secretariat shall transmit to the Commission Secretariat the appeal and a copy of the subject Wage Order together with the complete records of the case and all relevant documents. Section 4. Period to Act on Appeal. The Commission shall decide on the appeal within sixty (60) days from the filing of said appeal. Section 5. Effect of Appeal. The filing of the appeal does not operate to stay the Order unless the party appealing such Order shall file with the Commission an undertaking with a surety or sureties satisfactory to the Commission for payment to employees affected by the Order of the corresponding increase, in the event such Order is affirmed.
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MINIMUM WAGE FIXING PROCEDURE FLOW Motu Proprio by RTWPB
By virtue of Petition by Labor Union
Publication/Notice of Hearing Notice of the petition shall be published in a newspaper of general circulation in the region/conspicuous places. Publication shall be made at least 15 days before the date of initial hearing Schedule the date of initial hearing Hearing mandatory
Proper Board Action If petition conforms with the requirements – 10 legible copies containing the ff: name, address, signature of petitioner and authorized official; grounds relied upon to justify increase; amount of increase being sought; area/industry covered Board may Deny or Approve
OPPOSITION Any interested party may file his opposition on or before initial hearing Shall be in 10 legible copies Shall contain the following: o Grounds for opposition o Relief sought
ISSUANCE OF WAGE ORDER If after hearing, the RTWPB grants such petition Takes effect 15 days after publication
APPEAL TO NWPC Must be made not later than 10 days from the date of publication of the WO Only on grounds of: (1) nonconformity with guidelines; (2) questions of law; (3) grave abuse of discretion Does not suspend the effectivity of WO; unless bond equivalent to increase is posted Unappealable
CONSOLIDATION OF PETITIONS If more than one petition is filed, the RTWPB may, motu proprio or on motion consolidate such petitions. Petitions received after publication of an earlier petition need not go through publication/posting requirement
PETITION FOR CERTIORARI IN THE COURT OF APPEALS (RULE 65) Not later than than 60 60 days days from from Not later notice order or noticeof the of judgment, the judgment, resolution order or resolution
APPEAL BY CERTIORARI IN THE SUPREME COURT UNDER RULE 45 Within fifteen (15) days from notice of the judgment or final order or resolution
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Societas Spectra Legis Labor Standards Compilation CONCEPTS: BASIC WAGE, STATUTORY MINIMUM WAGE, WAGE ORDER BASIC WAGE (a) means all the remuneration or earnings paid by an employer to a worker for services rendered on normal working days and th hours but does not include cost-of-living-allowances, profit sharing payments, premium payments, 13 month pay or other monetary benefits which are not considered as part of or integrated into the regular salary of the workers on the date the act became effective. (definition of terms IRR of RA6727) STATUTORY MINIMUM WAGE (b) Is the lowest wage rate fixed by law that an employer can pay his workers. (definition of terms IRR of RA6727) WAGE ORDER (c) Refers to the order promulgated by RTWPB pursuant to its wage fixing authority. PURPOSE OF MINIMUM WAGE 1. 2. 3. 4. 5.
To promote productivity-improvement and gain-sharing measures to ensure a decent standard of living for the workers and their families. To guarantee the rights of labor to its just share in the fruits of production. To enhance employment generation in the countryside through industry dispersal and to allow business and industry reasonable returns on investment, expansion and growth. To affirm, as the Constitution expresses it, labor as a primary social economic force. That wages are distributed evenly, and more importantly, social justice is subserved.
A. Advantages of Minimum Wage 1. Protects the fair employers against competition from the “unfair’ ones 2. The law acts as an incentive to the low-wage employers to improve methods in their plants and possibly to introduce technological changes to conform to the demand of minimum wage rate. 3. Promotes workers living standards 4. A national minimum-wage is an index to economic stability; the minimum wage lend help to provide the purchasing power necessary to take all the goods of the market 5. Promotes industrial peace and order in the sense that dissatisfactions are reduced. 6. May be subject to increase at collective bargaining table 7. Reduces the evils of the “sweating system”. Sweating System: the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living.
This program would require contribution from the employees themselves, and would be unjust to require such a contribution of those whose wages are not enough for their subsistence. It is unreasonable to ask a man to set aside something for the future when he does not have enough to eat today
B. Disadvantages 1. May lead to unemployment Professor King declared “it is clear that the effect…to throw out employment all persons whose qualifications are not such that enable them to earn more than the legal minimum. If wages are forced up to the point higher than what the worker is economically worth, the power worker may be dismissed and the law is antisocial. 2. It would pauperize the worker, destroy their self-respect and make them miserable 3. Brings depression and thus impoverish the nation 4. Constitutes infringement to the worker’s right to labor as he could not dispose of the same under terms and conditions he may see fit 5. Will tend to become the maximum. 6. It causes 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.
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Societas Spectra Legis Labor Standards Compilation EMPLOYEE’S RIGHT TO A LIVING WAGE VS. RIGHT OF EMPLOYER TO REASONABLE RETURN OF INVESTMENT BALANCING OF RIGHTS
While labor is entitled to a just share in the fruits of production, the enterprise has an equally important right not only to reasonable returns on investment but also to expansion and growth.
The Constitution recognizes that the private sector plays an indispensable role something the state cannot do without. At the same breath, labor is called the primary social economic force. Because one is “indispensable” and the other is “primary”, how can it be said that one is more important, or deserves greater protecti0n than the other?(Azucena Book I p13)
POWER TO ISSUE WAGE ORDERS Art 122 LC. The Regional Boards shall have the following powers and functions in their respective jurisdiction: b. To determine and fix minimum wage rates applicable in their region, provinces or industries therein and to issue the corresponding wage orders subject to guidelines issued by the Commission (As amended by Republic Act No. 6727, June 9, 1989).
Wage Orders issued by the Boards cover only private sector workers, except for household helpers and persons in the personal employ of another, including family drivers.
Art. 120. Creation of the National Wages and Productivity Commission. - There is hereby created a National Wages and Productivity Commission, hereinafter referred to as the Commission, which shall be attached to the Department of Labor and Employment (DOLE) for policy and program coordination." 1. NWPC (a) 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; (b) To formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levels; (c) To prescribe rules and guidelines for the determination of appropriate minimum wage and productivity measures at the regional, provincial or industry levels; (d) 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; (e) 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; (f) To review plans and programs of the Regional Tripartite Wages and Productivity Boards to determine whether these are consistent with national development plans; (g) To exercise technical and administrative supervision over the Regional Tripartite Wages and Productivity Boards; (h) 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 (i) To exercise such powers and functions as may be necessary to implement this Act. 2. RTWPB (a) To develop plans, programs and projects relative to wages, incomes and productivity improvement for their respective regions; (b) To determine and fix minimum wage rates applicable in their region, provinces or industries therein and to issue the corresponding wage orders, subject to guidelines issued by the Commission; (c) 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; (d) To coordinate with the other Regional Boards as may be necessary to attain the policy and intention of this Code; (e) To receive, process and act on applications for exemption from prescribed wage rates as may be provided by law or any Wage Order; and (f) To exercise such other powers and functions as may be necessary to carry out their mandate under this Code.
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TWO METHODS OF DETERMINING WAGES Floor wage method - method which involves the fixing of a determinate amount to be added to the prevailing statutory minimum wage rates. Salary Ceiling method - the wage adjustment was to be applied to employees receiving a certain denominated salary ceiling. “
The first method was adopted in the earlier wage orders, while the latter method was used in RA 6640 and RA 6727.
The shift from the first method to the second method was brought about by labor disputes arising from wage distortions, a consequence of the implementation of the wage orders.
The shift from the first to the second method was due to the fact that the latter minimized wage distortion disputes.
NON-DIMINUTION OF BENEFITS Art. 127 LC. Non-Diminution of Benefits. No Wage Order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress WAGE ORDERS APPLICABLE IN CEBU, MANDAUE & LAPU-LAPU CITIES [2012] DAILY MINIMUM WAGE RATES REGION VII, Central Visayas As Per Wage Order No. ROVII-16 a/ Effective September 22, 2011 INDUSTRY/SECTOR Non - Agriculture Agriculture Non-Sugar Sugar Sugar Mills
CLASS A P305.00
MINIMUM WAGE RATES CLASS B CLASS C P285.00 P275.00
CLASS D P260.00
P287.00 P255.00 P275.00
P270.00 P255.00 P275.00
P240.00 P255.00 P275.00
P255.00 P255.00 P275.00
2010 DOLE Bureau of Working Conditions *BWC+ HANDBOOK ON WORKER’S STATUTORY MONETARY BENEFITS Region VII
WO No./Date of Effectivity WO14/June 16, 2008
Non – Agriculture 222.00 – 267.00
Agriculture Plantation Non – Plantation 202.00 – 249.00 202.00 – 249.00
2012 DOLE Bureau of Working Conditions *BWC+ HANDBOOK ON WORKER’S STATUTORY MONETARY BENEFITS As of January 2012 (In Pesos) Region VII
WO No./Date of Effectivity WO16/September 22, 2011
Non – Agriculture 260.00 – 305.00
Agriculture Plantation Non – Plantation 240.00 – 287.00 240.00 – 287.00
EXEMPTION FROM WAGE ORDERS: REVISED GUIDELINES ON EXEMPTION FROM WAGE ORDERS (NWPC GUIDELINES NO.01, SERIES OF 1996) Section 2, NWPC Guidelines No. 01, Series of 1996: 1. Distressed establishments 2. New business enterprises (NBEs) 3. Retail/Service establishments employing not more than ten (10) workers 4. Establishments adversely affected by natural calamities Note: The Board, upon strong and justifiable reasons, subject to the review or approval by the Commission may exempt University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation establishments other than those enumerated above if they are in accord with the rationale of exemption. These are rules on exemption from compliance with the prescribed wage increases/cost of living allowances granted by the RTWPBs.
Criteria (Section 3, NWPC Guidelines No. 01, Series of 1996)
SECTION 3. CRITERIA FOR EXEMPTION The following criteria shall be used to determine whether the applicant-establishment is qualified for exemption: A.
Distressed Establishments 1. For Stock Corporations/Cooperatives a.When deficit as of the last full accounting period or interim period, if any, immediately preceding the effectivity of the Order amounts to 20% or more of the paid-up capital for the same period; or b. When an establishment registers capital deficiency i.e., negative stockholders' equity as of the last full accounting period or interim period, if any, immediately preceding the effectivity of the Order. 2. For Single Proprietorships/Partnerships a. Single proprietorships/partnerships operating for at least two (2) years may be granted exemption: a.1 When the net accumulated losses for the last two (2) full accounting periods and interim period, if any, preceding the effectivity of the Order amounts to 20% or more of the total invested capital at the beginning of the period under review; or a.2 When an establishment registers capital deficiency i.e., negative net worth as of the last full accounting period or interim period, if any, immediately preceding the effectivity of the Order. b. Single proprietorships/partnerships operating for less than two (2) years may be granted exemption when the net accumulated losses for the period immediately preceding the effectivity of the Order amounts to 20% or more of the total invested capital at the beginning of the period under review. 3. For Non-stock Non-profit Organizations a. Non-stock Non-profit organizations operating for at least two (2) years may be granted exemption: a.1 When the net accumulated losses for the last two (2) full accounting periods and interim period, if any, immediately preceding the effectivity of the Order amounts to 20% or more of the fund balance/members' contribution at the beginning of the period under review; or a.2 When an establishment registers capital deficiency i.e.,negative fund balance/members' contribution as of the last full accounting period or interim period, if any, immediately preceding the effectivity of the Order. b.Non-stock non-profit organizations operating for less than two (2) years may be granted exemption when the net accumulated losses for the period immediately preceding the effectivity of the Order amounts to 20% or more of the fund balance/members' contribution at the beginning of the period under review. 4. For Banks and Quasi-banks a. Under receivership/liquidation Exemption may be granted to a bank or quasi-bank under receivership or liquidation when there is a certification from the Bangko Sentral ng Pilipinas that it is under receivership or liquidation as provided in Section 30 of RA 7653, otherwise known as the New Central Bank Act. b. Under controllership/conservatorship A bank or quasi-bank under controllership/conservatorship may apply for exemption as a distressed establishment under Section 3 A of this Guidelines.
B.
New Business Enterprises Exemption may be granted to New Business Enterprises established outside the National Capital Region (NCR) and Export Processing Zones within two (2) years from effectivity of the Order, classified under any of the following: 1. Agricultural establishments whether plantation or non-plantation. 2. Establishments with total assets after financing of five million pesos (P5,000,000.00) and below.
C.
Retail/Service Establishments Regularly Employing Not More Than Ten (10) Workers Exemption may be granted to a retail/service establishment when: 5. It is engaged in tye retail sale of goods and/or services to end users for personal or household use; and 6. It is regularly employing not more than ten (10) workers regardless of status, except the owner/s, for at least six (6) months in any calendar year.
D.
Establishments Adversely Affected by Natural Calamities 1. The establishment must be located in an area declared by a competent authority as under a state of calamity. 2. The natural calamities, such as earthquakes, lahar flow, typhoons, volcanic eruptions, fire, floods and similar occurrences, must have occurred within 6 months prior to the effectivity of the Wage Order. 3. Losses suffered by the establishment as a result of the calamity that exceed the insurance coverage should amount to 20% or more of the stockholders' equity as of the last full accounting period in the case of corporations and cooperatives, total invested capital in the case of partnerships and single proprietorships and fund balance/members’ contribution in the case of non-stock non-profit organizations. Only losses or damage to properties directly resulting from the calamity and not incurred as a result of normal business operations shall be considered. 4. Where necessary, the Board or its duly-authorized representative shall conduct an ocular inspection of the establishment or engage the services of experts to validate the extent of damages suffered.
EXEMPTION UNDER THE LABOR CODE (ART.98) Art 98. Application of Title. – This title [Wages] shall not apply to farm tenancy or leasehold, domestic service and persons working in their respective homes in needle work or in any cottage industry duly registered in accordance with law.
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Societas Spectra Legis Labor Standards Compilation Relate this to employment of home workers. If a home worker performs needle work in or at his home, that person is exempted from employing the minimum wage by operation of law. So employers of these employees are not obliged to comply with the minimum wage. If you are employing a house helper, you are not covered by the minimum wage by operation of law. That means you do not have to file an application for exemption, and you do not have to comply with the prevailing minimum wage.
RA 9178 (BARANGAY MICRO BUSINESS ENTERPRISES ACT OF 2002) (a) "Barangay Micro Business Enterprise," hereinafter referred to as BMBE, refers to any business entity or enterprise engaged in the production, processing or manufacturing of products or commodities, including agro-processing, trading and services, whose total assets including those arising from loans but exclusive of the land on which the particular business entity's office, plant and equipment are situated, shall not be more than Three Million Pesos (P3,000,000.00) The Above definition shall be subjected to review and upward adjustment by the SMED Council, as mandated under Republic Act No. 6977, as amended by Republic Act No. 8289. For the purpose of this Act, "service" shall exclude those rendered by any one, who is duly licensed government after having passed a government licensure examination, in connection with the exercise of one's profession. (c) "Assets" refers to all kinds of properties, real or personal, owned by the BMBE and used for the conduct of its business as defined by the SMED Council: Provided, That for the purpose of exemption from taxes and fees under this Act, this term shall mean all kinds of properties, real or personal, owned and/or used by the BMBE for the conduct of its business as defined by the SMED Council. Section 5. Who are Eligible to Register – Any person, natural or juridical, or cooperative, or association, having the qualifications as defined in Section 3(a) hereof may apply for registration as BMBE. Section 8. Exemption from the Coverage of the Minimum Wage Law. The BMBEs shall be exempt from the coverage of the Minimum Wage Law: Provided, that all employees covered under this Act shall be entitled to the same benefits given to any regular employee such as social security and healthcare benefits.
POWER TO ISSUE RULES ON EXEMPTION - NWPC ART. 121. Powers and functions of the Commission. - The Commission shall have the following powers and functions: (b) To formulate policies and guidelines on wages, incomes and productivity improvement at the enterprise, industry and national levels; (As amended by Republic Act No. 6727, June 9, 1989)
POWER TO GRANT EXEMPTIONS – RTWPB ART. 122. Creation of Regional Tripartite Wages and Productivity Boards. – xxx The Regional Boards shall have the following powers and functions in their respective territorial jurisdictions: (e) To receive, process and act on applications for exemption from prescribed wage rates as may be provided by law or any Wage Order; and
Reason for Exemption: A wage exemption is intended to assist financially beleaguered companies to meet their labor cost without endangering the viability of the company. Nasipit Lumber vs. NWPC 289 SCRA 667 “The power to prescribe guidelines is lodged in the NWPC, not in the RTWPB. This is clearly provided for in Article 121 of RA 6727, amending the Labor Code. It grants the NWPC, not the RTWPB, the power to prescribe rules and guidelines for the determination of minimum wage and productivity measure. While the RTWPB may issue wage orders under Article 122(b) of the Labor Code, such orders must be under the guidelines of the NWPC. However, the NWPC has the power not only to prescribe guidelines to govern wage but also to issue exemptions therefrom, as the said rule provides that whenever a wage order provides for an exemption, application thereto must be filed with the appropriate Board which shall process the same, subject to guidelines which the RTWPB implements. Significantly, the NWPC authorized the RTWPB to issue exemptions from wage orders, but subject to its review and approval. Since the NWPC never assented to Guideline No.3 of the RTWPB, the said guideline is inoperative and cannot be used by the latter in deciding or acting on petitioners’ application for exemption.” RCPI vs. National Wages Council 207 SCRA 581 PURPOSE OF WAGE EXEMPTION; DISTRESSED ESTABLISHMENT “The purpose of wage exemptions is to help financially distressed companies meet their labor costs without endangering the existence or viability of the firm upon which both management and labor depend for a living.
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Societas Spectra Legis Labor Standards Compilation Under the spirit of Wage Order No. 6, it is the actual ability of a firm to spend for its current needs and costs and not how the assets and liabilities of a firm may appear in the technical jargon of higher accounting principles which is important. True, the retained earnings account constitutes a company's accumulated profits of losses. However, it is not enough to treat said earnings as "earnings" in the real sense of the word for purposes of wage exemptions. For purposes of compliance with the law on wage exemptions, however, the retained earnings arising from appraisal increment do not represent hard cash but merely theoretical increases resulting from upward valuations of old fixed assets. There is no income or profit from the sale of goods or services. No income is realized from the reappraisal of fixed assets until such a time as the machinery, equipment, and other fixed assets are sold or disposed of in the event of a liquidation of assets. The NWPC ruling treats the revaluation increment as similar to the sale of fixed assets. In the same way, however, that machinery and equipment should not be sold in order to meet increases in the wages of workers (for this would destroy not only the company but the employment of the workers themselves) so should a similar attitude be adopted when machinery or equipment is not sold but merely revalued. On December 16, 1986, the NWPC, through then Secretary Augusto B. Sanchez - its chairman, approved the application for exemption of RCPI and stated, among other things, that: "The Executive Committee, therefore, recognizes the necessity to set aside technicalities required by existing criteria under NWC Policy Guidelines Nos. 6 and 8 and bestow greater significance to the actual financial condition of RCPI." NWPC found that RCPI's compliance with the Wage Orders would result in the company's financial dislocation and, accordingly, granted it the prayed for exemption. We see no reason from the records why a different treatment should apply in the following year.” C Planas Commercial vs. NLRC 303 SCRA 49 RETAIL ESTABLISHMENT “Petitioners invoke the exemption provided by law for retail establishments which employ not more than 10 workers to justify their non-liability for the salary differentials in question. They insist that PLANAS is a retail establishment leasing a very small and cramped stall in the Divisoria Market which cannot accommodate more than 10 workers in the conduct of its business. The SC is unconvinced. The records disclosed de los Reyes’ clear entitlement to salary differentials. Section 4 (c) of RA 6727 categorically provides: Retail or service establishments regularly employing not more than 10 workers may be exempted from the applicability of this Act upon application with and as determined by the appropriate Regional Board in accordance with the applicable rules and regulations issued by the Commission. Whenever an application for exemption has been duly filed with the appropriate Regional Board, action on any complaint for alleged non-compliance with this Act shall be deferred pending resolution of the application for exemption by the appropriate Regional Board. In the event that the applications for exemptions are not granted, employees shall receive the appropriate compensation due them as provided for by this Act plus the interest of 1% per month retroactive to the effectivity of this Act (emphasis supplied).”
NOTE: Power to issue Rules on exemption, NWPC; Power to grant exemptions, RTWPB
PROCEDURE FOR EXEMPTION AND APPEAL SECTION 10. PROCEDURES ON EXEMPTION A. For Filing of Application 1. An application, in three (3) legible copies may be filed with the appropriate Board by the owner/manager or duly authorized representative of an establishment, in person or by registered mail. The date of mailing shall be deemed as the date of filing. Applications for exemption filed with the DOLE regional, district or provincial offices are considered filed with the appropriate Board in the region. 2. Applications for all categories shall be filed not later than 75 days from publication of the approved implementing rules of the Order, provided that all the required documents in support of the application must be filed within the said 75-day filing period and that no further extension of filing and submission of required documents shall be allowed. In the case of NBEs, applications shall be filed not later than sixty (60) days after date of registration.3. The application shall be under oath and accompanied by complete supporting documents as enumerated under Section 4 of this Guidelines. B. For Filing of Opposition Any worker or, if unionized, the union in the applicant establishment, may file with the appropriate Board within fifteen (15) days from receipt of the notice of the filing of the application, an opposition to the application for exemption stating the reasons why the same should not be approved, furnishing the applicant a copy thereof. The opposition shall be in three (3) legible copies, under oath and accompanied by pertinent documents, if any. C. For Filing of Motion for Reconsideration The aggrieved party may file with the Board a motion for reconsideration of the decision on the application for exemption within ten (10) days from its receipt and shall state the particular grounds upon which the motion is based, copy furnished the other party and the
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Societas Spectra Legis Labor Standards Compilation DOLE Regional Office concerned. No second motion for reconsideration shall be entertained in any case. The decision of the Board shall be final and executory unless appealed to the Commission. D. For Filing of Appeal to the Commission 1. Appeal - Any party aggrieved by the decision of the Board may file an appeal to the Commission, through the Board, in two (2) legible copies, not later than ten (10) days from date of receipt of the decision. The appeal, with proof of service to the other party, shall be accompanied with a memorandum of appeal which shall state the date appellant received the decision, the grounds relied upon and the arguments in support thereof. The appeal shall not be deemed perfected if it is filed with any office or entity other than the Board. 2. Grounds for Appeal - An appeal may be filed on the following grounds: a. Non-conformity with the prescribed guidelines and/or procedures on exemption; b. Prima facie evidence of grave abuse of discretion on the part of the Board; or c. Questions of law. 3. Opposition - The appellee may file with the Board his reply or opposition to the appeal within ten (10) days from receipt of the appeal. Failure of the appellee to file his reply or opposition shall be construed as waiver on his part to file the same. 4. Transmittal of records - Within five (5) days upon receipt of the reply or opposition of the appellee or after the expiration of the period to file the same, the entire records of the case which shall be consecutively numbered, shall be transmitted by
the Board to the Commission.
WAGE DISTORTION ART. 124. Standards/Criteria for minimum wage fixing. xxx As used herein, a Wage Distortion shall mean 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.xxx (As amended by Republic Act No. 6727, June 9, 1989).
Q: When does wage distortion happen? A: It happens when the employer grants an increase only to a certain group of employees drastically reducing or eliminating the normal salary differential or gap. ELEMENTS OF WAGE DISTORTION 1. An existing hierarchy of positions with corresponding salary rates. 2. A significant change in the salary rate of a lower pay class without a concomitant increase in the salary rate of a higher one. 3. Elimination of the distinction between the two levels. 4. Existence of the distortion in the same region of the country. POSSIBLE CAUSES OF WAGE DISTORTION: 1. Government decreed increase through wage orders. 2. Merger of establishments [confusion or elimination of the status of the employee] 3. Increase granted by the employers 4. Passage of RA 6727 or the Wage Rationalization Act Prubankers Association vs. Prudential Bank and Trust Company 302 SCRA 74 “Distortion does not arise when a wage order gives the employees in one branch of a bank higher compensation than that given to their counterparts in other regions occupying the same pay scale, who are not covered by the said wage order. In short, the implementation of the wage orders in one region but not in others does not in itself necessarily result in wage distortion.” Bankard Employees Union – Workers Alliance Trade Unions vs. NLRC & Bankard GR No. 140689, Feb. 17, 2004 The Board of Directors of Bankard, Inc. approved a “new salary scale” made retroactive for the purpose of making its hiring rate competitive in the industry’s labor market. This increased the hiring rate of new employees by P1000 for levels I & V and P900 for levels II, III and IV. Petitioner pressed for the increase in the salary of its old, regular employees. Bankard replied that there was no obligation on the part of the management to grant to all its employees the same increase in and across the board manner. SC ruled that: “Since it is clear that there is no hierarchy of positions between the newly hired & regular employees of Bankard, first element is wanting.
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Societas Spectra Legis Labor Standards Compilation The formulation of wage structure through the classification of employees is a matter of management judgment and discretion. In relation to the 3rd element, the said gap is not significant as to obliterate or result in severe contraction of the intentional qualitative differences in the salary rates between the employee group. Furthermore, petitioner cannot legally obligate Bankard to correct the alleged “wage distortion” as the increase in the wages and salaries of the newly hired was not due to a prescribed law on wage order. Reliance in Metro Transit Ong vs. NLRC is misplaced because there existed a “company practice” in that case, in which not present in the instant case.”
ILLUSTRATIONS: 1)
Government decreed increases through issuance of wage orders 2 Kinds of wage orders: (a) The Congress provides for a statutory minimum wage (during the martial law era) and an increase is given and added to the daily wage (b) With the passage of RA 6727, instead of providing for a fixed amount for an increase, the wage order now fixes a minimum wage below which the wages cannot fall.
2)
Merger of two establishments whereby the employees of the dissolved company are absorbed by the surviving company Example: Magnolia Nestle Casual P160 P190 Permanent P190 P200 Magnolia-Nestle P190 P190
Casual – Permanent – There will be wage distortion. 3)
Employer granted increases to the workers of an establishment The employer grants an increase affecting only a certain group of employees thereby reducing drastically or totally eliminating the salary gap between such group and the next higher level.
4)
Passage of RA 6727 Example: SM Company Casual – P145 a wage order is passed – Casual – P190 Permanent – P180 (particularly Wage Order #8, creasing the minimum wage to P190 - Permanent – P195 Wage distortion now exists.
METHODS OF RESOLVING WAGE DISTORTION (Brought about by the enactment or passage of a wage order)
The court has pointed out that thru the passage of Art 124, the law recognizes the validity of negotiated wage increases to correct wage distortion.
The legislative intent is to encourage the parties to seek solution to the problem of wage distortions through voluntary negotiation or arbitration, rather than strikes, lockouts, or other concerted activities of the employees or management.
PROCEDURE FOR RESOLVING IN AN ORGANIZED ESTABLISHMENT ORGANIZED ESTABLISHMENT – Refers to a firm or a company where there is a recognized or certified exclusive bargaining agreement. (1)
The dispute is settled through the GRIEVANCE PROCEDURE under their CBA; GRIEVANCE MACHINERY – is simply a detailed procedure of how the parties would resolve a dispute arising from: (a) The interpretation or implementation of the CBA and (b) Thos arising from the interpretation or enforcement of company personnel policies. WHAT SHOULD BE CONTAINED IN A CBA? 1. Terms and Conditions of employment 2. Wages
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Societas Spectra Legis Labor Standards Compilation 3. Hours of work 4. Procedure for resolving grievances (including the chosen Arbitrator) PARTIES WILL BE SUBMITTED TO VOLUNTARY ARBITRATION UNDER THEIR CBA No number of VA specified by law No prohibition of Labor Arbiter to be Voluntary Arbiter NCMB has a list of VA Decision of VA is final and executory after 10 days from the receipt of the copy of the decision by the parties 1 One MR is allowed within the 10 day period A TRO may be applied with CA or SC to stay execution of the assailed judgment Petition for Review under Rule 43 may be made to CA for question of law or facts or both, then to SC under Rule 45 Government subsidy can be appropriated if one cannot afford voluntary arbitration The Legal Remedy of the Decision of the Voluntary Arbitrator (1) File a Motion for Reconsideration within 10 days from the receipt of the copy of the decision by the parties; (2) To the Court of Appeals by way of Petition for Review under Rule 43 (Quasi-Judicial Agency) within 15 days from notice of the award, judgment, final order or resolution, or from the date of its last publication Luzon Stevedoring Employees Union Case Q: If appeal, will that stay the decision of the voluntary arbitration? A: No, because the decision of the Voluntary Arbitrator is final and not appealable, but a Temporary Restraining Order and a Writ of Preliminary Injunction may be applied for. So use Petition for Review with Motion for Stay, because of its final and executory nature. (3) Then to the Supreme Court under Rule 45 on questions of law (Appeal by Certiorari) within 15 days from receipt of the decision of the Court of Appeals or receipt of the denial of the motion for reconsideration. NOTE: All workers paid by result, including those who are paid on piecework, takay, pakyaw, or task basis, shall receive not less than the prescribed wage rates per eight (8) hours of work a day, or a proportion thereof for working less than eight (8) hours. All recognized learnership and apprenticeship agreements shall be considered automatically modified insofar as their wage clauses are concerned to reflect the prescribed wage rates. (As amended by RA 6727)
PROCEDURE FOR RESOLVING WAGE DISTORTION IN AN UNORGANIZED ESTABLISHMENT UNORGANIZED ESTABLISHMENT –where there is no recognized union or collective bargaining agreement (1) The employers and the workers should negotiate for the adjustment of the wage rates Should the employer refuse to grant an adjustment, then B should file a complaint with the NCMB on the ground of wage distortion. (1) If the negotiations fail, the dispute should be referred to the National Conciliation and Mediation Board[NCMB] for conciliation PROCEDURE: a. This procedure is initiated by the filing of a letter-request with the NCMB on the ground of wage distortion. b. The Regional Director of the NCMB will now issue a NOTICE directed to the employer inviting him to meet with them at a designated time, date and place. c. At the NCMB, the aggrieved employee(s) and the employer will have to be present. This proceeding will be supervised by an NCMB Mediator. This is entirely different from the first step because the third person (NCMB Mediator) now interferes and asks the employers“How much can you afford?” And to the employees“How much increase do you want?” In so doing, it takes into consideration the financial capacity of the employer and the need of the 1
Teng vs. Pahagac, G.R. No. 169704, November 17, 2010
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3)
d.
The NCMB will try to settle the dispute through AMICABLE SETTLEMENT. Example: Employer wants to pay P1 increase. Employee wants P5 increase NCMB will settle for P3 and suggests this solution to both parties.
e.
Should the employer refuse to accede to the remedy suggested by the NCMB, the NCMB cannot make negotiations to bind both parties because the main purpose of NCMB is to conciliate and it will suggest that the parties submit to VOLUNTARY ARBITRATION.
If no settlement is arrived after 10 calendar days of conciliation, the dispute should be brought to the appropriate branch of the NLRC for COMPULSORY ARBITRATION, which shall conduct continuous hearings and decide the dispute within 20 calendar days from the time said dispute is submitted for compulsory arbitration. Appropriate branch of NLRC means to Labor Arbiter (a complaint has to be filed), then appealable to NLRC within 10 calendar days (no appeal), remedy is Rule 65 to CA, then Rule 45 to SC. This is presided over by Labor Arbiters (Article 217) The proceeding is usually adversarial in character because it is initiated by a complaint before the Labor Arbiter and the other party is required to answer. So, there will be a full-blown hearing to resolve wage distortion Any decision coming out of the Labor Arbiter shall be binding on both parties, whether they like it or not.
NOTE: In the case of UNORGANIZED ESTABLISHMENTS: Prior to the time the parties submit their dispute to the NCMB, they could resort to VOLUNTARY ARBITRATION. VOLUNTARY ARBITRATION is not compulsory; the parties will have to give their consent if they want to submit their dispute to voluntary arbitration. They will be given a LIST of voluntary arbitrators from which they will pick out those which they have chosen to be the arbitrators. However, most often than not, the parties do not submit their dispute to voluntary arbitration because most of them do not trust the Voluntary Arbitrators. The decision of the Voluntary Arbitrator is BINDING upon the parties. Why? This is a contractual proceeding and the contract is the law of the parties. In resolving wage distortions, you do not always consider monetary matters. You also have to take into consideration the length of service, the skills. Is the decision of the voluntary Arbitrator appealable to the NLRC? No, remedy is Rule 43.
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WAGE DISTORTION RESOLUTION FLOWCHART ORGANIZED ESTABLISHMENT
UNORGANIZED ESTABLISHMENT
GRIEVANCE MACHINERY under the Collective Barganiing Agreement
EE and ER NEGOTIATIONS
VOLUNTARY ARBITRATION UNDER CBA Decision of VA is F&E after 10 days from the receipt of the copy of the decision by the parties One MR is allowed within 10 day period Because of its Final and Executory nature, only a TRO from the CA/SC will stay the execution of the VA’s judgment
APPEAL TO CA FROM QUASI-JUDICIAL BODIES (RULE 43) The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for new trial or reconsideration; Involves questions of fact, of law, or mixed questions of fact and law. Correct remedy should be Petition for Review with Motion to Stay
CONCILIATION UNDER THE NCMB NCMB will try to settle the dispute through Amicable Settlement Settlement must be arrived at within 10 days from conciliation
COMPULSORY ARBITRATION UNDER THE LABOR ARBITER If no settlement is arrived within 10 calendar days from conciliation LA shall decide the case within 20 calendar days from the time said dispute is submitted for CA
Appeal to NLRC Must be within 10 calendar days from receipt of decision Decision is Unappealable MR allowed within 10 days
PETITION FOR CERTIORARI IN THE COURT OF APPEALS (RULE 65) Not later than 60 days from notice of the judgment, order or resolution Questions of fact or law or both
VOLUNTARY ARBITRATION REQUIRES CONSENT FROM BOTH PARTIES If employer refuses to accede to the remedy suggested by NCMB; OR Directly after failure of negotiations Decision of VA is F&E after 10 days from the receipt of the copy of the decision by the parties One MR is allowed within 10 day period Because of its Final and Executory nature, only a TRO from the CA/SC will stay the execution of the VA’s judgment
APPEAL TO CA FROM QUASIJUDICIAL BODIES (RULE 43) The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for new trial or reconsideration; Involves questions of fact, of law, or mixed questions of fact and law. Correct remedy should be Petition for Review with Motion to Stay
APPEAL BY CERTIORARI IN THE SUPREME COURT UNDER RULE 45 Within fifteen (15) days from notice of the judgment or final order or resolution Pure Questions of Law
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Societas Spectra Legis Labor Standards Compilation JURISDICTION OVER WAGE DISTORTION DISPUTES LABOR ARBITRATION Reference of a labor dispute to a third party for determination on the basis of evidence and arguments presented by such parties, who are bound to accept the decision.
Arbitration may be classified on the basis of obligation on which it is based, it may either be: 1. VOLUNTARY ARBITRATION
It is the policy of the State to encourage voluntary arbitration on all labor-management disputes. Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. (Implementing Rules, Book V, Rule XIX, Sec. 5.)
Defined as a contractual proceeding whereby the parties to any dispute or controversy in order to obtain a speedy and inexpensive final disposition of the matter, select a judge of their own choice and by consent, submit their controversy to him for determination.
Under voluntary arbitration, the "judge" is named by the parties, pursuant to a voluntary arbitration clause in their collective agreement. He is an impartial third person authorized by the parties to make a final and binding decision or award.
A voluntary arbitrator "is not a public tribunal imposed upon the parties by a superior authority which the parties are obliged to accept. He has no general character to administer justice for a community. He is rather part of a system of self-government created by and confined to the parties." [Maurice S. Trotta, Arbitration of Labor Management Disputes, American Management Association, New York, 1974, p. 73.]
Voluntary arbitration, indeed, is a private judicial system.
The judge is called a VOLUNTARY ARBITRATOR. The power of voluntary arbitrator to try and decide the case is the same as that of a Labor Arbiter.
The parties can agree to select a Labor Arbiter as a voluntary arbitrator because it is as to the agreement of the parties.
Arbitration may be initiated either by 1) a Submission Agree¬ment or 2) by a Demand or Notice invoking a collective agreement arbitration clause. Sometimes both instruments are used in a case.
Although the contract may establish the breadth of the arbitra¬tor's power and the limits of his authority, his power may be more sharply defined in the submission agreement.
In Philippine context, the "judge" in voluntary arbitration is called arbitrator, while that in compulsory arbitration is labor arbiter.
Proceedings are Non-litigious in nature, not governed by technical rules of procedure used in courts but due process is always observed.
VOLUNTARY ARBITRATOR Any person accredited by the Board as such; or Any person named or designated in the CBA by the parties to act as their voluntary arbitrator; or One chosen, with or without the assistance of the NCMB, pursuant to selection procedure agreed upon in the CBA; or Any official that may be authorized by the Sec of Labor to act as voluntary arbitrator upon the written request and agreement or the parties to a labor dispute.
2. COMPULSORY ARBITRATION
Process of settlement of labor disputes by a government agency [or by other means provided by the government] which has the authority to investigate and to make award which is binding on all the parties.
Parties are compelled to forgo their right to strike
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A disinterested person or party is usually appointed by the state.
It is compulsory because the law declares the dispute subject to arbitration, regardless of the consent of the parties.
Done by the Regional Arbitration Branch of NLRC [refer to Art 217]
It is an adversarial proceeding initiated by a complaint [usually by a union] for wage distortion before the Labor Arbiter. The other party is required to answer.
It is the Labor Arbiter who is clothed with the original and exclusive authority to conduct compulsory arbitration under Art. 217.
Proceedings after a labor arbiter's decision is brought up to the National Labor Relations Commission cannot be considered as part of the arbitration proceedings. This is because in the appeal stage, the Commission merely re-views the Labor Arbiter's decision for errors of fact or law. It does not duplicate the proceedings held at the Labor Arbiter's level. Thus, the clause "pending final resolution of the case by arbitration" should be understood to be limited only to the proceedings before the Labor Arbiter, so that when the latter rendered his decision, the case could be considered finally resolved by arbitration. [See Philippine Airlines, Inc. vs. National Labor Relations Commission, G.R. No. 55159, Dec. 22, 1989.]
The Commission itself, through any of its divisions, also conducts compulsory arbitration, but only in "national interest cases" certified or referred to it by the DOLE secretary under Art. 263(g).
SPECIAL CIVIL ACTIONS RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS SECTION 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (1a) SECTION. 4. When and where to file the petition.—The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from notice of the denial of the motion. If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the court’s appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by the law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or an omission of a municipal or a regional trial court , the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction. (as amended by A.M. 07-7-12-SC)
RULE 43 APPEALS FROM THE COURT OF TAX APPEALS AND QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS SECTION 1. Scope. — This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (n)
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Societas Spectra Legis Labor Standards Compilation SEC. 2. Cases not covered. — This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. (n) SEC. 3. Where to appeal. — An appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law. (n) SEC. 4. Period of appeal. — The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (n) SEC. 12. Effect of appeal. — The appeal shall not stay the award, judgment, final order of resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. (10a)
RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT SECTION 1. Filing of petition with Supreme Court.—A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise only questions of law which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion filed in the same action or proceeding at any time during its pendency. (as amended by A.M. 07-7-12-SC) SEC. 2. Time for filing; extension.—The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner’s motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. (1a, 5a) SEC. 5. Dismissal or denial of petition.—The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (3a) SEC. 6. Review discretionary.—A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court’s discretion, indicate the character of the reasons which will be considered: (a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or (b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise of the power of supervision. (4a)
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TOPIC 5: VIOLATION OF WAGE ORDERS DOUBLE INDEMNITY AND IMPRISONMENT RA 6727 [amended by RA 8188] Section 12. Any person, corporation, trust, firm, partnership, association or entity which refuses or fails to pay any of the prescribed increases or adjustments in the wage rates made in accordance with this Act shall be punished by a fine not less than Twenty-five thousand pesos (P25,000) nor more than One hundred thousand pesos (P100,000) or imprisonment of not less than two (2) years nor more than four (4) years, or both such fine and imprisonment at the discretion of the court: Provided, That any person convicted under this Act shall not be entitled to the benefits provided for under the Probation Law. "The employer concerned shall be ordered to pay an amount equivalent to double the unpaid benefits owing to the employees: Provided, that payment of indemnity shall not absolve the employer from the criminal liability imposable under this Act.” "If the violation is committed by a corporation, trust or firm, partnership, association or any other entity the penalty of imprisonment shall be imposed upon the entity's responsible officers, including, but not limited to, the president, vice-president, chief executive officer, general manager, managing director or partner."
Failure or refusal to pay mandatory wage increase is considered a criminal offense under Republic Act No. 8188, approved on June 11, 1996. The violator may be sentenced to imprisonment of not less than two (2) years nor more than four (4) years. He may also be punished by a fine of P25,000 to PIOO.OOO.OO. Moreover, he shall be ordered to pay an amount equivalent to double the unpaid benefits owing to the employee.
Note: Philippine Hotelier, INC. vs. National Union The Court, however, finds no basis to hold Dusit Hotel liable for double indemnity. Under Section 2 (m) of DOLE Department Order No. 10, Series of 1998, 30 the Notice of Inspection Result "shall specify the violations discovered, if any, together with the officer's recommendation and computation of the unpaid benefits due each worker with an advice that the employer shall be liable for double indemnity in case of refusal or failure to correct the violation within five calendar days from receipt of notice". A careful review of the Notice of Inspection Result dated 29 May 2002, issued herein by the DOLE-NCR to Dusit Hotel, reveals that the said Notice did not contain such an advice. Penalty for Violation of the Prescribed Increase or Adjustment in the Wage Rate (RA 8188): 1. 2. 3. 4.
Payment of a fine of not less than P25,000 nor more than P100,000; or Imprisonment for not less than 2 years nor more than 4 years, the imprisonment being non-probationable. (The case should therefore be filed with the MTC pursuant to BP 129 as amended by RA 7691); or Both imprisonment and fine, at the discretion of the Court. Paying double the unpaid benefits/amounts owing the employees, provided that the Payment of Indemnity shall not absolve the employer from criminal liability imposable under the Labor Code.
Aside from the penal provision provided under RA 6727, there are provisions in the Labor Code on the enforcement and recovery of minimum wage provisions. There are general two provisions for the enforcement and recovery of minimum wage provisions – Articles 128 and 129. Remember that the minimum wage is fixed by a wage order and there is a built-in mechanism in the Labor Code which provides the so-called enforcement tools for the recovery of wages, particularly the minimum wage provisions.
Article 128 – enforcement machinery in aid of the visitorial power of the Secretary of Labor. This is described as inquisitorial. Why? Because the SOLE inquires – ask for documents, investigate, etc.
Article 129 – machinery of wage recovery via the administrative process initiated by a complaint. This is described as adversarial. Why? Because it requires a complaint for its initiation.
DOLE D.O. No. 10, SERIES OF 1998 [GUIDELINES ON THE IMPOSITION OF DOUBLE INDEMNITY FOR NON-COMPLIANCE WITH THE PRESCRIBED INCREASES OR ADJUSTMENT IN WAGE RATES] Republic of the Philippines DEPARTMENT OF LABOR AND EMPLOYMENT Manila
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Societas Spectra Legis Labor Standards Compilation DEPARTMENT ORDER NO. 10 Series of 1998 Guidelines on the imposition of Double Indemnity For Non-Compliance with the Prescribed Increases or Adjustments In Wage Rates Pursuant to the rule-making authority of the Secretary of Labor and Employment under Article 5 of the Labor Code, as amended, and Section 13 of the Republic Act No. 6727, and to ensure uniformity in the implementation of the provisions of Republic Act No. 8188 entitled "An Act Increasing the Penalty and Imposing Double Indemnity for Violation of the Prescribed Increases or Adjustments in the Wage Rates, amending for the Purpose Section Twelve of Republic Act Numbered Sixty-Seven Hundred Twenty Seven. Otherwise known as the “Wage Rationalization Act". This Guidelines is hereby promulgated for the guidelines of and compliance by all concerned. SECTION 1. Coverage - This Guidelines shall apply to any person, corporation, trust, firm, partnership, association, organization, or entity in the capacity of an employer. SECTION 2. Definition of Terms - As used in this Guidelines, the following terms shall mean: "Act" refers to Republic Act No. 8188. "Department" refers to the Department of Labor and Employment. "Regional Director" refers to the Director of the Regional Office of the Department. "Board" refers to the Regional Tripartite Wages and Productivity Board. "Employer" refers to any person, corporation, trust, firm, partnership association or entity acting directly or indirectly in the interest of the employer in relation to an employee. "Employee" refers to any individual employed by an employer. "Wage Rates" refers to the lowest basic pay that the employer can pay his workers including cost of living allowances as fixed by the Board, but excludes other wage-related benefits such as overtime pay, bonuses, night shift differential pay, holiday pay, premium pay, 13th month pay, premium pay, leave benefits, among others. "Wage Order " refers to the order promulgated by the board pursuant to its wage fixing authority. "Prescribed increases or Adjustments" refer to the amount of increase or adjustment in the wage rate of workers fixed by the Board which the Employer is mandated to pay upon effectivity of a wage order "Violation" refers to the refusal or failure to pay an employee of the prescribed increases or adjustments as may be established by the Regional Director. "Unpaid Benefits" refer to the prescribed wage rates which the employer failed to pay upon the effectivity of a wage order exclusive of other wage-related benefits. "Unpaid benefits" as herein understood shall be the principal basis for computing the double indemnity. "Double Indemnity" refers to the payment to a concerned employee of the prescribed increases or adjustments in the wage rates, which was not paid by an employer in amount equivalent to twice the unpaid benefits owing to such employee. "Notice of Inspection Result" refers to the inspection form duly accomplished and issued by the labor standards enforcement officer to the employer or his representative after the completion of the inspection. The notice shall specify the violations discovered, if any, together with the officers recommendation and computation of the unpaid benefits due each worker with an advice that the employer shall be liable for double indemnity in case of refusal or failure to correct the violation within five (5) calendar days from receipt of notice. "Compliance order" refers to the order issued by the regional director, after due notice and hearing conducted by himself or a duly authorized hearing officer finding that a violation has been committed and directing the employer to pay the amount due each worker within ten (10) calendar days from receipt thereof. SECTION 3. Issuance of a Compliance Order. In cases where the Secretary of Labor and Employment of the Regional Director has acquired jurisdiction over a violation as defined herein pursuant to the visitorial and enforcement powers vested upon him by Article 128 (b) of the Labor Code as amended, he shall have the power to issue a compliance order to give effect to the provisions of the Act. Such order shall be subject to the following principles. In case of routine inspection where the violation has been established after due notice and hearing where appropriate the Regional Director shall, after (7) calendar days from the employer's receipt of the notice of inspection result, issue a compliance order. In case of complaint inspection, the Regional Director shall call for summary investigation and after due notice and hearing shall, where appropriate issue a compliance order. The compliance order shall directly the employer to pay the amount due each worker within ten (10) days from receipt thereof and to submit proof of compliance. The order shall specify the amount due each worker and shall include the computation on which the order was based. Upon the finality of the compliance order, the Regional Director shall cause the issuance of a writ of execution for its enforcement. No compliance order shall be issued during the pendency of an application for exemption from a wage order duly filed with the appropriate board. SECTION 4. Double Indemnity, when to Start Period of Compution. The computation for double indemnity as herein defined shall start from the effectivity of the prescribed increases or adjustments as indicated in the wage order.
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Societas Spectra Legis Labor Standards Compilation The basis for the computation of double indemnity shall be limited to the unpaid benefits as defined herein. Where there is partial compliance with the prescribed increase or adjustment the basis for computing double indemnity shall be the balance of unpaid benefits reckoned from the effectivity of the wage order.
JURISDICTION REGULAR COURTS BP 129, AS AMENDED REGIONAL TRIAL COURTS Section 19. Jurisdiction in civil cases. – Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; (2) In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds Twenty thousand pesos (P20,000.00) or for civil actions in Metro Manila, where such the value exceeds Fifty thousand pesos (50,000.00) except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; (3) In all actions in admiralty and maritime jurisdiction where he demand or claim exceeds One hundred thousand pesos (P100,000.00) or , in Metro Manila, where such demand or claim exceeds Two hundred thousand pesos (200,000.00); (4) In all matters of probate, both testate and intestate, where the gross value of the estate exceeds One hundred thousand pesos (P100,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Two hundred thousand pesos (200,000.00); (5) In all actions involving the contract of marriage and marital relations; (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions; (7) In all civil actions and special proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Courts of Agrarian Relations as now provided by law; and (8) In all other cases in which the demand, exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and costs or the value of the property in controversy exceeds One hundred thousand pesos (100,000.00) or, in such other abovementioned items exceeds Two hundred thousand pesos (200,000.00). (as amended by R.A. No. 7691*)
FIRST LEVEL COURTS Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil cases. – Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: (1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where there are several claims or causes of action between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions; (2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. (3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That value of such property shall be determined by the assessed value of the adjacent lots. (as amended by R.A. No. 7691)
REGIONAL DIRECTOR ART. 128. Visitorial and enforcement power. – (a) The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any
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Societas Spectra Legis Labor Standards Compilation fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto. (b) Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues* supported by documentary proofs which were not considered in the course of inspection. (As amended by Republic Act No. 7730, June 2, 1994). ** The phrase after the word “issues”, was an amendment by RA 7730 to delete the clause “which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection.”+ An order issued by the duly authorized representative of the Secretary of Labor and Employment under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from. (As amended by Republic Act No. 7730, June 2, 1994). (c) The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or depa rtment of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation. (d) It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of Labor and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. (e) Any government employee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service. (f) The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code.
This Article is the nucleus of administrative enforcement of Philippine labor laws. The job is lodged with the Secretary of Labor and Employment, the regional directors and other duly authorized representatives. The enforcement function is broad. It covers "any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement" of the Code and any labor law, wage order or regulations.
Law enforcement includes inspection of establishments, but every inspection should be supported by an authorization duly issued. Where violations are found, appropriate report will be submitted. Subsequently, a "compliance order" may issue which is a command to rectify the violation found and proven.
The issuance of a Compliance Order must observe the "cardinal primary requirements" of due process in administrative proceedings.
The requirements are: (1) The alleged violator (employer or anyone else) must first be heard and given adequate opportunity to present evidence on his behalf; (2) The evidence presented must be duly considered before any decision is reached; (3) The decision should be based on substantial evidence which means evidence adequate for a reasonable mind to support a conclusion; (4) the decision is based on evidence presented in the hearing, or at least contained in the record and disclosed to the parties; (5) The decision is that of the decision-making authority and not mere views of subordinates; and (6) the decision should explain the issues involved and the reasons for the decision rendered.
It should be noted that the authority under Art. 128 may be exercised regardless of monetary value involved, unlike in Art 129 which fixes a maximum of P5,000.00 per claimant. R.A. No. 7730 (June 2, 1994) changed Art. 128(b) to its present wording so as to free it from the jurisdictional limitations found in Art. 129 and 217.
In the exercise of his power under this Article the Secretary of Labor and Employment may even order the stoppage of work or suspension of operations of the inspected establishment or parts of it. The employer, if at fault, may be ordered to pay the employees' wages during the work stoppage or suspension of operations. But, again, due process of law must be observed.
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A regional director of DOLE has the power to order rectification of a labor standards violation even if such violation is not mentioned in the employee's complaint. (See Aboitiz Shipping Corp. vs. De la Sema, etc.,G.R. No. 88538, April 25, 1990.)
The regional director, in cases where employer-employee relationship still exists, has the power to order and administer, after due notice and hearing, compliance with the labor standards provisions of the Labor Code and other legislation based on the findings of labor regulation officers or industrial safety engineers made in the course of inspection. He may also issue writs of execution to the appropriate authority for the enforcement of his orders in line with the provisions of Article 128 in relation to Article 289 and 290 of the Labor Code.
However, in those cases where the employer contests the findings of the labor standards and welfare officers and raises issues which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection, the regional director must endorse the case to the appropriate arbitration branch (labor-arbiter) of the NLRC for adjudication (Sec. 1, Rule X, Book III, Omnibus Rules Implementing the Labor Code).
The visitorial enforcement power is thorough and piercing; it extends even to issues not formally included in the complaint.
LABOR ARBITER ART. 217. Jurisdiction of the Labor Arbiters and the Commission. – (a) Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement. (b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. (c) Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. (As amended by Section 9, Republic Act No. 6715, March 21, 1989).
This Article enumerates the cases falling under "original and exclusive" jurisdiction of labor arbiters. This gives the impression that none but a labor arbiter can hear and decide the six categories of cases listed. But this is not really so. Any or all of these cases can, by agreement of the parties, be presented to and decided with finality by a voluntary arbitrator or panel of voluntary arbitrators. (See Articles 261 and 262.)
The law prefers or gives primacy to voluntary arbitration (Art. 211) instead of compulsory arbitration. And this, in turn, is the reason the law (Art. 261, last paragraph, and Art. 217 [c]) forbids a labor arbiter from entertaining a dispute properly belonging to the jurisdiction of a voluntary arbitrator.
The cases a labor arbiter can hear and decide are employment-related. One unifying element runs through all the cases and disputes enumerated in Art. 217. That element is employment connection. But, additionally, as regards money claims, the law applicable to grant the relief sought should likewise be considered. If the principal relief sought will be resolved by applying the Labor Code or other labor relations statute or a collective bargaining agreement, then the case belongs to the labor arbiter. But if the applicable law is the general civil law, the jurisdiction over the dispute belongs to the regular courts, such as the regional trial court. (See San Miguel Corf. vs. NLRC, G.R. No. 80774, May 31,1988.)
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TOPIC 6: WAGE ENFORCEMENT AND RECOVERY TWO ENFORCEMENT TOOLS Article 128. Visitorial and enforcement power. The Secretary of Labor and Employment or his duly authorized representatives, including labor regulation officers, shall have access to employer’s records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto. Notwithstanding the provisions of Articles 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. The Secretary or his duly authorized representatives shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. (As amended by Republic Act No. 7730, June 2, 1994). An order issued by the duly authorized representative of the Secretary of Labor and Employment under this Article may be appealed to the latter. In case said order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment in the amount equivalent to the monetary award in the order appealed from. (As amended by Republic Act No. 7730, June 2, 1994) The Secretary of Labor and Employment may likewise 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. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation. It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the orders of the Secretary of Labor and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. Any government employee found guilty of violation of, or abuse of authority, under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service. The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code. Article 129. Recovery of wages, simple money claims and other benefits. Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account by, and shall be paid on order of, the Secretary of Labor and Employment or the Regional Director directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper because he cannot be located after diligent and reasonable effort to locate him within a period of three (3) years, shall be held as a special fund of the Department of Labor and Employment to be used exclusively for the amelioration and benefit of workers. Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall resolve the appeal within ten (10) calendar days from the submission of the last pleading required or allowed under its rules. The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this Code. (As amended by Section 2, Republic Act No. 6715, March 21, 1989)
JURISDICTION, SCOPE AND LIMITATIONS Cirineo Bowling Plaza vs. Gerry Sensing GR 146572, 01/14/2005 The visitorial and investigatory power under ART 128(a) is broad enough to cover any fact, condition or matter related to the enforcement not only of the Labor Code but of any labor law. Such power is likewise unlimited by the amount of monetary liability involved. The liability, determined through appropriate proceedings, may be enforced through an order or writ of execution regardless of the amount involved, according to ART 128b as amended by RA 7730. Pursuant to RA 7730, the jurisdictional limitations imposed by ART 129 on the visitorial and enforcement powers of the RD under ART 128, have been repealed. The phrase “NOTWITHSTANDING THE PROVISIONS OF ARTICLES 129 AND 217 OF THE LC TO THE
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Societas Spectra Legis Labor Standards Compilation CONTRARY,” erases all doubts as to the amendatory nature of RA b7730. The amendment in effect overturned the rulings in the Aboitiz and Servandos cases in so far as the restrictive effect of ART 129 on the use of the power under ART 128 is concerned.”
The SOLE or his duly authorized representative, in the exercise of their visitorial and enforcement powers, are now authorized to issue COMPLIANCE ORDERS to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of the labor employment and enforcement officers or industrial safety engineers made in the course of inspection, SANS, any restriction with respect to the jurisdictional amount of 5, 000 provided under ART 129 and ART 217.
Q: Does the Labor Code confer this Visitorial Power to be exercised by the Regional Director? A: YES. The Regional Director is the duly authorized representative of the SOLE. JURISDICTION “Art. 129. Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Xxxx” Article 217. Jurisdiction of the Labor Arbiters and the Commission. Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: Unfair labor practice cases; Termination disputes; If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement. The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. (As amended by Section 9, Republic Act No. 6715, March 21, 1989)
PROCEDURE ON VISITORIAL AND ENFORCEMENT POWER (a) There is a report on the non-compliance of the employer with the minimum wage law. (b)
Upon receipt of the Regional Director of this information, there will be an ORDER OF INSPECTION.
The SOLE or the Regional Director. The order of inspection will simply state that this person is authorized to conduct an inspection on this date, place and time.
(c) This inspection authority will then be implemented by a Labor and Employment Officer of the DOLE. And this person will visit the employer’s premises and then conduct an inspection.
He will inspect the payroll to determine if indeed there was underpayment of wages, inspect the employer’s premises, interview and ask the employees themselves if they are indeed paid such amount of wages, compare the payment records and confer with the employees.
(d)
If the inspector finds that there is a violation or underpayment of wages, he will make an INSPECTION REPORT Usually embodied in a NOTICE OF INSPECTION RESULTS. All violations that the Labor Employment Officer will find in the employer’s premises will be enumerated and be put as his findings in the notice.
(e)
The employer is first informed of the results of the inspection.
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Societas Spectra Legis Labor Standards Compilation (f)
The employer is given the opportunity to comply within 7 days; or
(g)
The employer may contest the notice of inspection results and raise issues which cannot be resolved without considering DOCUMENTARY PROOFS that are not verifiable in the normal course of inspection.
(h)
(i)
If on the other hand, the employer does not or fails to contest the notice of inspection result, as well as fails to comply with such notice.
The Regional Director will issue an ORDER OF COMPLIANCE.
The order of compliance will basically be based on the notice of inspection results, so if the inspection says that you are underpaying 10 workers or just paying them P100, the RD will issue an order of compliance ordering this time the employer to pay the following workers the following sums of money.
Remedy of the employer from the order of compliance.
(j)
HOW SOON? The employer shall raise such objections during the hearing of the case or at any time after the receipt of the notice of inspection results.
The order of compliance can be questioned within 10 calendar days thru an APPEAL with SOLE (filing of bond) Then the employer will file a motion for reconsideration with the RD within 7 calendar days. If the employer files it beyond 7 days but not beyond 10 days, that will be considered an appeal from the RD to the SOLE.
If the employer will not file a motion for reconsideration, what will happen to the order of compliance? It becomes final and executory.
The SOLE or RD can issue a WRIT OF EXECUTION, then it will levy. Pursuant to Rule 39 in Civil Procedure, the final judgment can be subject of execution and the RD can levy on the properties of the employer to satisfy the judgment or the order of compliance. Note: that this is if there is no obedience to the order of compliance or there is no contesting done or no motion for reconsideration resorted to by the employer in that regard.
(k) On the other hand, if the employer validly contests by raising issues supported by documentary proofs which were not considered in the course of inspection – what will happen?
Can the RD still proceed with the case? NO. The RD will endorse the case to the appropriate Arbitration Branch of the NLRC. Why? It is no longer a summary proceeding. It now becomes an adversarial proceeding which the RD is not equipped to handle. RD has no other recourse but to endorse it to the Arbitration Branch of the NLRC.
Note: It is very important that you be able to contest the notice of inspection results within the time frame authorized by the RULES ON DISPOSITION OF LABOR STANDARDS CASES. Because if you fail or if you contest but the wrong way, or you fail to contest it at all, then the RD will have no recourse but to issue an order of compliance. And then your remedy therefore is no longer to contest but to a motion for reconsideration or probably an appeal to the SOLE. In case you still fail to do that, then that order of compliance will become final and executory for which the SOLE or the Rd for that matter is now authorized to issue a writ of execution. Then that is the end of the case.
SOLE (no appeal), Remedy to CA R65, then to SC Rule 45. If SOLE personally conducts inspection, Remedy to CA Rule 65, then to SC Rule 45.
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VISITORIAL AND ENFORCEMENT POWER FLOWCHART START
Issue Inspection Authority (RD)
Inspection by LSWO
No Violation
Issue Notice of Inspection Result (NIR)
END Endorsed to Labor Arbiter employer contests the findings of the Labor Standards and Welfare Officers and the issues cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection
Yes Issue NIR
Compiled after 7 days
Yes END
Appeal from decision of LA to NLRC Within 10 days from receipt of decision MR allowed within 10 days
No Complaint Contested Issue Compliance Order (CO)
Compiled after 7 days
No
Issue Writ of Execution
Yes
Conduct Hearing
Decision
Settled
No
Yes END
File MR within 7 days – CO final and executor after 10 days from Resolution of MR if not appealed
Appeal to SOLE (Bond) Within ten (10) calendar days from receipt of RD Decision. Grounds: (1) Prima facie Grave Abuse of Discretion; (2) Order was secured through fraud, coercion or graft and corruption; (3) Pure questions of law; (4) Serious errors in the findings of facts MR necessary before special civil action
END
PETITION FOR CERTIORARI IN THE COURT OF APPEALS (RULE 65) Not later than 60 days from notice of the judgment, order or resolution Questions of fact or law or both
Satisfaction of Judgment
END
APPEAL BY CERTIORARI IN THE SUPREME COURT UNDER RULE 45 Within fifteen (15) days from notice of the judgment or final order or resolution Pure Questions of Law
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Societas Spectra Legis Labor Standards Compilation PROCEDURE ON SIMPLE MONEY CLAIMS 1. The employee files a pro-forma complaint with the Regional Director. 2. The Regional Director dockets the complaint as simple money claim. 3. The Regional Director issues summons served upon employer (respondent), together with the copy of the compliant, and sends a copy of the same to the respondent. 4. The employer-respondent is given 5 calendar days to answer the complaint. The employer can either admit the allegations or deny it 5. After receiving the answer, the Regional Director calls for a summary hearing and decides on the matter within 30 calendar days from the date of filing of the complaint 6. If the decision is adverse, the employer may appeal the decision to the NLRC within 5 calendar days from the receipt of the copy of said decision or resolution. The appeal must conform to the requirements provided for under Article 217 and the NLRC Rules. To perfect the appeal, the employer must post a cash or security bond.
In the appeal from the RD decision to the NLRC, the aggrieved party has 5 calendar days, while in the appeal from LA decision to the NLRC; the aggrieved party has 10 days from receipt of notice of decision.
7. From the adverse decision of the NLRC, the employer can then file a motion for reconsideration. 8. If said motion is denied, the employer may still file a Special Civil Action for Certiorari with the Court of Appeals under Rule 65 of the Rules of Court within a period of 60 days from receipt of the decision.
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SIMPLE MONEY CLAIMS FLOWCHART START
Pro-forma Complaint with Regional Director
RD Issues Summons served upon employerrespondent
5 days to file Answer
Admit END
Deny Summary Hearing Must be decided within 30 calendar days from date of filing of the complaint Appealable to NLRC
APPEAL TO NLRC Must be within 5 calendar days from the receipt of a copy of decision Shall resolve appeal within 10 calendar days from the submission of the last pleading Grounds: (5) Prima facie Grave Abuse of Discretion; (6) Order was secured through fraud, coercion or graft and corruption; (7) Pure questions of law; (8) Serious errors in the findings of facts MR necessary before filing of Special Civil Action
PETITION FOR CERTIORARI IN THE COURT OF APPEALS (RULE 65) Not later than 60 days from notice of the judgment, order or resolution Questions of fact or law or both
APPEAL BY CERTIORARI IN THE SUPREME COURT UNDER RULE 45 Within fifteen (15) days from notice of the judgment or final order or resolution Pure Questions of Law
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Societas Spectra Legis Labor Standards Compilation ENFORCEMENT POWER ON HEALTH/SAFETY OF WORKERS The SOLE may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers In the workplace. Within 24 hours, a hearing shall be conducted to determine whether an order for stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage or work or suspension of operation. ] - CROSS REFER TO ARTICLE 286 ON CONSEQUENCE OF SUSPENSION OF OPERATIONS
This provision does not refer to violation of minimum wage laws. It refers to the instance that when the noncompliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace, the SOLE can issue an order for the stoppage of work or the suspension of operations of any unit or department in an establishment.
ILLUSTRATION: When there is a leak in a chemical plant, there is hazard to the employees. The SOLE can order suspension of operation. Q: Is the power of SOLE to order suspension of operation similar to Article 286 on bona fide suspension of operations? A: NO. They are different. In Article 286, it is the employer who suspends the operations while on the other hand, Article 128 speaks of suspension by the Secretary of Labor. Example, for causes attributable to the employer and in the interest of health and safety of the workers, the Regional Director orders the suspension of the company’s operation. The logical question there is – What is the consequence of that? Will the employees be paid their wages? In Article 286, for example, if the employer decides to suspend his operations unilaterally, will the employees be entitled to their daily wages?
What is being inquired in Article 128 is whether or not the employer complies with labor standards laws, rules and regulations, as well as social legislations. The power to visit the employer’s premises is so broad enough as to enable the SOLE or his duly authorized representative to make a finding after making such inspection. Since what will be involved would be inquiring on violations of labor standard laws as well as wage orders, it would be important for us to know the step-by-step procedure in the conduct of inspection under Article 128. And since what is involved would be labor standard provisions such as the minimum wages laws or rules – Is the employer obliged to maintain a payroll? YES. The employer is obliged to maintain a payroll pursuant to the power of the SOLE under Article 128 (f) to issue such rules and regulations pertinent thereto. Under implementing rules, see Section 6, Rule X, Book III.
Q: In the exercise of the visitorial power, can the SOLE be interfered with by the courts? A: NO. This is pursuant to Article 128 (d). If the SOLE or the Regional Director, for that matter, decides to inspect the employer’s premises, then no entity can lawfully interfere, obstruct or delay the exercise of that authority; otherwise they would be penalized under that provision of the LC. That is how comprehensive and that is how strong the visitorial and enforcement power of the SOLE is.
BONA FIDE SUSPENSION OF OPERATIONS ART. 286. When employment not deemed terminated. – The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.
Article 283 speaks of a permanent retrenchment as opposed to a temporary lay-off. There is no specific provision of law which treats of a temporary retrenchment or lay-off. To remedy this situation or fill the hiatus, Article 286 may be applied but only by analogy to set a specific period that employees may remain temporarily laid-off or in floating status. Six months is the period set by law that the operation of a business or undertaking may be suspended thereby suspending the employment of the employees concerned. The temporary lay-off wherein the employees likewise cease to work should also not last longer than six months. After six months, the employees should either be recalled to work or permanently retrenched following the requirements of the law. Failing to comply with this would be tantamount to dismissing the employees and the employer would thus be liable for such dismissal, (Sebuguero,et aL vs. NLRC, G.T.L Sportswear Corp., eta/, G.R. No. 115394, September 27, 1995.)
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When the "floating status" of the employees lasts more than six (6) months, they may be considered to have been constructively dismissed from the service. Thus, they are entitled to the corresponding benefits for their separation. (Agro Commercial Security Services Agency, Inc. vs. National Labor Relations Commission, G.R. Nos. 82823-24, July 31, 1989.)
Sebuguero,et al. vs. NLRC, G.T.I. Sportswear Corp., et al G.R. No. 115394, September 27, 1995 “Article 283 speaks of a permanent retrenchment as opposed to a temporary lay-off. There is no specific provision of law which treats of a temporary retrenchment or lay-off. To remedy this situation or fill the hiatus, Article 286 may be applied but only by analogy to set a specific period that employees may remain temporarily laid-off or in floating status. Six months is the period set by law that the operation of a busi¬ness or undertaking may be suspended thereby suspending the employ¬ment of the employees concerned. The temporary lay-off wherein the employees likewise cease to work should also not last longer than six months. After six months, the employees should either be recalled to work or permanently retrenched following the requirements of the law. Failing to comply with this would be tantamount to dismissing the em¬ployees and the employer would thus be liable for such dismissal. “ Agro Commercial Security Services Agency, Inc. vs. National Labor Relations Commission G.R. Nos. 82823-24, July 31, 1989 “When the "floating status" of the employees lasts more than six (6) months, they may be considered to have been constructively dis¬missed from the service. Thus, they are entitled to the corresponding benefits for their separation.”
ANTI-INJUCTION It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render Ineffective the orders of the SOLE or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article. Art 128 VISITORIAL and ENFORCEMENT POWER empowers the Secretary of Labor or any "duly authorized representative
Art 129 SIMPLE MONEY CLAIMS empowers only the regional director or authorized hearing officers
covers all matters affected by the Labor Code or any labor law
refers only to money claims and benefits
Jurisdictional limits in Art 129 do not apply to the exercise of powers under Art 128. Par B of Art 128 was changed to its present wording by RA 7730 purposely to strengthen tlie visitorial enforcement power by freeing it from the limitations of Art 129,
The regional director's authority under Art, 129 is subject to four requisites: 1. The claim is presented by an employee or a person employed In domestic or household service, or a househelper. 2. The claim arises from employer-employee relations. 3. The claimant does not seek reinstatement. 4. The aggregate money claim of each employee or househelper does not exceed P5.000.00.
A decision under Art. 128, on the other hand, is administrative and therefore appealable to the Secretary of Labor who is the administrative superior of all regional directors of the Department.
A decision under this Article, being adjudicatory in nature, is appealable to the National Labor Relations Commission (NLRC)
• •
•
Read page 425 of Azucena(2010) for elaborated explanations of the distinctions If there is question of reinstatement or if the claimant's demand exceeds P5,000.00, the labor arbiter has Jurisdiction over the case, pursuant to Art 217, paragraph 6, except claims for employees' compensation, social security, Medicare (Philhealth) and maternity benefits. Even as regards the labor arbiter, however, employer-employee relation is a prerequisite as basis of the claim. Articles 128 and 129 are operative only in the context of employment relationship. A regular court; not DOLE or NLRC, has Jurisdiction over claim of an independent contractor to adjust contractual fee.
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The Regional Tripartite Wages and Productivity Board (RTWPB) do not have the power to promulgate rules providing who is exempted from minimum wage. It is the National Wages and Productivity Board (NWPC) that has the rule-making power to promulgate rules on exemption and minimum wage fixing, and not the RTWPB.
MAINTENANCE OF EMPLOYMENT RECORDS, PLACE AND PRESERVATION OF RECORDS Art. 128(f): The Secretary of Labor and Employment may, by appropriate regulations, require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code.
Rule X ADMINISTRATION AND ENFORCEMENT Section 6. Nature of proceedings. – (a) Every employer shall pay his employees by means of payroll wherein the following information and data shall be individually shown: 2. Length of time to be paid; 3. The rate of pay per month, week, day or hours, piece, etc.; 4. The amount due for regular work; 5. The amount due for overtime work; 6. Deductions made from the wages of the employees; and 7. Amount actually paid. b) Every employee in the payroll shall sign or place his thumbmark as the case may be, at the end of the line opposite his name where a blank space shall be provided for the purpose. His signature shall be made in ink or his thumbmark placed with the use of the regular stamping ink and pad. Section 11. Place of records. – All employment records of the employees of an employer shall be kept and maintained in or about the premises of the workplace. The premises of a workplace shall be understood to mean the main or branch office or establishment, if any, depending upon where the employees are regularly assigned. The keeping of the employee’s records in another place is prohibited. Section 12. Preservation of Records. – All employment records required to be kept and maintained by employers shall be preserved for at least three (3) years from the date of the last entry in the records.
COMPROMISE OF LABOR STANDARD CASES ART. 227. Compromise agreements. – Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court, shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima fade evidence that the settlement was obtained through fraud, misrepresentation, or coercion.
• Dispute resolution through compromise is a pervading philosophy of Philippine labor laws. This is emphasized In this Art. 227 and it conforms with the statement of basic policy in Art. 211 (a) and the second paragraph of Art. 221. • The law looks with disfavor upon quitclaims and releases by employees who are inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities. On the other hand, there are legitimate waivers that represent a voluntary settlement of a laborer's claims that should be respected by the courts as the law between the parties. • Not all waivers and quitclaims are Invalid as against public policy. If the agreement was voluntarily entered into and represents a reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind. • A judgment rendered In accordance with a compromise agreement is not appealable and is immediately executory, unless a motion is filed to set aside the agreement on the ground of fraud, mistake, or duress, in which case an appeal may be taken against the order denying the motion, (Master Tours and Travel Corp. vs. CA, 219 SCRA 321; United Housing Corp. vs. Dayrit, 181 SCRA 235.) • A compromise agreement by union officers must be authorized by the union members. The authority must be produced in evidence. Each laborer must authorize the union officers to enter into a compromise before the laborer's right may be affected. (Kaisahan ng mga Manggagawa sa La Campana vs. Sarmtento, 133 SCRA 220 [1984],) See further discussion under Art. 242. Art 2028 CC. A compromise is a contract where the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced.
GUIDELINES ON THE PROCEDURE FOR CLOSURE OF BUSINESS UNDER RA9231 (DOLE DEPT Circ. No. 3, Series of 2009) I.
Purpose This Circular is being issued to guide the DOLE Regional Offices on the procedure for closure on the basis of Republic Act No. 9231 (An Act Providing for the Elimination of the Worst Forms of Child Labor and Affording Stronger Protection for the Working Child), particularly its Section 16(g), amending Section 16 – Penalties of Republic Act No. 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) and Department Order No. 65-04 or the Implementing Rules and Regulations of R.A. 9231, particularly Sections 21, 23 and 24.
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Closure after Notice and Hearing In accordance with the abovementioned legal basis, the Secretary of Labor and Employment or the Regional Director may order the closure of any business, firm, or establishment found to have violated any of the provisions of R.A. 9231 more than three (3) times. Prior notice and hearing is required before the issuance of such Closure Order, unless there is a ground for immediate closure as set forth in Section III below. The hearing for the issuance of a Closure Order shall be summary in nature.
III.
Immediate Closure Prior notice and hearing is not required if any of the following circumstances or grounds is present: 1. The violation of any provision of R.A. 9231 has resulted in the death, insanity, or serious physical injury of a child employed in such establishment; 2. Such firm or establishment is employing a child for prostitution or obscene or lewd shows; or 3. There is imminent danger to the life and limb of the child. An imminent danger is a condition or practice that could reasonably be expected to cause death or serious physical harm before abatement under the enforcement procedures can be accomplished. (Rule 1012.02 Occupational Safety and Health Standards) Under any of the above circumstances, the Secretary of Labor and Employment or the Regional Director shall order the immediate closure of the business, firm or establishment. For purposes herein, the term “immediate” shall mean a reasonable time not to exceed five (5) working days reckoned from receipt by the Regional Director of the complaint or petition for closure and relevant documentary evidence in support thereof. Such documentary evidence shall be attached to the Notice of Closure and shall include a combination of any or all but not limited to, the following documents as may be applicable, to wit: 1. 2. 3. 4. 5. 6. 7. 8. 9.
Inspection Report Proof of child’s age, such as the NSO-authenticated Certificate of Live Birth; Sworn Statement of the complainant-child or children and their witnesses; Photographs; Daily Time Records and/or Time Sheet; Results of Physical and Medical Examination as issued by a competent medical practitioner; Accident Report; Results of ultra-violet (UV) testing for receipt of marked money by the offender during entrapment; and Business License/Permit/SEC Registration of the business, firm, or establishment concerned.
In any of the above three circumstances or grounds, the prescribed procedure is a close-now-hear-later process, which shall be summary in nature. In this procedure, the Notice of Closure shall include a statement duly notifying the establishment concerned of a subsequent hearing that will be conducted to determine whether to affirm or reverse the closure order. IV.
Rescue Operations in relation to closure proceedings: Presence or Participation of DOLE personnel Section 24 of D.O. 65-04 provides that the proceedings for closure “may be initiated motu proprio by the Department or upon complaint by any interested party.” Thus, the closure proceedings may be initiated by the Regional Office even without a prior rescue operation or even without the presence of DOLE personnel in such an operation. The foregoing notwithstanding, the participation of the DOLE in the rescue operation is hereby encouraged. In case a complaint or petition for closure is filed by any interested party after a rescue operation had already been conducted without the presence of DOLE personnel, the DOLE Regional Director shall take cognizance of the complaint or petition and proceed with the appropriate steps, which may include an ocular visit or inspection or investigation, to validate the existence of any ground for closure.
REVISED RULES ON DISPOSITION OF LABOR STANDARDS CASES (SERIES OF 1987) RULE I TITLE CONSTRUCTION AND DEFINITION Section 1. Title of the Rules. – These rules shall be known as the "Rules on the Disposition of Labor Standards Cases in the Regional Offices. Section 2. Enforcement authority. – The statutory basis of the authority of the Regional Offices to administer and enforce labor standards is found in Article 128 (b) of the Labor Code, as amended, which provides that: “The provisions of Article 217 of this Code to the contrary notwithstanding and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to order and administer, after due notice and hearing, compliance with the labor standards provisions of this Code and other labor legislations based on the findings of labor regulations officers or industrial safety engineers made in the course of inspection, and to issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor regulations officer and raises issues which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection”. Section 3. Authorized representatives of the Secretary of Labor and Employment. – The Regional Directors shall be the duly authorized representatives of the Secretary of Labor and Employment in the administration and enforcement of labor standards within their respective territorial jurisdictions. Section 4. Visitorial Power. – The Regional Director or their authorized representatives, shall have access to employers’ records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or may aid in the enforcement of the Labor Code and of any labor law, wage order or rules and regulations issued pursuant thereto. Section 5. Construction. – In order to carry out the objectives of the Constitution and the Labor Code and to aid the parties in arriving at a fair, just, expeditious and economical settlement of labor disputes, these Rules shall liberally construed. Section 6. Suppletory application of Rules of Court. – In the absence of any applicable provisions of the Rules of Court may be applied in a suppletory character. Section 7. Labor Standards; definitions. – As used in these Rules “labor standards” shall refer to the Minimum requirements prescribed by existing laws, rules and regulations and other issuances relating to wages, hours of work, cost of living allowances and other monetary and welfare benefits, including those set by occupational safety and health standards. RULE II MONEY CLAIMS ARISING FROM COMPLAINT/ROUTINE INSPECTION Section 1. Title and caption. – The title and caption of complaints involving money claims brought to the Regional Office arising from alleged violations of labor standards shall substantially comply with the form prescribed by the Regional Office. Section 2. Complaint inspection. – All such complaints shall immediately be forwarded to the Regional Director who shall refer the case to the appropriate unit in the Regional Office for assignment to a Labor Standards and Welfare Officer(LSWO) for field inspection. When the field inspection does not produce the desired results, the Regional Director shall summon the parties for summary investigation to expedite the disposition of the case. The investigation shall be concluded within fifteen (15) calendar days from the date of the first hearing and a proposed Order disposing of the case shall be submitted to the Regional Director within three (3) calendar days from the conclusion of the investigation. Section 3. Complaints where no employer-employee relationship actually exists. – Where employer-employee relationship no longer exists by reason of the fact that it has already been severed, claims for payment of monetary benefits fall within the exclusive and original jurisdiction of the labor arbiters. Accordingly, if on the face of the complaint, it can be ascertained that employeremployee relationship no longer exists, the case, whether or not accompanied by an allegations of illegal dismissal, shall immediately be endorsed by the Regional Director to the appropriate Branch of the National Labor Relations Commission (NLRC). Section 4. Service of notices and orders. – Notices and copies of orders shall be served onthe parties or their duly authorized representatives at their last known address or, if they are represented by counsel, through the latter.
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Societas Spectra Legis Labor Standards Compilation In the case of personal service, the process server shall submit his return within seventy-two (72) hours from the date of service stating legibly in the return his name, the mode of service, the names of the authorized persons served and the date of actual receipt of the document. If no service was effected, the serving officer shall state in the return the reason therefor. The return shall from part of the records of the case. Section 5. Inspection report. – Where the case is assigned to a LSWO for inspection, the latter shall conduct the necessary investigation and submit a report thereof to the Regional Director, through the Chief of the Labor Standards Enforcement Division (LSED), within twenty-four (24) hours after the investigation or within a reasonable period as may determined by the Regional Director. The report shall specify the violations discovered, if any, together with his recommendation and computation of the amount due each worker. Section 6. Coverage of complaint inspection. – A complaint inspection shall not be limited to the specific allegations or violations raised by the complainants/workers but shall be a thorough inquiry into and verification of the compliance by employer with existing labor standards and shall cover all workers similarly situated. Section 7. Restitution. – (a) Where the employer has agreed to make the necessary restitutions of violations discovered in the course of inspection, such restitutions may be effected at the plant-level within five (5) calendar days from receipt of the inspection results by the employer or his authorized representative; (b) Plant-level restitutions may be effected for money claims not exceeding Fifty Thousand Pesos (P50,000.00).A report of the restitutions shall be immediately submitted to the Regional Director for verification and confirmation. In case the Regional Director finds that the restitutions effected at the plant-level are not in order, he may direct the LSED Chief to check the correctness of the restitution report; (c) Restitutions in excess of the aforementioned amount shall be effected at the Regional Office or at the worksite subject to the prior approval of the Regional Director. Section 8. Compromise Agreement. – Should the parties arrive at an agreement as to the whole or part of the dispute, said agreement shall reduced in writing and signed by the parties in the presence of the Regional Director or his duly authorized representative. Section 9. Unclaimed amount. – The Regional Director shall hold in trust under a special account in behalf of the workers. Any amount not claimed or collected by the workers a period of two (2) years from the time of restitution shall be held as s special fund of the Department of Labor and Employment to be used exclusively in the administration and enforcement of labor laws provided in Article 129 of the Labor Code. Section 10. Follow-up inspection. – After the employer has submitted proof of compliance with reported violations, follow-up verification inspection shall forthwith be conducted if restitution is effected in the absence of the LSWO. Section 11. Hearing. – Where no proof of compliance is submitted by the employer after seven (7) calendar days from receipt of the inspection results, the Regional Director shall summon the employer and the complainants to a summary investigation. In regular routine inspection cases however, such investigation shall be conducted where no complete field investigation shall be conducted where no complete field investigation can be made for reasons attributable to the fault of the employer or his representatives, such as those but not limited to instances when the field inspections are denied to instances when the field inspectors are denied access to the premises, employment records, or workers, of the employer. Section 12. Nature of proceedings. –The proceedings before the Regional Office shall be summary and non-litigious in nature. Subject to the requirements of due process, the technicalities of law and procedure and the rules governing admissibility and sufficiency of evidence obtaining in the courts of law shall not strictly apply thereto. The Regional Office may, however, avail itself of all reasonable means to ascertain the facts or the controversy speedily and objectively, including ocular inspection and examination of well informed persons. Substantial evidence, whenever necessary shall be sufficient to support a decision or order. Section 13. Prohibited acts. – It shall be unlawful for any person or entity to obstruct , impede, delay or otherwise render ineffective the Order of the Secretary of Labor and Employment or this duly authorized representatives issued pursuant to the authority granted under these Rules, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with these Rules. The foregoing notwithstanding, the responsible party, be it the worker, union, employer, or the authorized representative of any of the foregoing shall be subject to administrative sanctions as determined by the Secretary or the Regional Director. Section 14. Failure to appear. -Where the employer or the complainant fails or refuses to appear during the investigation, despite proper notice, for two (2) consecutive hearings without justifiable reasons, the hearing officer may recommend to the Regional Director the issuance of a compliance order based on the evidence at hand or an order of dismissal of the complaint, as the case may be. Section 15. Postponement of hearing. – The parties and their counsel or representative s appearing before the Regional Office shall be prepared for continuous hearings. Postponements shall be allowed only upon meritorious grounds and shall be limited to not more than two (2) postponements but in no case to exceed a total of ten (10) calendar days. In the event of such postponements, the Regional Office shall set two or more dates of hearing in advance. Section 16. Records of proceedings. – The proceedings before the Regional Office need not be recorded by stenographers. The hearing officer shall, however, make a written summary of the proceedings including the substance of the positions of the parties and the evidence presented which shall for part of the records of the case. The written summary shall be signed by the parties. Section 17. Motion to dismiss. – Any motion to dismiss a complaint on the grounds that the Regional Office has no jurisdiction over the complaint or that the cause of action is barred by prior judgment or prescription, shall be immediately acted upon by the Regional Director if the facts strongly indicate dismissal. Any motion to dismiss with no such indication shall disposed of only in the final determination of the case on the merits. Section 18. Compliance order. – If the Regional Director finds after hearing that violations have been committed, he shall issue an Order directing the employer to restitute other corrective measures within ten (10) calendar days upon receipt of the Order and to submit proof of compliance. The Order shall specify the amount due each worker and shall include the computations on which the Order was based. Section 19. Motion for reconsideration. – The aggrieved party may file a motion for reconsideration of the Order of the Regional Office within seven (7) calendar days from receipt by him of a copy of said Order. The Regional Director shall resolve the motion for reconsideration within ten (10) calendar days from receipt thereof. A motion for reconsideration filed beyond the seven-day reglementary period shall be treated as an appeal if filed within the ten-day reglementary period shall be treated as an appeal if filed within the ten-day reglementary period for appeal, but subject to the requirements for the perfection of an appeal. No second motion for reconsideration shall be entertained in any case. Section 20. Disposition of routine inspection cases. –The disposition of regular inspection cases shall substantially conform with the provisions of this Rules.
RULE III ENDORSEMENT OF CASES TO THE NATIONAL LABOR RELATIONS COMMISSION (NLRC) Section 1. Contested cases. – (a) In cases where the employer contests the findings of the Labor Standards and Welfare Officers and the issues connote resolved without considering evidentiary matters that are not verifiable in the normal course of inspection, the Regional Director shall endorse such case to the appropriate Arbitration Branch of the National Labor Relations Commission; (b) The employer shall raise such objections during the hearing of the case or at any time after receipt of the notice of inspection results. The issue of whether or not the case shall be endorsed to the NLRC shall be resolved by the Regional Director in the final disposition of the case. Section 2. Labor Standards and Welfare Officers (LSWOs). – As witnesses in the cases that have been endorsed to the NLRC, the LSWOs who participated in the investigation shall make themselves available as witnesses in the proceedings before the Labor Arbiters concerned.
RULE IV APPEALS
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Societas Spectra Legis Labor Standards Compilation Section 1. Appeal. – The order of the Regional Director shall be final and executory unless appealed to the Secretary of Labor and Employment within ten (10) calendar days from receipt thereof. Section 2. Grounds for appeal. – The aggrieved party may appeal to the Secretary the Order of the Regional Director on any of the following grounds: (a) there is a prima facie evidence of abuse of discretion on the part of the Regional Director; (b) the Order was secured through fraud, coercion or graft and corruption; (c) the appeal is made purely on questions of law; and (d) serious errors in the findings of facts were committed which, if not corrected, would cause grave irreparable damage or injury to the appellant. Section 3. Where to file. – The appeal shall be filed in five (5) legibly typewritten copies with the Regional Office which issued the Order. Subject to the immediately succeeding section, the appeal shall not be deemed perfected if it is filed with any other office or entity. Section 4. Requisites of appeal. – (a) The appeal shall be filed within the reglementary period as provide in Section 1 of this Rule. It shall be under accompanied by a Memorandum of Appeal which shall state the date appellant received the Order and the grounds relied upon arguments in support thereof; (b) The appellee may file with the Regional Office his reply or opposition to the appeal within ten (10) calendar days from receipt thereof. Failure on the part of the appellee to file his reply or opposition within the said period shall be construed as a waiver on his part to file the same. Section 5. Transmittal of records on appeal. – Within three (3) calendar days after the filing of the reply or opposition of the appellee or after the expiration of the period to file the same, the entire records of the case, together with the Memorandum of Appeal, shall be transmitted by the Regional Office concerned to the Office of the Secretary of Labor and Employment. Section 6. Records of case. –The records of the case shall contain, among others, a complete narration of what transpired in the conference/hearing in the form of minutes including all original pleadings, notices, proof of service of the decision or order and other papers which shall all be consecutively numbered. Only records of cases on appeal, properly numbered with complete minutes, shall be accepted by the Office of the Secretary of Labor and Employment. Section 7. Frivolous/dilatory appeals. – To discourage frivolous or dilatory appeals, the Secretary of Labor and Employment may impose a reasonable penalty, including fine or censure, upon the erring parties. RULE V EXECUTION Section 1. Issuance of writ. – (a) If no appeal is perfected within the reglementary period as provided in Rule V of these Rules, as evidenced by proofof service, the Regional Director shall, motu proprio or upon proper motion by any interested party, issue the writ of execution which shall be served by the Regional Sheriff. In the enforcement of the writ of execution, the assistance of the law enforcement authorities may be sought; (b) A writ of execution may be recalled subsequent to its issuance, if it is shown that an appeal has been perfected in accordance with these Rules. Section 2. Execution before perfection of appeal or pending appeal. - During the period of appeal and before an appeal is perfected, or during the pendency of an appeal, execution may, upon proper motion, also issue where it is shown that compliance with the order of the Regional Director cannot be secured unless this is done. The writ may be stayed at the instance of a losing party by the filing of a supersedeas bond in an amount which is adequate to protect the interests of the prevailing party, subject to the approval of the Regional Director before the perfection of the appeal, or Secretary of Labor and Employment during the pendency of the appeal. Section 3. Execution after motion for reconsideration. - Where a motion for Reconsideration of the compliance order is filed ion accordance with Rule II of these Rules, the compliance order shall be executory after ten (10) calendar days from receipt of the resolution of such Motion. Section 4. Enforcement of writ. - In enforcing a writ of execution, the sheriff or other office acting as such shall be guidedby the provisions of Rule 39 of the Rules of Court or the Sheriff’s Manual and may avail of such other means as may be necessary in the execution thereof. Section 5. Finality of decisions of the Secretary of Labor and Employment. - The decisions, orders or resolutions of the Secretary of Labor and Employment shall become final and executory after ten (10) calendar days from receipt thereof. Within three (3) calendar days from receipts of the records of the case, the Regional Director shall issue a writ of execution to enforce the order or decision of the Secretary. The filing of petition for certiorari before the Supreme Court shall not stay the execution of the order or decision unless the aggrieved party secures a temporary restraining order from the court within fifteen (15) calendar days from the date of finality of the order or decision or posts a supersedeas bond in an amount which is adequate to protect the interests of the prevailing party subject to the approval of the Secretary. RULE VI HEALTH AND SAFETY CASES Section 1. Inspection report. -In occupational safety and health inspection, the LSWO shall immediately or within twenty-four (24) hours after the inspection/investigation submit his report to the Regional Director thru the LSED Chief specifying the violations discovered and his recommendations, except when the submission of a report within the period cannot be made for reasons beyond the control of the LSWO. Section 2. Correction in imminent danger cases. - Where the employer is willing to make the necessary rectification, the same may be effected at the plant-level within twenty-four (24) hours in cases where the conditions obtaining in the workplace pose grave and imminent danger to the lives and health of the workers and/or property of the employer, e.g., boiler tube leakage; defective safety valves; pressure gauges and water column; weak machinery foundations; and other analogous circumstances. Section 3. Non-imminent danger cases. - Where the conditions is not of the types falling under Section 2 of this Rule, e.g., poor ventilation, housekeeping, inadequate personnel protective equipment and other analogous circumstances. the LSWO shall determine reasonable periods of compliance depending on the gravity of the hazards needing corrections or the period needed to come into compliance safety and health standards. Section 4. Work Stoppage. (a) The LSWO shall include in his report recommendation for the issuance of an Order of stoppage of work or suspension of operation of any unit or department or the establishment if there is exist in the workplace a condition that poses grave and imminent danger to the health and safety of the workers which cannot be corrected.Even before he submits his recommendation to the Regional Director, the LSWO shall notify and confer with the employer regarding the results of the inspection and recommend the institution of remedial measures; (b) The Regional Director may, upon the recommendation of the LSWO and the LSED Chief, immediately issue the appropriate Order of stoppage or suspension of operation together with the notice of hearing. Section 5. Hearing. -Immediately or within twenty-four (24) hours from the issuance of the Order of stoppage of operation or suspension, a hearing shall be conducted with the assistance of the LSWO concerned to determine whether the Order for the stoppage of work or suspension shall be lifted or not. The proceedings shall be terminated within seventy-two (72) hours and copy of such Order or resolution shall be immediately furnished the Secretary of Labor and Employment. In case the violation is attributable to the fault of the employer, the latter shall pay his workers all the monetary benefits to which they are entitled during the period of such stoppage or suspension of work. Section 6. Review by the Secretary. (a) The Secretary at his own initiative or upon the request of the employer and/or employee, may review the order of the Regional Director which shall be immediately final and executory unless stayed by the Secretary upon posting by the employer of a reasonable cash or performance bond as fixed by the Regional Director; (b) In aid of his review power, the Secretary may direct the Bureau of Working Conditions to evaluate the findings or order of the Regional Director. The Order of the Secretary shall be final and executory. Section 7. Other measures to secure compliance. - The Regional Director, in addition to measures available to him to secure compliance with labor standards, particularly those involving technical safety and general occupational safety standards, may furnish a copy of the inspection findings to the insurance company of the employer, the power company, the municipal authorities which issue business licenses/permits, the labor union in the enterprise concerned, and to other government offices to further persuade voluntarily compliance with existing labor standards.
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DO NO. 7-A, SERIES OF 1995 SECTION 1. Visitorial Power. – The Secretary of Labor and Employment or his duly authorized representative shall have access to employment records and premises of the employer at any time of the day or night, whenever work is being undertaken therein, and the right to copy therefrom, to question any employee, and to investigate any fact, condition or matter relevant to the determination of compliance with any provision of the Labor Code of the Philippines, as amended, and of any other labor law, wage order or rules and regulations issued pursuant thereto. SECTION 2. Compliance order. – Notwithstanding the provisions of Articles 129 and 217 of the Labor Code to the contrary, and in cases where the relationship of the employer-employee still exists, the Secretary or the Regional Director as his duly authorized representative shall have the power to issue compliance orders to give effect to the labor standards provisions of the Code and other labor legislations based on the findings of labor and employment officers made in the course of a routine or complaint inspection, regardless of the amount of money claims involved, and cases where the employer contests the findings of the Labor and Employment Officer and raises issues supported by documentary proofs which were not considered in the course of inspection. In such cases the Regional Director shall endorse the dispute to the appropriate regional branch of the National Labor Relations Commission (NLRC) for proper action. SECTION 3. Enforcement of occupational safety and health standards. – (s) The Secretary or the Regional Director may, upon the recommendation of the labor and employment officer, order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with occupational safety and health standards or regulations poses grave and imminent danger to the workers. (t) Within twenty-four (24) hours from the issuance of the order of stoppage or suspension of operations, the Secretary or the Regional Director shall cause the conduct of a hearing to determine whether the order for the stoppage of work or suspension of operations shall be lifted or not. The proceedings shall be terminated within seventy-two (72) hours from receipt of a copy of the order by the employer. In case the violation is attributable to the fault of the employer, he shall pay the employees affected their salaries and wage-related benefits during the period of such stoppage of work or suspension of operations. SECTION 4. Inspection results. – Immediately after the inspection has been completed, whether routine or in relation to a complaint, the labor and employment officer shall furnish both the employer or his representative(s) and the workers or their representative(s) a copy of the inspection results. A copy of the report shall be posted in two (2) conspicuous places inside company premises. SECTION 5. Field investigation and hearing. – (a) In case of complaint inspection where no proof of compliance is submitted by the employer after (7) calendar days from receipt of the inspection results, the Regional Director shall summon the employer and the employees/complainants to a summary hearing at the Regional Office. (b) Where no complete field investigation can be made for reason attributable to the fault of the employer or his representative(s) including but not limited to instances when labor and employment officers are denied access to the premises, employment records or workers of the employer, the investigation may be completed in the Regional Office. SECTION 6. Nature of proceedings. – The proceedings shall be summary and non-litigious in character. Subject to the requirements of due process, the technicalities of law and procedure and the rules governing admissibility and sufficiency of evidence obtaining in the courts of law shall not strictly apply. The Regional Director or his designated representative may, however, avail of all reasonable means to ascertain the facts of the controversy speedily and objectively, including the conduct of ocular inspection and examination of well-informed persons. Substantial evidence shall be sufficient to support a decision or order. SECTION 7. Failure to appear. – (a) Where the employer or the complainant, despite proper notice, fails or refuses to appear during the investigation for two consecutive hearings without justifiable reasons, the Secretary or the Regional Director may issue a compliance order or otherwise dismiss the complaint based on the evidence on record. (b) Where the employer fails or refuses to present satisfactory proof that he has corrected the violations which are declared unlawful by the Code, the case shall be endorsed to the proper prosecutor’s office for prosecution. The same action shall be taken when the employer refuses, without any justifiable reason, to allow a duly authorized labor and employment officer access or entry into company premises. SECTION 8. Appeal. – (a) The Order of the Regional Director shall be final and executor unless appealed to the Secretary within ten (10) calendar days from the receipt thereof. (b) The appeal shall be filed with the Regional Office where the case originated together with the memorandum of the appealing party. The appellee may file his answer within ten (10) calendar days from receipt of the appellant’s memorandum. SECTION 9. Cash or surety bond; when required. – In case the order involves a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a duly accredited bonding company. The bond should be in the amount equivalent to the monetary awards indicated in the order. SECTION 10. Writ of execution. – (a) If no appeal is perfected within the reglementary period, the Regional Director shall, motu proprio or upon motion by any interested party, issue a writ of execution to enforce the order. In the enforcement of the writ, the assistance of the law enforcement authorities may be sought. (b) A writ of execution may be recalled subsequent to its issuance, if it is shown that an appeal has been perfected in accordance with this Rule
FINDINGS OF FACTS, FINAL GR : Quasi-judicial agencies like the National Labor Relations Commission have acquired expertise because their Jurisdiction is confined to specific matters. Hence, their findings of facts are generally accorded not only respect but at times even finality If such findings are supported by substantial evidence. (Manila Mandarin Emphyees Union vs. National Labor Relations Commission, G.R. No. 76989, September21, 1987.) Exceptions However, the Supreme Court has never hesitated to exercise its corrective powers and to reverse administrative decisions in the following cases: (1) (2) (3) (4) (5)
the conclusion is a finding grounded on speculations, surmises and conjectures; the inferences made are manifestly mistaken, absurd or impossible; there is a grave abuse of discretion; there is a misapprehension of facts; the court [or quasi-judicial body] in arriving at its findings went beyond the issues of the case and the same are contrary to the admissions of the parties or the evidence presented; (6) where respondent commission has sustained irregular procedures and through the invocation of summary methods, including rules on appeal, has affirmed an order which tolerates a violation of due process; and (7) where the rights of a party were prejudiced because the administrative findings, conclusions or decisions were in violation of constitutional provisions, in excess of statutory authority, or Jurisdiction, made upon Irregular procedure, vitiated by fraud, Imposition or mistake, not supported by substantial evidence adduced at the University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Hon. Secretary of Labor vs. Panay Veterans Security and Investigation Agency, G.R. No. 167708, August 22, 2008 – Appeal from an order of compliance must be accompanied with bond; motion to reduce bond under NLRC rules not applicable to proceedings under Art. 128; the Rules on Disposition of Labor Standard cases will apply
People’s Broadcasting (Bombo Radyo Phils., Inc.) vs. Sec. of DOLE et al., G.R. No. 179652, May 8, 2009 –Visitorial power of the Regional Director/DOLE does not apply in two (2) instances: (a) where the employer-employee relationship has ceased; and (b) where no such relationship has ever existed.
Balladares et al., vs. Peak Ventures Corp.., et al., G.R. No. 161794, June 16, 2009 – Regional Director/DOLE may adjudicate in a summary proceeding claims for recovery of wages etc., even if the amount involved exceeds Php5, 000.00. The worker need not litigate to get what legally belongs to him. The whole enforcement machinery of the DOLE exists to insure its expeditious delivery to him free of charge.
Meteoro et al., vs. Creative Creatures, Inc., G.R. No. 171275, July 13, 2009 – the Regional Director/DOLE is divested of jurisdiction under Art. 128 under the so-called “exception clause”, which applies when the employer contests the findings of the labor regulation officer and raises issues supported by documentary proof which were not considered in the course of inspection. The existence of employer-employee relationship is a question of fact that necessitates the examination of evidentiary matters not ordinarily verifiable in the normal course of inspection.
In exercising the visitorial and enforcement power under Art. 128, the DOLE Regional Director performs quasi-judicial power, held in 2006 DOLE Phils., thus his decision is binding upon the NLRC. Note however that in 2009 People’s Broadcasting, the power of the DOLE under Art. 128 does not apply in two instances, namely : o where the employer-employee relationship has ceased; and o where no such relationship has ever existed.
In the first situation, the claim has to be referred to the NLRC because it is the NLRC which has jurisdiction in view of the termination of the employer-employee relationship , while in the second situation , it is the NLRC that has jurisdiction in view of the absence of employer-employee relationship. Note that the elements of such relationship are not verifiable from a mere ocular inspection , The intricacies and implications of an employer-employee relationship demand that the level of scrutiny should be far above the cursory and the mechanical.
Art. 128 on stoppage of operation does not apply since it is not the RD/DOLE that ordered the suspension of operation but the DENR , thus , no work no pay during suspension of operation , held in 2008 National Mines and Allied Workers Union.
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TOPIC 7: WAGE PROTECTION PROVISIONS & PROHIBITIONS REGARDING WAGES NON-INTERFERENCE IN THE DISPOSAL OF WAGES ART. 112. Non-interference in disposal of wages. - No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities or other property from any other person, or otherwise make use of any store or services of such employer or any other person. Art. 288 (RPC). Other similar coercions; (Compulsory purchase of merchandise and payment of wages by means of tokens.) —XXX force or compel, directly or indirectly, or shall knowingly permit any laborer or employee employed by him or by such firm or corporation to be forced or compelled, to purchase merchandise or commodities of any kind.
WAGE DEDUCTION Article 113. Wage deduction. No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: (a)
In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;
(b)
For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and
(c) In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment. GR: No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees Except: 1. In cases where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance; 2. For union dues, in cases where the right of the worker or his union to check-off has been recognized by the employer or authorized in writing by the individual worker concerned; and 3. In cases where the employer is authorized by law or regulations issued by the Secretary of Labor and Employment.
DEDUCTIONS AUTHORIZED BY LAW: Deduction for value of meals and other facilities; In cases where the employee is insured with his consent by the employer, deductions for the amount paid by said employer as premiums on the insurance. 6. In cases where the right of the employees or his union to checkoff has been recognized by the employer or authorized in writing by the individual employee concerned. 7. In cases where the employee is indebted to the employer, where such indebtedness has become due and demandable. (A1706NCC) 8. In court awards, wages may be the subject of execution or attachment, but only for debts incurred for food, shelter, clothing and medical attendance. (A1708NCC) 9. Withholding tax. 10. Salary deductions of a member of a legally established cooperative. 11. SSS, medicare and Pag-ibig contributions. 4. 5.
DEPOSITS FOR LOSS/DAMAGE ART. 114. Deposits for loss or damage. - No employer shall require his worker to make deposits from which deductions shall be made for the reimbursement of loss of or damage to tools, materials, or equipment supplied by the employer, except when the employer is engaged in such trades, occupations or business where the practice of making deductions or requiring deposits is a recognized one, or is necessary or desirable as determined by the Secretary of Labor and Employment in appropriate rules and regulations.
GR: No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made. EXCEPT: The employee has been heard thereon, and his responsibility has been clearly shown. Article 115. Limitations. No deduction from the deposits of an employee for the actual amount of the loss or damage shall be made unless the employee has been heard thereon, and his responsibility has been clearly shown.
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Societas Spectra Legis Labor Standards Compilation WITHOLDING/KICKBACKS Article 116. Withholding of wages and kickbacks prohibited. – It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent.
NOTES: An employer cannot simply refuse to pay the wages or benefits of its employee because he has either defaulted in paying a loan guaranteed by his employer; or violated their memorandum of agreement; or failed to render an accounting of his employer’s property. DEDUCTION TO ENSURE EMPLOYMENT Article 117. Deduction to ensure employment. – It shall be unlawful to make any deduction from the wages of any employee for the benefit of the employer or his representative or intermediary as consideration of a promise of employment or retention in employment.
NOTES: The practice of a security agency of deducting 25% from the salary of its security guards as the agency’s share in procuring job replacement for the guards is a violation of this provision. Even though the guards agreed to the arrangement, it cannot be given any effect because it is contrary to law and public policy. RETALIATORY MEASURES Article 118. Retaliatory measures. – It shall be unlawful for an employer to refuse to pay or reduce the wages and benefits, discharge or in any manner discriminate against any employee who has filed any complaint or instituted any proceeding under this Title or has testified or is about to testify in such proceedings.
Read Azucena p. 382 for more comments FALSE REPORTING Article 119. False reporting. – It shall be unlawful for any person to make any statement, report, or record filed or kept pursuant to the provisions of this Code knowing such statement, report or record to be false in any material respect.
WITHOLDING OF WAGES (FROM THE CIVIL CODE) Art. 1705. The laborer's wages shall be paid in legal currency. Art. 1706. Withholding of the wages, except for a debt due, shall not be made by the employer. (also known as compensation under civil law) Art. 1707. The laborer’s wages shall be a lien on the goods manufactured or the work done. Art. 1708. The laborer's wages shall not be subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance. Art. 1709. The employer shall neither seize nor retain any tool or other articles belonging to the laborer.
PRINCIPLE OF ‘NON-DIMINUTION OF BENEFITS ART. 100. Prohibition against elimination or diminution of benefits. - Nothing in this Book shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code.
it essentially means that benefits being given to employees cannot be taken back or reduced unilaterally by the em¬ployer because the benefit has become part of the employment con¬tract, written or unwritten.
THE RULE AGAINST DIMINUTION OF SUPPLEMENTS OR BENEFITS IS APPLICABLE IF IT IS SHOWN THAT: The grant of the benefit is based on an express policy or has ripened into a practice over a long period of time; The practice is consistent and deliberate. The practice is not due to error in the construction or application of a doubtful or difficult question of law. The diminution or discontinuance isdone unilaterally by the employer. ART. 127. Non-diminution of benefits. - No wage order issued by any regional board shall provide for wage rates lower than the statutory minimum wage rates prescribed by Congress. (As amended by Republic Act No. 6727, June 9, 1989).
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TOPIC 8: PAYMENT OF WAGES FORM: LEGAL TENDER ART. 102. Forms of payment. - No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than legal tender, even when expressly requested by the employee. Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of Labor and Employment or as stipulated in a collective bargaining agreement. Art. 1705 (CC). The laborer's wages shall be paid in legal currency.
EXCEPTIONS (IRR Book III, Rule VIII, Section 2): Section 2. Payment by check. — Payment of wages by bank checks, postal checks or money orders is allowed where such manner of wage payment is customary on the date of the effectivity of the Code, where it is so stipulated in a collective agreement, or where all of the following conditions are met: (a) There is a bank or other facility for encashment within a radius of one (1) kilometer from the workplace; (b) The employer or any of his agents or representatives does not receive any pecuniary benefit directly or indirectly from the arrangement; (c) The employees are given reasonable time during banking hours to withdraw their wages from the bank which time shall be considered as compensable hours worked if done during working hours; and (d) The payment by check is with the written consent of the employees concerned if there is no collective agreement authorizing the payment of wages by bank checks.
If all of these conditions are met, the employer can validly, by himself, pay wages by checks.
Note the differences of the instances in the rules that allow payment by check and place of payment, because that it usually the mistake of students when they interchange the instances and of course, these being different, they will end up wrong.
Note that the employer should not enter into an arrangement with the bank that the employer will receive commission if the employer pays in the form of check. There should be no pecuniary benefit from this arrangement of payment through check.
NOTES: Where the employee alleges non-payment of wages and/or commission, the employer has the burden to prove payment. Jimenez vs. NLRC “In the instant case, the right of respondent Juanatas *employee+ to be paid a commission equivalent to 17%, later increased to 20%, of the gross income is not disputed by petitioners [employer]. Although the respondent admits receipt of partial payment, petitioners still have to present proof of full payment. Where the defendant [who is] sued for a debt admits that the debt was originally owed, and pleads payment in whole or in part, it is incumbent upon him to prove such payment. That a plaintiff admits that some payments have been made does not change the burden of proof. The defendant [employer] still has the burden of establishing payments beyond those admitted by plaintiff. Regarding the vales or advance payments taken by the employee, the Court did not recognize as evidence of payment the notebook which the employer presented. The Court said: Although petitioners submitted a notebook showing the alleged vales of private respondents for the year 1990, the same is inadmissible and cannot be given probative value considering that it is not properly accomplished, is undated and unsigned, and is thus uncertain as to its origin and authenticity.” The Implementing Rules require every employer to keep a payroll. Among other things, it must show the length of time to be paid, the pay rate, the amount actually paid, and so on. The employee should sign the payroll. LEGAL TENDER
Is that currency which has been made suitable by law for the purpose of a tender of payment of debts.
All notes and coins issued by the Central Bank are legal tender.
Q: The payment of wages in the form of cash considered legal tender? A: YES. Q: Can the employer pay the employee partly in cash and partly in kind? A: Generally NO. There are cases decided by the Supreme Court wherein such is allowed, such as payment for facilities. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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pay employees’ wages in these
PLACE OF PAYMENT ART. 104. Place of payment. - Payment of wages shall be made at or near the place of undertaking, except as otherwise provided by such regulations as the Secretary of Labor and Employment may prescribe under conditions to ensure greater protection of wages. EXCEPTIONS (Rule VIII, Book III, Section 4, Omnibus Rules: (1) Reason of the deterioration of peace and order conditions. (2) Reason of actual or impending emergencies caused by fire, flood, epidemic or other calamity rendering payment thereat impossible; (3) When the employer provides free transportation to the employees back and forth; and (4) Under any other analogous circumstances; Provided, That the time spent by the employees in collecting their wages shall be considered as compensable hours worked; (5) No employer shall pay his employees in any bar, night or day club, drinking establishment, massage clinic, dance hall, or other similar places or in places where games are played with stakes of money or things representing money except in the case of persons employed in said places. RA 6727-PAYMENT THRU BANKS Section 7. Upon written permission of the majority of the employees or workers concerned, all private establishments, companies, businesses, and other entities with twenty five (25) or more employees and located within one (1) kilometer radius to a commercial, savings or rural bank shall pay the wages and other benefits of their employees through any of said banks and within the period of payment of wages fixed by Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines. Section 8.Whenever applicable and upon request of a concerned worker or union, the bank shall issue a certification of the record of payment of wages of a particular worker or workers for a particular payroll period.
Therefore, the following conditions must concur for the valid payment of wages thru banks: 1. upon written permission of the majority of the employees or workers concerned; 2. all private establishments, companies, businesses, and other entities with at least 25 or more employees; 3. located within 1 kilometer radius to a commercial, savings or rural banks shall pay wages or benefits of their employees through any of the banks; 4. within the period of payment of wages fixed by PD 442, the Labor Code, as amended; (see below: time/frequency of payment)
Q: Is the employer allowed by existing rules and regulations to pay the employees’ wage through the facility of the ATM? A: YES, note the conditions [RA 6727 Sec 7] Q: When we say ATM, is that same as the payment of wages through the banks? A: That may, or may not be different. There is an ATM in a bank, but an ATM is not always located in a bank. Q: Is it possible to pay the employee’s wage through the facilities in a bank? A: YES, note the conditions [RA 6727 Sec 7] THRU ATM (DOLE Labor Advisory on Payment of Salaries Thru ATM, Series of 1996) Article 104, as amended, requires that payment of wages shall be made at or near the place of undertaking, except as otherwise provided by such regulations as the Secretary of Labor may prescribe under conditions that would ensure prompt payment and protection of wages. Based on Article 104, as well as the provisions of Section 4, Rule VIII, Book III and considering present-day circumstances, practices and technology, employers may adopt a system of payment other than in the workplace, such as through ATMs of banks, provided that 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 facilities which time, if done during working hours, shall be considered as compensable hours worked.
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Societas Spectra Legis Labor Standards Compilation (3) The system shall allow workers to receive their wages within the period or frequency and in the amount prescribed under the Labor Code. (4) There is a bank or ATM facility within a radius of 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 no 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.
The point here is that, if the employer elects to pay the employee’s wage through the ATM, there should be no diminution of the employees wage. The employees can also demand from the employer, proof of how much they are paid including the itemized deduction. In other words, it will not dispense with the requirement of the pay slip. Remember, that the employers decide on their own without the employees’ consent to pay their wages through the ATM facilities. Evidently in violation or nonconformity with the guidelines issued by the DOLE. If that happens, then the remedy of the employees would be to report it to the DOLE for an inspection and for the correction of that particular system. The DOLE, in the exercise of its visitorial and enforcement power can order the employer to correct any deficiency in that kind of practice.
Summary of exceptions: (1) Deterioration of peace and order conditions. (2) Actual or impending emergencies caused by fire, flood, epidemic or other calamity (3) When the employer provides free transportation to the employees back and forth; (4) Under any other analogous circumstances provided that the time spent by the employees in collecting their wages shall be considered as compensable hours worked (5) BANK (6) ATM
PAYEE ART. 105. Direct payment of wages. – Wages shall be paid directly to the workers to whom they are due, except: (a)
In cases of force majeure rendering such payment impossible or under other special circumstances to be determined by the Secretary of Labor and Employment in appropriate regulations, in which case, the worker may be paid through another person under written authority given by the worker for the purpose; or
(b)
Where the worker has died, in which case, the employer may pay the wages of the deceased worker to the heirs of the latter without the necessity of intestate proceedings. The claimants, if they are all of age, shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs, to the exclusion of all other persons. If any of the heirs is a minor, the affidavit shall be executed on his behalf by his natural guardian or next-of-kin. The affidavit shall be presented to the employer who shall make payment through the Secretary of Labor and Employment or his representative. The representative of the Secretary of Labor and Employment shall act as referee in dividing the amount paid among the heirs. The payment of wages under this Article shall absolve the employer of any further liability with respect to the amount paid.
Rule VIII, Book III, Sec 5 Sec. 5. Payment of wages. – Payment of wages shall be made direct to the employee entitled thereto except in the following cases: (a)
Where the employer is authorized in 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 as provided to the succeeding section.
Sec. 6. Wages of deceased employee. — The payment of the wages of a deceased employee shall be made to his heirs without the necessity of intestate proceedings. When the heirs are of age, they shall execute an affidavit attesting to their relationship to the deceased and the fact that they are his heirs to the exclusion of all other persons. In case any of the heirs is a minor, such affidavit shall be executed in his behalf by his natural guardian or next of kin. Upon presentation of the affidavit to the employer, he shall make payment to the heirs as representative of the Secretary of Labor and Employment.
SUMMARY GR: Wages shall be paid directly to the workers to whom they are due. EXCEPTIONS: 1. In cases of force majeure rendering such payment impossible; University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Where the employer is authorized in writing by the employee to pay his wages to a member of his family; Where payment to another person is authorized by existing law; In case of death of the employee.
TIME/FREQUENCY OF PAYMENT ART. 103. Time of payment. - Wages shall be paid at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. If on account of force majeure or circumstances beyond the employer’s control, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. No employer shall make payment with less frequency than once a month. The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following conditions, in the absence of a collective bargaining agreement or arbitration award: (1) That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed; (2) That final settlement is made upon completion of the work. Rule VIII, Book III, Sec 3 Sec. 3. Time of Payment. – (a) Wages shall be paid not less often than once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days, unless payment cannot be made with such regularity due to force majeure or circumstances beyond the employer’s control, in such case the employer shall pay the wages immediately after such force majeure or circumstances have ceased. (b)
In case of payment of wages by results involving work which cannot be finished in two (2) weeks, payment shall be made at intervals not exceeding sixteen (16) days in proportion to the amount of work completed. Final settlement shall be made immediately upon completion of the work.
General Rule: at least every 2 weeks or twice a month at intervals not exceeding 16 days. Exception: in cases of force majeure or in circumstances beyond the employer’s control, wherein the payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstance have ceased. The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following conditions, in the absence of a collective bargaining agreement or arbitration award: (1) That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed; (2) That final settlement is made upon completion of the work.
UPDATES
Art. 82 applied in 2006 Penaranda , excluded shift engineer from overtime and premium pay as he is considered “ officer and member of managerial staff “
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TOPIC 9: CONDITIONS OF EMPLOYMENT NORMAL HOURS OF WORK ART. 83. Normal hours of work. - The normal hours of work of any employee shall not exceed eight (8) hours a day. Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day, for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours, in which case, they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, "health personnel" shall include resident physicians, nurses, nutritionists, dietitians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.
The normal hours of work of any employee shall not exceed eight (8) hours a day. Which includes: 1. All time during which an employee is required to be on duty or to be at a prescribed workplace. 2. All the time during which an employee is suffered or permitted to work. 3. Rests periods of short duration during working hours. 4. Meal period of less than 20 minutes, since it becomes only a rest period and thus considered as working time. 5. The reasonable time to withdraw their wages from the bank facility if done working hours, if payment of wages is through banks, ATM or by check. Attendance during Seminars: Not compensable if: 1. Attendance is outside employee’s regular working hours 2. Employee is not work productive 3. Attendance is voluntary
OTHER HOURS OF WORK CHILD LABOR RA 9231 Sec. 12-A. Hours of Work of a Working Child. - Under the exceptions provided in Section 12 of this Act, as amended: (1) A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: Provided, That the work shall not be more than four (4) hours at any given day; (2) A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a week; (3) No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six o'clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work between ten o'clock in the evening and six o'clock in the morning of the following day."
DO No. 65-04 series of 2004 Chapter 5 – Hours of Work SECTION 15. Hours of Work of a Working Child – The following hours of work shall be observed for any child allowed to work under Republic Act No. 9231 and these Rules: (a) For a child below 15 years of age, the hours of work shall not be more than twenty 20 hours a week, provided that the work shall not be more than four hours at any given day; (b) For a child 15 years of age but below 18, the hours of work shall not be more than eight hours a day, and in no case beyond 40 hours a week; and (c) No child below 15 years of age shall be allowed to work between eight o’ clock in the evening and six o’clock in the morning of the following day and no child 15 years of age but below 18 shall be allowed to work between ten o’clock in the evening and six o’ clock in the morning of the following day. Sleeping time as well as travel time of a child engaged in public entertainment or information from his/her residence to his/her workplace shall not be included as hours worked without prejudice to the application of existing rules on employees compensation.
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Societas Spectra Legis Labor Standards Compilation Manual of Regulations for Private Higher Education of 2008 (CHED Memorandum Circular No. 40, series of 2008) Section 120. Normal Hours of Work: Academic Teaching Personnel Overload. – In accordance with Article 83 of the Labor Code of the Philippines, as amended, the normal hours of work of school personnel shall not exceed eight (8) hours a day. Any work done in addition to the eight (8) daily work shall constitute overtime work. The normal hours of work of teaching or academic personnel shall be based on their normal regular teaching loads. Such normal or regular teaching loads shall be based in accordance with the policies, rules and standards prescribed by the Commission. Any teaching load in excess of the normal or regular teaching load shall be considered as overload. Overload partakes of the nature of temporary extra assignment and compensation therefore shall be considered as an overload honorarium if performed within the 8-hour work period and does not form part of the regular or basic pay. Overload performed beyond the eight-hour daily work is overtime work. As used herein, term “regular or basic pay” means all remuneration or earnings paid by the institution to its personnel for services rendered on normal working days and hours but does not include cost of living allowances, profit sharing payments, premium payments, honoraria, 13th month pay or other monetary benefits which are not considered as part of or integrated into the regular wage/salary of school personnel. Overload is essentially temporary arrangement resorted to when there is no faculty available to teach the subject/course as part of his/ her regular teaching load.
2010 Revised Manual of Regulations for Private Schools in Basic Education (DepEd Order No. 88, series of 2010) Section 93. Regular Hours and Teaching Hours. – The regular hours of work of school personnel in all private schools shall not exceed eight hours a day. The Normal teaching hours in the different levels of instruction shall be issued through regulation by the Secretary on the basis of course requirements and the maximum load of teaching personnel.
HOUSEHELPERS Art. 1695. House helper shall not be required to work more than ten hours a day. Every house helper shall be allowed four days' vacation each month, with pay.
HOURS WORKED Art. 84. HOURS WORKED – Hours worked shall include (a) all time during which an employee is required to be on duty or to be at a prescribed workplace, and (b) all time during which an employee is suffered or permitted to work. Rest periods of short durations during working hours shall be counted as hours worked.
IMPLEMENTING RULES OF BOOK III: Rule I Sec. 5. Waiting time – (a) Waiting time spent by an employee shall be considered as working time if waiting is an integral part of his work or the employee is required or engaged by the employer to wait. (b) An employee who is required to remain on call in the employer’s premises or so close thereto that he cannot use the time effectively and gainfully for his own purpose shall be considered as working while on call. An employee who is not required to leave word at his home or with company officials where he may be reached is not working while on call.
KEEPING OF TIME RECORDS: ENTRIES, EXECUTIVES & WORKERS PAID BY RESULTS IMPLEMENTING RULES OF BOOK III: Rule X SEC. 7. Time records. – Every employer shall keep an individual time record of all his employees bearing the signature or thumbmark of the employee concerned for each daily entry therein by means of any of the following methods: (a) (b) (c)
Through the use of bundy clock by means of which each one can punch his individual card the time of arrival for and departure from work; Through the employment of a timekeeper whose duty is to time in and out each and every employee in a record book; and By furnishing them individually with a daily time record form wherein they can note the time of their respective arrivals for and departure from work
SEC. 9. Time records of executives. – Managerial employees, officers or members of the managerial staff, as well as nonagricultural field personnel, need not be required to keep individual time records, provided, that a record of their daily attendance or the days they actually reported for work is kept and maintained by the employer. SEC. 10. Records of workers paid by results. – Where the employees are paid on piece, pakiaw, takay, task, commission or other nontime basis, the employer shall keep and maintain their production records showing their daily output, gross earning and the actual number of working hours spent by the employees on the job bearing the signature or thumbmark of the employee concerned. Where, however, the minimum output rates of nontime workers have been fixed by the Department of Labor or through certified collective agreements, or are in compliance with the
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Societas Spectra Legis Labor Standards Compilation standards prescribed in Section 8, Rule VII of this Book, the employer may dispense with the keeping of time records, except the daily production records showing their output or the work accomplished and gross earnings.
REST PERIODS Meal Period Art. 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.
Under this article the meal period should not be less than 60 minutes, in which case it is time-off or non-compensable time. The Implementing Rules of Book III, Rule I, Sec 7, allows the meal time to be less than 60 minutes, under specified cases. But such shortened meal time (say 30 minutes) should be with full pay, and of course, the time when the employee cannot eat, because he is still working, should also be paid. The employer is required to give his employees not less than 60 minutes or 1 hour for their regular meals everyday. The LC does not specify as to what specific hour of the day the meal period are to be given. The 60-minute meal period is not compensable because during this time, the worker does not work. To shorten meal time to less than 20 minutes is not allowed, if the so called meal time is less than 20 minutes, it becomes only a rest period, and under the same section 7, is considered work time. Q: Is it possible to reduce the meal period to less than 60 minutes? If so, under what instances? A: YES, under Section 7, Rule I, Book III. Shortened Meal Period IMPLEMENTING RULES OF BOOK III: Rule I Sec. 7. Every employer shall give his employees, regardless of sex, not less that one (1) hour time-off for regular meals, except in the following cases when a meal period of not less than twenty (20) minutes may be given by the employer provided that such shorter meal period is credited as compensable hours worked of the employee: (a) Where the work is non-manual work in nature or does not involve strenuous physical exertion; (b) Where the establishment regularly operates not less than sixteen hours a day; (c) In cases of actual or impending emergencies or there is urgent work to be performed on machineries, equipment or installation to avoid serious loss which the employer would otherwise suffer; and (d) Where the work is necessary to prevent serious loss of perishable goods. Coffee Break IMPLEMENTING RULES OF BOOK III: Rule I Sec. 7. … Rest periods or coffee breaks running from five (5) to twenty (20) minutes shall be considered as compensable working time. Short coffee breaks of 5–20 minutes are compensable. So if the employer gives the employees break in the morning and in the afternoon, this time is considered compensable. Note that the employer is not obliged by law to give this coffee break. The employer can lessen the 60-minute meal period into 30 minutes. And this is compensable. Note that the employer shall pay the Overtime Pay whenever proper. Note that meal periods can be reduced to less than 60 minutes but not less than 20 minutes, and it is compensable. For example, if the meal period is reduced to 59 minutes it is compensable. The employer cannot prohibit employees from leaving the premises during the meal period of employees. The law in fact does not require that the 60 minutes to be spent in the employer’s premises. There is no labor code provision to this effect. Shortened Meal Break upon Employee’s Request (2004 BWC Manual on Labor Standards) However, the employees themselves may request that their meal period be shortened so that they can leave work earlier than the previously established schedule. In such a situation, the shortened meal period is not compensable. For instances, the established work hours are from 8:00 am to 5:00 pm, with 12:00 noon to 1:00 pm as meal period. So that the employees could quit work at 4:30 pm, they may request, and management may agree, to shorten the meal time to thirty minutes (12:00 – 12:30 pm). This 30-minute meal time is not compensable. From 12:31 to 4:30 the employee resumes work and should be paid the regular rate. Work after 4:30 is overtime. Provided, that these conditions concur: University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation (a) 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; (b) 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; (c) The work of the employees does not involve strenuous physical exertion and they are provided with adequate “coffee breaks” in the morning and afternoon; (d) 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; (e) The overtime pay of the employees will become due and demandable if ever they are permitted or made to work beyond 4:30 pm; and (f) The effectivity of the proposed working time arrangement shall be of temporary duration as determined by the Secretary of Labor and Employment.
WORKWEEK COMPRESSED WORKWEEK SCHEMES (DOLE Dept. Advisory No. 2, Series of 2004) I. PURPOSE AND COVERAGE This Advisory is being issued to guide employers and workers who may opt to adopt a mutually acceptable compressed workweek (CWW) scheme suitable to the requirements of the firm. This Advisory may be used in all establishments except those in the (1) Construction industry; (2) health services; (3) occupations requiring heavy manual labor; or (4) occupations or workplaces in which workers are exposed to airborne contaminants, human carcinogens, substances, chemicals or noise that exceed threshold limit values or tolerance levels for an eight-hour workday as prescribed under existing Occupational Safety and Health Standards (OSHS). II. OBJECTIVE: As a matter of policy, and taking into account the emergence of new technology and the continuing restructuring and modernization of the work process, the Department of Labor and Employment (DOLE) encourages employers and workers to enter into voluntary agreements adopting CWW schemes based on the following objectives: 1. To promote business competitiveness and productivity, improve efficiency by lower operating costs, and reduce work-related expenses of employees; 2. To give employers and workers flexibility in fixing hours of work compatible with business requirements and the employees’ need for a balanced work life; and 3. To ensure the safety and health of employees at the workplace at all times. For purposes of administering or enforcing existing laws and rules on work hours, overtime compensation and other relevant labor standards, DOLE shall recognize only those CWW schemes that have been entered into consistent with this Advisory. III. CONCEPT AND DEFINITION The Labor Code provides that the normal work hours per day shall be eight hours. Work may be performed beyond eight hours a day provided the employee is paid for the overtime work. On the other hand, the normal number of workdays per week shall be six days, or a total of forty-eight (48) hours based on the normal workday of eight hours. This is without prejudice to firms whose normal workweek is five days, or a total of forty (40) hours based on the normal workday of eight hours. For purposes of this Advisory, a CWW scheme is an alternative arrangement whereby the normal workweek is reduced to less than six days but the total number of normal work hours per week shall remain at 48 hours. The normal workday is increased to more than eight hours without corresponding overtime premium. This concept can be adjusted accordingly in cases where the normal workweek of the firm is five days. IV. SPECIFIC GUIDELINES Conditions. DOLE shall recognize CWW schemes adopted in accordance with the following: 1. The CWW scheme is undertaken as a result of an express and voluntary agreement of majority of the covered employees or their duly authorized representatives. This agreement may be expressed through collective bargaining or other legitimate workplace mechanisms of participation such as labor-management councils, employee assemblies or referenda. 2.
In firms using substances, chemicals and processes or operating under conditions where there are airborne contaminants, human carcinogens or noise prolonged exposure to which may pose hazards to the employees’ health and safety, there must be a certification from an accredited health and safety organization or practitioner or from the firm’s safety committee that work beyond eight hours is within threshold limits or tolerable levels of exposure, as set in the OSHS.
3.
The employer shall notify DOLE, through the Regional Office having jurisdiction over the workplace, of the adoption of the CWW scheme. The notice shall be in DOLE CWW Report Form attached to this Advisory.
Effects. A CWW scheme which complies with the foregoing conditions shall have the following effects: 1. Unless there is a more favorable practice existing in the firm, work beyond eight hours will not be compensable by overtime premium provided the total number of hours worked per day shall not exceed twelve (12) hours. In any case, any work performed beyond 12 hours a day or 48 hours a week shall be subject to overtime premium. 2.
Consistent with Articles 85 of the Labor Code, employees under a CWW scheme are entitled to meal periods of not less than sixty (60) minutes. Nothing herein shall impair the right of employees to rest days as well as to holiday pay, rest day pays or leaves in accordance with law or applicable collective bargaining agreement or company practice.
3.
Adoption of the CWW scheme shall in no case result in diminution of existing benefits. Reversion to the normal eight-hour workday shall not constitute a diminution of benefits. The reversion shall be considered a legitimate exercise of management prerogative, provided that the employer shall give the employees prior notice of such reversion within a reasonable period of time.
GUIDELINES ON THE ADOPTION OF FLEXIBLE WORK ARRANGEMENTS (DOLE Dept. Advisory No. 2, Series of 2009) I.
PURPOSE This Advisory is being issued to assist and guide employers and employees in the implementation of various flexible work arrangements as one of the coping mechanisms and remedial measures in times of economic difficulties and national emergencies. Adoption of flexible work arrangements is considered as a better alternative than the outright termination of the services of the employees or the total closure of the establishment. Anchored on voluntary basis and conditions mutually acceptable to both the employer and the employees, it is recognized as beneficial in terms of reduction of business costs and helps in saving jobs while maintaining competitiveness and productivity in industries. II.
CONCEPT The Department recognizes the desirability and practicality of flexible work arrangements that may be considered by employers after consultation with the employees, taking into account the adverse consequence of the situation on the performance and financial condition of the company.
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Societas Spectra Legis Labor Standards Compilation Flexible work arrangements refer to alternative arrangements or schedules other than the traditional or standard work hours, workdays and workweek. The effectivity and implementation of any of the flexible work arrangements provided herein shall be temporary in nature. III.
FLEXIBLE WORK ARRANGEMENTS The following are the flexible work arrangements which may be considered, among others: 1.
2. 3. 4. 5. 6.
Compressed Workweek refers to one where the normal workweek is reduced to less than six (6) days but the total number of work-hours of 48 hours per week shall remain. The normal workday is increased to more than eight hours but not to exceed twelve hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the normal workweek of the company pursuant to the provisions of Department Advisory No. 02, series of 2004, dated 2 December 2004. Reduction of Workdays refer to one where the normal workdays per week are reduced but should not last more than six months. Rotation of Workers refer to one where the employees are rotated or alternately provided work within the workweek. Forced Leave refers to one where the employees are required to go on leave for several days or weeks utilizing their leave credits if there are any. Broken-time schedule refers to one where the work schedule is not continuous but the work-hours within the day or week remain. Flexi-holidays schedule refers to one where the employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.
7. Under these flexible work arrangements, the employers and the employees are encouraged to explore alternative schemes under any agreement and company policy or practice in order to cushion and mitigate the effect of the loss of income of the employees. IV.
ADMINISTRATION OF FLEXIBLE WORK ARRANGEMENTS The parties to the flexible work schemes shall be primarily responsible for its administration. In case of differences of interpretation, the following guidelines shall be observed: 1. 2. 3.
The differences shall be treated as grievances under the applicable grievance mechanism of the company. If there is no grievance mechanism or if this mechanism is inadequate, the grievance shall be referred to the Regional Office which has jurisdiction over the workplace for appropriate conciliation. To facilitate the resolution of grievances, employers are required to keep and maintain, as part of their records, the documentary requirements proving that the flexible work arrangement was voluntarily adopted.
V.
NOTICE REQUIREMENT Prior to its implementation, the employer shall notify the Department through the Regional Office which has jurisdiction over the workplace, of the adoption of any of the above flexible work arrangements. The notice shall be in the Report Form attached to this Advisory. The Regional Office shall conduct an ocular visit to validate whether the adoption of the flexible work arrangements is in accordance with this issuance.
GUIDELINES IN THE IMPLEMENTATION OF FLEXIBLE WORK ARRANGEMENTS AND THE EXEMPTION FROM THE NIGHTWORK PROHIBITION FOR WOMEN EMPLOYEES IN THE BUSINESS PROCESS OUTSOURCING (DOLE Dept. Advisory No. 4, series of 2010) I.
PURPOSE In view of the rapid technological innovations, the continuing streamlining and transformation of the work processes brought about by the globalization phenomena, this Advisory is being issued to assist and guide employers and employees in the implementation of various flexible work arrangements and the exemption from the nightwork prohibition for women employees under Article 130 of the Labor Code of the Philippines, as amended. The adoption of flexible work arrangements is being considered to improve business competitiveness and productivity and give employers and employees flexibility in fixing hours of work compatible with business requirements and the employees’ need for balanced work life. On the other hand, the exemption from the nightwork prohibition is recognized under Article 131 of the Labor Code under analogous cases and taking into account the constitutional mandate for equal employment opportunities and the right against employment discrimination. IMPLEMENTATION OF FLEXIBLE WORK ARRANGEMENTS II. CONCEPT Flexible work arrangements refer to alternative arrangements or schedule other than the traditional or standard workhours, workdays and workweek. The effectivity and implementation of any of the flexible work arrangements shall be based on voluntary agreements between the employer and the employees. The adoption of the flexible work arrangements provided herein shall in no case result in diminution of existing benefits of the employees. III.
FLEXIBLE WORK ARRANGEMENTS The following are the flexible work arrangements which may be considered, among others: 1.
2. 3.
Compressed Workweek refers to one where the normal workweek is reduced to less than six (6) days but the total number of work hours of 48 hours per week shall remain. The normal workday is increased to more than eight hours but not to exceed twelve hours, without corresponding overtime premium. The concept can be adjusted accordingly depending on the normal workweek of the company pursuant to the provisions of Department Advisory No. 02, series of 2004, dated 2 December 2004. Gliding or Flexi-time schedule refers to one where the employees are required to complete the core workhours in the establishment but are free to determine their arrival and departure time. Flexi-holidays schedule refers to one where the employees agree to avail the holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement.
The employers and the employees may likewise explore other alternative work arrangements under any agreement and company policy or practice in accordance with existing laws and regulations. IV.
ADMINISTRATION The parties to the flexible work arrangements shall be primarily responsible for its administration. In case of differences of interpretation, the following guidelines shall be observed: 1. 2. 3.
The differences shall be treated as grievances under the applicable grievance mechanism of the company. If there is no grievance mechanism or if this mechanism is inadequate, the grievance shall be referred to the Regional Office which has jurisdiction over the workplace for appropriate conciliation. To facilitate the resolution of grievances, employers are required to keep and maintain, as part of their records, the documentary requirements proving that the flexible work arrangement was voluntarily adopted.
EXEMPTION FROM THE NIGHTWORK PROHIBITION FOR WOMEN EMPLOYEES UNDER ARTICLE 130 OF THE LABOR CODE, AS AMENDED Women employees may be allowed to work during nighttime in accordance with Article 131 of the Labor Code, subject to the limitation that the female employees should not be below eighteen (18) years of age. Employers are likewise required, among others, to provide safe and healthful working conditions, and adequate/reasonable facilities such as sleeping/resting quarters in the establishment. Pregnant women and nursing mothers may be allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the case of pregnant employees, the period of the pregnancy that they can safely work.
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Societas Spectra Legis Labor Standards Compilation Any deviation from the limitations stated above and those provided for under the Labor Code, and Department Circular No. 1, Series of 2008 (Policy Guidelines Governing the Occupational Safety and Health of Workers in the Call Center Industry) shall be a ground for revocation of the exemption granted herein.
HEALTH PERSONNEL Art. 83. HOURS OF WORK. – xxxx Health personnel in cities and municipalities with a population of at least one million (1,000,000) or in hospitals and clinics with a bed capacity of at least one hundred (100) shall hold regular office hours for eight (8) hours a day for five (5) days a week, exclusive of time for meals, except where the exigencies of the service require that such personnel work for six (6) days or forty-eight (48) hours which case they shall be entitled to an additional compensation of at least thirty percent (30%) of their regular wage for work on the sixth day. For purposes of this Article, “health personnel” shall include resident physicians, nurses, nutritionists, dieticians, pharmacists, social workers, laboratory technicians, paramedical technicians, psychologists, midwives, attendants and all other hospital or clinic personnel.
Note: interns are not included. They are usually not employees of the hospital Medical secretaries are also considered clinic personnel The customary practice of requiring resident physicians to work for 24 hours a day violates the limitations prescribed by Article 83 and would not be permissible even if the resident physicians were paid additional compensation. It cannot override the purpose of the limitation which is to safeguard the health and interest of hospital workers. However, the fortyhour workweek would not be applicable if there is a training agreement between the resident physician and the hospital and the training program is duly accredited or approved by the appropriate government agency. In such case, there is no employer-employee relation on account of the approved training program pursuant to Section 15, Rule X of the Rules and Regulations Implementing the Labor Code. The Manila Medical Society is not embraced in the definition and is accordingly not limited to a forty-hour workweek because it does not perform any diagnosis, treatment and care of patients. Nonetheless, its exclusion from the definition will not confer upon it the right to change its present practice relative the Center in allowing its employees to work half-day during Saturdays and in giving them additional compensation should they work beyond four (4) hours should be retained. Health Personnel in government service are excluded from coverage of Articles 82 to 96. Their work hours, night shift differential pay, and other employment benefits are specified in RA 7305.
WEEKLY REST DAY Art. 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 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. (to accommodate members of the 7th day Adventists and others)
Rule III, Book III Section 2. Business on Sundays/Holidays. – All establishments and enterprises may operate or open for business on Sundays and Holidays provided that the employees are given the weekly rest day and the benefits due them under the law.
The rest day need not be a Sunday, because the Blue Sunday Law no longer finds application in the present. Section 3. Weekly Rest Day. – Every employer shall give his employees a rest period of not less than 24 hours after every 6 consecutive normal work days. Section 4. Preference of employee. — The preference of the employee as to his weekly day of rest shall be respected by the employer if the same is based on religious grounds. The employee shall make known his preference to the employer in writing at least seven (7) days before the desired effectivity of the initial rest day so preferred.
Where, however, the choice of the employees as to their rest day based on religious grounds will inevitably result in serious prejudice or obstruction to the operations of the undertaking and the employer cannot normally be expected to resort to other remedial measures, the employer may so schedule the weekly rest day of their choice for at least two (2) days in a month. Q: What happens on the seventh day? University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation A: It becomes the rest day. It is mandatory on the part of the employer because it is provided for under Article 91. That is how we arrive on a 48-hour work week. Q: Will the seventh day be considered always and at all times the rest day? A: YES. Q: Does the LC tell us what specific day of the week will the employees rest day be? A: NO. Of course, under the BLUE SUNDAY LAW, the employees’ rest day was imposed every Sunday. But when the Labor Code took effect in 1974, it gave more flexibility on the part of the employer to determine what rest day will be best for his business. There are certain types of establishments that derive more money during Sundays and Saturdays. And on the other hand, there may be some establishments that are not productive during Sundays. Example: Malls, Department Stores. In those establishments, it will be possible to schedule the employees’ rest day on days other than Sunday. The employer has the prerogative to determine the employee’s rest day. When it does, the employer can change the employees’ rest day only after giving a NOTICE, and the change will take effect 1 week after such notice. Conditions: (a) The employer has to notify the employees of any change in the rest day. (b) The change will have to take effect at least 7 days after the change of schedule. This is so as not to cause inconvenience on the part of the employees who may expect to be enjoying their rest day on a particular day. If the employer decides to change it because that is his prerogative, he still has to inform his employees of the change in advance. Q: The choice of rest day rests upon the employer, is there an instance when the employer will have to give some deference to the employees’ choice of their rest day? A: YES. Under Article 91 (b), based on religious grounds. The employer has to respect such employees’ preference. (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 the SOLE 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. EXCEPTION TO THE EXCEPTION Under the implementing rules, when it will cause serious obstruction or prejudice to the operations or undertaking of the employer, the employer shall schedule the rest day of their choice for at least 2 days in a month. But of course, customarily in the Philippines, the employer gives respect to the employees’ choice of rest day if the same is based on religious grounds. DOES THE 6 CONSECUTIVE DAYS WORKWEEK APPLY TO ALL EMPLOYERS OR EMPLOYEES? NO, it does not apply to: (a) Health personnel in cities or municipalities with a population of 1 million or (b) Hospitals with a bed capacity of at least 100. The population requirement and the bed capacity need not go together. They are to be taken separately. Remember that the bed capacity is not required to be occupied as long as the requirement of at least a hundred is met OR you belong in a municipality or city with at least 1 million in population. In this case, the normal workweek consists of 5 consecutive workdays. In effect, the rest day consists of 2 days. The law does not tell us the specific days when the rest days will fall. They have 40-hour workweek and they will enjoy 2 rest days. This is due to the nature of their job or activities involving more strenuous type of work compared to other establishments. HEALTH PERSONNEL – shall include: (a) Resident physicians, (b) Nurses, (c) Nutritionists, (d) Dietitians, (e) Pharmacists, University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation (f) (g) (h) (i) (j) (k) (l)
Social workers, Laboratory technicians, Paramedical technicians, Psychologists, Midwives, Attendants, and All other hospital or clinic personnel.
Policy Instruction No. 54 [issued by Franklin Drilon] It says in effect that those health personnel will have to be considered paid 7 days a week. Is this valid? NO, this was held to be void in the case of San Juan de Dios Hospital Employees Association vs. NLRC, GR 126383 (November, 28, 1997). This is because it contravenes the LC because the LC does not say that these 2 days off shall be paid, but rather, it only says that there will be 30% which will be added to the regular wage if they work on the rest day. The LC does not give them a full 7 days with pay but rather, only additional compensation. San Juan de Dios Hospital Employees Association vs. NLRC G.R. No. 126383 November, 28, 1997 A cursory reading of Article 83 of the Labor Code betrays petitioners’ position that “hospital employees” are entitled to “a full weekly salary with paid 2 days’ off if they have completed the 40-hour/5day workweek. ”What Article 83 merely provides are: (1) The regular office hour of 8 hours a day, 5 days a week for health personnel; and (2) Where the exigencies of service require that health personnel work for 6 days or 48 hours, then such health personnel shall be entitled to an additional compensation of at least 30% of their regular wage for work on the sixth day. There is nothing in the law that supports then SOLE’s assertion that “personnel in subject hospitals and clinics are entitled to a full weekly wage for 7 days if they have completed the 40-hour/5-day workweek in any given workweek.” Needless to say, the SOLE exceeded his authority by including a 2 days off with pay in contravention of the clear mandate of the statute. Such an act the Court shall not countenance. Administrative interpretation of the law, we reiterate, is at best merely advisory, and the Court will not hesitate to strike down an administrative interpretation that deviates from the provision of the statute. Policy Instruction 54 to our mind unduly extended the statute. It being inconsistent with and repugnant to the provision of Article 83, as well as to RA 5901, PI 54 is declared VOID. Q: Can the employees be compelled to work during rest day? A: Article 92. The general rule is that under normal circumstances, the employer cannot require to compel his employee to work on the latter’s scheduled rest day against his will. The general rule however admits of certain exceptions, and these are found in Article 92 of the Labor Code and Section 6 Rule III of the Omnibus Rules. Section 6. When work on rest day authorized. – An employer may require any of his employees to work on his scheduled rest day for the duration of the following emergencies and exceptional conditions: 1. 2. 3. 4. 5. 6.
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 or property, or in case of force majeure or imminent danger to public safety; In case of urgent work to be performed on machineries, equipment or installations to avoid serious loss which the employer would otherwise suffer; In the event of abnormal pressure or work due to special circumstances, where the employer cannot be ordinarily be expected to resort to other measures; To prevent serious loss of perishable goods; Where the nature of the work is such that the employees have to work continuously for 7 days in a week or more, as in the case of the crew members of a vessel to complete a voyage and in other similar cases; When the work is necessary to avail of favorable weather or environmental conditions where performance or quality of work is dependent thereon.
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Societas Spectra Legis Labor Standards Compilation No employee shall be required against his will to work on his scheduled rest day except under the circumstances provided. Provided, however, that where an employee volunteers to work on his rest day under other circumstances, he shall express such desire in writing. If the employee works on his rest day, he is entitled to additional compensation and this is called PREMIUM PAY. This is not the same as overtime pay. This is additional compensation for the work of the employee for not more than 8 hours during his rest day.
METHODS OF FIXING COMPENSATION Time, tasks, piece, or commission basis, or other method of calculating the same Facilities vs. Supplements Facilities – include articles or services (such as board and lodging) for the benefit of the employee and his family. But the term does not include tools of the trade or articles or services primarily for the benefit of the employer or necessary for the conduct pf the employer’s business. are wage deductible are items of expense necessary for the laborer’s and his family’s existence and subsistence, so that by express provision of lay, they form part of the wage and when furnished by the employer are deductible therefrom, since if they are not furnished, the laborer would spend and pay for them just the same. Supplements – constitute extra remuneration or special privileges or benefits given to or received by the laborers over and above their ordinary earnings or wages. are not wage deductible
Attendance at lectures, meetings, training programs shall NOT be counted as working time if the following conditions are met: 8. Attendance is outside of the employee’s regular working hours. 9. Attendance is in fact voluntary. 10. The employee does not perform any productive work during such attendance.
2012 DOLE BWC HANDBOOK ON WORKER’S STATUTORY MONETARY BENEFITS D.
Monthly-Paid Employees and Daily-Paid Employees Monthly-paid employees are those who are paid everyday of the month, including unworked rest days, special days, and regular holidays. Factor 365 days in a year is used in determining the equivalent monthly salary of monthly-paid employees. Daily-paid employees are those who are paid on the days they actually worked and on unworked regular holidays. Factor 313 (6 -day work per week) or 261 (5day work per week) may be used in computing the equivalent monthly salary of daily-paid employees. To compute their equivalent monthly rate, the procedure is as follows: [Applicable Daily Rate (ADR) x factor*] / 12 months = Estimated Equivalent Monthly Salary (EEMR) Without prejudice to existing company policies, practices and/or agreements, the above formula are merely suggestions and may be used as guides in determining the equivalent monthly minimum wage rates.
GUIDELINES IN THE COMPUTATION OF ESTIMATED EQUIVALENT MONTHLY RATES OF MONTHLY-PAID AND DAILY-PAID EMPLOYEES (DOLE Dept. Advisory No. 1, Series of 2010) With the passage of Republic Act No. 9849 (An Act Declaring the Tenth Day of Zhul Hijja, the Twelfth Month of the Islamic Calendar, a National Holiday for the observance of Eidul Adha, further amending for the prupose Section 26, Chapter 7, Book I of Executive Order No. 292, otherwise known as the Administrative Code of 1987, as amended), the suggested formulas in determining the estimated equivalent monthly rates of monthly-paid and daily-paid employees are modified as follows: For monthly-paid employees: Factor 365 days in a year is used in determining the equivalent annual and monthly salary of monthly-paid employees. To compute their Estimated Equivalent Monthly Rate (EEMR), the procedure is as follows: (Applicable Daily Rate x 365) / 12 = EEMR Where 365 days/ year = 298 ordinary working days 52 rest days 12 regular holidays
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Societas Spectra Legis Labor Standards Compilation 3 special days 365 Total equivalent no. of days in a year For daily-paid employees: The following factors and formula may be used in computing the EEMR of different groups of daily-paid employees for purposes of entitlement to minimum wages and allied benefits under existing laws. 1.
For those who are required to work everyday, including Sundays or rest days, special days, and regular holidays [Applicable Daily Rate x 393.50] / 12 = EEMR Where 393.50 days / year = 298 – ordinary working days 24 – 12 regular holidays x 200% 67.50 – 52 rest days x 130% 3.90 – 3 special days x 30% 393.50 – Total equivalent no. of days in a year
2.
For those who do not work and are not considered paid on Sundays or rest days [Applicable Daily Rate x 313] / 12 = EEMR Where 313 days / year = 298 ordinary working days 12 regular holidays 3 special days 313 Total equivalent no. of days in a year
3.
For those who do not work and are not considered paid on Saturdays and Sundays or rest days [Applicable Daily Rate x 261] / 12 = EEMR Where 261 days / year = 246 ordinary working days 12 regular holidays 3 special days 261 Total equivalent no. of days in a year
UPDATES
Reduction of work days from 6 days a week to 3 days on rotation basis considered an illegal “compressed” workweek , held in 2007 Linton Commercial Co. as it constitutes illegal reduction of work hours resulting to unsettling diminution of the periodic pay for a protracted period es pecially here where there is no adequate proof of financial losses ; see also 2009 Rosa , where reduction of workdays , without proof of economic loss , amounts to constructive dismissal as it lowers salary of workers
Waiver of overtime pay under a compressed workweek is valid, held in 2008 Bisig Manggagawa sa Tryco.
The employer has the prerogative to determine the employee’s rest day. When it does, the employer can change the employees’ rest day only after giving a NOTICE, and the change will take effect 1 week after such notice. o o
The employer has to notify the employees of any change in the rest day. The change will have to take effect at least 7 days after the change of schedule.
This is so as not to cause inconvenience on the part of the employees who may expect to be enjoying their rest day on a particular day. If the employer decides to change it because that is his prerogative, he still has to inform his employees of the change in advance.
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TOPIC 10: MINIMUM LABOR STANDARDS BENEFITS EMPLOYEES EXEMPTED ART. 82. Coverage. - The provisions of this Title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and 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.
Labor Standards Benefits covered under Art. 82: (a) Night Shift Differential; (b) Overtime pay; (c) Holiday pay; (d) Service Incentive Leave; and (e) Service Charges Rule I, Book III, Section 2 Employees not covered by this provision [Art 82] GOVERNMENT EMPLOYEES Whether employed by the national government or any of its political subdivisions, including those employed in governmentowned and –controlled corporations. REASON: They are governed by different set of laws, which are the Civil Service Law, the Administrative Code, and by their respective charters. If a government-owned or – controlled corporation has been incorporated, they are governed by the Corporation Code and are consequently covered by the Labor Code. MANAGERIAL EMPLOYEES AND MEMBERS OF THE MANAGERIAL STAFFS Managerial employees if they meet all of the following conditions: Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof; [formulate policies] They customarily and regularly direct the work of two or more employees therein; [execute management policies] They have the authority to hire and fire employees of lower rank, or their suggestions and recommendations to hiring and firing and as to the promotion or any other change of status of other employees, are given particular weight. [impose disciplinary actions] REASON: Managerial employees are not usually employed and paid by the hour. Their compensation is determined by their special training, experience or knowledge, which requires the exercise of discretion and independent judgment; or perform work related to management policies and general business operations along specialized or technical lines. Characteristics of Managerial employees: The primary duty consists of the performance of work directly related to management policies of the employer; Customarily and regularly exercise discretion and independent judgment; They: Regularly and directly assist a proprietor or general managerial employee whose primary duty consists of the management of the establishment in which he is employed or a subdivision thereof;
Execute, under general supervision, work along specialized or technical lines requiring special training, experience or knowledge; or Execute, under general supervision, special assignments and tasks.
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Societas Spectra Legis Labor Standards Compilation They do not devote more than 20% of their hours worked in a workweek to activities, which are not directly and closely related to the performance of the work prescribed in the above-mentioned 1, 2 and 3. REASON: They may be considered managerial employees as well. Thus, it would not be feasible to provide a fixed hourly rate of pay or maximum hours of work like managerial employees as previously mentioned. FIELD PERSONNEL If they: (a) Regularly perform their duties away from the principal or branch office or place of business of the employer; and (b) Whose actual hours of work in the field cannot be determined with reasonable certainty. REASON: These workers perform their jobs away from the employer’s place of business, and therefore not subject to the personal supervision of their employer. His employer has no way of knowing the exact number of hours he is working in a day, like medical representatives and field salesmen. Their hours of work cannot be determined with reasonable certainty. MEMBERS OF THE FAMILY WHO ARE DEPENDENT UPON HIM FOR SUPPORT REASON: The employer has already taken care of the sustenance, clothing, medical attendance or education of the particular members of his family. Note that this category refers to husband and wife, parents and children, other descendants and ascendants, brothers and sisters whether in the full or half blood. It does not include in-laws because they do not pertain to the same family. Also keep in mind that the family must be dependent upon the employer for support. HOUSEHOLD HELPERS PERSONS IN THE PERSONAL SERVICE OF ANOTHER. Domestic servants and persons in the personal service of another if they perform such services in the employer’s home which are usually necessary and desirable for the maintenance and enjoyment thereof, or minister to the personal comfort, convenience or safety of the employer as well as the members of the employer’s household. REASON: They are already provided with living quarters, food, and extra clothing such that all in all, it would exceed the statutory minimum wage. Also, because the nature of the work plus the fact that they are not employed in a business undertaking. WORKERS PAID BY RESULTS Including those who are paid by piece-work, takay, pakiao, or task basis, and other non-time work if their output rates are in accordance with the standards under Section 8 Rule VII Book III of these Regulations, or where such rates have been fixed by the SOLE in accordance with the aforesaid section. REASON: They are not paid on an hourly basis but in their output. Their pay is dependent upon the work done regardless of the time spent or employed in doing the work. Moreover, they are governed by specific contracts. Their output should be fixed in accordance with Section 8 Rule VII Book III of the Omnibus Rules, which provide that they shall receive not less than the applicable statutory wage rates prescribed by law for the normal working hours which shall not exceed 8 hours a day, or a proportion thereof for work less than the normal working hours. Classification of workers paid by result: 1. Piece Rate 2. Job or task base.
OVERTIME WORK GENERAL RULE: Labor Code Article 87. Overtime Work. – Work may be performed beyond eight (8) hours a day provided that the EE is paid for the overtime work an additional compensation equivalent to his regular wage plus at least 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 30% thereof.
Implementing Rules of Book III, Rule I SECTION 8. Overtime pay. — Any employee covered by this Rule who is permitted or required to work beyond eight (8) hours on ordinary working days shall be paid an additional compensation for the overtime work in the amount equivalent to his regular wage plus at least twenty-five percent (25%) thereof.
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Societas Spectra Legis Labor Standards Compilation SECTION 9. Premium and overtime pay for holiday and rest day work. — (a) Except employees referred to under Section 2 of this Rule, an employee who is permitted or suffered to work on special holidays or on his designated rest days not falling on regular holidays, shall be paid with an additional compensation as premium pay of not less than thirty percent (30%) of his regular wage. For work performed in excess of eight (8) hours on special holidays and rest days not falling on regular holidays, an employee shall be paid an additional compensation for the overtime work equivalent to his rate for the first eight hours on a special holiday or rest day plus at least thirty percent (30%) thereof. (b) Employees of public utility enterprises as well as those employed in non-profit institutions and organizations shall be entitled to the premium and overtime pay provided herein, unless they are specifically excluded from the coverage of this Rule as provided in Section 2 hereof. (c) The payment of additional compensation for work performed on regular holidays shall be governed by Rule IV, Book Three, of these Rules.
National Shipyard and Steel Corporation vs. CIR 3 SCRA 890 [1961] DEFINITION “Overtime compensation is additional pay for service or work rendered or performed in excess of 8 hours a day by employees or laborers in employment covered by eight hour labor law (now Art 87) and not exempt from its requirements. It is computed by multiplying the overtime hourly rate by the number of hours worked in excess of eight.” PNB vs. PEMA and CIR 115 SCRA 507 (1982) RATIONALE “Verily, there can be no other reason than that he is made to work longer than what is commensurate with his agreed compensation for the statutorily fixed or voluntarily agreed hours of labor he is supposed to do. When he does spend additional time to his work, the effect upon him is multi-faceted, he puts in more effort, physical and/or mental; he is delayed in going home to his family to enjoy the comforts thereof; he might have no time for relaxation, amusement or sports; he might miss important prearranged engagements, etc. It is thus the additional work, labor or service employed and the adverse effects just mentioned of his longer stay in his place or work that justify and are the real reasons for the extra compensation that is called overtime pay.” Bisig ng Manggagawa ng Philipine Refining Co. vs. Philippine Refining Co., Inc. GR L-27761 09/30/81 OVERTIME RATE BASED ON REGULAR WAGE “The term REGULAR BASE PAY excludes money received by an employee in different concepts , such as Christmas bonus and other fringe benefits. The phrase REGULAR BASE PAY is clear, unequivocal and requires no interpretation. It means regular basic pay and necessarily excludes money received in different concepts such as Christmas bonus and other fringe benefits.” Caltex Philippines vs. CIR GR 35239 11/03/86 “In the computation of overtime pay, the premium pay for work done on Sundays, holidays and at night and other fringe benefits which are occasionally, not regularly, received and not by all employees, SHOULD NOT BE ADDED TO THE BASIC PAY. Such inclusion into the regular or basic pay militates against the basic rationale of overtime pay, which is simply the extra compensation for the additional work done beyond that contemplated in the employment contract. Hence, when additional pay is given for any other purpose, it is illogical to include the same as the basis for the computation of overtime pay.” Manila Railroad Co. vs. CIR No. L-4614 07/31/42 “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 superior a prerequisite to make overtime work compensable. If the work performed was necessary or that it benefited the company or that the employee could not abandon his work at the end of this eight hour work because there University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation was no substitute ready to take his place and he performed overtime services upon the order of his immediate superior; notwithstanding the fact that there was a standing circular to the effect that before overtime work may be performed with pay, the approval of the corresponding department head should be secured, such overtime services are compensable in spite of the fact that said overtime services were rendered without the prior approval of the department head”
EXCEPTIONS: 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 Congress 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, installation 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; (e) Where the completion or continuation of the work started before the 8th hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. Any employee required to render overtime work under this Article shall be paid additional compensation required in this Chapter.
COMPULSORY OVERTIME WORK Article 89 enunciates the situations where the employer can legally compel his workers to render overtime work. The employer should pay his workers who render overtime work the appropriate additional overtime compensation for such work. Aside from the instances mentioned in Art 89, the IRR authorizes compulsory overtime work when it is necessary “to avail of favorable weather or environmental conditions where performance or quality or work is dependent thereon (Sec 10, Rule I, Book III). In cases not falling within any of the enumerated cases or instances, no employee may be made to work beyond 8 hours a day against his will (Sec 10, Rule I, Book III).
“DAY’” For purposes of Article 87, a “day” (or “daily”) is understood to be THE 24 HOUR PERIOD, WHICH COMMENCES FROM THE TIME THE EMPLOYEE REGULARLY STARTS TO WORK. It is not necessarily the ordinary calendar day from 12 o’ clock midnight to 12 o’clock midnight unless the employee starts working at 12 midnight, which is unlikely in which case the start of the 24-hour period in computing his work day coincides with the start of the calendar day (like Monday, Tuesday, etc.) from 12 o’clock midnight to 12 o’clock midnight unless the employee starts working at 12 midnight, in which case the start of the 24-hour period in computing his work day coincides with the start of the calendar day. Thus, if an employee regularly works from 8:00 am to 4:00 pm, the work day of such employee is from 8:00 am to 8:00 am the following day. In other words, the period from 9:00 am to 4:00 pm is the regular working hours or shift of the employee while the period from 8:00 am to 8:00 am the following day is his work day. Any work in excess of eight hours within the twenty-four-hour period is considered as overtime work regardless of whether the work covers two calendar days. Conversely, any work in excess of eight hours not falling within the twenty-four-hour period is not considered as overtime work. Any work in excess of 8 hours within the 24 hour period is considered as overtime work regardless of whether the work covers two calendar days. The minimum working hours fixed by the act need not be continuous to constitute as “legal working day” of 8 hours as long as the 8 hours is within a work day. Work in excess of 8 hours within a work day is considered as overtime regardless of whether this is performed in a work shift other than at which the employee regularly works. Broken Hours of Work. – The minimum normal working 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 a work day. For example, an employee may be required to work four University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation hours in the morning and another four hours in the evening of the same work day to complete an eight-hour working period. The four hours work in the evening in this case is not overtime work under the Act. Work in Different Shifts in a Work Day. – Work in excess of eight hours within a work day is considered as overtime regardless of whether this is performed in a work shift other than at 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 10:00 pm to 6:00 am the following day is asked to take the place of another whose workings hours are from 2:00 pm to 10:00 pm, 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 work day from 10:00 pm to 10:00 pm.
UNDERTIME NOT OFFSET BY OVERTIME; ANALOGOUS CASES 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.
Where a worker incurs undertime hours during his regular daily work, said undertime hours should not be offset against the overtime hours. If it were otherwise, the unfairness would be evident from the fact that the undertime hours represent only the employee’s hourly rate of pay and the appropriate overtime premium such that, not being of equal value, offsetting the undertime hours against the overtime hours would result in the undue deprivation of the employees’ overtime premium. The situation is even more unacceptable where the undertime hours are not only offset against the overtime hours but are also charged against the accrued leave of the employee, for under this method the employee is made to pay twice for his undertime hours because his leave is reduced to that extent while he is made to pay for the undertime hours with work beyond the regular working hours. The proper method should be to deduct the undertime hours from the accrued leave but to pay the employee the overtime compensation to which he is entitled. Where the employee has exhausted his leave credits, his undertime hours may simply be deducted from his day’s wage, but he should still be paid his overtime compensation for work in excess of eight hours a day. This ruling in NWSA forbids offsetting the overtime work on the same day, although what Article 88 prohibits is offsetting on another day. It may be said therefore that the offsetting of undertime work by overtime work, whether on the same or on another day, is prohibited by jurisprudence and by statute.
PREMIUM PAY; CONCEPT SECTION 1. Coverage. — This rule shall apply to all employees except: (a)
Those of the government and any of the political subdivision, including government-owned and controlled corporation;
(b)
Those of retail and service establishments regularly employing less than ten (10) workers;
(c)
Domestic helpers and persons in the personal service of another;
(d)
Managerial employees as defined in Book Three of the Code;
(e)
Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.
Article 93. Compensation for rest day, Sunday or holiday work. 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. 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. 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. 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.
For work done on rest day and special holidays, the employer must pay the employee: (1) his regular remuneration (100%)
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Societas Spectra Legis Labor Standards Compilation (2) an additional sum of at least 30% of the regular remuneration, which is called the “premium pay.” In other words, the pay for rest day and special holidays is 130% of the pay for ordinary days, but only 30% as additional pay for eighthour work is the premium pay. Sunday work entails premium pay only if it is the employee’s rest day. With respect to employees paid on a monthly basis, the first 100% corresponding to the regular remuneration may or may not be included in the monthly salary. If it is, then the employee is entitled to collect only the premium of 30%. If it is not, then the employee has a right to receive the entire 130%.
OVERTIME PAY; WAIVER OF OVERTIME; RULE; EXCEPTION OVERTIME PAY The overtime pay is compensation added to the “regular wage,” according to Article 87. The term “regular base pay” excludes money received by an employee in different concepts, such as Christmas bonus and other fringe benefits. The phrase “regular base pay” is clear, unequivocal and requires no interpretation. In this connection, it is necessary to remember that in the enforcement of previous collective bargaining agreements containing the same provision of overtime pay at the rate of “regular base pay plus 50% thereof,” the overtime compensation was invariably based only on the regular basic pay, exclusive of Christmas bonus and other fringe benefits. Appellant union knew all the while of such interpretation and precisely attempted to negotiate for a provision in the subject collective bargaining agreement that would include the Christmas bonus and other fringe benefits in the computation of the overtime pay. Significantly, the appellee company did not agree to change the phrase “regular base pay” as it could not consent to the inclusion of the fringe benefits in the computation of the overtime pay. Premium Pay; When Included or Excluded in Computing Overtime Pay Generally, the premium pay for work performed on rest days, special days, or regular holidays is included as part of the regular rate of the employee in the computation of overtime pay for overtime work rendered on said days, especially if the employer pays only the minimum overtime rates prescribed by law. The employees and employer, however, may stipulate in their collective bargaining agreement the payment of overtime work at rates higher than those provided by law. In other words, unless there is an agreement more favorable to the worker, the overtime rate is 30% of the rate for the first eight hours on a holiday or rest day. Thus, the holiday or rest day premium should first be added to the regular base pay before computing the overtime pay on such day. WAIVER OF OVERTIME The right to overtime pay cannot be waived. The right is intended for the benefit of the laborers and employees. 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 null and void. Thus, in a case where the appellant allegedly signed a quitclaim deed in favor of the appellee to the effect that he was renouncing any and all kidns of claim against the appellee, the Supreme Court held that said quitclaim deed cannot deprive the appellant of his right to collect overtime and legal holiday wages under the provisions of the Eight Hour Labor Law (Art 87). In another case, the petitioner employer stressed that the employment contract of its watchmen required them to work 12 hours a day, at certain rate of pay, including overtime compensation. Rejecting this contention, the Supreme Court ruled that where the contract of employment requires work for more than eight hours at specified wage per day, without providing for a fixed hourly rate or that the daily wages include overtime pay, said wages cannot be considered as including overtime compensation required under the Eight-hour Labor Law. The right of the laborer to overtime compensation cannot be waived expressly or impliedly. EXCEPTION 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. In a case, it appears that some laborers of the petitioning union chose to work in the motor pool of the company and to be paid under Plan-A wherein they were being paid a monthly rate equivalent to 30 times their daily wage, in addition to regular sick leave, vacation leave, and other privileges of a regular employee. They also had the privilege of taking 4 days off with pay every month, plus time off with pay on such days when the executive or official using the car does not need their service of more than 8 hours a day in lieu of overtime. The Supreme Court held that the petitioner cannot just assume that the waiver of overtime compensation by the drivers who preferred to work in the motor pool is against the law, it appearing that such waiver was to be in consideration for certain valuable privileges they were to enjoy, among them that of being given tips when doing overtime work, and there being no proof that the value of those privileges did not compensate for such work.
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Societas Spectra Legis Labor Standards Compilation SERVICE INCENTIVE LEAVE 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 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 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. BOOK III, RULE V OF THE IMPLEMENTING RULES SECTION 1. Coverage. — This rule shall apply to all employees except: (a) Those of the government and any of its political subdivisions, including government-owned and controlled corporations; (b) Domestic helpers and persons in the personal service of another; (c) Managerial employees as defined in Book Three of this Code; (d) Field personnel and other employees whose performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof; (e) Those who are already enjoying the benefit herein provided; (f) Those enjoying vacation leave with pay of at least five days; and (g) Those employed in establishments regularly employing less than ten employees SECTION 2. Right to service incentive leave. — 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. SECTION 3. Definition of certain terms. — The term "at least one-year service" shall mean service for not less than 12 months, whether continuous or broken reckoned from the date the employee started working, including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contract is less than 12 months, in which case said period shall be considered as one year. SECTION 5. Treatment of benefit. — The service incentive leave shall be commutable to its money equivalent if not used or exhausted at the end of the year.
PART-TIME WORKERS With regard to service incentive leave, the Implementing Rules and Regulations of the Labor Code, as amended, provides that 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. Thus, a part-time worker is entitled to service incentive leave whether the service within 12 months is continuous or broken or where the working days in the employment contract as a matter of practice or policy is less than 12 months. The availment and commutation of the same can be proportionate to the daily work rendered and the regular daily salary, respectively. Teachers of private schools on contract basis are entitled to service incentive leave th
While piece-rate employees are entitled to minimum wage, COLA and 13 -month pay, they are not entitled to service incentive leave It is the burden of proof of the employer to prove that he is excluded from coverage of the service incentive leave
HOLIDAY PAY Regular Holidays Article 94. Right to holiday pay. – (a) Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishment regularly employing less than ten 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, last Sunday of August, first of November, the thirtieth of November, the twenty-fifth and the thirtieth of December, thirty-first of December, and the day designated by law for holding a general election.
Definition Holiday pay is a one-day pay given by law to an employee even if he does not work on a regular holiday. The gift for a day’s pay is limited to each of the twelve regular holidays. It is not demandable for any other kind of nonworking day, except that there are place where Muslim holidays also have to be observed. Purpose The purpose of a holiday pay is to prevent diminution of the monthly income of the workers on account of work interruptions declared by the state. In other words, although the worker is forced by law to take a rest, he is not deprived of what he should earn. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation Rationale Benefit the daily paid workers based on the principle of “no work no pay” Every worker shall be paid his regular daily wage during regular holidays EXCEPTION: Retail and service establishment regularly employing less than ten workers 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; The word “holiday” in Article 94(b) means a regular holiday. Special holidays are taken up in Article 93 Special Holidays Article 93. Compensation for rest day, Sunday or holiday work. XXXX 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. XXXX
THE ADMINISTRATIVE CODE OF THE PHILIPPINES (EO 292) SEC. 26. Regular Holidays and Nationwide Special Days. — (1) Unless otherwise modified by law, order, or proclamation, the following regular holidays and special days shall be observed in the country: (a)
Regular Holidays New Year's Day — January 1 Maundy Thursday — Movable Date Good Friday — Movable Date Eidul Fitr — Movable Date Eidul Adha — Movable Date Araw ng Kagitingan (Bataan and Corregidor Day) — Monday nearest April 9 Labor Day — Monday nearest May 1 Independence Day — Monday nearest June 12 National Heroes Day — Last Monday of August Bonifacio Day — Monday nearest November 30 Christmas Day — December 25 Rizal Day — Monday nearest December 30
(b)
Nationwide Special Holidays Ninoy Aquino Day — Monday nearest August 21 All Saints Day — November 1 Last Day of the Year — December 31
(c)
In the event the holiday falls on a Wednesday, the holiday will be observed on the Monday of that week. If the holiday falls on a Sunday, the holiday will be observed on the Monday that follows.
Provided, That for movable holidays, the President shall issue a proclamation, at least six (6) months prior to the holiday concerned, the specific date shall be declared as a nonworking day. (As amended by RA 9177, RA 9292, & RA 9849)
OMNIBUS RULES IMPLEMENTING THE LABOR CODE BOOK III RULE IV – HOLIDAYS WITH PAY Coverage SECTION 1. Coverage. — This rule shall apply to all employees except: (a) Those of the government and any of the political subdivision, including government-owned and controlled corporation; (b) Those of retail and service establishments regularly employing less than ten (10) workers; (c) Domestic helpers and persons in the personal service of another; (d) Managerial employees as defined in Book Three of the Code; (e) Field personnel and other employees whose time and performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof.
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Societas Spectra Legis Labor Standards Compilation Effect of Absences on Holiday Pay SECTION 6. Absences. — (a) All covered employees shall be entitled to the benefit provided herein when they are on leave of absence with pay. Employees who are on leave of absence without pay on the day immediately preceding a regular holiday may not be paid the required holiday pay if he has not worked on such regular holiday. (b) Employees shall grant the same percentage of the holiday pay as the benefit granted by competent authority in the form of employee's compensation or social security payment, whichever is higher, if they are not reporting for work while on such benefits. (c) Where the day immediately preceding the holiday is a non-working day in the establishment or the scheduled rest day of the employee, he shall not be deemed to be on leave of absence on that day, in which case he shall be entitled to the holiday pay if he worked on the day immediately preceding the non-working day or rest day.
Effect of Business Closure on Holiday Pay SECTION 7. Temporary or periodic shutdown and temporary cessation of work. — (a) In cases of temporary or periodic shutdown and temporary cessation of work of an establishment, as when a yearly inventory or when the repair or cleaning of machineries and equipment is undertaken, the regular holidays falling within the period shall be compensated in accordance with this Rule. (b) The regular holiday during the cessation of operation of an enterprise due to business reverses as authorized by the Secretary of Labor and Employment may not be paid by the employer.
Holiday of Certain Types of Employees SECTION 8. Holiday pay of certain employees. — (f) Private school teachers, including faculty members of colleges and universities, may not be paid for the regular holidays during semestral vacations. They shall, however, be paid for the regular holidays during Christmas vacation; (g) Where a covered employee, is paid by results or output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working days preceding the regular holiday; Provided, However, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate. (h) Seasonal workers may not be paid the required holiday pay during off-season when they are not at work. (i) Workers who have no regular working days shall be entitled to the benefits provided in this Rule.
Successive Holiday Rule SECTION 10. Successive regular holidays. — Where there are two (2) successive regular holidays, like Holy Thursday and Good Friday, an employee may not be paid for both holidays if he absents himself from work on the day immediately preceding the first holiday, unless he works on the first holiday, in which case he is entitled to his holiday pay on the second holiday.
Double Holiday Rule Asian Transmission case: If unworked – 200% of the basic wage (to give the employee only 100% would reduce the number of holiday under EO No. 203) If worked – 300% of the basic wage If falls on a rest day – [100% (basic pay) + 30% (premium pay)] + 200% (double holiday) = 390% of the basic wage Flexi-Holiday Schedule One where the employees agree to avail of holidays at some other days provided there is no diminution of existing benefits as a result of such arrangement. Regular Muslim Holidays PD 1083 – CODE OF MUSLIM PERSONAL LAWS IN THE PHILIPPINES Article 169. Official Muslim holidays. – The following are hereby recognized as legal Muslim holidays: (j) 'Amun Jadid (New Year), which falls on the first day of the first lunar month of Muharram; (k) Maulid-un-Nabi (Birthday of the Prophet Muhammad), which falls on the twelfth day of the third lunar month of Rabi-ul-Awwal; (l) Lailatul Isra Wal Mi'raj (Nocturnal Journey and Ascension of the Prophet Muhammad), which falls on the twenty-seventh day of the seventh lunar month of Rajab; (m) 'Id-ul-Fitr (Hari Raya Pausa), which falls on the first day of the tenth lunar month of Shawwal, commemorating the end of the fasting season; and (n) 'Id-ul-Adha (Hari Raja Haji), which falls on the tenth day of the twelfth lunar month of Dhu 1-Hijja. Article 170. Provinces and cities where officially observed. – (1) Muslim holidays shall be officially observed in the Provinces of Basilan, Lanao del Norte, Lanao del Sur, Maguindanao, North Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte and Zamboanga del Sur, and in the Cities of Cotabato, Iligan, Marawi, Pagadian, and Zamboanga and in such other Muslim provinces and cities as may hereafter be created. (2) Upon proclamation by the President of the Philippines, Muslim holidays may also be officially observed in other provinces and cities. Article 171. Dates of observance. – The dates of Muslim holidays shall be determined by the Office of the President of the Philippines in accordance with the Muslim Lunar Calendar (Hijra). Article 172. Observance of Muslim employees. –
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All Muslim government officials and employees in places other than those enumerated under Article 170 shall also be excused from reporting to office in order that they may be able to observe Muslim holidays. The President of the Philippines may, by proclamation, require private offices, agencies or establishments to excuse their Muslim employees from reporting for work during a Muslim holiday without reduction in their usual compensation.
Presidential Proclamation No. 1198 (26 October 1973) provides: “All private corporations, offices, agencies and entities or establishments operating within the provinces and cities enumerated herein shall observe the legal holidays as proclaimed, provided, however, that all Muslim employees working outside of the Muslim provinces and cities shall be excused from work during the observance of the Muslim holidays as recognized by law without diminution or loss of wages during the said period xxx.” Considering that all private corporations, offices, agencies, and entities or establishments operating within the designated Muslim provinces and cities are required to observe Muslim holidays, both Muslims and Christians working within the Muslim areas may not report for work on the days designated by law as Muslim holidays. (2010 DOLE BWC Handbook on Worker’s Statutory Monetary Benefits) Muslim employees working outside of the Muslim provinces and cities shall be excused from reporting for work during the observance of the Muslim holidays as recognized by law, without diminution of salary or wages during the period Not only Muslim but also Christian employees in the designated provinces are entitled to holiday pay on the Muslim holidays. Wages and other emoluments granted by law to the working man are determined on the basis of the criteria laid down by laws and certainly not on the basis of the worker’s faith or religion. (San Miguel Corp vs. CA, G.R. No. 146775, January 30, 2002)
NIGHT SHIFT DIFFERENTIAL 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.
Every employee shall be paid a night shift differential of not less than ten percent of his regular wage for each hour of work performed between ten o'clock in the evening and six o'clock in the morning (10 pm – 6am). Rationale “Night work cannot be regarded as desirable, either from the point of view of the ER or the wage earner. It is uneconomical unless overhead costs are unusually heavy. Frequently the scale of wages is higher an inducement to employment on the night shift, and the rate of production is generally lower” (Shell Co. vs. NLU) Night shift differential NOT WAIVABLE The “waiver” rule is not applicable in night shift differential. The additional compensation for nighttime work is founded on public policy, hence the same cannot be waived (Artcle 6, NCC.) – (Mercury Drug Co., Inc. vs. Nardo Dayao) Burden of Proof of Payment Thus, 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. (Seaborne Carriers Corp vs. NLRC)
SERVICE CHARGES Labor Code 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.
Implementing Rules Book III, Rule VI SECTION 1. Coverage. — This rule shall apply only to establishments collecting service charges such as hotels, restaurants, lodging houses, night clubs, cocktail lounge, massage clinics, bars, casinos and gambling houses, and similar enterprises, including those entities operating primarily as private subsidiaries of the Government. SECTION 2. Employees covered. — This rule shall apply to all employees of covered employers, regardless of their positions, designations or employment status, and irrespective of the method by which their wages are paid except to managerial employees. As used herein, a "managerial employee" shall mean one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign, or discipline employees or to effectively recommend such managerial actions. All employees not falling within this definition shall be considered rank-and-file employees.
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Societas Spectra Legis Labor Standards Compilation SECTION 3. Distribution of service charges. — All service charges collected by covered employers shall be distributed at the rate of 85% for the employees and 15% for the management. The 85% shall be distributed equally among the covered employees. The 15% shall be for the disposition by management to answer for losses and breakages and distribution to managerial employees at the discretion of the management in the latter case. SECTION 4. Frequency of distribution. — The shares referred to herein shall be distributed and paid to the employees not less than once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. SECTION 5. Integration of service charges. — In case the service charges is abolished the share of covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average monthly share of each employee for the past twelve (12) months immediately preceding the abolition of withdrawal of such charges.
2010 DOLE BWC Handbook on Worker’s Statutory Monetary Benefits A. Sharing All rank-and-file employees of employers collecting service charges are entitled to an equal share in the eighty-five percent(85%) of the total of such charges. The remaining fifteen percent (15%) of the charges may be retained by management to answer for losses and breakages and for distribution to managerial employees, at the discretion of the management in the latter case. Service charges are collected by most hotels and some restaurants, nightclubs, cocktail lounges, among others. B. Payments The shares of the employees in the service charges shall be distributed to them once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. Where the company stopped collecting service charges, the average share previously enjoyed by the employees for the past twelve (12) months immediately preceding such stoppage shall be integrated into their basic wages. C. Tips Where a restaurant or similar establishment does not collect service charges but has a practice or policy of monitoring and pooling tips given voluntarily by its customers to its employees, the pooled tips should be monitored, accounted, and distributed in the same manner as the service charges. In many restaurants, a waiter must drop in a tip box the tips he received; otherwise, he commits “tip pocketing,” a serious offense of dishonesty that may cost him his job.
UPDATES
Use of 365 , 314 & 251 divisor daily paid workers ; applicability of “ no work , no pay “ principle to monthly paid employees , held in 2004 Odango ; see 2007 Ley te IV Electric Cooperative , Inc , where the employees are required to work only from Monday to Friday , the minimum allowable divisor is 263 which is arrived at by deducting 51 un-worked Sundays and 51 un-worked Saturdays from 365 days . Considering that the employees are considered paid with their holiday pay.
2005 American Wire & Cable Employees Union , where no violation of the principle on non –diminution of benefits was held if grant of service award, additional premium pay and Christmas party was given out of employer’s generosity and not considered part of employee’s compensation
2007 Manila Jockey Club Employees Labor Union-PTGWO , involving change of work schedule in the CBA from 9 a.m. to 5 p.m. to 1 p.m. to 8 p.m., due to change in the program of horse races is management prerogative. The overtime pay was not given consistently, deliberately and unconditionally but as a compensation for additional services rendered. Thus, it is not a benefit within the meaning of Article 100; also 2007 San Miguel Corp., where overtime is not a benefit because its requires rendition of additional service;, and is not freely given especially here where no proof that the supervising security guards were obliged by the company to render overtime work. The requirement of rendering additional service differentiates overtime pay from benefits such as 13 th month pay or yearly merit increase.
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TOPIC 11: OTHER SPECIAL BENEFITS 13TH MONTH PAY (PD 851, as amended) Section 1. All employers are hereby required to pay all their rank-file employees a 13th month pay not later than December 24 of every year. With the removal of the ceiling P1, 000.00 all rank-and-file employees are now entitled to a 13th month pay regardless of the amount of basic salary that they received in a month, such employees as entitled to the benefit regardless of their designation or employment status and irrespective of method by which their wages are paid provided that they have worked for at least 1 month during the calendar year.
EXEMPTED EMPLOYERS a. government and any of its political subdivisions including GOCC th b. employers already paying their employees a 13 month pay or its equivalent c. employers of household helpers and persons in the personal service of another in relation to such workers d. employers of those who are paid on purely commission, boundary or task basis and those who are paid a fixed amount for performing specific work * The term “its equivalent” shall include Christmas bonus, mid-year bonus, cash bonuses and other payments amounting to not less than 1/12 of the basic salary. Sec. 4. The minimum of the 13th month pay required by law shall not be less than 1/12 of the total basic salary earned by an employee within a calendar year. Earned because it is possible that the employee has used his vacation leave, leave without pay which should not be counted. The employer can provide for more if he so desire.
Time of payment th The required 13 month pay shall be paid not later than December 24 of every year. An employer, however may give to his th employee ½ of the required 13 month pay before the opening of the regular school year and the other half on or before th the 24 of December of every year. In any establishment where a union has been recognized or certified as the collective bargaining agent of the employees therein, the periodicity or frequency of payment of the 13th month pay may be the subject of agreement. th
13 Month Pay of a Resigned or Separated Employee th An employee who has resigned or whose services were terminated at anytime before the time for payment of the 13 month pay is entitled to this monetary benefit on proportion to the length of time he worked during the year, up to the time of his resignation or termination from the service, the payment maybe demanded by the employee upon the cessation of ER-EE relationship. The benefits granted shall not be credited as part of the employees and other benefits. Workers paid by result are not entitled to this benefit only those who are paid on apiece rate basis are specifically mentioned by express provisions of the law. Basic salary shall include all remuneration or earnings paid by an employer to an employee for services rendered but does not include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as the cash equivalent of unused vacation and sick leave credits, overtime premium, night shift differential and holiday pay and cost-of-living- allowance. However these salary related benefits should be included as part of the basic salary th related benefits should be included as part of the basic salary in the computation of the 13 month pay if by individual or collective agreement, company practice or policy, the same are treated as part of the basic salary of the employees. The law provides that the only requirement is that the employee must have at least rendered 1 month of service during the calendar year. The does not forfeit or there is no forfeiture provision under the law. Adjudication of Claims Non-payment of the thirteenth-month pay provided by the Decree and these rules shall be treated as money claims cases and shall be processed in accordance with the Rules Implementing the Labor Code of the Philippines and the Rules of the National Labor Relations Commission. 13th Month Pay for Certain Types of Employees (a) Employees Paid by Results. — Employees who are paid on piece work basis are by law entitled to the 13th month pay. Employees who are paid a fixed or guaranteed wage plus commission are also entitled to the mandated 13th month pay, based on their total earnings during the calendar year, i.e., on both their fixed or guaranteed wage and commission. (b) Those with Multiple Employers. — Government employees working part time in a private enterprise, including private educational institutions, as well as employees working in two or more private firms, whether on full or part time basis, are entitled to the required 13th month pay from all their private employers regardless of their total earnings from each or all their employers. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation (c) Private School Teachers. — Private school teachers, including faculty members of universities and colleges, are entitled to the required 13th month pay, regardless of the number of months they teach or are paid within a year, if they have rendered service for at least one (1) month within a year. TH
Note: 13 Month Pay is tax exempt
PATERNITY LEAVE ACT OF 1996 (R.A 8187) SECTION 2. Notwithstanding any law, rules and regulations to the contrary, every married male employee in the private and public sectors shall be entitled to a paternity leave of seven (7) days with full pay for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting. The male employee applying for paternity leave shall notify his employer of the pregnancy of his legitimate spouse and the expected date of such delivery. For purposes, of this Act, delivery shall include childbirth or any miscarriage.
The covered employee is entitled to a 7-day leave with full pay (BASIC SALARY) for the first 4 deliveries/miscarriage of his lawful spouse. SECTION 5. Any person, corporation, trust, firm, partnership, association or entity found violating this Act or the rules and regulations promulgated thereunder shall be punished by a fine not exceeding Twenty-five thousand pesos (P25,000) or imprisonment of not less than thirty (30)days nor more than six (6) months. If the violation is committed by a corporation, trust or firm, partnership, association or any other entity, the penalty of imprisonment shall be imposed on the entity's responsible officers, including, but not limited to, the president, vice-president, chief executive officer, general manager, managing director or partner directly responsible therefor.
Revised Implementing Rules (Series of 1996) SECTION 3. Conditions to entitlement of paternity leave benefits. — A married male employee shall be entitled to paternity benefits provided that: (a) he is an employee at the time of delivery of his child; (b) he is cohabiting with his spouse at the time she gives birth or suffers a miscarriage. (c) he has applied for paternity leave in accordance with Section 4 hereof; and (d) his wife has given birth or suffered a miscarriage. SECTION 4. Application for leave. — The married male employees shall apply for paternity leave with his employer within a reasonable period of time from the expected date of delivery by the pregnant spouse, or within such period as may be provided by company rules and regulations or by collective bargaining agreement, provided that prior application for leave shall not be required in case of miscarriage. SECTION 5. Availment. — Paternity leave benefits shall be granted to the qualified employee after the delivery by his wife, without prejudice to an employer allowing an employee to avail of the benefit before or during the delivery; provided, that the total number of days shall not exceed seven (7) days for each delivery. SECTION 6. Benefits. — The employee is entitled to his full pay, consisting of basic salary, for the seven (7) days during which he is allowed not to report for work, provided, that his pay shall not be less than the mandated minimum wage. SECTION 7. Non-commutation of benefits. — In the event that paternity leave benefit is not availed of, said leave shall not be convertible to cash.
DOMESTIC ADOPTION ACT OF 1998 (RA 8552) Sec. 12. Supervised Trial Custody. — No petition for adoption shall be finally granted until the adopter(s) has been given by the court a supervised trial custody period for at least six (6) months within which the parties are expected to adjust psychologically and emotionally to each other and establish a bonding relationship. During said period, temporary parental authority shall be vested in the adopter(s). The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best interest of the adoptee, stating the reasons for the reduction of the period. However, for alien adopter(s), he/she must complete the six (6)-month trial custody except for those enumerated in Sec. 7 (b) (i) (ii) (iii). If the child is below seven (7) years of age and is placed with the prospective adopter(s) through a pre-adoption placement authority issued by the Department, the prospective adopter(s) shall enjoy all the benefits to which biological parent(s) is entitled from the date the adoptee is placed with the prospective adopter(s).
Implementing Rules and Regulations of RA 8552 SECTION 34. Benefits. — The adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled. Maternity and paternity benefits and other benefits given to biological parents upon the birth of a child shall University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation be enjoyed if the adoptee is below seven (7) years of age as of the date the child is placed with the adoptive parents thru the PreAdoptive Placement Authority issued by the Department.
RETIREMENT PAY LAW ART. 287. Retirement. — Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. In case of retirement, the employee shall be entitled to receive such retirement benefits as he may have earned under existing laws and any collective bargaining agreement and other agreements: Provided, however, that an employee's retirement benefits under any collective bargaining and other agreements shall not be less than those provided herein. In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty-five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Unless the parties provide for broader inclusions, the term one-half (1/2) month salary shall mean fifteen (15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves. An underground mining employee upon reaching the age of fifty (50) years or more, but not beyond sixty (60) years which is hereby declared the compulsory retirement age for underground mine workers, who has served at least five (5) years as underground mine worker, may retire and shall be entitled to all the retirement benefits provided for in this Article. Retail, service and agricultural establishments or operations employing not more than ten (10) employees or workers are exempted from the coverage of this provision. Violation of this provision is hereby declared unlawful and subject to the penal provisions provided under Article 288 of this Code. Nothing in this Article shall deprive any employee of benefits to which he may be entitled under existing laws or company policies or practices.
REQUISITES: 1. He is still employed at the time of the passage of the law – January 7, 1993 2. His eligible for retirement Optional – 60 yrs old and at least 5 yrs of service Compulsory – beyond 65 yrs old Mining employees: Optional – 50 yrs old and at least 5 yrs of service Compulsory – beyond 60 yrs old Except: CBA provides retirement age lower than the statutory age for retirement. Not Illegible: 1. Retail, service and agricultural establishments or operations employing not more than (10) employees or workers. 2. Covered by Civil Service Law 3. Dismissed from work due to just cause. 1996 LABOR ADVISORY ON RETIREMENT PAY LAW COVERAGE RA 7641 or the Retirement Pay Law shall apply to all employees in the private sector, regardless of their position, designation or status and irrespective of the method by which their wages are paid. They shall include part-time employees, employees of service and other job contractors and domestic helpers or persons in the personal service of another. The law does not cover employees of retail, service and agricultural establishments or operations employing not more than ten (10) employees or workers and employees of the National Government and its political subdivisions, including Government-owned and/or controlled corporations, if they are covered by the Civil Service law and its regulations. COMPUTATION OF RETIREMENT PAY A covered employee who retires pursuant to RA 7641 shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. The law is explicit that “one-half month salary shall mean fifteen(15) days plus one-twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days service incentive leaves” unless the parties provides for broader inclusions. Evidently, the law expanded the concept of “one-half month salary” form the usual one month salary divided by two. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation In reckoning the length of service, the period of employment with the same employer before the effective date of the law on January 7, 1993 shall be included. SUBSTITUTE RETIREMENT PLAN Qualified workers shall be entitled to the retirement benefit under RA 7641 in the absence of any individual or collective Facilities for Women Art 132 of the Labor Code The Secretary of labor shall establish standards that will insure the safety and health of women employees in appropriate cases, he shall by regulations, require employers to: 1. provide seats proper for women and permit them to use such seat when they are free from work and during working g hours, provided they can perform their duties ion this position without detriment to efficiency 2. to establish separate toilet and lavatories for men and women and provide at least dressing room for women 3. to establish a nursery in a workplace for the benefit of the women employees therein 4. to determine appropriate minimum age and other standards for retirement or termination in special occupations such as those of flight attendants and the like
SOLO PARENT WELFARE ACT (R.A.9872) Section 3. Definition of Terms. – Whenever used in this Act, the following terms shall mean as follows: (a) "Solo parent" - any individual who falls under any of the following categories: (1) A woman who gives birth as a result of rape and other crimes against chastity even without a final conviction of the offender: Provided, That the mother keeps and raises the child; (2) Parent left solo or alone with the responsibility of parenthood due to death of spouse; (3) Parent left solo or alone with the responsibility of parenthood while the spouse is detained or is serving sentence for a criminal conviction for at least one (1) year; (4) Parent left solo or alone with the responsibility of parenthood due to physical and/or mental incapacity of spouse as certified by a public medical practitioner; (5) Parent left solo or alone with the responsibility of parenthood due to legal separation or de facto separation from spouse for at least one (1) year, as long as he/she is entrusted with the custody of the children; (6) Parent left solo or alone with the responsibility of parenthood due to declaration of nullity or annulment of marriage as decreed by a court or by a church as long as he/she is entrusted with the custody of the children; (7) Parent left solo or alone with the responsibility of parenthood due to abandonment of spouse for at least one (1) year; (8) Unmarried mother/father who has preferred to keep and rear her/his child/children instead of having others care for them or give them up to a welfare institution; (9) Any other person who solely provides parental care and support to a child or children; (10) Any family member who assumes the responsibility of head of family as a result of the death, abandonment, disappearance or prolonged absence of the parents or solo parent. A change in the status or circumstance of the parent claiming benefits under this Act, such that he/she is no longer left alone with the responsibility of parenthood, shall terminate his/her eligibility for these benefits. (b) "Children" - refer to those living with and dependent upon the solo parent for support who are unmarried, unemployed and not more than eighteen (18) years of age, or even over eighteen (18) years but are incapable of self-support because of mental and/or physical defect/disability. (c) "Parental responsibility" - with respect to their minor children shall refer to the rights and duties of the parents as defined in Article 220 of Executive Order No. 209, as amended, otherwise known as the "Family Code of the Philippines." (d) "Parental leave" - shall mean leave benefits granted to a solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required. (e) "Flexible work schedule" - is the right granted to a solo parent employee to vary his/her arrival and departure time without affecting the core work hours as defined by the employer.
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Societas Spectra Legis Labor Standards Compilation Section 6. Flexible Work Schedule. - The employer shall provide for a flexible working schedule for solo parents: Provided, That the same shall not affect individual and company productivity: Provided, further, That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds. Section 7. Work Discrimination. - No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status. Section 8. Parental Leave. - In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year.
IMPLEMENTING RULES AND REGULATIONS OF RA 8972 (2002) Parental Leave shall mean leave benefits granted to solo parent to enable him/her to perform parental duties and responsibilities where physical presence is required Flexible Work Schedule is the right granted to a solo parent employee to vary his/her arrival and departure time without affecting the core work hours as defined by the employer ARTICLE IV – Criteria for Support Section 7. Criteria for Support – Any solo parent whose income in the place of domicile falls equal to or below the poverty threshold as set by the NSCB and subject to the assessment of the duly appointed or designated social worker in the area shall be eligible for assistance: Provided, however, That any solo parent whose income is above the poverty threshold shall enjoy the benefits mentioned in Sections 16, 17, 18, 19, 20, 21 and 23 of these Rules. For purposes of the Act and these Rules, the place of domicile shall refer to the residence mentioned in Section 8(a) of these Rules. Section 8. Qualifications of Solo Parent – A solo parent seeking benefits other than those provided for under Sections 16, 17, 18, 19, 20, 21 and 23 of these Rules shall be qualified on the basis of the following: (a)
(b)
A resident of the area where the assistance is sought, as certified by the barangay captain; Provided, that if the solo parent is a transferee from another barangay, he/she is required to secure a clearance from his/her previous barangay, indicating whether or not he/she has availed of any benefits for solo parents, and the nature of such benefits. With an income level equal to or below the poverty threshold as set forth by NSCB and assessed by a social worker as provided for under Section 7 of these Rules.
ARTICLE V – Benefits Section 16. Flexible Work Schedule – The employer shall provide for a flexible work schedule for solo parents: Provided, That the same shall not affect individual and company productivity: Provided further, That any employer may request exemption from the above requirements from the DOLE on certain meritorious grounds. In the case of employees in the government service, flexible working hours will be subject to the discretion of the head of the agency. In no case shall the weekly working hours be reduced in the event the agency adopts the flexible working hours schedule format (flexi-time). In the adoption of flexitime, the core working hours shall be prescribed taking into consideration the needs of the service. Section 17. Work Discrimination – No employer shall discriminate against any solo parent employee with respect to terms and conditions of employment on account of his/her status. Section 18. Parental Leave – In addition to leave privileges under existing laws, parental leave of not more than seven (7) working days every year shall be granted to any solo parent employee who has rendered service of at least one (1) year. The seven-day parental leave shall be noncumulative. Section 19. Conditions for Entitlement of Parental Leave – A solo parent shall be entitled to parental leave provided that: (a) He/She has rendered at least one (1) year of service whether continuous or broken at the time of the affectivity of the Act; (b) He/She has notified his/her employer of the availment thereof within a reasonable time period; and (c) He/She has presented a Solo Parent Identification Card to his/her employer. Section 20. Non-conversion of Parental Leave – In the event that the parental leave is not availed of, said leave shall not be convertible to cash unless specifically agreed upon previously. However, if said leave were denied an employee as a result of non-compliance with the provisions of these Rules by an employer, the aforementioned leave may be used a basis for the computation of damages. Section 21. Crediting of Existing Leave – If there is an existing or similar benefit under a company policy, or a collective bargaining agreement or collective negotiation agreement the same shall be credited as such. If the same is greater than the seven (7) days provided for in the Act, the greater benefit shall prevail. Emergency or contingency leave provided under a company policy or a collective bargaining agreement shall not be credited as compliance with the parental leave provided for under the Act and these Rules.
ANTI-VIOLENCE AGAINST WOMEN & THEIR CHILDREN ACT OF 2004 (R.A 9262) “Battered Woman’s Leave” University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation SECTION 43. Entitled to Leave. – Victims under this Act shall be entitled to take a paid leave of absence up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order.
IMPLEMENTING RULES OF RA9262 Section 42. Ten-day paid leave in addition to other leave benefits. – At any time during the application of any protection order, investigation, prosecution and/or trial of the criminal case, a victim of VAWC who is employed shall be entitled to a paid leave of up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations and other existing laws and company policies, extendible when the necessity arises as specified in the protection order. The Punong Barangay/kagawad or prosecutor or the Clerk of Court, as the case may be, shall issue a certification at no cost to the woman that such an action is pending, and this is all that is required for the employer to comply with the 10-day paid leave. For government employees, in addition to the aforementioned certification, the employee concerned must file an application for leave citing as basis R.A. 9262. The administrative enforcement of this leave entitlement shall be considered within the jurisdiction of the Regional Director of the DOLE under Article 129 of the Labor Code of the Philippines, as amended, for employees in the private sector, and the Civil Service Commission, for government employees. The availment of the ten day-leave shall be at the option of the woman employee, which shall cover the days that she has to attend to medical and legal concerns. Leaves not availed of are noncumulative and not convertible to cash. The employer/agency head who denies the application for leave, and who shall prejudice the victim-survivor or any person for assisting a co-employee who is a victim-survivor under the Act shall be held liable for discrimination and violation of R.A 9262. The provision of the Labor Code and the Civil Service Rules and Regulations shall govern the penalty to be imposed on the said employer/agency head.
REQUIREMENTS FOR LEAVE UNDER VAWC LAW Private Sector Employees Certification from either of the following: (a) Punong Barangay (Brgy. Captain); (b) Prosecutor; (c) Clerk of Court. Government Employees (1) Certification from Punong Barangay, Prosecutor or Clerk of Court; (2) Must file an application for leave NOTE: The enforcement of this leave is within the jurisdiction of the Regional Director of DOLE under Article 129 (Simple Money Claims)
MAGNA CARTA OF WOMEN (RA. 9710) Section 18. Special Leave Benefits for Women. – A woman employee having rendered continuous aggregate employment service of at least six (6) months for the last twelve (12) months shall be entitled to a special leave benefit of two (2) months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders.
IMPLEMENTING RULES AND REGULATIONS OF RA9710 SECTION 21. Special Leave Benefits for Women. – Any female employee in the public and private sector regardless of age and civil status shall be entitled to a special leave of two (2) months with full pay based on her gross monthly compensation subject to existing laws, rules and regulations due to surgery caused by gynecological disorders under such terms and conditions: 1. She has rendered at least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery; 2. In the event that an extended leave is necessary, the female employee may use her earned leave credits; and 3. This special leave shall be non-cumulative and nonconvertible to cash.
GUIDELINES GOVERNING THE IMPLEMENTATION OF THE SPECIAL LEAVE BENEFITS FOR WOMEN EMPLOYEES IN THE PRIVATE SECTOR (DOLE Department Order No. 112-11, Series of 2011) Section 1. Definition of terms. – As used in these Rules, the following terms shall mean: (a)
Special leave benefits for women refers to a female employee’s leave entitlement of two (2) months with full pay from her employer based on her gross monthly compensation following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at least six (6) months for the last 12 months. This two-month leave is in addition to leave privileges under existing laws.
(b)
Gynecological disorders refers to disorders that would require surgical procedures such as, but not limited to, dilatation and curettage and those involving female reproductive organs such as the vagina, cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor, as certified by a competent physician. For purposes of the Act and the Rules and Regulations of this Act, gynecological surgeries shall also include hysterectomy, ovariectomy, and mastectomy
Section 2. Conditions to entitlement of special leave benefits. – Any female employee, regardless of age and civil status, shall be entitled to a special leave, provided she has complied with the following conditions:
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Societas Spectra Legis Labor Standards Compilation (a)
She has rendered at least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery;
(b)
She has filed an application for special leave in accordance with Section 3 hereof.
(c)
She has undergone surgery due to gynecological disorders as certified by a competent physician.
Section 3. Application for special leave. – The employee shall file her application for leave with her employer within a reasonable period of time from the expected date of surgery, or within such period as may be provided by company rules and regulations or by collective bargaining agreement. Prior application for leave shall not be necessary in cases requiring emergency surgical procedure, provided that the employer shall be notified verbally or in written form within a reasonable period of time and provided further that after the surgery or appropriate recuperating period, the female employee shall immediately file her application using the prescribed form. Section 4. Availment. – Special leave benefits shall be granted to the qualified employee after she has undergone surgery, without prejudice to an employer allowing an employee to receive her pay before or during the surgery. Section 5. Benefits. – The employee is entitled to full pay for two months based on her gross monthly compensation. Gross monthly compensation refers to the monthly basic pay plus mandatory allowances fixed by the regional wage boards. Section 6. Non-commutation of benefits. – This special leave shall be non-cumulative and non-convertible to cash unless otherwise provided by a collective bargaining agreement (CBA). Section 7. Enforcement and monitoring. – The Labor Inspectorate of the DOLE Regional Offices shall be responsible for the enforcement and monitoring of this Guideline.
THE ROOMING-IN AND BREAST-FEEDING ACT OF 1992 (RA 7600) AS AMENDED BY EXPANDED BREASTFEEDING PROMOTION ACT OF 2009 (RA 10028) Section 4. Applicability. – The provisions in this Chapter shall apply to all private enterprises as well as government agencies, including their subdivisions and instrumentalities, and government-owned and -controlled corporations. Upon application to, and determination by, the Secretary of the Department of Labor and Employment for the private sector, and the Chairperson of the Civil Service Commission for the public sector, all health and non-health facilities, establishments and institutions may be exempted for a renewable period of two (2) years from Section 6 of this Act where the establishment of lactation stations is not feasible or necessary due to the peculiar circumstances of the workplace or public place taking into consideration, among others, number of women employees, physical size of the establishment, and the average number of women who visit. All health and non-health facilities, establishments or institutions which are exempted in complying with the provisions of this Act but nevertheless opted to comply are entitled to the benefits herein stated: Provided, That they give their employees the privilege of using the same. Sec. 11. Establishment of Lactation Stations. – It is hereby mandated that all health and non-health facilities, establishments or institutions shall establish lactation stations. The lactation stations shall be adequately provided with the necessary equipment and facilities, such as: lavatory for hand-washing, unless there is an easily-accessible lavatory nearby; refrigeration or appropriate cooling facilities for storing expressed breastmilk; electrical outlets for breast pumps; a small table; comfortable seats; and other items, the standards of which shall be defined by the Department of Health. The lactation station shall not be located in the toilet. In addition, all health and non-health facilities, establishments or institutions shall take strict measures to prevent any direct or indirect form of promotion, marketing, and/or sales of infant formula and/or breastmilk substitutes within the lactation stations, or in any event or circumstances which may be conducive to the same. Apart from the said minimum requirements, all health and non-health facilities, establishments or institutions may provide other suitable facilities or services within the lactation station, all of which, upon due substantiation, shall be considered eligible for purposes of Section 14 of this Act. Sec. 12. Lactation Periods. – Nursing employees shall granted break intervals in addition to the regular time-off for meals to breastfeed or express milk. These intervals, which shall include the time it takes an employee to get to and from the workplace lactation station, shall be counted as compensable hours worked. The Department of Labor and Employment (DOLE) may adjust the same: Provided, That such intervals shall not be less than a total of forty (40) minutes for every eight (8)-hour working period. Sec. 21. Sanctions. – Any private non-health facility, establishment and institution which unjustifiably refuses or fails to comply with Sections 6 and 7 of this A ct shall be imposed a fine of not less than Fifty thousand pesos (Php50,000.00) but not more than Two hundred thousand pesos (Php200,000.00) on the first offense. On the second offense, a fine of not less than Two hundred thousand pesos (Php200,000.00) but not more than Five hundred thousand pesos (Php500,000.00). On the third offense, a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) and the cancellation or revocation of the business permits or licenses to operate. In all cases, the fine imposed should take into consideration, among others, number of women employees, physical size of the establishment, and the average number of women who visit. In addition, the Secretary of Health is hereby empowered to impose sanctions on health institution for the violation of this Act and the rules issued thereunder. Such sanctions may be in the form of reprimand or censure and in case of repeated willful violations, suspension of the permit to operate of the erring health institution. Heads, officials and employees of government health and non-health facilities, establishments and institutions who violate this Act shall further be subject to the following administrative penalties: First offense - Reprimand; Second offense - Suspension for one (1) to thirty (30) days; and Third offense - Dismissal.
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Societas Spectra Legis Labor Standards Compilation This shall be without prejudice to other liabilities applicable under civil service law and rules.
IMPLEMENTING RULES AND REGULATIONS OF RA 10028 Section 7. General Statement on Coverage - This Rule shall apply to all establishments whether operating for profit or not which employ in any workplace, nursing employees, unless exempted by the Secretary of Labor and Employment, under Section B hereof. Section 8. Exemption - A private establishment may apply for an exemption to establish lactation station at the DOLE Regional Office having jurisdiction over said establishment. An application for exemption may be granted by the DOLE Regional Director upon determination that the establishment of a lactation station is not feasible or necessary due to the peculiar circumstances of the workplace taking into account, among others, the number of women employees, physical size of the establishment and average number of women who will use the facility. Due substantiation shall be made by the employer to support the application for exemption. The exemption granted by DOLE shall be for a renewal period of two (2) years. Section 10. Minimum Requirements in the Establishment of Lactation Stations - It is hereby mandated that health and non-health facilities, establishments or institutions, including public places, shall establish lactation stations as appropriate. Lactation stations shall be accessible to the breastfeeding women. It shall be adequately provided with the necessary equipment and facilities and other items, the standards of which shall be defined by the Department of Health. The lactation station shall be clean, well ventilated, comfortable and free from contaminants and hazardous substances, and shall ensure privacy for the women to express their milk and/or in appropriate cases, breastfeed their child. In no case, however, shall the lactation station be located in the toilet. Section 11. Workplace compliance with the Milk Code - In addition, the establishments shall take strict measures to prevent any direct or indirect promotion, marketing, and/or sales of infant formula and/or breastmilk substitutes within the lactation stations, or in any event or circumstances which may be conducive to the same, to effect exclusive breastfeeding up to six months and the introduction of appropriate complementary food from six months while continuing to breastfeed for two years and beyond. Section 12. Lactation Periods - Nursing employees are entitled to break intervals in addition to the regular time-off for meals to breastfeed or express milk. The employee shall notify their immediate supervisor before leaving their station. These intervals which include the time it takes an employee to get to and from the workplace lactation station shall be counted as compensable hours worked. The DOLE may adjust the same but in no case shall such intervals be less than 40 minutes for every 8-hour working period. Duration and frequency of breaks may be agreed upon by employees and employers with the minimum being 40 minutes. Usually, there could be 2-3 breastmilk expressions lasting to 15-30 minutes each within a workday.
SUMMARY OF STATUTORY LEAVE BENEFITS 1. Parental leave & flexible working arrangement under the Solo Parents Welfare Act , 2. Paternity leave under the Paternity Leave Act; 3. Service incentive leave under the Labor Code; 4. Maternity leave under the SSS Act of 1997; and 5. Leave with pay under the Anti-Violence against Women & their Children’s Act 6. Special Leave Benefits under the Magna Carta for Women
UPDATES
Drivers paid on “ boundary basis excluded from 13th month pay , held in 2004 R&E Transport ; prorating of 13 th month pay of workers for period while they were on strike , held in 2005 Honda Phils. Was illegal due to company CBA making no such qualification, citing 1993 Davao Fruits
Commission included in “ basic salary “ ,held in 1995 Phil. Duplicator ; however excluded in 1993 Boie Takeda Chemicals ; but see 2007 Reyes , citing the 1993 case of Boie Tkeda Chemicals & 1995 case of Phil. Duplicators , commissions received by a unit manager cannot be considered in the computation of the retirement pay and the 13th month pays as they are in the form of profit sharing payment s and had no clear , direct or necessary relation to the amount of work he actually performed . Here the unit manager does not enter into actual sale transactions , and the commissions were not regularly received by him .; and see also 2008 Letran Calamba Faculty & Employees Association, where overload pay should be excluded from the 13th month pay ; as it is paid for additional work in excess of the regular teaching load , similar to overtime pay ; this rule applies regardless whether the overload is an additional or extra teaching load has been completed . Hence, any pay given as compensation for such additional work should be considered as extra and not deemed as part of the regular or basic salary.
King of kings Transport, Inc. vs. MAMAC – Section 3 of the Rules Implementing Presidential Decree No. 85 provides that 13th month pay shall not apply to Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as such workers are concerned. Notably in the said case, it was established that the drivers and conductors praying for 13th-month pay were not paid purely on commission. Instead, they were receiving a commission in addition to a fixed or guaranteed wage or salary.
Reyes vs. NLRC – Overriding commission is not properly includible in the basic salary as it must be earned by actual market transactions attributable to the claimant. Thus, as a unit manager who supervised the salesmen under his control and did not enter into actual sale transactions, petitioner’s overriding commissions must not be considered in the computation of the retirement benefits and 13th month pay.
Letran Calamba Faculty and employees Association vs. NLRC – Supplementary Rules and Regulations Implementing Presidential Decree 851 is even more emphatic in declaring that earnings and other remunerations which are not part of the basic salary shall not be included in the computation of the 13th-month pay.
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Societas Spectra Legis Labor Standards Compilation While doubt may have been created by the prior Rules and Regulations Implementing Presidential Decree 851 which defines basic salary to include all remunerations or earnings paid by an employer to an employee, this cloud is dissipated in the later and more controlling Supplementary Rules and Regulations which categorically, exclude from the definition of basic salary earnings and other remunerations paid by employer to an employee. A cursory perusal of the two sets of Rules indicates that what has hitherto been the subject of a broad inclusion is now a subject of broad exclusion. The Supplementary Rules and Regulations cure the seeming tendency of the former rules to include all remunerations and earnings within the definition of basic salary.
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TOPIC 12: JURISDICTION OF THE LABOR ARBITER ORIGINAL AND EXCLUSIVE JURISDICTION LABOR CODE Article 217. Jurisdiction of the Labor Arbiters and the Commission. – Except as otherwise provided under this Code, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: Unfair labor practice cases; Termination disputes; If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement. The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements.
MIGRANT WORKERS AND OVERSEAS FILIPINO ACT (RA 8042, as amended) Section 10. Money Claims. – Notwithstanding any provision of law to the contrary, the LA of the NLRC shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages.
RULE V, 2011 NLRC RULES OF PROCEDURE SECTION 1. Jurisdiction of Labor Arbiters. — Labor Arbiters shall have original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or non-agricultural: a) Unfair labor practice cases; b) Termination disputes; c) If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; d) Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations; e) Cases arising from any violation of Article 264 of the Labor Code, as amended, including questions involving the legality of strikes and lockouts; f) Except claims for employees compensation not included in the next succeeding paragraph, social security, medicare, and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding Five Thousand Pesos (P5,000.00), whether or not accompanied with a claim for reinstatement; g) Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to Republic Act No. 6727; h) Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Article 227 of the Labor Code, as amended; i) Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages as provided by Section 10 of RA 8042, as amended by RA 10022; and j) Other cases as may be provided by law.
ORIGINAL EXCLUSIVE JURISDICTION OF THE LA: 1. Unfair labor practice cases; 2. Termination disputes; University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Cases involving wages, rates of pay, hours of work and other terms and conditions of employment, provided, that it is with a claim for reinstatement Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations; All other claims involving an amount exceeding P5000, regardless of whether accompanied by a claim for reinstatement, except claims for Employees Compensation, Social Security, Medicare and maternity benefits. Wage distortion disputes not voluntary settled by the parties; Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Article 227 of the Labor Code, as amended Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages
COMMON ELEMENT: EXISTENCE OF THE EMPLOYER-EMPLOYEE RELATIONSHIP Note: If the court had no jurisdiction but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing the jurisdiction, for the same must exist as a matter of law and may not be conferred by the consent of the parties or by estoppels. However, if the lower court had jurisdiction, and the case was heard and decided upon the theory that the court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position, ie., that the lower court had jurisdiction. Here the principle of estoppels applies.
CONCURRENT JURISDICTION OF OTHER AGENCIES A.) DOLE REGIONAL DIRECTORS Article 129. Recovery of wages, simple money claims and other benefits. – Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employer-employee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00).
B.) VOLUNTARY ARBITRATORS Article 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. – The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. Accordingly, violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. The Commission, its Regional Offices and the Regional Directors of the Department of Labor and Employment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately dispose and refer the same to the Grievance Machinery or Voluntary Arbitration provided in the Collective Bargaining Agreement. Article 262. Jurisdiction over other labor disputes. – The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks.
C.) DOLE SECRETARY Art. 263. (g). When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the SOLE may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The SOLE may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same.
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Societas Spectra Legis Labor Standards Compilation In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the SOLE may immediately assume, within 24 hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the SOLE or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any labor dispute in such industries in order to settle or terminate the same.
Q: how is the Jurisdiction of the SOLE invoked? A: Through a petition for assumption of jurisdiction filed before the office of the SOLE. If SOLE assumes jurisdiction, he shall issue an assumption order; if not, a certification order to the Commission, certifying the urgency of the situation and enjoining the Commission to make its priority. Q: if SOLE decides to assume jurisdiction, what can be inquired into and resolved by him? A: All matters incidental to the labor dispute, cf. St. Scholastica’s College case. Bar Q: may he provide for the retroactivity of his arbitral award? A: Yes, there is no provision of law prohibiting it. (St. Luke Medical Center vs. Torres, June 30, 1993)
LETTERS OF INSTRUCTION NO. 368, January 26, 1976 (LIST OF INDUSTRIES INDISPENSABLE TO NATIONAL INTEREST) LETTER OF INSTRUCTIONS NO. 368 TO : The Secretary of Labor The Secretary of National Defense The Secretary of Justice The Solicitor General Listing vital industries or companies or firms for purposes of PD 823 as amended. For the guidance of workers and employees, some of whom have been led into filing notices of strikes and lockouts even in vital industries, you are hereby instructed to consider the following as vital industries and companies of firms under PD 823 as amended: 1. Public Utilities: A. Transportation: 1) All land, air and water companies or firms engaged in passenger, freight or tourist transport; 2) All brokerage, arrastre, warehousing companies or firms; B. Communications: 1) Wire or wireless telecommunications such as telephone, telegraph, telex, and cable companies or firms; 2) Radio and television companies or firms; 3) Print Media companies; 4) Postal and messengerial service companies; C. Companies engaged in electric, light, gas, steam and water power generation and distribution and sanitary service companies; D. Other Public Utilities: 1) Ice and Refrigeration plants 2. Companies or firms engaged in the manufacture or processing of the following essential commodities: A. B. C. D. E. F. G. H. I. J. K. L.
Animal feeds Cement Chemicals and fertilizers Drugs and medicines Flour Products which are classified as essential commodities in the list of National Economic and Development Authority except the following: rice, corn, some basic cuts of meat, cooking oil, laundry soap, lumber and plywood, galvanized iron sheets, writing pads and notebooks. Iron, steel, copper, tin plates and other basic mineral products; Milk Newsprint Tires Sugar Textile and garments
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Societas Spectra Legis Labor Standards Compilation 4. Companies engaged in the production and processing of products for export which are holders of Central Bank of Investment Certificate of Export Orientation, including hotels and restaurants classified as three (3), four (4) or five (5) star by the Department of Tourism; 5. Companies engaged in exploration, development, mining, smelting or refining of coal, oil, iron, copper, gold, and other minerals; 6. Companies or firms engaged in banking, including; A. B. C. D. E. F. G. H.
Commercial Banks Savings Banks Development Banks Investment Banks Rural Banks Savings and Loans Associations Cooperative Banks Credit Unions
7. Companies or firms which are actually engaged in government infra-structure projects and in activities covered by Defense contracts; 8. Hospitals as defined in Section 2, Rule 1-A, Book III of the Rules and Regulations Implementing the Labor Code of the Philippines; 9. Schools and Colleges duly recognized by the Government. The Secretary of Labor include in/or exclude from the above list any industry, firm, or company as the national interest, national security, or general welfare may require.
JURISDICTION OF LOWER COURTS (Refer to previous topic)
LABOR DISPUTES LABOR DISPUTE – includes any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. Kinds of Labor Disputes: Labor Standards Disputes eg. Disputes on the compensation, benefits, working standards Labor Relations Disputes 1. Unfair Labor Practices – coercion, company unionism, members’ complaint against union officers; 2. Representation disputes; 3. Bargaining disputes – refusal to bargain, strike/ lockout; 4. CBA administration/ personnel policy disputes- noncompliance with grievance machinery; 5. Employment Tenure dispute – non-regularization of employees, illegal termination.
INTRA-CORPORATE DISPUTES INTRA-CORPORATE CONTROVERSY – one which pertains to any of the following relationships: (1) between the corporation, partnership or association and the public; (2) between the corporation, partnership or association and the State in so far as its franchise, permit or license to operate is concerned; (3) between the corporation, partnership or association and its stockholders, partners, members or officers; and (4) among the stockholders, partners or associates themselves.
INSTANCES WHERE THE LABOR ARBITER DOES NOT HAVE JURISDICTION Where the controversy involves an intra-corporate dispute as defined above, the jurisdiction belongs to the Regional Trial Courts in view of RA 8799 transferring such jurisdiction from the Securities and Exchange Commission to the RTCs. To determine whether a case involves an intra-corporate controversy, and is to be heard and decided by the branches of the RTC specifically designated by the Court to try and decide such cases, two elements must concur: The status or relationship of the parties (relationship test); and The nature of the question that is subject of the controversy (nature of the controversy test). The Relationship test is the test where the controversy pertains to the relationships enumerated above. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation The Nature of the Controversy test, on the other hand, the incidents of that relationship must also be considered for the purpose of ascertaining whether the controversy itself is intra-corporate. The controversy must not only be rooted in the existence of an intracorporate relationship, but must pertain to the enforcement of the parties’ correlative rights and obligations under the Corporation Code and the internal and intra-corporate regulatory rules of the corporation. If the relationship and its incidents are merely incidental to the controversy or if there will still be conflict even if the relationship does not exist, then no intra- corporate controversy exists. Thus in the case of Easycall Communications Phils, Inc. vs. King, Gr. No. 145901, Dec. 15, 2005 the SC held that “under Section 5 of PD 902A, the law applicable at the time this controversy arose, the SEC, not the NLRC, had original and exclusive jurisdiction over cases involving the removal of corporate officers. Section 5(c) of PD 902-A applied to a corporate officer’s dismissal for his dismissal was a corporate act and/or an intra-corporate controversy. However, it had to be first established that the person removed or dismissed was a corporate officer before the removal or dismissal could properly fall within the jurisdiction of the SEC and not the NLRC. Here, aside from its bare allegation, petitioner failed to show that respondent was in fact a corporate officer. “Corporate officers” in the context of PD 902-A are those officers of a corporation who are given that character either by the Corporation Code or by the corporation’s by-laws. Under Section 25 of the Corporation Code, the “corporate officers” are the president, secretary, treasurer and such other officers as may be provided for in the by-laws. The burden of proof is on the party who makes the allegation. Here, petitioner merely alleged that respondent was a corporate officer. However, it failed to prove that its by-laws provided for the office of “vice president for nationwide expansion.” Since petitioner failed to satisfy the burden of proof that was required of it, we cannot sanction its claim that respondent was a “corporate officer” whose removal was cognizable by the SEC under PD 902-A and not by the NLRC under the Labor Code. Note: An “office” is created by the charter of the corporation and the officer is elected by the directors or stockholders. On the other hand, an employee occupies no office and generally is employed not by the action of the directors or stockholders but by the managing officer of the corporation who also determines the compensation to be paid to such employee.” A corporate officer’s dismissal is always a corporate act and/or intra-corporate controversy and that nature is not altered by the reason or wisdom which the Board of directors may have in taking such actions. The fact that petitioner sought payment of backwages, other benefits as well as moral and exemplary damages and attorney’s fees in his complaint for illegal dismissal will not operate to prevent the SEC from exercising its jurisdiction. While the affirmative reliefs and monetary claims sought to by petitioner in his complaint may, at first glance, mislead one into placing the case under the jurisdiction of the LA, a closer examination reveals that they are actually part of the prerequisites if his elective position,; hence intimately linked with his relations with the Corporation.
NOTE: The Regional Trial Courts (not SEC) now have jurisdiction under R. A. 8799 (Securities Regulation Act of 2000). Jurisdiction of RTC includes adjudication of monetary claims of the corporate officer who was dismissed, (such as unpaid salaries, leaves, 13th month pay, bonuses, etc.), damages and attorney's fees. (Lozon vs. NLRC, G. R. No. 107660, Jan. 02, 1995, 240 SCRA 1)
UPDATES
A money claim by the worker against the employer or vice-verse is within the exclusive jurisdiction of the labor arbiter only if there is a “reasonable causal connection” between the claim asserted and the employee relation. Absent such a link, the complaint will be cognizable by the regular court of justice. (Eviota vs. CA)
A reinstatement ordered by a Labor Arbiter is self-executory. If it is ordered by the NLRC, it is not self-executory (Panuncillo vs. CAP Phil., Inc) The decision of the NLRC needs a writ of execution. In case the decision of the Labor Arbiter includes an order of reinstatement, it shall likewise contain: o A statement that the reinstatement is immediately executor; and o Directive for the employer to submit report of compliance within 10 calendar days from the receipt of the decision.
“Reasonable causal connection rule”: e.g. dismissal of a Pastor of 7 Day Adventist within labor arbiter’s jurisdiction in Austria since it is a “secular matter” and not ecclesiastical affair; claim of a member against a cooperative involving dismissal and claim for labor benefits within the jurisdiction of labor arbiter in 2001 Perpetual Help Credit Cooperative; claim for damages by employer against employee within labor arbiter’s jurisdiction, held in 2000 Banez unless action is incidental a nd cause of action arose from different source of obligation e.g. torts, or crime as held in 1999 Coca-Cola case; so is employer’s counterclaim against its vice president claim for illegal dismissal although involving ownership of company car, as it arose from employment, held in 2005 Domondon; however, c laim for damages due to death of employee aboard vessel is withtn regular court’s jurisdiction as held in 2003 Tolosa; see also 2003 Eviota where action for damages by employer against employee who resigned short of 30 day prior notice is within regular court, citing Georg Grotjahn, Singapore Airline, Medina, 1994 Dai-Ichi Electronics Manufacturing Corp.; and also 2003 Dr. Reyes where claim of employee for paying house rental is with the regular court and not with the labor arbiter.
Intracoporate dispute and not labor dispute is with regular court as held in 2004 Velarde; see also 2009 Atty.Garcia, where removal of corporate officer is an intracorporate dispute, thus, outside the jurisdiction of the labor arbiter; note, however, that the dismissal of a vice president if not considered a corporate officer under PD 902-A is within jurisdiction of labor arbiter and not the regular court as held in 2005 Easycall Communications Phils.
2005 Yusen Air and Sea Service Phils., involving action by employer to enjoin employee who resigned from joining competitor is with the regular court, citing 1994 Dai-Ichi
th
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TOPIC 13: THE 2011 NLRC RULES OF PROCEDURE COMPULSORY ARBITRATION AND VOLUNTARY ARBITRATION COMPULSORY ARBITRATION It is where the law declares the dispute subject to arbitration, regardless of the consent of the parties. A disinterested person or party is usually appointed by the state. Done by the Regional Arbitration Branch of NLRC [refer to Art 217] It is the Labor Arbiter who is clothed with the original and exclusive authority to conduct compulsory arbitration under Art. 217. It is an adversarial proceeding initiated by a complaint [usually by a union] for wage distortion before the Labor Arbiter. The other party is required to answer. Process of settlement of labor disputes by a government agency [or by other means provided by the government] which has the authority to investigate and to make award which is binding on all the parties. Parties are compelled to forgo their right to strike Proceedings after a labor arbiter's decision is brought up to the National Labor Relations Commission cannot be considered as part of the arbitration proceedings. This is because in the appeal stage, the Commission merely re-views the Labor Arbiter's decision for errors of fact or law. It does not duplicate the proceedings held at the Labor Arbiter's level. Thus, the clause "pending final resolution of the case by arbitration" should be understood to be limited only to the proceedings before the Labor Arbiter, so that when the latter rendered his decision, the case could be considered finally resolved by arbitration. [See Philippine Airlines, Inc. vs. National Labor Relations Commission, G.R. No. 55159, Dec. 22, 1989.] The Commission itself, through any of its divisions, also conducts compulsory arbitration, but only in "national interest cases" certified or referred to it by the DOLE secretary under Art. 263(g).
VOLUNTARY ARBITRATION Defined as a contractual proceeding whereby the parties to any dispute, in order to obtain a speedy and inexpensive final disposition of the matter, select a judge of their own choice and by consent, submit their controversy to him for determination. It is the policy of the State to encourage voluntary arbitration on all labor-management disputes. Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. (Implementing Rules, Book V, Rule XIX, SECTION 5.) Under voluntary arbitration, the "judge" is named by the parties, pursuant to a voluntary arbitration clause in their collective agreement. He is an impartial third person authorized by the parties to make a final and binding decision or award. A voluntary arbitrator is not a public tribunal imposed upon the parties by a superior authority which the parties are obliged to accept. He has no general character to administer justice for a community. He is rather part of a system of selfgovernment created by and confined to the parties. [Maurice S. Trotta, Arbitration of Labor Management Disputes, American Management Association, New York, 1974, p. 73.] Voluntary arbitration, indeed, is a private judicial system. The judge is called a VOLUNTARY ARBITRATOR. The power of voluntary arbitrator to try and decide the case is the same as that of a Labor Arbiter. The parties can agree to select a Labor Arbiter as a voluntary arbitrator because it is as to the agreement of the parties. Arbitration may be initiated either by 1) a Submission Agreement or 2) by a Demand or Notice invoking a collective agreement arbitration clause. Sometimes both instruments are used in a case. Although the contract may establish the breadth of the arbitrator’s power and the limits of his authority, his power may be more sharply defined in the submission agreement. In Philippine context, the "judge" in voluntary arbitration is called voluntary arbitrator, while that in compulsory arbitration is labor arbiter. Proceedings are non-litigious in nature, not governed by technical rules of procedure used in courts but due process is always observed. VOLUNTARY ARBITRATOR Any person accredited by the Board as such; or Any person named or designated in the CBA by the parties to act as their voluntary arbitrator; or One chosen, with or without the assistance of the NCMB, pursuant to selection procedure agreed upon in the CBA; or Any official that may be authorized by the Sec of Labor to act as voluntary arbitrator upon the written request and agreement of the parties to a labor dispute.
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Societas Spectra Legis Labor Standards Compilation AGENCIES OF GOVERNMENT EXERCISING COMPULSORY ARBITRATION 1. 2. 3. 4.
DOLE Regional Offices; DOLE Secretary; Bureau of Labor Relations National Labor Relations Comission and the Labor Arbiters.
DOLE REGIONAL OFFICES Article 129. Recovery of wages, simple money claims and other benefits. – Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, (1) arising from employer-employee relations: Provided, That such (2) complaint does not include a claim for reinstatement: Provided, further, That the (3) aggregate money claims of each employee or househelper do not exceed five thousand pesos (P5,000). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same. Any sum thus recovered on behalf of any employee or househelper pursuant to this Article shall be held in a special deposit account, and shall be paid, on order of the Secretary of Labor and Employment or the Regional Director directly to the employee or househelper concerned. Any such sum not paid to the employee or househelper, because he cannot be located after diligent and reasonable effort to locate him within a period of three (3) years, shall be held as a special fund of the Department of Labor and Employment to be used exclusively for the amelioration and benefit of workers. Any decision or resolution of the Regional Director or hearing officer pursuant to this provision may be appealed on the same grounds provided in Article 223 of this Code, within five (5) calendar days from receipt of a copy of said decision or resolution, to the National Labor Relations Commission which shall resolve the appeal within ten (10) calendar days from the submission of the last pleading required or allowed under its rules. The Secretary of Labor and Employment or his duly authorized representative may supervise the payment of unpaid wages and other monetary claims and benefits, including legal interest, found owing to any employee or househelper under this Code. (As amended by RA 6715) JURISDICTION OF THE DOLE REGIONAL DIRECTORS / DULY AUTHORIZED HEARING OFFICERS. The Regional Director or any of the duly authorized hearing officers of DOLE have jurisdiction over claims for recovery of wages, simple money claims and other benefits, provided that: 1. The claim must arise from employer-employee relationship; 2. The claimant does not seek reinstatement; and 3. The aggregate money claim of each employee does not exceed P5,000 Article 256. Representation issue in organized establishments. – In organized establishments, when a verified petition questioning the majority status of the incumbent bargaining agent is filed before the Department of Labor and Employment within the sixty-day period before the expiration of a collective bargaining agreement, the Med-Arbiter shall automatically order an election by secret ballot when the verified petition is supported by the written consent of at least twenty-five percent (25%) of all the employees in the appropriate bargaining unit. To have a valid election, at least a majority of all eligible voters in the unit must have cast their votes. The labor union receiving the majority of the valid votes cast shall be certified as the exclusive bargaining agent of all the workers in the unit. When an election which provides for three or more choices results in no choice receiving a majority of the valid votes cast, a run-off election shall be conducted between the labor unions receiving the two highest number of votes: Provided, That the total number of votes for all contending unions is at least fifty percent (50%) of the number of votes cast. At the expiration of the freedom period, the employer shall continue to recognize the majority status of the incumbent bargaining agent where no petition for certification is filed. (As amended by RA 6715) Article 257. Petitions in Unorganized Establishments. – In any establishment where there is no certified bargaining agent, a certification election shall automatically be conducted by the Med-Arbiter upon the filing of a petition by any legitimate labor organization, including a national union or federation which has already issued a charter certificate to its local/chapter participating in the certification election or a local/chapter which has been issued a charter certificate by the national union or federation. In cases where the petition was filed by a national union or federation, it shall not be required to disclose the names of the local chapter's officers and members.
DOLE SECRETARY Article 128. Visitorial and enforcement powers. – (a) The Secretary of Labor and Employment or his duly authorized representatives, including labor regulations officers, shall have access to employer's records and premises at any time of the day or night whenever work is being undertaken therein, and the right to copy therefrom, to question any employee and to investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of this Code and of any labor law, wage order or rules and regulations issued pursuant thereto. (b)
The provisions of Article 217 of this Code to the contrary notwithstanding and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to order and administer, after due notice and hearing, compliance with the labor standards provisions of this Code and other labor legislation based on the findings of labor regulation officers or industrial safety engineers made in the course of inspection, and to issue writs of execution to the appropriate authority for the enforcement of their order, except in cases where the employer contests the findings of the labor regulation officer and raises issues which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection.
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Societas Spectra Legis Labor Standards Compilation (c)
The Secretary of Labor and Employment may likewise order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace. Within twenty-four hours, a hearing shall be conducted to determine whether an order for the stoppage of work or suspension of operations shall be lifted or not. In case the violation is attributable to the fault of the employer, he shall pay the employees concerned their salaries or wages during the period of such stoppage of work or suspension of operation.
(d)
It shall be unlawful for any person or entity to obstruct, impede, delay or otherwise render ineffective the order of the Secretary of Labor and Employment or his duly authorized representatives issued pursuant to the authority granted under this Article, and no inferior court or entity shall issue temporary or permanent injunction or restraining order or otherwise assume jurisdiction over any case involving the enforcement orders issued in accordance with this Article.
(e)
Any government employee found guilty of violation of, or abuse of authority under this Article shall, after appropriate administrative investigation, be subject to summary dismissal from the service.
(f)
The Secretary of Labor and Employment may by appropriate regulations require employers to keep and maintain such employment records as may be necessary in aid of his visitorial and enforcement powers under this Code.
POWERS OF THE DOLE SECRETARY AND HIS DULY AUTHORIZED REPRESENTATIVES What is the visitorial and enforcement power of the DOLE Secretary and his duly authorized representatives under Article 128 of the Labor Code? 1. Power to inspect employer’s records and premises at any time of the day or night whenever work is being undertaken, and the right to copy therefrom, to question any employee and investigate any fact, condition or matter which may be necessary to determine violations or which may aid in the enforcement of the Labor Code and of any labor law, wage order or rules and regulations issued pursuant thereto. 2. Power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of inspection. 3. Power to issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection. 4. Power to order stoppage of work or suspension of operations of any unit or department of an establishment when non-compliance with the law or implementing rules and regulations poses grave and imminent danger to the health and safety of workers in the workplace.
BUREAU OF LABOR RELATIONS Article 226. Bureau of Labor Relations. The Bureau of Labor Relations and the labor relations divisions in the regional offices of the Department of Labor and Employment shall have original and exclusive authority to act, at their own initiative or upon request of either or both parties, on all interunion and intra-union conflicts, and all disputes, grievances or problems arising from or affecting labor-management relations in all workplaces whether agricultural or non-agricultural, except those arising from the implementation or interpretation of collective bargaining agreements which shall be the subject of grievance procedure and/or voluntary arbitration. The Bureau shall have fifteen (15) calendar days to act on labor cases before it, subject to extension by agreement of the parties. (As amended by RA 6715) JURISDICTION OF THE BUREAU OF LABOR RELATIONS (BLR)/MED-ARBITERS What are the cases falling under the jurisdiction of the BLR? The BLR has original and exclusive jurisdiction over the following: 1. “Inter-union disputes” or “representation disputes” which refer to cases involving petition for certification election filed by a duly registered labor organization which is seeking to be recognized as the sole and exclusive bargaining agent of the rank-and-file employees in the appropriate bargaining unit of a company, firm or establishment. 2. “Intra-union disputes” or “internal union disputes” which refer to disputes or grievances arising from any violation of or disagreement over any provision of the constitution and by-laws of the union, including any violation of the rights and conditions of union membership provided for in the Labor Code. 3. All disputes, grievances or problems arising from or affecting labor-management relations in all workplaces; except those arising from the interpretation or implementation of the CBA which are subject of grievance procedure and/or voluntary arbitration.
NATIONAL LABOR RELATIONS COMMISSION Article 218. Powers of the Commission. The Commission shall have the power and authority: XXX (e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party: Provided, That no temporary or permanent injunction in any case involving or growing out of a labor dispute as defined in this Code shall be issued except after hearing the testimony of witnesses, with opportunity for cross-examination, in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and only after a finding of fact by the Commission, to the effect: (1) That prohibited or unlawful acts have been threatened and will be committed unless restrained, or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat, prohibited or unlawful act, except against the person or persons, association or organization making the threat or committing the prohibited or unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; (2) That substantial and irreparable injury to complainant's property will follow;
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Societas Spectra Legis Labor Standards Compilation (3) That, as to each item of relief to be granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; (4) That complainant has no adequate remedy at law; and (5) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection. Such hearing shall be held after due and personal notice thereof has been served, in such manner as the Commission shall direct, to all known persons against whom relief is sought, and also to the Chief Executive and other public officials of the province or city within which the unlawful acts have been threatened or committed charged with the duty to protect complainant's property: Provided, however, That if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant's property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the Commission in issuing a temporary injunction upon hearing after notice. Such a temporary restraining order shall be effective for no longer than twenty (20) days and shall become void at the expiration of said twenty (20) days. No such temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the Commission sufficient to recompense those enjoined for any loss, expense or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, together with a reasonable attorney's fee, and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Commission. The undertaking herein mentioned shall be understood to constitute an agreement entered into by the complainant and the surety upon which an order may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damages, of which hearing complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the Commission for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity: Provided, further, That the reception of evidence for the application of a writ of injunction may be delegated by the Commission to any of its Labor Arbiters who shall conduct such hearings in such places as he may determine to be accessible to the parties and their witnesses and shall submit thereafter his recommendation to the Commission. (As amended by RA 6715) JURISDICTION OF THE NLRC What are the two kinds of jurisdiction of the NLRC? The National Labor Relations Commission exercises two (2) kinds of jurisdiction: 1. Original jurisdiction; and 2. Exclusive appellate jurisdiction Original Jurisdiction. a) Injunction in ordinary labor disputes to enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party; b) Injunction in strikes or lockouts under Article 264 of the Labor Code; c) Certified labor disputes causing or likely to cause a strike or lockout in an industry indispensable to the national interest, certified to it by the Secretary of Labor and Employment for compulsory arbitration. Exclusive Appellate Jurisdiction. a) All cases decided by the Labor Arbiters including contempt cases; b) Cases decided by the DOLE Regional Directors or his duly authorized Hearing Officers (under Article 129) involving recovery of wages, simple LABOR ARBITERS See topic 12
DOLE POLICY INSTRUCTION NO. 56-93 CLARIFYING THE JURISDICTION BETWEEN VOLUNTARY ARBITRATORS AND LABOR ARBITERS OVER TERMINATION CASES AND PROVIDING GUIDELINES FOR THE REFERRAL OF SAID CASES ORIGINALLY FILED WITH THE NLRC TO THE NCMB In line with the policy of the Labor Code of the Philippines to promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor of industrial disputes, the following guidelines are hereby promulgated: 1.
Termination cases arising in or resulting from the interpretation and implementation of collective bargaining agreements and of company personnel policies which were initially processed at the various steps of the plant-level Grievance Procedures under the parties collective bargaining agreements fall within the original and exclusive jurisdiction of the voluntary arbitrator pursuant to Article 217 (c) and Article 261 of the Labor Code.
2.
Said cases, shall be dismissed by the Labor Arbiter for lack of jurisdiction and referred to the concerned NCMB Regional Branch for appropriate action towards an expeditious selection by the parties of voluntary arbitrator or panel of arbitrators based on the procedures agreed upon in the CBA
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Societas Spectra Legis Labor Standards Compilation GUIDELINES ON THE SINGLE-ENTRY APPROACH PRESCRIBING A 30 DAY MANDATORY CONCIILIATION-MEDIATION SERVICES FOR ALL LABOR AND EMPLOYMENT AGENCIES (DOLE Department Order No, 107-10, Series of 2010) Section 1. Guiding Principles. – The Single Entry Approach 30-day mandatory conciliation-mediation in all regional offices shall complement the existing labor dispute settlement mechanism and processes in the DOLE offices and attached agencies to: (1) provide a speedy, impartial, inexpensive and accessible settlement services for unresolved issues/complaints arising from employer-employee relations; (2) encourage the use of conciliation-mediation in the settlement of all labor cases and only unresolved issues shall be referred either for voluntary arbitration, if both parties so agree, or compulsory arbitration to the NLRC or appropriate agency or office of the DOLE as the case may be; and (3) strengthen cooperation and coordination between and among DOLE agencies involved n dispute settlement. Section 2. Scope and Coverage. – The Single Entry Approach 30-day mandatory conciliation-mediation shall be applicable to cases falling under administrative and quasijudicial functions of all DOLE offices and attached agencies including the NLRC except: 1. Notices of strikes or lockouts, or preventive mediation cases which shall remain with the National Conciliation and Mediation Board (NCMB); and 2. Issues arising from the interpretation or implementation of the collective bargaining agreement and those arising from interpretation or enforcement of company personnel policies which should be processed through the Grievance Machinery. The 30-day conciliation-mediation services shall be made operational through the Single Entry Approach Desk (SEAD) either in the Regional Branch of the National Conciliation and Mediation Board (NCMB) and in the Regional Arbitration Branch of the National Labor Relations Commission (NLRC), or with the two or more regional offices/branches of the DOLE as may be determined appropriate by the DOLE Regional Coordinating Council (RCC) based on the number of Desk Officers and volume of cases in the region. Single Entry Approach Desk shall also be established in all Provincial and District Offices of the DOLE. Section 3. Definition of Terms. – The following terms as used in this Guidelines shall mean: (a) “Single Entry Approach or SEnA” refers to an administrative approach to provide a speedy, impartial, inexpensive and accessible settlement procedure of all labor issues or conflicts to prevent them from ripening in to full blown disputes. Conciliation-mediation process shall be utilized as immediate intervention to effect amicable settlement among the differing parties. (b) “Single Entry Assistance Desk Officer or Desk Officer” refers to person designated to provide assessment, evaluation, and counseling services before the filing of any labor complaint or dispute. (c) “Single Entry Assistance Desk or SEAD” refers to Single Entry Approach Desk established by the DOLE Regional Coordinating Council (RCC) in the Regional Branch of the National Conciliation and Mediation Board (NCMB) and in the Regional Arbitration Branch of the National Labor R elations Commission (NLRC), or with two or more regional offices/branches of the DOLE as appropriate. It also reers to the Single Entry Approach Desk established in all Provincial and District Offices of the DOLE. (d) “Referral” refers to the document issued by the Desk Officer referring the unresolved issue/s to the appropriate DOLE Office or Agency that has jurisdiction over the dispute. It contains the names and addresses of the parties, the stipulated and admitted facts, summary of unresolved issues, causes of action and the relief sought without prejudice to amendments on the complaint by the parties before the Office or Agency having jurisdiction over the dispute. (e) “30-day mandatory conciliation-mediation period” refers to 30 calendar days within which to conduct the mandatory conciliation-mediation period. Section 4. Who may file. – Any aggrieved worker, union, group of workers or the employer may file a request for assistance. Section 5. Where to file. – The request for assistance may be filed at any SEAD in the region where the employer principally operates. In case of a union or federation representing a local chapter, the request shall be made at the regional/provincial/district office where the union or local chapter is registered. Section 6. Issues Subject of the 30-day Mandatory Conciliation-Mediation. – Except as expressly excluded herein, all issues arising from labor and employment shall be subject to the 30-day mandatory conciliation-mediation, which may include the following: a) Termination or suspension of employment issues; b) Claims for any sum of money, regardless of amount; c) Intra-union and inter-union issues, after exhaustion of administrative remedies; d) Unfair Labor Practice; e) Closures, retrenchments, redundancies, temporary lay-offs; f) OFW cases; and g) Any other claims arising from employer-employee relationship. Section 7. Receiving and Recording. – All requests for assistance, wherever filed, shall be reduced into writing using SEAD Entry Form No. 1, which will be filled-up by the requesting party with the assistance of the Receiving Clerk. The SEAD shall have a separate recording and monitoring data system and shall maintain a separate logbook for this purpose. SEAD matters per region per province or district shall be numbered chronologically. The Desk Officer shall cause the entry of a request for assistance in the logbook provided for this purpose. The entry should indicate the following: a) Reference number; b) Date of filing; c) Name and address of requesting party/s; d) Pendency of similar or related cases; e) Nature and subject of the grievance/request; and f) Disposition. Upon receipt of SEAD Form No. 1, the Desk Officer shall record the request as SEAD (Name Regional Office)-(Province Field Office/District)-(No. of Request under the Region)-(Month)-(Year). Section 8. Assignment and Handling. – a) Upon receipt of the complaint or request for conciliation-mediation services, the designated Desk Officer shall initiate a pre-conference assessment, evaluation, counseling and conciliation-mediation services. b)
In regions or offices where there are more than one designated Desk Officers, the request shall immediately be raffled by the Agency Head or Head of Office for assignment and conduct of pre-conference assessment, evaluation, counseling and conciliation-mediation services on the same day of receipt thereof.
Section 9. Conduct of Conciliation-Mediation. – The Desk Officer shall exert best efforts to assist the parties arrive at a settlement. In facilitating the conciliation meeting, he/she shall: a) Clarify the issues and narrow down the disagreements; b) Validate the positions and the relief sought;
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Societas Spectra Legis Labor Standards Compilation c) d)
Encourage parties to generate options and enter into stipulations; Offer proposals and options toward mutually acceptable solutions and voluntary settlement.
Section 10. Settlement Agreement. – In case of voluntary settlement, the Desk Officer shall reduce the agreement into writing, have the parties understand the contents thereof, sign the same in his/her presence, and attest the document to be true and voluntary act of the parties. Any settlement agreement reached by the parties before the Desk Officer shall be final and binding. In case of partial settlement and/or partial execution of certain issues, all unresolved issues shall be referred pursuant to Section 15. Section 11. Monitoring and Enforcement of the Settlement Agreement. – The Desk Officer shall monitor the voluntary and faithful compliance with the Agreement by causing the parties to make a report of compliance or non-compliance within two weeks from the date of agreement or agreed period of compliance. Failure of the parties to make a report within the prescribed period shall render the Agreement deemed duly complied with absent proof to the contrary. In case of non-compliance by the other party, the Agreement shall be endorsed by the Desk Officer to the NLRC for enforcement. Section 12. Limitations in the Conduct of Conciliation Meetings and Appearance of Parties. – Unless the parties agree otherwise, conciliation-mediation services shall be carried out and terminated within the prescribed 30-day period. The parties are required to appear at all times. Lawyers may be allowed to join the conference only to render advice to parties. Failure of the complaining party to appear in two (2) scheduled meetings shall result in the issuance of Referral to the appropriate DOLE Office or Agency that has jurisdiction over the dispute. In case of non-appearance of the employer or the party complained of despite due notice, the complaining party may request for the issuance of the Referral or for a resetting of the conciliation-mediation conference at any day within the 30-day period. Section 13. Pre-termination of the 30-day Mandatory Conciliation-Mediation Proceedings; Option for Voluntary/Compulsory Arbitration. – Any or both parties within the 30-day period, may pre-terminate the proceedings and request Referral to the appropriate DOLE Office or Agency which has jurisdiction over the dispute, or if both parties so agree, refer the unresolved issues to voluntary arbitration. Section 14. Non-Settlement. – In case of failure to reach an agreement within the 30-day mandatory conciliation-mediation period, the Desk Officer shall issue a Referral to the appropriate DOLE Agency or Office which has jurisdiction over the dispute, or if both parties so agree, refer the unresolved issues to voluntary arbitration. Section 15. Contents of the Referral. – The Referral must contain the names and addresses of the parties, summary of unresolved issues, causes of action and the relief sought without prejudice to amendments on the complaint by the parties before the Office or Agency having jurisdiction over the dispute. For voluntary arbitration, the Referral should specify the issues to be arbitrated. Section 16. Issuance of the Referral. – The Desk Officer shall issue the Referral on the date of termination of the conciliation-mediation services either motu-proprio, in instances provided in Sections 12 and 14, or upon request of any or both parties to the proceedings. Failure of the Desk Officer to observe the period to issue the Referral shall be dealt with accordingly as an administrative offense. Section 17. Confidentiality of Proceedings. – Information and statements given in confidence at the conciliation-mediation proceedings shall be treated as privileged communication and shall not be used as evidence in any arbitration proceedings, except the stipulation of facts voluntarily entered into by the parties pursuant to Section 9(c) hereof. The Desk Officer shall not be required to testify in any court or body regarding any confidential matter and information taken during the conciliation proceedings conducted by them. Section 20. Public Assistance Conciliation Unit (PACU) and Free Legal Assistance and Voluntary Arbitration Services (FLAVAS). – The services rendered through the Legal Service’s Public Assistance and Conciliation Unit (PACU) and the NCMB Free Legal Assistance and Voluntary Arbitration Services (FLAVAS) shall form part of the Single Entry Approach. Section 21. National Conciliation and Mediation Board (NCMB). – Conciliation-mediation services on notices of strikes or lock-outs, or on preventive mediation cases shall remain with the National Conciliation and Mediation Board (NCMB) and are excluded from the scope and coverage of this issuance. Section 22. Grievance Machinery and Voluntary Arbitration. – Issues arising from the interpretation or implementation of the collective bargaining agreement and those arising from interpretation or enforcement of company personnel policies shall not be subject to the 30-day mandatory conciliation-mediation. It shall be processed through the grievance machinery as established in the collective bargaining agreement or pursuant to Sections 1 and 2, Rule XIX of Department Order No. 40, Series of 2003, as amended, and all unresolved grievance or issues shall be submitted to voluntary arbitration. Section 23. Regional Coordinating Council (RCC). – The RCC shall immediately establish the SEAD. At the regional level, the SEAD shall be established in the Regional Branch of the NCMB and in the Regional Arbitration Branch of the NLRC, or with two or more regional offices/branches of the DOLE as it may deem appropriate based on the number of Desk Officers and volume of cases in the region. However, at the provincial and district levels, only one SEAD shall be established in every Provincial and District Offices of the DOLE. The RCC shall ensure tripartite participation in the establishment of the SEAD and in the effective implementation of this Guidelines.
DOLE RULES OF PROCEDURE OF THE SINGLE ENTRY APPROACH (February 25, 2011) SECTION 2. DEFINITION OF TERMS. – For purposes of this Rules, the following terms are defined as follows: a) “Conciliation-Mediation” refers to the process of dispute management conducted by the SEADO, in accordance with this Rules, to facilitate an amicable settlement of labor disputes. b) “Labor Dispute” refers to all issues or conflicts that are covered by this Rules. c) “Referral” refers to the indorsement of unsettled issues through a document issued by the SEAD referring the unresolved issue/s to appropriate DOLE Office or Agency that has jurisdiction over the dispute. It contains the names and addresses of the parties, the stipulated and admitte d facts, summary of unresolved issues, causes of action and the relief sought without prejudice to amendments on the complaint by the parties before the Office or Agency having jurisdiction over the dispute. d) “Request for Assistance (RFA)” refers to the request for the conduct of conciliation-mediation under SEnA to assist the parties to arrive at a settlement agreement.
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“Requesting Party” refers to an employee, group of employees, employer or union who files an RFA. “Responding Party” refers to an employee, group of employees, employer or union requested to appear for conciliation-mediation under SEnA.
SECTION 3. COVERAGE. – As far as practicable, this Rules shall be applicable to the following: a) Termination or suspension of employment issues; b) Claims for any sum of money, regardless of amount; c) Intra-union and inter-union issues except petition for certification election, after exhaustion of administrative remedies; d) Unfair Labor Practice; e) Closures, retrenchments, redundancies, temporary lay-offs; f) OFW cases; g) Occupational safety and health standards issues except those involving imminent danger situation; h) Issues arising from other labor and related issuances (ORLI) i) Any other claims arising from employer-employee relationship; and j) Cases falling under the administrative and quasi-judicial jurisdiction of all DOLE offices and attached agencies, including NLRC, except: i. Alien Employment Permit (AEP); ii. PRPA authority or license; iii. Working child permit (WCP) and violations of RA 9231 (Anti-Child Labor Law); iv. Registration under DO No. 18-02; v. POEA issued licenses under the Migrant Worker’s Act, as amended; vi. Professional license issued by the PRC; vii. TESDA accreditations; and viii. Other similar permits, licenses or registrations issued by the DOLE or its attached agencies. RULE II REQUEST FOR ASSISTANCE (RFA) SECTION 1. WHERE TO FILE. – The request for assistance shall be filed at any SEAD or unit in the region/provincial/district/field office where the employer principally operates. In case of a union or federation representing a local chapter, the request shall be made at the regional/provincial/district/field office where the union or local chapter is registered. Where two or more RFAs involving the same responding party are filed before different SEADs within the same region, the requests shall be endorsed to the SEAD where the employer principally operates or where the union/local chapter is registered, as the case may be. If the request for assistance is filed with the SEAD most convenient to the requesting party but outside the region where the employer principally operates, the SEADO may entertain the same and proceed with the conciliation-mediation provided the same is not objected to by the employer. In case of objection, the SEADO shall immediately refer the request to the appropriate agency. SECTION 3. NOTICE OF CONFERENCE. – Using the SEnA Notice Form, the SEADO may utilize any of the following modes of service of notice: a) Personal; b) Registered mail; c) Electronic mail; d) Courier; e) Facsimile; or f) Any other fast, economical and effective mode of notifying the parties taking into consideration the prevailing circumstances within the SEADO’s area or responsibility. SECTION 4. COMPLAINT/REQUEST FOR ASSISTANCE THROUGH LETTER. – Where a complaint/request for assistance is accounted through a letter, e-mail or referral, the Head of Office shall respond by explaining the procedures of the SENA Program and require the personal appearance of the complainant to the SEAD pursuant to the provision of Section 1, Rule II. SECTION 5. ANONYMOUS COMPLAINT/REQUEST. – In case of anonymous complaint/request for assistance, the SEADO shall verify the same by requesting an interview with the responding party to facilitate compliance or correction if there are violations. Refusal or non-appearance of the responding party on the scheduled interview would automatically result to a directive by the Head of Office to conduct inspection in the establishment. Compliance or correction of violations uncovered during the inspection shall be facilitated through conciliation-mediation services. RULE III THE SINGLE ENTRY APPROACH DESK OFFICERS (SEADO) SECTION 1. DUTIES AND RESPONSIBILITIES. – The SEADO shall exert best efforts to assist the parties arrive at a settlement. In facilitating the conciliation meeting, he/she shall: a) Clarify the issues and narrow down the disagreements; b) Validate the positions and the relief sought; c) Encourage parties to generate options and enter into stipulations; d) Offer proposals and options toward mutually acceptable solutions and voluntary settlement; and e) Facilitate the preparation of the settlement documents. SECTION 2. NORM AND CONDUCT. – The SEADO must at all times conduct him/herself with utmost courtesy and in an upright manner whose first and primary duty is to implement the provisions of Department Order No. 107, Series of 2010, taking into consideration the following guiding principles: a) Provision of speedy, impartial, inexpensive and accessible settlement services; and b) Promotion of the use of conciliation-mediation as the primary mode in the settlement of all labor cases with only unresolved issues for referral to either voluntary arbitration, if both parties so agree, or compulsory arbitration to the National Labor Relations Commission (NLRC) or appropriate agency or office of the DOLE, as the case may be. RULE IV CONDUCT OF CONCILIATION-MEDIATION SECTION 1. SCHEDULE OF CONFERENCES. – a) The SEADO may hold as many conferences he/she deems necessary within the 30-day mandatory conciliation-mediation period to facilitate a settlement agreement.
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The resetting of the scheduled conference shall only be allowed on meritorious grounds and if the other party concurred to the resetting. In such a case, the conference shall be held not later than three (3) days from the original scheduled conference, and The 30-day period may be extended for only a maximum of seven (7) days when the parties mutually agree to such extension.
SECTION 2. SEnA GUIDING PRINCIPLES IN LABOR STANDARDS AND INTER-INTRA UNION CASES. – Conciliation-mediation services by the SEADO in labor standards and inter-intra union cases shall observe the following guiding principles: a) In labor standards, including occupational safety and health standards issues, the conciliation-mediation services shall be towards facilitating an expeditious and non-litigious compliance by the responding party and ensuring the implementation of corrective measures on the identified violations in the establishment. b) In inter-intra union issues, the conciliation-mediation services shall be towards facilitating a settlement or an agreed expeditious process to resolve the issue/s. It should not in any way be made as an added layer to the periods set forth in Department Order No. 40, Series of 2003, as amended. SECTION 3. APPEARANCE OF PARTIES. – a) The parties, as far as practicable, shall personally appear at all times. b) Lawyers may be allowed to join the conference only to render advice to their clients. c) Lawyers, agents or attorneys-in-fact may appear in behalf of any of the parties provided they could show a special power of attorney granting them authority to represent and enter into a binding agreement for their principal. SECTION 4. PRE-TERMINATION OF THE 30-DAY MANDATORY CONCILIATION-MEDIATION PROCEEDINGS. – Any or both parties, within the 30-day period, may or cause to pre-terminate the proceedings by: a) Verbal or written withdrawal by the requesting party; b) Withdrawal due to disinterest caused by non-appearance of the requesting party in two (2) scheduled consecutive conferences despite due notice; c) Request for Referral by the requesting party to the appropriate DOLE Office or Agency which has jurisdiction over the dispute; d) Non-appearance of the responding party in two (2) scheduled consecutive conferences despite due notice; or e) Non-submission/resistance of the responding party to conciliation-mediation. SECTION 5. TERMINATION OF SEnA PROCEEDINGS. – Any of the following shall render the SEnA proceedings closed and terminated: 1. Pre-termination of the 30-day mandatory conciliation-mediation proceedings as defined in Section 4 hereof; 2. Expiration of the 30-day mandatory period unless both parties mutually request for extension; or 3. Upon compliance with the settlement agreement as defined in the succeeding Section. SECTION 6. COMPLIANCE WITH SETTLEMENT AGREEMENT. – Upon full compliance of the settlement agreement, the SEnA proceeding is automatically terminated. Any of the party may submit a written report of non-compliance by the other within two (2) weeks from the date of agreement or agreed period of compliance. The absence of the same shall render the settlement agreement deemed duly complied with absent of proof to the contrary. SECTION 7. ISSUANCE OF REFERRAL. – The Referral shall be issued without delay on the date of the termination of the conciliation-mediation services to the party who filed the RFA. The Referral shall be submitted to the appropriate DOLE office or agency named therein, or to voluntary arbitration, if both parties so agree to submit their unresolved issues, as compliance to the 30-day mandatory conciliation-mediation process. The issuance of the Referral shall be motu proprio on the part of the SEADO in the following circumstances: a) Expiration of the 30-day mandatory conciliation-mediation period, unless there is a request for extension; b) Failure of the parties to reach an agreement within the 30-day mandatory conciliation-mediation period; or c) Failure of the requesting party to appear in two (2) scheduled consecutive conferences despite due notice. However, in case of pre-termination of the proceedings, the issuance of the Referral shall be upon the request of any of both parties. Delay in the issuance of the Referral by the SEADO shall be dealt with accordingly as an administrative offense. SECTION 8. CONTENTS OF REFERRAL. – The Referral must contain the names and addresses of the parties, summary of unresolved issues, causes of action and the relief sought without prejudice to amendments on the complaint by the parties before the Office or Agency having jurisdiction over the dispute. For voluntary arbitration, the Referral should specify the issues to be arbitrated. SECTION 9. CONFIDENTIALITY OF PROCEEDINGS; MINUTES. – a) Information and statements given in confidence at the conciliation-mediation proceedings shall be treated as privileged communication and shall not be used as evidence in any arbitration proceedings, except: 1) Stipulation of facts which form part of the settlement in accordance with Rule V hereof; 2) Facts which are of common knowledge; or 3) Waiver of confidentiality b) Any contents appearing in the minutes of the proceedings (SENA Minutes Form) or personal notes taken by the SEADO or the parties during the proceedings are subject to the limitations provided under paragraph (a). c) Voice or video recorders or any electronic recording device shall be prohibited during the proceedings. RULE V SETTLEMENT OF DISPUTE SECTION 1. SETTLEMENT AGREEMENT. – a) In case of voluntary settlement, the SEADO shall reduce the agreement into writing using the SENA Settlement Form, indicating all stipulations agreed upon by the parties. b) Where the settlement agreement involves monetary claims, the SEADO shall endeavor to facilitate the settlement in full and shall attach a duly accomplished waiver and quitclaim to the settlement agreement as proof of full compliance c) Where the payment of monetary claims is agreed to be in several installments or tranches, the waiver and quitclaim shall be executed only upon payment of the last installment. d) In case of partial settlement, only those stipulations relating to issues settled shall be stated in the agreement while the unresolved issues shall be referred to appropriate DOLE Office or Agency. e) The SEADO shall, as far as practicable, make us of the language or dialect understood by both parties. f) The SEADO is duty bound to explain to the parties the contents of their settlement agreement before they sign the same. He/she shall also sign the settlement agreement in the parties’ presence and attest the document to be the true and voluntary act of the parties.
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Societas Spectra Legis Labor Standards Compilation SECTION 2. EFFECT OF SETTLEMENT. – Any settlement agreement reached by the parties before the SEADO shall be final and binding. SECTION 3. SETTLEMENT AGREEMENTS ON MONETARY CLAIMS. – Where the parties entered into a compromise of monetary claims arising from violation of labor standards law, the amount of the compromise shall be fair and reasonable, and not contrary to law, public morals and public policy. The fairness/reasonableness of settlement agreements shall depend on the totality of the circumstances, the degree of voluntariness and credibility of the consideration. The insistence of the requesting party to accept a given amount despite having knowledge of his/her rightful claims shall give rise to the presumption of absence of fraud, violence or coercion and his/her voluntariness to accept the settlement agreement The foregoing circumstances shall be fully disclosed in the settlement agreement. SECTION 4. MONITORING AND ENFORCEMENT OF THE SETTLEMENT AGREEMENT. – The SEADO shall monitor the voluntary and faithful compliance with the settlement agreement by requiring the parties to submit, under oath, a written report of compliance or non-compliance within two (2) weeks from the date of agreement or agreed period of compliance. A copy of the settlement agreement shall be submitted to the appropriate office/agency having jurisdiction over the issue/s therein. Where the settlement agreement or part thereof involves payment of monetary claims, the same shall be made in the SEAD and in the presence of the SEADO. In case of report of “settlement for a show” or where the settlement amount is reported to have been retrieved or confiscated by the responding party, both parties shall be summoned by the Head of Office where the settlement was effected. The Head of Office shall verify the report and should there be prima facie proof that the settlement was for a show, the responding party shall be required to pay the requesting party the full settlement amount with legal interest reckoned from the date of settlement. SECTION 5. RETALIATORY ACTION. – Any retaliatory action/s against the requesting party by the responding party shall be strictly construed against the responding party. SECTION 6. NON-COMPLIANCE WITH SETTLEMENT AGREEMENT; EXECUTION. – In case of non-compliance by the responding party, the requesting party has the option to disregard the settlement agreement and file the appropriate case before the appropriate forum, or enforce the terms of the agreement. In case of the latter, he/she shall request a Referral from the SEADO to the proper Regional Arbitration Branch (RAB) of the NLRC for enforcement of the agreement pursuant to Rule V, Sec. 1 (i) of the 2005 Revised NLRC Rules, as amended. The same shall be docketed by the RAB as an arbitration case for enforcement of settlement agreement. Upon agreement of the parties, or when the cause of action is within the jurisdiction of the Office/Agency where the SEAD is lodged, the appropriate DOLE Office/Agency may execute the settlement agreement.
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SINGLE ENTRY APPROACH FLOWCHART Request for Assistance is filed at any Desk Officer at RCMB, RO, RAB, and PFO-District Offices
Reduce to writing using SEAD Form
Receiving Officer Records RFA/CM and forwards to Desk Officer or Agency Head
PFO-District Head Assigns the RFA/CM to SEAO
Desk Officer initiates a pre-conference assessment, evaluation, counseling and schedules conciliationmediation
Desk Officer notifies both parties
Conciliation-mediation by the Desk Officer Clarify the issues and narrow down the disagreements; Validate the positions and the relief sought; Encourage parties to generate options and enter into stipulations; Offer proposals and options toward mutually acceptable solutions and voluntary settlement; and Facilitate the preparation of the settlement documents.
Pre-termination Verbal or written withdrawal by the requesting party; Withdrawal due to disinterest caused by nonappearance of the requesting party in two (2) scheduled consecutive conferences despite due notice; Request for Referral by the requesting party to the appropriate DOLE Office or Agency which has jurisdiction over the dispute; Non-appearance of the responding party in two (2) scheduled consecutive conferences despite due notice; or Non-submission/resistance of the responding party to conciliation-mediation.
N Voluntarily Settled
Y RFA/CM Closed
Desk Officer prepares Reports to RO
Desk Officer advises the parties and issues a Referral to the appropriate DOLE Agency or Office The Referral must contain the names and addresses of the parties, summary of unresolved issues, causes of action and the relief sought without prejudice to amendments on the complaint by the parties before the Office or Agency having jurisdiction over the dispute. For voluntary arbitration, the Referral should specify the issues to be arbitrated
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Societas Spectra Legis Labor Standards Compilation COMPLAINT; CAUSE OF ACTION/S; REAL PARTIES-IN-INTEREST; AMENDMENT OF COMPLAINT; CERTIFICATE OF NON-FORUM SHOPPING COMPLAINT A complaint or petition is a pleading alleging the cause or causes of action of the complainant or petitioner. The names and addresses of all complainants or petitioners and respondents must be stated in the complaint or petition. It shall be signed under oath by the complainant or petitioner, with a declaration of non-forum shopping. (Rule III, Section 1(a), 2011 NLRC Rules of Procedure) CAUSE OF ACTION A cause of action is the act or omission by which a party violates a right of another (Rule II, Section 2, Rules of Court). A party having more than one cause of action against the other party, arising out of the same relationship, shall include all of them in one complaint or petition (Rule III, Section 1(b), 2011 NLRC Rules of Procedure). REAL PARTIES IN INTEREST A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit (Rule III, Section 2, Rules of Court). The full names of all the real parties in interest, whether natural or juridical persons or entities authorized by law, shall be stated in the caption of the complaint or petition, as well as in the decisions, resolutions or orders of the Labor Arbiter or the Commission (Rule III, Section 2, 2011 NLRC Rules of Procedure). AMENDMENT OF COMPLAINT No amendment of the complaint or petition shall be allowed after the filing of position papers, unless with leave of the Labor Arbiter (Rule III, Section 11(b), 2011 NLRC Rules).
VENUE AND JURISDICTION ART. 129 OF THE LABOR CODE Upon complaint of any interested party, the Regional Director of the Department of Labor and Employment or any of the duly authorized hearing officers of the Department is empowered, through summary proceeding and after due notice, to hear and decide any matter involving the recovery of wages and other monetary claims and benefits, including legal interest, owing to an employee or person employed in domestic or household service or househelper under this Code, arising from employeremployee relations: Provided, That such complaint does not include a claim for reinstatement: Provided further, That the aggregate money claims of each employee or househelper does not exceed Five thousand pesos (P5,000.00). The Regional Director or hearing officer shall decide or resolve the complaint within thirty (30) calendar days from the date of the filing of the same.
RULE V, SECTION 1, NLRC RULES OF PROCEDURE SECTION 1. Jurisdiction of Labor Arbiters. — Labor Arbiters shall have original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or non-agricultural: a) Unfair labor practice cases; b) Termination disputes; c) If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; d) Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations; e) Cases arising from any violation of Article 264 of the Labor Code, as amended, including questions involving the legality of strikes and lockouts; f) Except claims for employees compensation not included in the next succeeding paragraph, social security, medicare, and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding Five Thousand Pesos (P5,000.00), whether or not accompanied with a claim for reinstatement; g) Wage distortion disputes in unorganized establishments not voluntarily settled by the parties pursuant to Republic Act No. 6727; h) Enforcement of compromise agreements when there is non-compliance by any of the parties pursuant to Article 227 of the Labor Code, as amended; i) Money claims arising out of employer-employee relationship or by virtue of any law or contract, involving Filipino workers for overseas deployment, including claims for actual, moral, exemplary and other forms of damages as provided by Section 10 of RA 8042, as amended by RA 10022; and j) Other cases as may be provided by law. Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration , as may be provided in said agreements. (1a)
RULE IV, SECTION 5, 2011 NLRC RULES OF PROCEDURE SECTION 1. Venue. — a) All cases which Labor Arbiters have authority to hear and decide may be filed in the Regional Arbitration Branch having jurisdiction over the workplace of the complainant or petitioner. For purposes of venue, the workplace shall be understood as the place or locality where the employee is regularly assigned at the time the cause of action arose. It shall include the place where the employee is supposed to report back after a temporary detail, assignment, or travel. In case of field employees, as well as ambulant or itinerant workers, their workplace is where they are regularly assigned, or where they are supposed to regularly receive their salaries and wages or work instructions from, and report the results of their assignment to, their employers. b)
Where two (2) or more Regional Arbitration Branches have jurisdiction over the workplace of the complainant or petitioner, the Branch that first acquired jurisdiction over the case shall exclude the others.
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Societas Spectra Legis Labor Standards Compilation c)
When venue is not objected to before the filling of position papers such issue shall be deemed waived.
d)
The venue of an action may be changed or transferred to a different Regional Arbitration Branch other than where the complaint was filed by written agreement of the parties or when the Commission of Labor Arbiter before whom the case is pending so orders, upon motion by the proper party in meritorious cases.
e)
Cases involving overseas Filipino workers may be filed before the Regional Arbitration Branch having jurisdiction over the place where the complainant resides or where the principal office of any of the respondents is situated, at the option of the complainant.
SERVICE OF SUMMONS; NATURAL & JURIDICAL PERSON/S; MODE OF SERVICE OF NOTICES, RESOLUTION, ORDER OF DECISION SERVICE OF SUMMONS SECTION 4. Service of Summons. — Summons shall be served personally upon the parties by the bailiff or a duly authorized public officer within three (3) days from his/her receipt thereof, or by registered mail, or by private courier authorized by the Commission; Provided that in special circumstances, service of summons may be effected in accordance with the pertinent provisions of the Rules of Court. The bailiff or officer serving the summons shall submit his/her return within two (2) days from date of service thereof, stating legibly in his/her return his/her name, the names of the persons served and the date of receipt, which return shall be immediately attached to the records and shall be part thereof. If no service was effected, the reason thereof shall be stated in the return. In case of service by registered mail or by private courier, the names of the addressees and the dates of receipt of the summons shall be written in the return card or in the proof of service issued by the private courier. If no service was effected, the reason thereof shall be so stated. (n) NATURAL & JURIDICAL PERSONS Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff" may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.) party defendant. (Rule 3, Section 1, Rules of Court) MODE OF SERVICE OF NOTICE Notices and copies of resolutions or orders: a) personally upon the parties by the bailiff or duly authorized public officer within 3 days from his receipt thereof; or b) by registered mail; or c) private courier Decisions and final awards: a) copies shall be served on both parties and their counsel or representative by registered mail; or b) private courier. Provided: In cases where a party to a case or his counsel personally seeks service of the decision upon inquiry thereon, service to said party shall be deemed effected Where parties are numerous, service shall be made on counsel and upon such number of complainants, as may be practicable and shall be considered substantial compliance with Art. 224 (a) of the Labor Code Appeal – the period shall be counted from the receipt of such decisions, resolutions, or orders by the counsel or representative of record Duty of the Bailiff or Officer Serving the Notice, Order or Resolution: Submit his return within 2days from date of service thereof, stating legibly in his return: (1) His name (2) Names of the persons served; and (3) the date of receipt, which return shall be immediately attached and shall form part of the records of the case In case of service by registered mail or private courier – (1) name of the addressee and (2) date of receipt of notice, order or resolution shall be written in the (3) return card or in the proof of service issued by the private courier. If no service was effected, the reason thereof shall be stated. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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PROOF AND COMPLETENESS OF SERVICE SECTION 5. Proof and Completeness of Service. — The return is prima facie proof of the facts indicated therein. Service by registered mail or by private courier is complete upon receipt by the addressee or his/her agent. If the addressee fails to claim his/her mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect after such time. (7a)
RAFFLE AND ASSIGNMENT OF CASES SECTION 2. Raffle and Assignment of Cases. — a) All complaints and petitions filed with the docket unit of the Regional Arbitration Branch shall be immediately raffled and assigned to a Labor Arbiter from receipt thereof. b) The Executive Labor Arbiter shall be responsible for the immediate raffle and assignment of all complaints and petitions filed with his/her Regional Arbitration Branch, and the immediate forwarding of all subsequent pleadings and motions. c) All pleadings and motions subsequent to the filing of the complaint shall be forwarded to the Labor Arbiter before whom the case is pending within twenty-four (24) hours from receipt thereof.
APPEARANCES OF LAWYERS AND NON-LAWYERS LABOR CODE Article 222. Appearances and Fees. – Non-lawyers may appear before the Commission or any Labor Arbiter only: If they represent themselves; or If they represent their organization or members thereof. No attorney’s fees, negotiation fees or similar charges of any kind arising from any collective bargaining agreement shall be imposed on any individual member of the contracting union: Provided, However, that attorney’s fees may be charged against union funds in an amount to be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. (As amended by Presidential Decree No. 1691, May 1, 1980)
RULE III, 2011 NLRC RULES OF PROCEDURE SECTION 6. Appearances. — a) A lawyer appearing for a party is presumed to be properly authorized for that purpose. In every case, he/she shall indicate in his/her pleadings and motions his/her Attorney's Roll Number, as well as his/her PTR2 and IBP numbers for the current year and MCLE compliance. b)
A non-lawyer may appear in any of the proceedings before the Labor Arbiter or Commission only under the following conditions: (1)
he/she represents himself/herself as party to the case;
(2)
he/she represents a legitimate labor organization, as defined under Article 212 and 242 of the Labor Code, as amended, which is a party to the case: Provided, that he/she presents to the Commission or Labor Arbiter during the mandatory conference or initial hearing 1. a certification from the Bureau of Labor Relations (BLR) or Regional Office of the Department of Labor and Employment attesting that the organization he/she represents is duly registered and listed in the roster of legitimate labor organizations; 2. a verified certification issued by the secretary and attested to by the president of the said organization stating that he/she is authorized to represent the said organization in the said case; and 3. a copy of the resolution of the board of directors of the said organization granting him such authority;
(3)
he/she represents a member or members of a legitimate labor organization that is existing within the employer's establishment, who are parties to the case: Provided, that he/she presents; 4. a verified certification attesting that he/she is authorized by such member or members to represent them in the case; and 5. a verified certification issued by the secretary and attested to by the president of the said organization stating that the person or persons he/she is representing are members of their organization which is existing in the employer's establishment;
(4)
2
he/she is a duly-accredited member of any legal aid office recognized by the Department of Justice or Integrated Bar of the Philippines: Provided, that he/she:
Professional Tax Receipt
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Societas Spectra Legis Labor Standards Compilation 6. presents proof of his/her accreditation; and 7. represents a party to the case; (5)
he/she is the owner or president of a corporation or establishment which is a party to the case: Provided, that he/she presents: 8. a verified certification attesting that he/she is authorized to represent said corporation or establishment; and 9. a copy of the resolution of the board of directors of said corporation, or other similar resolution or instrument issued by said establishment, granting him/her such authority.
c)
Appearances of a non-lawyer in contravention of this section shall not be recognized in any proceedings before the Labor Arbiter or the Commission.
d)
Appearances may be made orally or in writing. In both cases, the complete name and office address of counsel or authorized representative shall be made of record and the adverse party or his counsel or authorized representative properly notified.
e)
In case of change of address, the counsel or representative shall file a notice of such change, copy furnished the adverse party and counsel or representative, if any.
f)
Any change or withdrawal of counsel or authorized representative shall be made in accordance with the Rules of Court. (8a)
SUMMARY: A lawyer must indicate in his/her pleadings and motions his/her: (1) Attorney’s Roll Number; (2) Professional Tax Receipt; (3) IBP numbers for the current year; and (4) MCLE compliance A non lawyer may appear in any of the following instances (note requisites): (1) he/she represent himself/herself as a party to the case; (2) he/she represents a legitimate labor organization which is a party to the case; (3) he/she represents a member of a legitimate labor organization existing in the employer’s establishment which is a party to the case; (4) he/she is a duly-accredited member of any legal aid office recognized by the DOJ or IBP; (5) he/she is the owner/president of a corporation or establishment which is a party to the case SECTION 7. Authority to Bind Party. — Counsel or other authorized representatives of parties shall have authority to bind their clients in all matters of procedure; but they cannot, without a special power of attorney or express consent, enter into a compromise agreement with the opposing party in full or partial discharge of a client's claim. (9a)
PERMISSIBLE GROUNDS TO DISMISS COMPLAINT; PROHIBITED PLEADINGS & MOTIONS RULE V SECTION 5. Prohibited Pleadings and Motions. — The following pleadings and motions shall not be allowed and acted upon nor elevated to the Commission: a) b) c) d) e) f) g)
Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, improper venue, res judicata, prescription and forum shopping; Motion for a bill of particulars; Motion for new trial; Petition for Relief from Judgment; Motion to declare respondent in default; Motion for reconsideration of any decision or any order of the Labor Arbiter; Appeal from any interlocutory order of the Labor Arbiter, such as but not limited to, an order: (1) (2) (3) (4)
h) i) j)
denying a motion to dismiss; denying a motion to inhibit; denying a motion for issuance of writ of execution; or denying a motion to quash writ of execution.
Appeal from the issuance of a certificate of finality of decision by the Labor Arbiter; Appeal from orders issued by the Labor Arbiter in the course of execution proceedings. Such other pleadings, motions and petitions of similar nature intended to circumvent above provisions. (5a, RIII)
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Societas Spectra Legis Labor Standards Compilation SECTION 6. Motion to Dismiss. — Before the date set for the mandatory conciliation and mediation conference, the respondent may file a motion to dismiss on grounds provided under Section 5, paragraph (a) hereof. Such motion shall be immediately resolved by the Labor Arbiter through a written order. An order denying the motion to dismiss, or suspending its resolution until the final determination of the case, is not appealable. Q: What are the permissible grounds to dismiss a complaint? Answer: [J-I-R-P-F] (1) lack of Jurisdiction; (2) Improper venue; (3) Res judicata; (4) Prescription; and (5) Forum shopping
MANDATORY CONCILIATION & MEDIATION CONFERENCE SECTION 8. Mandatory Conciliation and Mediation Conference. — a) The mandatory conciliation and mediation conference shall be called for the purpose of: (1)
amicably settling the case upon a fair compromise;
(2)
determining the real parties in interest;
(3)
determining the necessity of amending the complaint and including all causes of action;
(4)
defining and simplifying the issues in the case;
(5)
entering into admissions or stipulations of facts; and
(6)
threshing out all other preliminary matters.
The Labor Arbiter shall personally preside over and take full control of the proceedings and may be assisted by the Labor Arbitration Associate in the conduct thereof. b)
Conciliation and mediation efforts shall be exerted by the Labor Arbiters all throughout the mandatory conferences. Any agreement entered into by the parties whether in partial or full settlement of the dispute shall be reduced into writing and signed by the parties and their counsel or the parties' authorized representatives, if any.
c)
In any case, the compromise agreement shall be approved by the Labor Arbiter, if after explaining to the parties, particularly to the complainants, the terms, conditions and consequences thereof, he/she is satisfied that they understand the agreement, that the same was entered into freely and voluntarily by them, and that it is not contrary to law, morals, and public policy.
d)
A compromise agreement duly entered into in accordance with this Section shall be final and binding upon the parties and shall have the force and effect of a judgment rendered by the Labor Arbiter.
e)
The mandatory conciliation and mediation conference shall, except for justifiable grounds, be terminated within thirty (30) calendar days from the date of the first conference.
f)
No motion for postponement shall be entertained except on meritorious grounds and when filed at least three (3) days before the scheduled hearing. (3a)
CONCEPT OF CONCILIATION AND MEDIATION The concept of mandatory conciliation and mediation is to explore the possibility of compromise since there are some petty issues which may be voluntarily settled without need of filing a case in the LA PURPOSE The purpose of the mandatory conciliation and mediation is to: (1) amicably settle the case upon a fair compromise; (2) determine the real parties in interest; (3) determine the necessity of amending the complaint and including all causes of action; (4) define and simplify the issues in the case; (5) enter into admissions or stipulations of facts; and (6) thresh out all other preliminary matters.
SECTION 9. Effect of Failure of Settlement. — If the parties fail to agree on an amicable settlement, either in whole or in part, during the mandatory conciliation and mediation conference, the Labor Arbiter shall proceed to the other purposes of the said conference as enumerated in Section 8 (a) hereof. (4a) SECTION 10. Non-Appearance of Parties. — The non-appearance of the complainant or petitioner during the two (2) settings for mandatory conciliation and mediation conference scheduled in the summons, despite due notice thereof, shall be a ground for the dismissal of the case without prejudice.
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Societas Spectra Legis Labor Standards Compilation In case of non-appearance by the respondent during the first scheduled conference, the second conference as scheduled in the summons shall proceed. If the respondent still fails to appear at the second conference despite being duly served with summons, he/she shall be considered to have waived his/her right to file position paper. The Labor Arbiter shall immediately terminate the mandatory conciliation and mediation conference and direct the complainant or petitioner to file a verified position paper and submit evidence in support of his/her causes of action and thereupon render his/her decision on the basis of the evidence on record. (5a)
WAIVER OF RIGHT TO FILE POSITION PAPER & LIFTING OF ORDER OF WAIVER SECTION 10. Non-Appearance of Parties. — The non-appearance of the complainant or petitioner during the two (2) settings for mandatory conciliation and mediation conference scheduled in the summons, despite due notice thereof, shall be a ground for the dismissal of the case without prejudice. In case of non-appearance by the respondent during the first scheduled conference, the second conference as scheduled in the summons shall proceed. If the respondent still fails to appear at the second conference despite being duly served with summons, he/she shall be considered to have waived his/her right to file position paper. The Labor Arbiter shall immediately terminate the mandatory conciliation and mediation conference and direct the complainant or petitioner to file a verified position paper and submit evidence in support of his/her causes of action and thereupon render his/her decision on the basis of the evidence on record. (5a)
Waiver of right to file position paper can happen if respondent still fails to appear at the second conference despite served with summons The LA should immediately terminate the conciliation and direct the petitioner to file a position paper and submit evidence The LA should thereupon render his/her decision on the basis of the evidence on record SECTION 20. Revival and Re-Opening or Re-Filing of Dismissed Case and Lifting of Waiver. — A party may file a motion to revive or re-open a case dismissed without prejudice, within ten (10) calendar days from receipt of notice of the order dismissing the same; otherwise, the only remedy shall be to re-file the case. A party declared to have waived his/her right to file position paper may, at any time after notice thereof and before the case is submitted for decision, file a motion under oath to set aside the order of waiver upon proper showing that his/her failure to appear was due to justifiable and meritorious grounds. (16a)
An order of waiver may be lifted: (1) at any time after notice; (2) before the case is submitted for decision; and (3) upon showing that his/her failure to appear was due to justifiable and meritorious grounds
COMPROMISE BEFORE REGIONAL DIRECTOR AND LABOR ARBITER Art. 227 of the Labor Code Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court, shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion.
Art. 2028 of the Civil Code A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced.
A judgment rendered in accordance with a compromise agreement is not appealable, and is immediately executory unless a motion is filed to set aside the agreement on the ground of fraud, mistake, or duress, in which case an appeal may be taken against the order denying the motion. Under A2037 of the Civil Code, “a compromise has upon the parties the effect and authority of res judicata,” even when effected without judicial approval; and under the principle of res judicata, an issue which has already been laid to rest by the parties themselves can no longer be relitigated. (Phil. Journalist Inc. vs. NLRC, G.R. No. 166421, Sept. 5, 2006) All that is required for the compromise to be deemed voluntarily entered into is personal and specific individual consent. Thus, contrary to respondent’s contention, the employee’s counsel need not be present at the time of the signing of the compromise agreement. (J.Phil. Marine Inc. vs. NLRC, G.R. No. 168339, Oct. 10, 2008)
SIMULTANEOUS FILING OF POSITION PAPER; CONTENTS OF POSITION PAPER; REPLY POSITION PAPER & CONTENTS RULE V SECTION 11. Submission of Position Paper and Reply. —
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Societas Spectra Legis Labor Standards Compilation a)
Subject to Sections 9 and 10 of this Rule, the Labor Arbiter shall direct the parties to submit simultaneously their verified position papers with supporting documents and affidavits, if any, on a date set by him/her within ten (10) calendar days from the date of termination of the mandatory conciliation and mediation conference.
b)
No amendment of the complaint or petition shall be allowed after the filing of position papers, unless with leave of the Labor Arbiter.
c)
The position papers of the parties shall cover only those claims and causes of action stated in the complaint or amended complaint, accompanied by all supporting documents, including the affidavits of witnesses, which shall take the place of their direct testimony, excluding, those that may have been amicably settled.
d)
Within ten (10) days from receipt of the position paper of the adverse party, a reply may be filed on a date agreed upon and during a schedule set before the Labor Arbiter. The reply shall not allege and/or prove facts and any cause or causes of action not referred to or included in the original or amended complaint or petition or raised in the position paper. (7a)
SIMULTANEOUS FILING OF POSITION PAPERS On a date set within 10 calendar days from the date of termination of the mandatory conciliation and mediation conference, the LA should direct the parties to simultaneously submit their verified position papers with supporting documents CONTENTS OF POSITION PAPER The position papers shall cover: (1) Only claims and causes of action stated in the complaint; (2) Supporting documents, including affidavits of witnesses; (3) But excludes claims and causes of action that may have been amicably settled. REPLY POSITION PAPER AND CONTENTS A reply may be filed on a date agreed upon and set by the LA: (1) Within 10 days from receipt of the adverse position paper; (2) Such reply shall not allege or prove facts and any cause of action not included in the original petition or is not raised in the position paper.
QUANTUM OF EVIDENCE & BURDEN OF PROOF In labor cases as in other administrative proceedings, substantial evidence or such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion is required. The burden of proof lies on he who asserts, not he who denies TECHNICAL RULES OF PROCEDURE Article 221. Technical rules not binding and prior resort to amicable settlement. In any proceeding before the Commission or any of the Labor Arbiters, the rules of evidence prevailing in courts of law or equity shall not be controlling, and it is the spirit and intention of this Code that the Commission and the Labor Arbiters shall use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. In any proceeding before the Commission or any Labor Arbiter, the parties may be represented by legal counsel but it shall be the duty of the Chairman, any Presiding Commissioner or Commissioner or any Labor Arbiter to exercise complete control of the proceedings at all stages. Any provision of law to the contrary notwithstanding, the Labor Arbiter shall exert all efforts towards the amicable settlement of a labor dispute within his jurisdiction on or before the first hearing. The same rule shall apply to the Commission in the exercise of its original jurisdiction. (As amended by RA 6715)
CONDUCT OF HEARING OR CLARIFICATORY CONFERENCE RULE V SECTION 12. Determination of Necessity of Hearing or Clarificatory Conference. – Immediately after the submission by the parties of their position paper or reply, as the case may be, the Labor Arbiter shall, motu proprio, determine whether there is a need for a hearing or clarificatory conference. At this stage, he/she may, at his/her discretion and for the purpose of making such determination, ask clarificatory questions to further elicit facts or information, including but not limited to the subpoena of relevant documentary evidence, if any, from any party or witness.
LA may ask clarificatory questions to further elicit facts or information SECTION 13. Role of the Labor Arbiter in Hearing and Clarificatory Conference – a) The Labor Arbiter shall take full control and personally conduct the hearing or clarificatory conference and may ask questions for the purpose of clarifying points of law or facts involved in the case. The Labor Arbiter may allow the presentation of testimonial evidence with
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Societas Spectra Legis Labor Standards Compilation right of cross-examination by the opposing party and shall limit the presentation of evidence to matters relevant to the issue before him/her and necessary for a just and speedy disposition of the case. b)
The Labor Arbiter shall make a written summary of the proceedings, including the substance of the evidence presented, in consultation with the parties. The written summary shall be signed by the parties and shall form part of the records. (9a)
SECTION 14. Non-Appearance of Parties, and Postponement of Hearings and Clarificatory Conferences. – a) The parties and their counsels appearing before the Labor Arbiter shall be prepared for continuous hearing or clarificatory conference. No postponement or continuance shall be allowed by the Labor Arbiter, except upon meritorious grounds and subject to the requirement of expeditious disposition of cases. The hearing or clarificatory conference shall be terminated within thirty (30) calendar days from the date of the initial clarificatory conference. b)
In case of non-appearance of any of the parties during the hearing or clarificatory conference despite due notice, proceedings shall be conducted ex-parte. Thereafter, the case shall be deemed submitted for decision.
c)
Paragraph (a) of this Section notwithstanding, in cases involving overseas Filipino workers, the aggregate period for conducting the mandatory conciliation and mediation conference, including hearing on the merits or clarificatory conference, shall not exceed sixty (60) days, which shall be reckoned from the date of acquisition of jurisdiction by the Labor Arbiter over the person of the respondents. (10a)
SECTION 15. Submission of the Case for Decision. – Upon the submission by the parties of their position papers or replies, or the lapse of the period to submit the same, the case shall be deemed submitted for decision unless the Labor Arbiter calls for a hearing or clarificatory conference in accordance with Section 12 and 14(a) of this Rule, in which case, notice of hearing or clarificatory conference shall be immediately sent to the parties. Upon termination of the said hearing or conference, the case is deemed submitted for decision.
INHIBITION SECTION 16. Inhibition. — A Labor Arbiter may voluntarily inhibit himself/herself from the resolution of a case and shall so state in writing the legal justifications therefor. Upon motion of a party, either on the ground of relationship within the fourth civil degree of consanguinity or affinity with the adverse party or counsel, or on question of partiality or other justifiable grounds, the Labor Arbiter may inhibit himself/herself from further hearing and deciding the case. Such motion shall be resolved within five (5) days from the filing thereof. An order denying or granting a motion for inhibition is inappealable. (12a) VOLUNTARY INHIBITION A Labor Arbiter may voluntary inhibit from the resolution of a case and shall state in writing the legal justifications thereof UPON MOTION OF A PARTY On the ground of: (1) Relationship within the fourth civil degree of consanguinity or affinity with the adverse party or counsel; (2) Question of partiality; (3) Other justifiable grounds. Such motion shall be resolved within 5 days from filing and is inappealable.
CONTEMPT SECTION 1. Direct Contempt. — The Chairman or any Commissioner or Labor Arbiter may summarily adjudge guilty of direct contempt any person committing any act of misbehavior in the presence of or so near the Chairman or any Commissioner or Labor Arbiter as to obstruct or interrupt the proceedings before the same, including disrespect toward said officials, offensive acts toward others, or refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required to do so. If the offense is committed against the Commission or any member thereof, the same shall be punished by a fine not exceeding Five Hundred Pesos (P500.00) or imprisonment not exceeding five (5) days, or both; and, if the offense is committed against any Labor Arbiter, the same shall be punished by a fine not exceeding One Hundred Pesos (P100.00) or imprisonment not exceeding one (1) day, or both. Any person adjudged guilty of direct contempt by a Labor Arbiter may, within a period of five (5) calendar days from notice of the judgment, appeal the same to the Commission and the execution of said judgment shall be suspended pending resolution of the appeal upon the filing by said person of a bond on condition that he will abide by and perform the judgment should the appeal be decided against him/her. A judgment of the Commission on direct contempt shall be immediately executory and inappealable. SECTION 2. Indirect Contempt. — The Commission or any Labor Arbiter pursuant to Article 218 (d) of the Labor Code may cite any person for indirect contempt and impose the appropriate penalty under any of the following grounds: a)
Misbehavior of any officer or employee in the performance of his/her official duties or in his/her official transaction;
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Societas Spectra Legis Labor Standards Compilation b) c) d) e) f) g)
Disobedience of, or resistance to, a lawful writ, order or decision; Any abuse of, or any unlawful interference with the processes or proceedings not constituting direct contempt; Any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice; Assuming to be an attorney or a representative of party without authority; Failure to obey a subpoena duly served; or Other grounds analogous to the foregoing.
A.
Where charge to be filed. — Where the charge for indirect contempt has been committed against the Commission or against an Officer appointed by it, the charge may be filed with the Commission. Where such contempt has been committed against the Labor Arbiter, the charge may be filed with the Regional Arbitration Branch subject to appeal to the Commission in the same manner as provided in Section 1 of this Rule.
B.
How proceedings commenced. — Proceedings for indirect contempt may be initiated motu proprio by the Commission or any Labor Arbiter by an order or any other formal charge requiring the respondent to show cause why he/she should not be punished for contempt. In all other cases, a charge for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings in the Commission. If the contempt charge arose out of or is related to a principal action pending in the Commission or Regional Arbitration Branch, the petition for contempt shall allege that fact but said petition shall be consolidated, heard, and decided separately, unless the Commission or Labor Arbiter in its/his/her discretion, orders the consolidation of the contempt charge and the principal action for joint hearing and decision.
C.
Hearing. — Upon the date set for hearing, the Commission or Labor Arbiter shall proceed to investigate the charge and consider such comment, answer, defense or testimony as the respondent may make or offer. Failure to attend the scheduled hearing and to give a satisfactory explanation in writing to the Commission or Labor Arbiter will result in the waiver of the respondent to be present during the hearing.
D.
Punishment for indirect contempt. — If the respondent is adjudged guilty of indirect contempt committed against the Commission or any member thereof, he/she may be punished by a fine of One Thousand (P1,000.00) Pesos per day for every act of indirect contempt; and, if the offense is committed against any Labor Arbiter, the same may be punished by a fine of Five Hundred (P500.00) Pesos per day for every act of indirect contempt. Each day of defiance of, or disobedience to, or non-enforcement of a final order, resolution, decision, ruling, injunction, or processes, shall constitute an indirect contempt of the Commission. If the contempt consists of the violation of an injunction or omission to do an act which is within the power of the respondent to perform, the respondent shall, in addition, be made liable for damages as a consequence thereof. The damages shall be measured by the extent of the loss or injury sustained by the aggrieved party by reason of the acts or omissions of which the contempt is being prosecuted, and the costs of the proceedings, including payment of interest on damages.
E.
A writ of execution may be issued to enforce the decision imposing such fine and/or consequent damages as punishment for indirect contempt. (2a)
APPEAL PROCEDURE Article 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following grounds: If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter; If the decision, order or award was secured through fraud or coercion, including graft and corruption; If made purely on questions of law; and If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from. In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided herein. To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable penalty, including fines or censures, upon the erring parties.
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Societas Spectra Legis Labor Standards Compilation In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later than ten (10) calendar days from receipt thereof. The Commission shall decide all cases within twenty (20) calendar days from receipt of the answer of the appellee. The decision of the Commission shall be final and executory after ten (10) calendar days from receipt thereof by the parties. Any law enforcement agency may be deputized by the Secretary of Labor and Employment or the Commission in the enforcement of decisions, awards or orders. (As amended by Section 12, Republic Act No. 6715, March 21, 1989)
RULE VI SECTION 1. Periods of Appeal. — Decisions, awards, or orders of the Labor Arbiter shall be final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt thereof; and in case of decisions or resolutions of the Regional Director of the Department of Labor and Employment pursuant to Article 129 of the Labor Code, within five (5) calendar days from receipt thereof. If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday or holiday, the last day to perfect the appeal shall be the first working day following such Saturday, Sunday or holiday. No motion or request for extension of the period within which to perfect an appeal shall be allowed. (1a) SECTION 2. Grounds. — The appeal may be entertained only on any of the following grounds: a) If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter or Regional Director; b) If the decision, award or order was secured through fraud or coercion, including graft and corruption; c) If made purely on questions of law; and/or d) If serious errors in the findings of facts are raised which, if not corrected, would cause grave or irreparable damage or injury to the appellant. (2a) SECTION 3. Where Filed. — The appeal shall be filed with the Regional Arbitration Branch or Regional Office where the case was heard and decided.
FRIVOLOUS OR DILATORY APPEALS SECTION 10. Frivolous or Dilatory Appeals. — No appeal from an interlocutory order shall be entertained. To discourage frivolous or dilatory appeals, including those taken from interlocutory orders, the Commission after hearing may censure or cite in contempt the erring parties and their counsels, or subject them to reasonable fine or penalty. (10a) An interlocutory order is one that does not dispose of the case completely but leaves something to be decided upon. An order granting or denying an application for preliminary injunction is interlocutory in nature and, hence, not appealable. Instead, the proper remedy is to file a Petition for Certiorari and/or Prohibition under Rule 65. While the Court may dismiss a petition outright for being an improper remedy, it may in certain instances proceed to review the substance of the petition. Thus, this Court will treat this Petition as if it were filed under Rule 65. The evident reason for the rule proscribing appeal for an interlocutory order is to avoid multiplicity of appeals in a single action.
NEW SCHEDULE OF LEGAL FEES (NLRC En Banc Resolution No. 08-07, Series of 2007) WHEREFORE, RESOLVED AS IT IS HEREBY RESOLVED, to amend En Banc Resolution No. 01-05, Series of 2005, by adopting the following new schedule of legal fees or deposits payable to the National Labor Relations Commission, to wit: 1. 2. 3. 4. 5. 6. 7.
8. 9. 10. 11.
Certificate of Pending/No Pending Cases – 500 Transcript of Stenographic Notes – 15/page Certified Machine Copies – 15/page Filing Fee for petition for Injunction/TRO – 5,000 Filing Fee for Petition for Relief from judgment – 5,000 Injunction Expenses Fund (Refundable) – 5k minimum Deposit Fee under BP 325 a. 1st P2,000 – 20 b. P2,001 to P18,000 – 90 c. Over P18,000 – (x5%) Filing Fee for Motion to Quash (re: Writ of Execution) – 3,000 Filing Fee for Motion to Recompute Award – 700 Filing Fee for Third party Claim/Complaint – 7,000 Execution Fee (charged pro-rata) a. Awards less than 5,000 but less than 20,000 – 200 b. P5,000 or more but less than 50,000 – 400 c. 20,000 or more but less than 50,000 – 600
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12. 13. 14. 15.
d. P50,000 or more but less than 100,000 – 800 e. 100,000 or more but less than 150,000 – 1,000 f. 150,000 or more – 1,000 plus 10 for every 1,000 in excess of 150,000 Appeal Fee – 500 Legal Research Fee (UP Law Center) – 20 Attestation Fee on Quitclaim and Walk-in Settlement – 500 Motion for Postponement Fee – 500
Unless otherwise provided by law, rule or regulation, the imposition of the foregoing fees/charges is subject to the qualification that indigent litigants: (a) whose gross income and that of their immediate family do not exceed an amount double the monthly minimum wage for an employee and (b) who do not own real property with a fair market value as stated in the current tax declaration of more than Three Hundred Thousand (P300,000.00) pesos, shall be exempted from immediate payment of fees/charges. In such case, the fees/charges shall be a lien on any judgment rendered in the case favorable to the indigent litigant unless it is otherwise provided. To be entitled to the exemption, the litigant shall execute and affidavit that he and his immediate family do not earn a gross income above-mentioned, nor do they own any real property with the fair market value aforementioned. Any falsity in the affidavit of litigant shall be sufficient cause to dismiss the complaint or action or to strike out the pleading of that party, in addition to whatever criminal liability incurred.
REQUISITES TO PERFECT APPEAL SECTION 4. Requisites for Perfection of Appeal. — a) The appeal shall be: (1) (2) (3) (4) (5)
filed within the reglementary period provided in Section 1 of this Rule; verified by the appellant himself/herself in accordance with Section 4, Rule 7 of the Rules of Court, as amended; in the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, and with a statement of the date the appellant received the appealed decision, award or order; in three (3) legibly typewritten or printed copies; and accompanied by: i. proof of payment of the required appeal fee and legal research fee; ii. posting of a cash or surety bond as provided in Section 6 of this Rule; and iii. proof of service upon the other parties.
b)
A mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an appeal.
c)
The appellee may file with the Regional Arbitration Branch or Regional Office where the appeal was filed, his/her answer or reply to appellant's memorandum of appeal, not later than ten (10) calendar days from receipt thereof. Failure on the part of the appellee who was properly furnished with a copy of the appeal to file his/her answer or reply within the said period may be construed as a waiver on his/her part to file the same.
d)
Subject to the provisions of Article 218 of the Labor Code, once the appeal is perfected in accordance with these Rules, the Commission shall limit itself to reviewing and deciding only the specific issues that were elevated on appeal. (4a)
SECTION 5. Appeal Fee. — The appellant shall pay the prevailing appeal fee and legal research fee to the Regional Arbitration Branch or Regional Office of origin, and the official receipt of such payment shall form part of the records of the case. (5a) SECTION 6. Bond. — In case the decision of the Labor Arbiter or the Regional Director involves a monetary award, an appeal by the employer may be perfected only upon the posting of a bond, which shall either be in the form of cash deposit or surety bond equivalent in amount to the monetary award, exclusive of damages and attorney's fees. In case of surety bond, the same shall be issued by a reputable bonding company duly accredited by the Commission or the Supreme Court, and shall be accompanied by original or certified true copies of the following: a) b) c) d) e) f) g)
a joint declaration under oath by the employer, his/her counsel, and the bonding company, attesting that the bond posted is genuine, and shall be in effect until final disposition of the case; an indemnity agreement between the employer-appellant and bonding company; proof of security deposit or collateral securing the bond: provided, that a check shall not be considered as an acceptable security; a certificate of authority from the Insurance Commission; certificate of registration from the Securities and Exchange Commission; certificate of accreditation and authority from the Supreme Court; and notarized board resolution or secretery's certificate from the bonding company showing its authorized signatories and their specimen signatures.
The Commission through the Chairman may on justifiable grounds blacklist a bonding company, notwithstanding its accreditation by the Supreme Court.
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Societas Spectra Legis Labor Standards Compilation A cash or surety bond shall be valid and effective from the date of deposit or posting, until the case is finally decided, resolved or terminated, or the award satisfied. This condition shall be deemed incorporated in the terms and conditions of the surety bond, and shall be binding on the appellants and the bonding company. The appellant shall furnish the appellee with a certified true copy of the said surety bond with all the above-mentioned supporting documents. The appellee shall verify the regularity and genuineness thereof and immediately report any irregularity to the Commission. Upon verification by the Commission that the bond is irregular or not genuine, the Commission shall cause the immediate dismissal of the appeal, and censure the responsible parties and their counsels, or subject them to reasonable fine or penalty, and the bonding company may be blacklisted. No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award. The mere filing of a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal. (6a)
PROHIBITED APPEALS, INTERLOCUTORY ORDER & FINAL ORDER PROHIBITED APPEALS a) Appeal from any interlocutory order of the LA, such as but not limited to an order 1) Denying a motion to dismiss 2) Denying a motion to inhibit 3) Denying a motion for issuance of writ of execution, or 4) Denying a motion to quash writ of execution b) Appeal from the issuance of a certificate of finality of decision by LA c) Appeal from orders issued by LA in the course of execution proceedings INTERLOCUTORY ORDER & FINAL ORDER An interlocutory order is one that does not dispose of the case completely but leaves something to be decided upon. A final order finally disposes of, adjudicates, or determines the rights, or some right or right of the parties, either on the entire controversy or on some definite and separate branch thereof, and concludes them until it is reversed or set aside. Where no issue is left for future consideration, except the fact or compliance or non-compliance with the terms of the judgment or order, such judgment or order is final and appealable. In other words, a final order puts an end to litigation. The distinction between a final order and an interlocutory order is well known. The first disposes of the subject matter in its entirety or terminates a particular proceeding or action, leaving nothing more to be done except to enforce by execution what the court has determined, but the latter does not completely dispose of the case but leaves something else to be decided upon. An interlocutory order deals with preliminary matters and the trial on the merits is yet to be held and the judgment rendered. The test to ascertain whether or not an order or a judgment is interlocutory or final is: does the order or judgment leave something to be done in the trial court with respect to the merits of the case? If it does, the order or judgment is interlocutory; otherwise, it is final. When the order or judgment does not dispose of the case completely but leaves something to be done upon the merits, it is merely interlocutory.
RULES ON REINSTATEMENT PENDING APPEAL SECTION 9. Execution of Reinstatement Pending Appeal. — In case the decision includes an order of reinstatement, and the employer disobeys the directive under the second paragraph of Section 18 of Rule V or refuses to reinstate the dismissed employee, the Labor Arbiter shall immediately issue writ of execution, even pending appeal, directing the employer to immediately reinstate the dismissed employee either physically or in the payroll, and to pay the accrued salaries as a consequence of such non-reinstatement in the amount specified in the decision. The Sheriff shall serve the writ of execution upon the employer or any other person required by law to obey the same. If he/she disobeys the writ, such employer or person may be cited for contempt in accordance with Rule IX. (6a)
THE NATIONAL LABOR RELATIONS COMMISSION (NLRC) ART. 213. National Labor Relations Commission. – There shall be a National Labor Relations Commission which shall be attached to the Department of Labor and Employment SOLELY for program and policy coordination only, composed of a Chairman and TWENTY-THREE (23) Members.
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Societas Spectra Legis Labor Standards Compilation EIGHT (8) members each shall be chosen ONLY from among the nominees of the workers and employers organizations, respectively. The Chairman and the SEVEN (7) remaining members shall come from the public sector, with the latter to be chosen PREFERABLY from among the INCUMBENT LABOR ARBITERS. Upon assumption into office, the members nominated by the workers and employers organizations shall divest themselves of any affiliation with or interest in the federation or association to which they belong. The Commission may sit en banc or in EIGHT (8) divisions, each composed of three (3) members. The Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before any of its divisions and regional branches and formulating policies affecting its administration and operations. The Commission shall exercise its adjudicatory and all other powers, functions, and duties through its divisions. Of the EIGHT (8) divisions, the first, second third, FOURTH, FIFTH AND SIXTH divisions shall handle cases coming from the National Capital Region and other parts of Luzon; and the SEVENTH, AND EIGHT divisions, cases from the Visayas and Mindanao, respectively: Provided, That the Commission sitting en banc may, on temporary or emergency basis, allow cases within the jurisdiction of any division to be heard and decided by any other division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expenses. The divisions of the Commission shall have exclusive appellate jurisdiction over cases within their respective territorial jurisdiction. The concurrence of two (2) Commissioners of a division shall be necessary for the pronouncement of a judgment or resolution. Whenever the required membership in a division is not complete and the concurrence of two (2) Commissioners to arrive at a judgment or resolution cannot be obtained, the Chairman shall designate such number of additional Commissioners from the other divisions as may be necessary. The conclusions of a division on any case submitted to it for decision shall be reached in consultation before the case is assigned to a member for the writing of the opinion. It shall be mandatory for the division to meet for purposes of the consultation ordained therein. A certification to this effect signed by the Presiding Commissioner of the division shall be issued, and a copy thereof attached to the record of the case and served upon the parties. "The Chairman shall be the Presiding Commissioner of the first division, and the SEVEN (7) other members from the public sector shall be the Presiding Commissioners of the second, third, fourth, fifth, sixth, seventh and eight divisions, respectively. In case of the effective absence or incapacity of the Chairman, the Presiding Commissioner of the second division shall be the Acting Chairman. The Chairman, aided by the Executive Clerk of the Commission, shall have administrative supervision over the Commission and its regional branches and all its personnel, including the Labor Arbiters. The Commission, when sitting en banc, shall be assisted by the same Executive Clerk, and, when acting thru its Divisions, by said Executive Clerk for its first division and SEVEN (7) other Deputy Executive Clerks for the second, third, fourth fifth, sixth, seventh and eight divisions, respectively, in the performance of such similar or equivalent functions and duties as are discharged by the Clerk of Court and Deputy Clerks of Court of the Court of Appeals. The Commission and its eight (8) divisions shall be assisted by the Commission Attorneys in its Appellate and adjudicatory functions whose term shall be coterminous with the Commissioners with whom they are assigned. The Commission Attorneys shall be members of the Philippine Bar with at least one (1) year experience or exposure in the field of labor-management relations. They shall receive annual salaries and shall be entitled to the same allowances and benefits as those falling under Salary Grade twenty-six (SG 26). There shall be as many Commission Attorneys as may be necessary for the effective and efficient operations of the Commission but in no case more than three (3) assigned to the Office of the Chairman and each Commissioner. No Labor Arbiter shall be assigned to perform the functions of the Commission Attorney nor detailed to the office of any Commissioner. ART. 214. Headquarters, Branches and Provincial Extension Units. – The Commission and its first, second, third, fourth, fifth and sixth divisions shall have their main offices in Metropolitan Manila, and the seventh and eight divisions in the cities of Cebu and Cagayan de Oro, respectively. The Commission shall establish as many regional branches as there are regional offices of the Department of Labor and Employment, sub-regional branches or provincial extension units. There shall be as many Labor Arbiters as may be necessary for the effective and efficient operation of the Commission. ART. 215. Appointment and Qualifications. – The Chairmans and other Commissioners shall be members of the Philippine Bar and must have been engaged in the practice of law in the Philippines for at least fifteen (15) years, with at least five (5) years experience or exposure in the field of labormanagement relations, and shall preferably be residents of the region where they SHALL hold office. The Labor Arbiters shall likewise be members of the Philippine Bar and must have been engaged in the practice of law in the Philippines for at least ten (10) years, with at least five (5) years experience or exposure in THE FIELD OF labor-management relations. The Chairman, and the other Commissioners and the Labor Arbiters shall hold office during good behavior until they reach the age of sixty-five (65) years, unless sooner removed for cause as provided by law or become incapacitated to discharge the duties of their office. Provided, however, That the President of the Republic of the Philippines may extent the services of the Commissioners and Labor Arbiters up to the maximum age of seventy (7) years upon the recommendation of the Commission en banc. The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the President. Appointment to any vacancy in a specific division shall come only from the nominees of the sector which nominated the predecessor. The Labor Arbiters shall also be appointed by the President, upon recommendation of the Commission en banc to a specific arbitration branch, preferably in the region where they are residents,
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Societas Spectra Legis Labor Standards Compilation and shall be subject to the Civil Service Law, rules and regulations: Provided, that the labor arbiters who are presently holding office in the region where they are residents shall be deemed appointed thereat. The Chairman and the Commission, shall appoint the staff and employees of the Commission, and its regional branches as the needs of the service may require, subject to the Civil Service Law, rules and regulations, and upgrade their current salaries, benefits and other emoluments in accordance with law.
RULE VII SECTION 2.Composition and Internal Functions of the Commission En Banc and its Divisions. — a) Composition. — Unless otherwise provided by law, the Commission shall be composed of the Chairman and of twenty three (23) Commissioners. b) Commission En Banc. — The Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before its Divisions and Regional Arbitration Branches, and for the formulation of policies affecting its administration and operations. It may, on temporary or emergency basis, allow cases within the jurisdiction of any Division to be heard by any other Division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expense. c) Divisions. — Unless otherwise provided by law, the Commission shall exercise its adjudicatory and all other powers, functions and duties through its eight (8) Divisions. Each Division shall consist of one member from the public sector who shall act as the Presiding Commissioner and one member each from the workers and employers sectors, respectively. Of the eight (8) Divisions, the First, Second, Third, Fourth, Fifth and Sixth Divisions shall have exclusive territorial jurisdiction over appealed cases coming from Luzon; the Seventh Division, appealed cases from the Visayas Region; and the Eighth Division, appealed cases from Mindanao including those from the Autonomous Region for Muslim Mindanao. d) Headquarters. — As provided by law, the Commission and its First, Second, Third, Fourth, Fifth and Sixth Divisions for Luzon shall have their main offices in the National Capital Region, and the Seventh and Eighth Divisions for Visayas and Mindanao, in the cities of Cebu and Cagayan de Oro, respectively. (2a) SECTION 3. The Chairman. — The Chairman shall preside over all sessions of the Commission en banc. He/she is the Presiding Commissioner of the First Division. In case of the effective absence or incapacity of the Chairman, the Presiding Commissioner of the Second Division shall be the Acting Chairman. The Chairman, aided by the Executive Clerk of the Commission, shall have administrative supervision over the Commission and its Regional Arbitration Branches and all its personnel including the Executive Labor Arbiters and Labor Arbiters. SECTION 4. Commission En Banc Session, Quorum and Vote. — a) Commission En Banc. — The Chairman shall call the Commission to an en banc session at least twice a year, preferably on the first week of June and the first week of December, to deliberate and decide on any matter before it. However, a majority of all the members of the Commission may call a special en banc session to discuss and decide on urgent and vital matters which need immediate action. b)
Quorum — The presence of a majority of all the members of the Commission shall be necessary to constitute a quorum. The vote or concurrence of the majority of the members constituting a quorum shall be the decision or resolution of the Commission en banc.
c)
Division. — The presence of at least two (2) Commissioners of a Division shall constitute a quorum. The concurrence of two (2) Commissioners of a Division shall be necessary for the pronouncement of a judgment or resolution. Whenever the required membership in a Division is not complete and/or the concurrence of two (2) Commissioners cannot be obtained to arrive at a judgment or resolution, the Chairman shall designate such number of additional Commissioners belonging to the same sector from the other Divisions as may be necessary. In the event that all the members of a division inhibit themselves from resolving a case, the Chairman may create a Special Division or assign the case to any of the other Divisions.
d)
Role of Chairman in the Division. — The Chairman of the Commission may convene and preside over the session of any Division to consider any case pending before it and participate in its deliberations, if in his/her judgment, his/her presence therein will best serve the interests of labor justice. He/she shall not however, participate in the voting by the Division, except when he/she is acting as Presiding Commissioner of the Division in the absence of the regular Presiding Commissioner. (4a)
COMPOSITION OF THE NLRC 1 Chairman – from Public Sector [PREFERABLY from among the INCUMBENT LABOR ARBITERS] 23 Members: 7 – from Public Sectors 8 – from Workers’ Organization 8 – from Employers’ Organization FUNCTION OF THE NLRC The National Labor Relations Commission is a quasi-judicial body tasked to promote and maintain industrial peace by resolving labor and management disputes involving both local and overseas workers through compulsory arbitration and alternative modes of dispute resolution. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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EO No. 204, Series of 2003 – DELEGATING TO THE SECRETARY OF LABOR AND EMPLOYMENT THE POWER TO EXERCISE ADMINISTRATIVE SUPERVISION OVER THE NATIONAL LABOR RELATIONS COMMISSION SECTION 1. Delegation to the Secretary of Labor. - The power of the President under Section 17, Article VII of the Constitution and as the administrative head of the Government to exercise administrative supervision over the NLRC, its regional branches and all its personnel, including the Executive Labor Arbiters and Labor Arbiters, is hereby delegated to the Secretary of Labor, with the objective of further improving the rate of disposition of cases pending before it and its regional and sub-regional branches or provincial extension units and to enhance existing measures for the prevention of graft and corruption within the said agency. For this purpose, the Secretary of Labor, in the exercise of such delegated authority, shall, among others: a. b.
c. d.
Generally oversee the operations of the NLRC and its regional and sub-regional branches or provincial extension units for the purpose of insuring that cases pending before them are decided or resolved expeditiously; Enhance existing measures within the agency, or initiate new ones, to prevent graft and corruption, including but not limited to, the conduct of management audits, performance evaluations and inspections to determine compliance with established policies, standards and guidelines; To take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of maladministration; and Investigate, on its own or upon complaint, matters involving disciplinary action against any of the Presidential appointees in the NLRC, in accordance with existing laws, rules and regulations. After completing his/her investigation, the Secretary of Labor shall submit a report to the President on the investigation conducted with a recommendation as to the penalty to be imposed or other action to be taken, including referral to the Presidential Anti-Graft Commission [PAGC], the Office of the Ombudsman or any other office, committee, commission, agency, department, instrumentality or branch of the government for appropriate action.
The delegation of authority conferred herein upon the Secretary of Labor shall not extend to the power to review, reverse, revise, or modify the decisions of the NLRC in the exercise of its quasi-judicial functions [cf. Section 38(2)(b), Chapter 7, Book IV, Administrative Code]. SECTION 2. Report to the President. - The NLRC, through its Chairman, shall submit a report to the President, through the Secretary of Labor, within thirty (30) days from issuance of this Executive Order, on the following matters: a. b. c. d.
Performance Report/Audit for the last five (5) years, including list of pending cases and cases disposed of within the said period by the NLRC en banc, by Division and by the Labor Arbiters in each of its regional and sub-regional branches or provincial extension units; Detailed Master Plan on how to liquidate its backlog of cases with clear timetables to clean up its dockets within six (6) months from the issuance hereof; Complete inventory of its assets and list of personnel indicating their present positions and stations; and Such other matters as may be required by the President upon the recommendation of the Secretary of Labor.
POWERS AND FUNCTIONS OF THE NLRC SECTION 2.Composition and Internal Functions of the Commission En Banc and its Divisions. — a) Composition. — Unless otherwise provided by law, the Commission shall be composed of the Chairman and of twenty three (23) Commissioners. b) Commission En Banc. — The Commission shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and disposition of cases before its Divisions and Regional Arbitration Branches, and for the formulation of policies affecting its administration and operations. It may, on temporary or emergency basis, allow cases within the jurisdiction of any Division to be heard by any other Division whose docket allows the additional workload and such transfer will not expose litigants to unnecessary additional expense. c) Divisions. — Unless otherwise provided by law, the Commission shall exercise its adjudicatory and all other powers, functions and duties through its eight (8) Divisions. Each Division shall consist of one member from the public sector who shall act as the Presiding Commissioner and one member each from the workers and employers sectors, respectively. Of the eight (8) Divisions, the First, Second, Third, Fourth, Fifth and Sixth Divisions shall have exclusive territorial jurisdiction over appealed cases coming from Luzon; the Seventh Division, appealed cases from the Visayas Region; and the Eighth Division, appealed cases from Mindanao including those from the Autonomous Region for Muslim Mindanao. d) Headquarters. — As provided by law, the Commission and its First, Second, Third, Fourth, Fifth and Sixth Divisions for Luzon shall have their main offices in the National Capital Region, and the Seventh and Eighth Divisions for Visayas and Mindanao, in the cities of Cebu and Cagayan de Oro, respectively. (2a) SECTION 3. The Chairman. — The Chairman shall preside over all sessions of the Commission en banc. He/she is the Presiding Commissioner of the First Division. In case of the effective absence or incapacity of the Chairman, the Presiding Commissioner of the Second Division shall be the Acting Chairman. The Chairman, aided by the Executive Clerk of the Commission, shall have administrative supervision over the Commission and its Regional Arbitration Branches and all its personnel including the Executive Labor Arbiters and Labor Arbiters.
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Societas Spectra Legis Labor Standards Compilation POWERS OF THE NLRC (Art. 218 of the Labor Code) 1. Rule-making power (promulgate rules & regulations) i. Governing the hearing and disposition of cases before it and its regional branches ii. Pertaining to its internal functions iii. Those as may be necessary to carry out the purposes of this Code 2.
Power to issue compulsory processes i. Administer oaths ii. Summon parties iii. Issue subpoena duces tecum and ad testificandum
3.
Power to investigate matters and hear disputes within its jurisdiction Conduct investigations for the determination of a question, matter or controversy within its jurisdiction Proceed to hear and determine the dispute in the manner laid down under par. C of Art. 218
4. 5. 6. 7.
Contempt power Power to issue injunctions and restraining orders involving or arising from any labor dispute before the Commission Power to conduct ocular inspection Appellate power
FINALITY OF NLRC & LABOR ARBITER’S DECISION SECTION 1. Periods of Appeal. — Decisions, awards, or orders of the Labor Arbiter shall be final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt thereof; and in case of decisions or resolutions of the Regional Director of the Department of Labor and Employment pursuant to Article 129 of the Labor Code, within five (5) calendar days from receipt thereof. If the 10th or 5th day, as the case may be, falls on a Saturday, Sunday or holiday, the last day to perfect the appeal shall be the first working day following such Saturday, Sunday or holiday. No motion or request for extension of the period within which to perfect an appeal shall be allowed. (1a) SECTION 19. Finality of the Decision or Order and Issuance of Certificate of Finality. — (a) Finality of the Decision or Order of the Labor Arbiter. — If no appeal is filed with the Commission within the time provided under Article 223 of the Labor Code, as amended, and Section 1, Rule VI of these Rules, the decision or order of the Labor Arbiter shall become final and executory after ten (10) calendar days from receipt thereof by the counsel or authorized representative or the parties if not assisted by counsel or representative. (b) Certificate of Finality — Upon expiration of the period provided in paragraph (a) of this Section, the Labor Arbiter shall issue a certificate of finality. In the absence of return cards, certifications from the post office or courier or other proofs of service to the parties, the Labor Arbiter may issue a certificate of finality after sixty (60) calendar days from date of mailing. (n) SECTION 14. Finality of Decision of the Commission and Entry of Judgment. — a) Finality of the Decisions, Resolutions or Orders of the Commission. — Except as provided in Section 9 of Rule X, the decisions, resolutions or orders of the Commission shall become final and executory after ten (10) calendar days from receipt thereof by the counsel or authorized representative or the parties if not assisted by counsel or representative. b)
Entry of Judgment. — Upon the expiration of the ten (10) calendar day period provided in paragraph (a) of this Section, the decision, resolution, or order shall be entered in a book of entries of judgment.
In the absence of return cards, certifications from the post office or the courier or other proofs of service to the parties, the Executive Clerk or Deputy Executive Clerk shall consider the decision, resolution or order as final and executory after sixty (60) calendar days from date of mailing. (14a) SECTION 15. Motions for Reconsideration. — Motion for reconsideration of any decision, resolution or order of the Commission shall not be entertained except when based on palpable or patent errors; provided that the motion is filed within ten (10) calendar days from receipt of decision, resolution or order, with proof of service that a copy of the same has been furnished, within the reglementary period, the adverse party; and provided further, that only one such motion from the same party shall be entertained. (15a)
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2011 NLRC RULES OF PROCEDURE FLOWCHART Filing of Complaint in the LA
Filing of Complaint in the RD (decided within 30 calendar days)
Raffled by Executive LA; Assigned to LA within 24 hrs; Issuance of Summons
Motion to Dismiss On or before the date set for mandatory conciliation Only on the grounds of lack of jurisdiction over the subject matter, improper venue, res judicata, prescription and forum shopping
Non-appearance of the parties Non-appearance by the petitioner during the 2 settings – ground for dismissal Non-appearance by the respondent at the 2nd conference – waiver of right to file position paper
Mandatory Conciliation and Mediation
Y
PETITION FOR CERTIORARI IN THE COURT OF APPEALS (RULE 65) Not later than 60 days from notice of the judgment, order or resolution
Settled?
END
N Verified Position Paper Submitted within an inextendible period of 10 calendar days from the date of termination Reply may be filed by any party within 10 calendar days from receipt of the position paper of the adverse party
Y Revived?
N END
Clarificatory Hearing (At discretion of LA)
APPEAL TO NLRC within 10 calendar days from receipt of decision if from LA; 5 days if RD; inextendible Grounds: o Prima facie evidence of GAD; o If the decision, award or order was secured through fraud or coercion, including graft and corruption; o Pure questions of law; o Serious errors in the findings of facts which would cause grave irreparable damage if not corrected Note the requisites for perfection Decision is Unappealable MR allowed within 10 days
APPEAL BY CERTIORARI IN THE SUPREME COURT UNDER RULE 45 Within fifteen (15) days from notice of the judgment or final order or resolution
Decision by LA Must be within 30 calendar days from submission of the case by the parties for decision OFW cases – within 90 calendar days after filing of complainnt
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Societas Spectra Legis Labor Standards Compilation EXECUTION OF JUDGMENT RULE XI SECTION 1. Execution Upon Finality of Decision or Order. — a) A writ of execution may be issued motu proprio or on motion, upon a decision or order that has become final and executory. b) If an appeal has been duly perfected and finally resolved by the Commission, a motion for execution may be filed before the Labor Arbiter, when the latter has possession of the case records or upon submission of certified true copies of the decisions or final order/s sought to be enforced including notice of decision or order and the entry of judgment, copy furnished the adverse party. c) Except that, as provided for in Section 18 of Rule V in relation to Section 9 of this Rule, and in those cases where partial execution is allowed by law, the Labor Arbiter shall retain duplicate original copies of the decision to be implemented and proof of service thereof for the purpose of immediate enforcement. (1a) SECTION 2. Execution by Motion or by Independent Action. — Pursuant to Art. 224 of the Labor Code, a decision or order may be executed on motion within five (5) years from the date it becomes final and executory. After the lapse of such period, the judgment shall become dormant, and may only be enforced by an independent action before the Regional Arbitration Branch of origin and within a period of ten (10) years from date of its finality. (8a) SECTION 3. Effect of Perfection of Appeal on Execution. — The perfection of an appeal shall stay the execution of the decision of the Labor Arbiter except execution for reinstatement pending appeal. (9a) SECTION 4. Effect of Petition for Certiorari on Execution. — A petition for certiorari with the Court of Appeals or the Supreme Court shall not stay the execution of the assailed decision unless a restraining order is issued by said courts. (10a) SECTION 7. Enforcement of Writ of Execution. — In executing a decision, resolution or order, the Sheriff, or other authorized officer acting as Sheriff of the Commission, shall serve the writ within three (3) days from receipt of the same, subject to the requirements of Sections 12 and 13 of this Rule and shall be guided strictly by these Rules and by the Manual on Execution of Judgment, which shall form part of these Rules. In the absence of applicable rules, the Rules of Court, as amended, shall be applied in a suppletory manner. (7a) SECTION 8. Manner of Execution of Monetary Judgment. — a) Immediate payment on demand. — The Sheriff shall enforce a monetary judgment by demanding the immediate payment of the full amount stated in the writ of execution and all legal fees from the losing party or any other person required by law to obey the same. b)
In the event of failure or refusal of the losing party to pay the judgment award, the Sheriff shall immediately proceed against the cash deposit or surety bond posted by the losing party, if any;
c)
If the bonding company refuses to pay or the bank holding the cash deposit of the losing party refuses to release the garnished amount despite the order or pertinent processes issued by the Labor Arbiter or the Commission, the president or the responsible officers or authorized representatives of the said bonding company or the bank who resisted or caused the non-compliance shall be either cited for contempt, or held liable for resistance and disobedience to a person in authority or the agents of such person as provided under the pertinent provision of the Revised Penal Code. This rule shall likewise apply to any person or party who unlawfully resists or refuses to comply with the break open order issued by the Labor Arbiter or the Commission. For this purpose, the Labor Arbiter or the Commission may issue an order directing the sheriff to request the assistance of law enforcement agencies to ensure compliance with the writ of execution, orders or processes. A bonding company cited for contempt, or for an offense defined and punishable under the pertinent provision of the Revised Penal Code shall be barred from transacting business with the Commission.
d)
Should the cash deposit or surety bond be insufficient, or in case the surety bond cannot be proceeded against for any reason, the Sheriff shall, within five (5) days from demand, execute the monetary judgment by garnishing bank deposits, credits, receivables, and other personal property not capable of manual delivery, if the same is not enough, proceed to levy the personal property of the losing party, and if still insufficient, against the real property not exempt from execution, sufficient to cover the judgment award, which may be disposed of for value at a public auction to the highest bidder.
e)
Proceeds of execution shall be deposited with the Cashier of the concerned Division or Regional Arbitration Branch, or with an authorized depositary bank. Where payment is made in the form of a check, the same shall be payable to the Commission.
f)
For monetary judgment on cases involving overseas Filipino workers, the manner of execution shall be in accordance with Republic Act No. 10022. (5a)
SECTION 12. Sheriff's Return and Report. — The writ of execution shall be returned to the Commission or Labor Arbiter immediately after the full satisfaction of the judgment award. In case of partial or non-satisfaction of the judgment, the sheriff enforcing the writ shall submit a report updating the Commission or Labor Arbiter who issued the writ of execution on the status of the enforcement thereof, not later than thirty (30) days from receipt of such writ and every thirty (30) days thereafter during the lifetime of the writ unless fully satisfied. A copy of the report shall be furnished the Chairman and the Executive Labor Arbiter. Failure on the part of the Sheriff to submit the report or return required under Section 12 of this Rule within the stated period shall subject him/her to administrative fine under Rule XIV of this Rule, or suspension for fifteen (15) days without pay, or both. (13a, 14a)
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Societas Spectra Legis Labor Standards Compilation SECTION 13. Designation of Special Sheriffs. — The Chairman of the Commission may designate special Sheriffs and take any measure, under existing laws, to ensure compliance with the decisions, resolutions or orders of the Commission and those of Labor Arbiters. (15a) SECTION 14. Effect of Reversal of Executed Judgment. — Where the executed judgment is totally or partially reversed or annulled by the Court of Appeals or the Supreme Court, the Labor Arbiter shall, on motion, issue such orders of restitution of the executed award, except wages paid during reinstatement pending appeal.
NLRC MANUAL ON EXECUTION OF JUDGMENT RULE I TITLE AND CONSTRUCTION SECTION 1. Title of the Manual. This Manual shall be known as the NLRC MANUAL ON EXECUTION OF JUDGMENT (Sheriffs Manual), hereafter referred to simply as the Manual. SECTION 2. Construction. This Manual shall be construed in a manner that shall attain a just, expeditious and inexpensive execution of a judgment as defined herein. SECTION 3. Suppletory Application of Rules of Court and Jurisprudence. In the absence of any applicable provision in this Manual, and in order to carry out its objectives, the pertinent provisions of the Revised Rules of Court of the Philippines and prevailing jurisprudence may, in the interest of expeditious execution of a judgment, and whenever practicable and convenient, be applied by analogy or in a suppletory character and effect. SECTION 4. Definition of Terms. For purposes of this Manual, the following terms are defined as follows: a) SHERIFF any public officer tasked with the service or enforcement of writs and processes, including any judgment as defined herein, performing the duties of a sheriff, and shall include one who has been designated as special sheriff in accordance with law; b) WRIT OF EXECUTION an Order directing the sheriff to enforce, implement or satisfy the final decisions, orders or awards of the National Labor Relations Commission or any of its Labor Arbiters. The writ of execution is valid only for a period of ONE HUNDRED EIGHTY (180) days from receipt thereof by the sheriff or duly designated officer; c) LEVY the act of taking possession, actual or constructive, by the sheriff or duly designated officer, of sufficient property of the losing party OR OF THE APPEAL BOND POSTED BY THE LATTER to satisfy the decision, order or award. d) GARNISHMENT the levy of money, goods or chattels and/or an interest thereon, belonging or owing to a losing party in the possession or control of a third party; e) JUDGMENT as used in this Manual, any order, resolution, award or decision of the National Labor Relations Commission or any of its Labor Arbiters; f) THIRD PARTY CLAIM a claim whereby a person, not a party to the case, asserts title or right to the possession of the property levied upon. RULE II THE SHERIFF SECTION 1. Duties. The sheriff serves all writs, executes all processes and carries into effect any judgment as defined herein. SECTION 2. Responsibility and Bond. Only bonded sheriffs may serve writs of execution involving the taking, holding or delivering of money or property in trust for the prevailing party. The bond of the sheriff as required by law shall be determined by the Commission conditioned, among others, for the delivery or payment to the government or to the persons entitled thereto of all properties, real or personal, that may officially come into his control and custody. SECTION 3. Norm of Conduct. The sheriff of the Commission must conduct himself at all times in an upright manner. His first and primary duty is to implement the writ of execution and, in accomplishing the same, every reasonable effort should be exercised to achieve the purpose of the writ. RULE III THE WRIT OF EXECUTION SECTION 1. Execution Upon Final Judgment or Order. Execution shall issue only upon a judgment or order that finally disposes of an action or proceeding, except in specific instances where the law provides for execution pending appeal. SECTION 2. Issuance, Form and Contents of a Writ of Execution. The writ of execution must issue in the name of the Republic of the Philippines from the National Labor Relations Commission or any of its Labor Arbiters, requiring the sheriff or duly designated officer to execute their judgment; must contain the dispositive portion of the decision, order or award sought to be executed; and must require the sheriff or duly designated officer to whom it is directed substantially as follows: a) If the execution be for the payment of a sum of money by the losing party, the writ shall be served by the sheriff upon the losing party or upon any other person required by law to obey the same before proceeding to satisfy the judgment out of the personal property of such party and, if no sufficient personal property can be found, then out of his real property; b) If the execution be for the reinstatement of any person to any position, office or employment, such writ shall be served by the sheriff upon the losing party or upon any other person required by law to obey the same. Such party or person may be punished for contempt if he disobeys such decision or order for reinstatement, INCLUDING PAYMENT OF SALARY AS A CONSEQUENCE OF REINSTATEMENT PENDING APPEAL; c) THE POSTING OF A BOND BY THE EMPLOYER SHALL NOT STAY THE EXECUTION OF AN ORDER FOR REINSTATEMENT. SECTION 3. Execution in Case of Death of Party. Where a party dies after the finality of the decision/entry of judgment or order, execution thereon may issue or one already issued may be enforced in the following cases: a) In case of death of the prevailing party, upon FILING OF MOTION FOR SUBSTITUTION OF PARTY BY THE HEIRS, SUCCESSORS-IN-INTEREST, EXECUTOR OR ADMINISTRATOR; b) In case of death by the losing party, AFTER APPROPRIATE TESTATE OR INTESTATE PROCEEDINGS AGAINST his successors-in-interest, executor or administrator; c) In case of death of the losing party after execution AND ACTUAL LEVY upon any of his property, the same may be sold for the satisfaction thereof, and the sheriff making the sale shall account to his HEIRS, successors-in-interest, executor or administrator for any surplus in his hands. SECTION 4. Issuance of a Writ. Execution shall issue upon an order, resolution or decision that finally disposes of the actions or proceedings and AFTER the counsel of record and the parties have been duly furnished with the copies of the same in accordance with the NLRC Rules of Procedure, provided: a) The Commission or Labor Arbiter shall, motu propio or upon motion of any interested party, issue a writ of execution on a judgment only within five (5) years from the date it becomes final and executory. No motion for execution shall be entertained nor a writ be issued unless the Commission or Labor Arbiter is in possession of the records of the case which shall include an entry of judgment where the case has been appealed EXCEPT IN CASES OF REINSTATEMENT PENDING APPEAL AND IN THOSE CASES WHERE PARTIAL EXECUTION IS ALLOWED BY LAW, WHERE THE LABOR ARBITER SHALL RETAIN DUPLICATE ORIGINAL COPIES OF THE DECISION TO BE IMPLEMENTED AND PROOF OF SERVICE THEREOF FOR THE PURPOSE OF ITS IMMEDIATE ENFORCEMENT. b) The Secretary of Labor and Employment OR the Chairman of the Commission may designate special sheriffs and take any measure under existing laws to ensure compliance of their decisions, orders or awards and those of the Labor Arbiters, including the imposition of administrative fines, which shall not be less than five hundred pesos (P500.00) nor more than ten thousand pesos (P10,000.00). c) The Secretary of Labor and Employment, OR the Commission, OR any Labor Arbiter, in appropriate cases, may deputize the Philippine National Police or any law enforcement agencies TO ASSIST in the enforcement of final awards, orders or decisions. SECTION 5. RESOLUTION OF MOTION TO QUASH. - IN CASE THE AGGRIEVED PARTY FILES A MOTION TO QUASH, SAID MOTION SHALL BE RESOLVED BY THE LABOR ARBITER WITHIN TEN (10) DAYS FROM SUBMISSION OF SAID MOTION FOR RESOLUTION. AN APPEAL FROM THE ORDER OF THE LABOR ARBITER RESOLVING THE MOTION TO QUASH MAY BE TREATED AS A PETITION FOR INJUNCTION UNDER PARAGRAPH (e) OF ARTICLE 218 IF THE LABOR CODE, AS AMENDED, IF THE SAME SATISFIES THE REQUIREMENTS PROVIDED FOR BY LAW. SECTION 6. Execution by Independent Action. A judgment, after the lapse of five (5) years from the date it becomes final and executory and before it is barred by prescription, may only be enforced by AN INDEPENDENT action.
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Societas Spectra Legis Labor Standards Compilation SECTION 7. Control and Supervision Over the Sheriff. The Commission or Labor Arbiter issuing the writ shall have full control and supervision over the sheriff assigned to enforce the same. RULE IV EXECUTION SECTION 1. Properties Exempt from Execution. Only the properties of the losing party shall be the subject of execution, except: a) The losing party's family home, constituted in accordance with law and, in the absence thereof, the homestead in which he resides, and land necessarily used in connection therewith, subject to the limits fixed by law; b) His necessary clothing, and that of his family; c) Household furnitures and utensils necessary for housekeeping, and used for that purpose by the losing party such as he may select, of a value not exceeding the amount fixed by law; d) Provisions for individual or family use sufficient for three (3) months; e) The professional libraries of attorneys, judges, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding the amount fixed by law; f) So much of the earnings of the losing party for his personal services within the month preceding the levy as are necessary for the support of his family; g) All moneys, benefits, privileges or annuities accruing or, in any matter, growing out of any life insurance; h) Tools and instruments necessarily used by him in his trade or employment of a value not exceeding three thousand pesos (P3,000.00); i) Other properties especially exempted by law. SECTION 2. Execution of Money Judgment. The sheriff or duly designated officer shall enforce the execution of a money judgment by levying on all the properties, real and personal, of the losing party of whatever name and nature whatsoever, and which may be disposed of for value, not exempt from execution, or on a sufficient amount of such property, if there be sufficient and selling the same at public auction to the highest bidder, and depositing the proceeds thereof with the cashier of the National Labor Relations Commission and that the same shall be released only upon orders from the Commission or Labor Arbiter concerned. Where payments are made in checks, the same shall be issued in the name of the National Labor Relations Commission. Any excess in the proceeds of the sale over the judgment and the accruing costs shall be delivered by the proper cashier to the losing party who owns the property sold unless otherwise directed by the judgment or order. When there is more property of the losing party than is sufficient to satisfy the judgment or award and accruing costs, within the view of the officer, he shall levy only on such part of the property as is amply sufficient to satisfy the judgment and costs. SECTION 3. Voluntary Satisfaction of Money Judgment. Any voluntary tender of payment by the losing party shall be effected by depositing the same with the cashier of the National Labor Relations Commission and shall be released only upon orders from the Commission or Labor Arbiter who issued the writ. RULE V LEVY SECTION 1. Levy on Personal Property. - To constitute a valid levy on personal property, the sheriff must take possession and control of the same in the following manner: a) Personal property capable of manual delivery, by taking and safely keeping it in his capacity as sheriff after issuing the corresponding receipt therefor; b) Stocks shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the decision, order or award, and a notice stating that the stock or interest of the party against whom the levy is issued, is levied pursuant thereto; c) Debts and credits, and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the decision, order or award, and notice that the debts owing by him to the party against whom the levy is issued, and the credits and other personal property in his possession, or under his control, belonging to said party are levied in pursuance of such decisions, order or award; d) The interest of the prevailing party against whom levy is issued in property belonging to the estate of a decedent, whether as heir legatee or devisee, by serving to the executor or administrator or other personal representative of the decedent a copy of the decision, order or award and a notice that said interest is levied. A copy of said decision, order or award, and notice shall also be filed with the Office of the Clerk of Court in which said estate is being settled and served upon the heir, legatee or devisee concerned. If the property sought to be levied is in custodia legis, a copy of the decision, order or award, and notice shall be filed with the proper court, and notice of levy served upon the custodian of such property. SECTION 2. Effect of Garnishment. - Garnishment is effected by the sheriff or authorized officer by serving a notice thereof to the third party who has possession or control of such money, goods, chattels and/or any interest therein, belonging or owing to the losing party directing or requiring him (garnishee) to hold the same subject to further orders from the Commission or Labor Arbiter who issued the writ. Where the property garnished consists of money deposited with a bank or third party, the Commission or Labor Arbiter shall order that the same shall only be released to the cashier of the NLRC. SECTION 3. Levy on Real Property. Real property or any interest therein may be levied in the following manner: a) Real property, or growing crops thereon, standing upon the records of the register of deeds of the province or city in the name of the party against whom levy is issued, not appearing at all upon such records, by filing with the register of deeds a copy of the decision, order, or award, together with a description of the property levied, and a notice that it is levied upon and by leaving a copy of such decision, order or award, description, and notice with the occupant of the property, if there is any. When the property has been brought under the operation of the land registration system, the notice shall contain a reference to the number of the certificate of title and the volume and page in the registration book where the certificate is registered. The register of deeds must index levies filed under this paragraph in the name of both the prevailing party and the losing party; b) Real property, or growing crops thereon or any interest therein, belonging to the party against whom levy is issued, and held by any other person or standing on the records of the register of deeds in the name of any other person, by filing with the register of deeds a copy of the decision, order or award, together with a description of the property, and a notice that such real property, and any interest therein of said property, held or standing, in the name of such other persons, naming him are levied by leaving with the occupant of the property, if any, and with such other persons, or his agents, if found within the province or city or at the residence of either, if within the province or city, a copy of such decision, order or award, description and notice. When the property has been brought under the operation of the land registration system, the notice shall contain a reference to the number of the certificate of title and the volume and page in the registration book where the certificate is registered. The register of deeds must index levies filed under this paragraph in the name of the prevailing party, the losing party and of the person whom the property is held or in whose name it stands on the records. SECTION 4. Effect of Levy. The levy on execution shall create a lien in favor of the prevailing party over the right, title or interest of the losing party in such property at the same time of the levy. SECTION 5. Effect of Levy on Debts and Credits. All persons having in their possession or under their control any credit or other similar personal property belonging to the party against whom levy is issued, or owing any debt to the latter, at the time of service upon them a copy of the decision, order or award, and notice, shall be liable to the prevailing party for the amount of such credits, debts or other property, until the levy is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the sheriff or duly designated officer of the National Labor Relations Commission. RULE VI THIRD PARTY CLAIM SECTION 1. Proceedings. SHOULD A THIRD PARTY CLAIM BE FILED DURING EXECUTION OF THE JUDGMENT AWARD, THE THIRD PARTY CLAIMANT shall EXECUTE an affidavit STATING his title TO PROPERTY or possession thereof WITH SUPPORTING EVIDENCE and shall file the same with the sheriff and copies thereof served upon the Commission or Labor Arbiter who issued the writ and upon the prevailing party. Upon receipt of the third party claim, all proceedings, with respect to the execution of the property subject of the third party claim, shall automatically be suspended. The Commission or Labor Arbiter who issued the writ MAY REQUIRE THE THIRD PARTY CLAIMANT TO ADDUCE ADDITIONAL EVIDENCE IN SUPPORT OF HIS AFFIDAVIT OF THIRD PARTY CLAIM AND TO POST A CASH OR SURETY BOND EQUIVALENT TO THE AMOUNT OF HIS CLAIM AS PROVIDED FOR IN SECTION 6, RULE VI, OF THE NLRC RULES OF PROCEDURE, WITHOUT PREJUDICE TO THE POSTING BY THE PREVAILING PARTY OF A SUPERSEDEAS BOND IN AN AMOUNT EQUIVALENT TO THAT POSTED BY THE THIRD PARTY CLAIMANT. The PROPRIETY of the THIRD PARTY claim SHALL BE RESOLVED within ten (10) working days from SUBMISSION OF THE CLAIM FOR RESOLUTION. The decision OF the Labor Arbiter is appealable to the Commission within ten (10) working days from notice AND the Commission shall resolve the appeal within the same period. RULE VII SALE OF PROPERTY ON EXECUTION SECTION 1. Notice of Sale. No sale of property on execution shall proceed without notice of sale describing the property to be sold, its location, the date, time and place of sale and terms and conditions thereof. a) In case of perishable property, by posting written notice of the time and place of the sale in three (3) public places in the municipality or city, where the sale is to take place, for such time as the sheriff may deem reasonable, considering the character and condition of the property;
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d) e)
In case of other personal property, by posting a similar notice in three (3) public places in the municipality or city where the sale is to take place, for not less than five (5) nor more than ten (10) days; In case of real property, by posting for twenty (20) days a notice in three (3) public places in the municipality or city where the property is situated, a similar notice particularly describing the property and stating where the property is to be sold, and, if the assessed value of the property exceeds fifty thousand pesos (P50,000.00), by publishing a copy of the notice once a week for two (2) consecutive weeks, in a newspaper of general circulation in the province or city, if there be one. If there are newspapers published in the province or city in English and/or Filipino, then the publication shall be made in one such newspaper; In all cases, written notice of the sale shall be given to the losing party; An officer selling without the notice prescribed in the preceding sections shall forfeit five thousand pesos (P5,000.00) to any party injured thereby, in addition to his actual damages, both to be recovered in a single proper action; and a person willfully removing or defacing the notice posted, if done before the sale, shall forfeit five thousand pesos (P5,000.00) to any person injured by reason thereof, to be recovered in any proper action.
An execution sale without the valid levy and notice of sale as herein provided is null and void and vests no title in the purchaser. SECTION 2. No Sale if Judgment and Costs Paid. At any time before the sale of property on execution, the losing party may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. SECTION 3. How Property Sold on Execution. All sales of property under execution shall be made at public auction, to the highest bidder, between the hours of nine in the morning and five in the afternoon. After sufficient property has been sold to satisfy the execution, no more shall be sold. When the sale is of real property, consisting of several known lots, they shall be sold separately; or when a portion of such real property is claimed by a third person, he may require it to be sold separately. When the sale is of personal property capable of manual delivery, it shall be sold within the view of those attending the sale and in such parcels as are likely to bring the highest price. The losing party, if present at the sale, may direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels which can be sold to advantage separately. Neither the sheriff nor duly designated officer holding the execution can become a purchaser, nor be interested directly or indirectly in any purchase at such sale. SECTION 4. Refusal of Purchaser to Pay. If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the sheriff may again sell the property to the highest bidder and shall not be responsible for any loss occasioned thereby; but the Commission or Labor Arbiter who issued the writ of execution may order the refusing purchaser to pay to the former the amount of such loss, with costs, and may punish him for contempt if he disobeys the order. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the execution, unless the execution has been fully satisfied, in which event, such proceeds shall be for the benefit of the losing party. When a purchaser refuses to pay, the sheriff may thereafter reject any subsequent bid of such person. SECTION 5. Prevailing Party as Purchaser. When the purchaser is the prevailing party, and no third party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of the judgment. If it does, he shall pay only the excess. SECTION 6. Adjournment of Sale. By written consent of the prevailing party and losing party, the sheriff may adjourn any sale on execution to any date agreed upon in writing by the parties. Without such agreement, he may adjourn the sale from day to day, if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice. SECTION 7. Conveyance to Purchaser of Personal Property Capable of Manual Delivery. When the purchaser of any personal property capable of manual delivery pays the purchase price, the sheriff making the sale shall deliver the property to the purchaser and, if desired, execute and deliver to him a certificate of sale. The sale conveys to the purchaser all the rights which the losing party has in such property on the day of its levy. SECTION 8. Conveyance to Purchaser of Personal Property Not Capable of Manual Delivery. When the purchaser of any personal property not capable of manual delivery pays the purchase price, the sheriff making the sale shall execute and deliver to the purchaser a certificate of sale. Such certificate conveys to the purchaser all the rights which the losing party has in such property on the day of its levy. SECTION 9. Conveyance of Real Property. Certificate Thereof Given to Purchaser and Filed with the Register of Deeds. Upon a sale of real property, the sheriff shall give to the purchaser a certificate of sale containing: a) A particular description of the real property sold; b) The price paid for each distinct lot or parcel; c) The whole price paid by him. A duplicate of such certificate shall be filed by the sheriff with the Office of the Register of Deeds of the province or city where the property is located. SECTION 10. Certificate of Sale When Property is Claimed by Third Party. When a property sold by virtue of a writ of execution is claimed by a third party, the certificate of sale to be issued by the sheriff pursuant to preceding sections 7, 8 and 9 shall indicate therein such third party claim. SECTION 11. Redemption of Real Property Sold; Who may Redeem. Real property sold as provided in the last preceding section or any part thereof separately, may be redeemed in the manner hereinafter provided, by the following parties/persons: a) The losing party, or his successor in interest in the whole or any part of the property; b) A creditor having a lien by attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the judgment under which the property was sold. Such redeeming creditor is termed a redemptioner. SECTION 12. Time and Manner of, and Amounts Payable on, Successive Redemptions. Notice to be Given and Filed. The losing party, or redemptioner, may redeem the property from the purchaser, at any time within twelve (12) months after the sale, by paying the purchaser the amount of his purchase, with one per centum per month interest thereon, in addition, up to the time of redemption, together with the amount of any assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last-named amount at the same rate; and if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien, with interest. Property so redeemed may again be redeemed within sixty (60) days after the last redemption upon payment of the sum paid in the last redemption, with two per centum thereon in addition, and the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest on such last-named amount, and in addition, the amount of any liens held by said last redemptioner prior to his own, with interest. The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after the last redemption, by paying the sum paid on the last previous redemption, with two per centum thereon in addition, and the amount of any assessments or taxes which the last previous redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens held by the last redemptioner prior to his own, with interest. Written notice of any redemption must be given to the sheriff who made the sale a duplicate filed with the Register of Deeds of the province or city, and if any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the sheriff and filed with the register of deeds; if such notice be not filed, the property may be redeemed without paying such assessments, taxes or liens. SECTION 13. Effect of Redemption by Losing Party, and a Certificate to be Delivered and Recorded Thereupon; To Whom Payments on Redemption Made. If the losing party redeems, he shall make the same payments as are required to effect a redemption by a redemptioner, whereupon the effect of the sale is terminated and he is restored to his estate, and the person to whom the payment is made shall execute and deliver to him a certificate of redemption acknowledged or approved before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the office of the Register of Deeds of the province or city in which the property is situated, and the Register of Deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the sheriff or duly designated officer who made the sale. SECTION 14. Proof Required of Redemptioner. A redemptioner shall produce to the sheriff, or person from whom he seeks to redeem, and serve with his notice to the sheriff: a) A copy of the judgment or order under which he claims the right to redeem, certified by the proper officer wherein the judgment is docketed; or, if he redeems upon a mortgage or other liens, a memorandum of the record thereof, certified by the Register of Deeds; b) A copy of any assignment necessary to establish his claim, verified by the affidavit of himself, or of a subscribing witness thereto; c) An affidavit by himself or his agent, showing the amount then actually due on the lien. SECTION 15. Deed and Possession to be Given at Expiration of Redemption Period; By Whom Executed or Given. If no redemption be made within twelve (12) months after the sale, the purchaser, or his assignee, is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given,
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Societas Spectra Legis Labor Standards Compilation and the time of redemption has expired, the last redemptioner, or his assignee, is entitled to the conveyance and possession; but in all cases, the losing party shall have the entire period of twelve (12) months from date of the registration of the sale to redeem the property. The deed shall be executed by the sheriff making the sale or by his successor in office, and in the latter case, shall have the same validity as though the sheriff making the sale has continued in office and executed it. Upon the execution and delivery of said deed, the purchaser, or redemptioner, or his assignee, shall be substituted to and acquire all the rights, title, interest and claim of the losing party to the property as of the time of levy, except as against the losing party in possession, in which case, the substitution shall be effective as of the date of the deed. The possession of the property shall be given to the purchaser or last redemptioner by the same sheriff unless a third party is actually holding the property adversely to the losing party. SECTION 16. Recovery of Price If Sale Not Effective; Revival of Judgment. If the purchaser of real property sold on execution, or his successor in interest fails to recover the possession thereof, or is evicted therefrom in consequence of irregularities in the proceedings concerning the sale, or because the property sold was exempt from execution, or because a third party has vindicated his claim to the property, he may, in a proper action, recover from the prevailing party the price paid, with interest, or so much thereof as has not been delivered to the losing party; or he may, on motion after notice, have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the losing party. The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival. RULE VIII SHERIFFS RETURN SECTION 1. Return of Writ of Execution. The writ of execution shall be made returnable to the Commission or Labor Arbiter who issued it at any time not less than ten (10) nor more than ONE HUNDRED EIGHTY (180) days after its receipt by the sheriff who shall set forth in writing the whole proceedings and file it with the Commission or Labor Arbiter to form part of the records of the case. Failure to make the return within the stated period shall subject the sheriff to a fine of not less than five hundred pesos (P500.00), or suspension for fifteen (15) days without pay or both. SECTION 2. Prohibition. In the event the judgment or order is returned unsatisfied, either wholly or partially, the sheriff shall no longer execute the judgment or order unless an alias writ of execution is duly issued. SECTION 3. Break Open Order; When Issued. Should the LOSING PARTY, his agent or representative refuse or prohibit the sheriff or his authorized representative entry to the place where the property subject of execution is located or kept, the PREVAILING PARTY may apply for a break open order to the Commission or Labor Arbiter concerned WHO, after due notice and hearing, SHALL ISSUE SUCH ORDER WHICH IS IMMEDIATELY EXECUTORY. RULE IX MISCELLANEOUS PROVISIONS SECTION 1. Hours and Days When Writ Shall Be Served. Writ of Execution shall be served at any day, except Saturdays, Sundays, and holidays, between the hours of eight in the morning and five in the afternoon. If, by nature of the losing party's business, it requires the implementation of the same beyond the period provided herein, a written authorization must be secured by the sheriff or duly designated officer from the Commission or Labor Arbiter who issued the writ. SECTION 2. Sheriff’s Report. - The Sheriff enforcing the writ of execution shall make a REGULAR status report on its implementation to the Commission or Labor Arbiter who issued the same. Standard forms shall be made available to the sheriff in compliance with this provision. SECTION 3. Assignment of Writs of Execution. The Commission or Labor Arbiters issuing the writs of execution, in coordination with the Executive Labor Arbiter, shall conduct a raffle for purposes of assigning writs of execution to the sheriff/s. SECTION 4. Storage of Levied Property. To avoid pilferage or damage to levied property, the same shall be inventoried and stored in a bonded warehouse, wherever available, or in a secured place as may be determined by the LABOR ARBITER OR THE COMMISSION with notice to the losing party or third party claimant. For this purpose, the sheriff shall inform the Commission or Labor Arbiter concerned of the corresponding storage fees, CHARGEABLE TO THE PREVAILING PARTY. SECTION 5. Referral of Questions Relative to Writ Enforcement. Questions relative to writ of enforcement shall be referred to the Commission or Labor Arbiter who issued the writ for resolution. SECTION 6. Cash Advance and Execution Fees. Sheriffs or duly designated officers shall be provided at the beginning of the month with a cash advance not exceeding TWO THOUSAND PESOS (P2,000.00) for transportation expenses which shall be liquidated at the end of the month with a statement of expenses and itinerary of travel duly approved by the Commission or Labor Arbiter issuing the writ. The sheriff or duly designated officer shall collect the following execution fees which shall be charged against the losing party: (1) For awards less than P5,000.00 – P200.00; (2) P5,000.00 or more but less than P20,000.00 – P400.00; (3) P20,000.00 or more but less than P50,000.00 – P600.00; (4) P50,000.00 or more but not less than P100,000.00 – P800.00; (5) P100,000.00 or more but not exceeding P150,000.00–P1,000.00; (6) P150,000.00 the fee is plus P10.00 for every P1,000.00 in excess of P150,000.00
PRE-EXECUTION CONFERENCE; ISSUANCE & QUASHAL OF WRIT OF EXECUTION RULE XI SECTION 5. Pre-Execution Conference. — Within two (2) working days from receipt of a motion for the issuance of a writ of execution which shall be accompanied by a computation of a judgment award, if necessary, the Commission or the Labor Arbiter may schedule a pre-execution conference to thresh out matters relevant to execution including the final computation of monetary award. The pre-execution conference shall not exceed fifteen (15) calendar days from the initial schedule, unless the parties agreed to an extension. Any order issued by the Labor Arbiter in the pre-execution conference is not appealable, subject to the remedies available under Rule XII. (2a) SECTION 6. Issuance, Contents and Effectivity of a Writ of Execution. — The writ of execution shall issue in the name of the Republic of the Philippines signed by the Commission or Labor Arbiter ordering the Sheriff to execute the decision, order, or award of the Commission or Labor Arbiter, and must contain the complete name of the party, whether natural or juridical, against whom the writ of execution was issued, the dispositive portion thereof, the amount, if any, to be demanded, and all legal fees to be collected from the losing party or any other person required by law to obey the same. A writ of execution shall be effective for a period of five (5) years from issuance thereof. In case of partial satisfaction of judgment during the lifetime of the writ, the Labor Arbiter shall motu proprio issue an updated writ reflecting the amount collected and the remaining balance. (3a) SECTION 10. Resolution of Motion to Quash. — A motion to quash shall be resolved by the Labor Arbiter within ten (10) working days from submission of said motion for resolution. The mere filing of a motion to quash shall not stay execution proceedings. (11a)
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Societas Spectra Legis Labor Standards Compilation RULE XI SECTION 11. Third Party Claim. — a) If the property levied is claimed by any person other than the losing party, such person may file a third party claim not later than five (5) days from the last day of posting or publication of the notice of execution sale, otherwise the claim shall be forever barred. Such third party claim must comply with the following requirements: (1)
An affidavit stating title to property or right to the possession thereof with supporting evidence;
(2)
Posting of a bond equivalent to the amount of the claim or judgment award, whichever is lower; and
(3)
Payment of prevailing filing fee.
b)
Where filed — The third party claim shall be filed with the Commission or Labor Arbiter where the execution proceeding is pending, with proof of service of copies thereof to the Sheriff and the prevailing party.
c)
Effect of Filing. — The filing of a third party claim that has complied with the requirements set forth under paragraph (a) of this Section shall automatically suspend the proceedings with respect to the execution of the properties subject of the third party claim. Upon approval of the bond, the Labor Arbiter shall issue an order releasing the levied property or a part thereof subject of the claim unless the prevailing party posts a counter bond in an amount not less than the value of the levied property. The Labor Arbiter may require the posting of additional bond upon showing by the other party that the bond is insufficient.
d)
Proceedings. — The propriety of the third party claim shall be resolved within ten (10) working days from submission of the claim for resolution. The decision of the Labor Arbiter is not appealable but may be elevated to the Commission and resolved in accordance with Rule XII hereof. Pending resolution thereof, execution shall proceed against all other properties not subject of the third party claim. (12a)
EXTRAORDINARY REMEDIES FROM ORDER OR RESOLUTION OF LABOR ARBITER RULE XII SECTION 1.Verified Petition. — A party aggrieved by any order or resolution of the Labor Arbiter including those issued during execution proceedings may file a verified petition to annul or modify such order or resolution. The petition may be accompanied by an application for the issuance of a temporary restraining order and/or writ of preliminary or permanent injunction to enjoin the Labor Arbiter, or any person acting under his/her authority, to desist from enforcing said resolution or order. SECTION 2.Grounds. — The petition filed under this Rule may be entertained only on any of the following grounds: a)
If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter.
b)
If serious errors in the findings of facts are raised which, if not corrected, would cause grave or irreparable damage or injury to the petitioner.
c)
If a party by fraud, accident, mistake or excusable negligence has been prevented from taking an appeal;
d)
If made purely on questions of law; or
e)
If the order or resolution will cause injustice if not rectified.
SECTION 3. When and Where Filed. — Not later than ten (10) calendar days from receipt of the order or resolution of the Labor Arbiter, the aggrieved party may file a petition with the Commission furnishing a copy thereof to the adverse party. SECTION 4. Requisites of the Petition. — The petition filed under this Rule shall: a)
be accompanied by a clear original or certified true copy of the order or resolution assailed, together with clear copies of documents relevant or related to the said order or resolution for the proper understanding of the issue/s involved;
b)
contain the arbitral docket number and appeal docket number, if any;
c)
state the material date showing the timeliness of the petition;
d)
be verified by the petitioner himself/herself in accordance with Section 4, Rule 7 of the Rules of Court, as amended;
e)
be in the form of a memorandum which shall state the ground/s relied upon, the argument/s in support thereof and the reliefs prayed for;
f)
be in three (3) legibly written or printed copies; and
g)
be accompanied by: i.
certificate of non-forum shopping;
ii.
proof of service upon the other party/ies and the Labor Arbiter who issued the order or resolution being assailed or questioned; and
iii.
proof of payment of the required fees.
SECTION 5. The Public and Private Respondents Impleaded in the Petition. — The Labor Arbiter shall be jointly impleaded with the private respondent as a public respondent in a nominal capacity. As used in this Rule, the private respondent refers to the party interested in sustaining the order or resolution of the Labor Arbiter. It shall be the duty of the private respondent to appear and defend, both in his/her behalf and that of the public respondent, and the cost awarded in such proceedings in favor of the petitioner shall be against the private respondent only. The public respondent shall not appear or file an answer or comment to the petition or any pleading therein.
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Societas Spectra Legis Labor Standards Compilation SECTION 6. Service and Filing of Pleadings. — The party filing the pleadings, shall serve the other party with copies thereof in accordance with Rule 13 of theRules of Court furnishing the Labor Arbiter with a copy. If the last day to serve and file a pleading falls on a Saturday, Sunday or holiday, the pleading shall be served and filed on the first working day immediately following such Saturday, Sunday or Holiday. SECTION 7. Answer to the Petition. — Within ten (10) calendar days from the receipt of the petition, the private respondent shall file his/her answer therein stating the ground/s why the petition should be denied. Failure on the part of the private respondent, to file his/her answer within the said period may be construed as a waiver to file the same. SECTION 8. Opposition to the Injunctive Relief; When Filed. — In case the petitioner also prays for an injunctive relief, the private respondent may file his/her verified opposition or comment to the application for injunctive relief not later than five (5) calendar days from receipt of a copy of the petition. SECTION 9. Effect of Filing of Petition. — Upon filing of the petition, the proceedings before the Labor Arbiter shall continue unless restrained. In case of execution, the proceedings in accordance with Rule XI of these Rules shall not be suspended, but no money collected or credit garnished may be released or properties levied upon be sold by public auction within fifteen (15) calendar days from the filing of the petition. If no temporary restraining order or writ of preliminary injunction is issued within the said period, the money collected or credit garnished shall be released and/or the properties levied upon sold by public auction and the proceeds of the sale applied, to satisfy the judgment. In case of execution proceedings, the Labor Arbiter shall immediately inform in writing the Commission or the Division where the petition is pending of the satisfaction of the judgment, and, if circumstances warrant, the Commission shall dismiss the petition for being moot. The records of the case shall not be elevated to the Commission unless otherwise ordered. SECTION 10. Verified Application, Issuance of Temporary Restraining Order or Preliminary Injunction; Bond. — Upon the filing of a verified application for injunctive relief, together with supporting affidavits and documents, the Commission may issue a writ of a preliminary injunction based on any of the applicable grounds provided for in Section 3, Rule 58 of the Rules of Court for the preservation of the rights of the parties pending resolution of the petition. The writ of preliminary injunction shall be effective for a non-extendible period of sixty (60) calendar days from service on the private respondent. If it shall appear from facts shown by the verified application and affidavits that great and irreparable damage and/or injury would result to the petitioner before the petition can be resolved, the Commission may issue a temporary restraining order ex-parte effective for a non-extendible period of twenty (20) calendar days from service on the private respondent. In the issuance of a temporary restraining order or writ of preliminary injunction, the Commission shall require the posting of a cash bond in the amount of Fifty Thousand Pesos (P50,000.00), or such higher amount as may be determined by the Commission, to recompense those enjoined for any loss, expense or dama ge caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs. An additional cash bond may be required by the Commission in the issuance of a writ of preliminary injunction. SECTION 11. Effectivity of Temporary Restraining Order or Writ of Preliminary Injunction. — The temporary restraining order or writ of preliminary injunction shall become effective only upon posting of the required cash bond. In the event that the application for a writ of preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The application for a temporary restraining order or a writ of preliminary injunction may be denied, or if granted, may be dissolved, on any grounds provided for in Section 6, Rule 58 of the Rules of Court. SECTION 12. Effect of Injunction. — The issuance of a temporary restraining order or a writ of preliminary injunction, unless otherwise declared by the Commission, shall not suspend the proceedings before the Labor Arbiter or stay the implementation of the writ of execution but shall only restrain or enjoin such particular act/s as therein decreed to be restrained or enjoined. SECTION 13. Resolution of Petition. — If the Commission finds that the allegations of the petition are true, it shall: a) render judgment for the relief prayed for or to which the petitioner is entitled, and/or b)
grant a final injunction perpetually enjoining the Labor Arbiter or any person acting under his/her authority from the commission of the act/s or confirming the preliminary injunction.
However, the Commission may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration.
APPELLATE REMEDIES RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS Section 1. Petition for certiorari. — When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (1a) Section 2. Petition for prohibition. — When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial fun functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any
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Societas Spectra Legis Labor Standards Compilation other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (2a) Section 3. Petition for mandamus. — When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. (3a) Section 4. When and where to file the petition. – The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion. If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the courts appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction. Section 6. Order to comment. — If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the res pondent or respondents to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct together with a copy of the petition and any annexes thereto. In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions of section 2, Rule 56, shall be observed. Before giving due course thereto, the court may require the respondents to file their comment to, and not a motion to dismiss, the petition. Thereafter, the court may require the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper. (6a) Section 7. Expediting proceedings; injunctive relief. – The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case. The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge. Section 8. Proceedings after comment is filed. – After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled. However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions ra ised therein are too unsubstantial to require consideration. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court. The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari.
RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT Section 1. Filing of petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (1a, 2a) Section 2. Time for filing; extension. — The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within which to file the petition. (1a, 5a) Section 3. Docket and other lawful fees; proof of service of petition. — Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy, thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. (1a) Section 4. Contents of petition. — The petition shall be filed in eighteen (18) copies, with the original copy intended for the court being indicated as such by the petitioner and shall: (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents;
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Societas Spectra Legis Labor Standards Compilation (b)
indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received;
(c)
set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition;
(d)
be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and
(e)
contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. (2a)
Section 5. Dismissal or denial of petition. — The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. The Supreme Court may on its own initiative deny the petition on the ground that the appeal is without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (3a) Section 6. Review discretionary. — A review is not a matter of right, but of sound judicial discretion, and will be granted only when there are special and impo rtant reasons thereof. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered: (a) When the court a quo has decided a question of substance, not theretofore determined by the Supreme Court, or has decided it in a way probably not in accord with law or with the applicable decisions of the Supreme Court; or (b)
When the court a quo has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such departure by a lowe r court, as to call for an exercise of the power of supervision. (4a)
UPDATES
PCI Travel Corp vs. NLRC et al., G.R. No. 154379, October 31, 2008 – The following officials or employees of the employer can sign the verification and certification without need of a board resolution (i) Chairperson of the Board; (ii) President; (iii) General Manager; (iv) Personnel Officer; and (v) Labor Employment Specialist. (citing 2008 Cagayan Valley Drug Corp.)
Pentagon Steel Corp., vs. Court of Appeals, et al., G.R. No. 174141, June 26, 2009 – Actions and/or agreements made by the parties during the conciliation proceedings before the labor arbiter are treated as privileged communication under Art. 233; thus, an offer of compromise does not constitute an admission against interest
Laguna Metts Corp., vs. Caalam et al., G.R. No. 185220, July 27, 2009 – An extension of time to file a petition for certiorari under Rule 65 from decision of NLRC (see A.M. No. 07-7-12-SC, amending Rule 65, Sec. 4) is no longer allowed. While social justice requires that the law took tenderly on the disadvantaged sectors of society, neither the rich nor the poor has a license to disregard rules of procedure.
“NLRC” powers and composition; See RA 9347 rationalizing the composition and function of the NLRC; EN banc and division powers and injunctive power; lawyer insulting and making diatribes against the NLRC, sanctioned by Supreme Court as he is a member of the BAR and covered by the Code of Professional Responsibility, held in 2006 Ng
“Venue” in filing complaints, before the arbitration branch of the NLRC as held in 1992 Nestle Phils., and 1998 Phil. Tranco Service and 1996 Sulpicio Lines; and place of “regular assignment” as held in 2006 Westmont Pharmaceuticals; see also venue for claims of “overseas filipino workers” in 2005 Phil. National Bank involving a Filipino employee in Singapore branch of bank, where Labor Code applies
Immunity from labor claims of “Asian Development Bank” in 1996 Dept. of Foreign Affairs, being an international organization; see however, 2009 Deutsche Gesellschaft Fur Technische Zusammenarbeit (German Agency for Technical Cooperation) involving an implementing agency of the Federal Republic of Germany which was made liable for illegal dismissal of Filipino workers, as its invocation of immunity from suit not tenable in the absence of evidence
Residual authority of labor arbiter to preserve and protect rights of parties despite perfection of appeal e.g. issuing partial writ of execution to carry out reinstatement aspect, compute award of backwages: BUT not approval of compromise if case is on appeal to NLRC because NLRC Com missioner is given such authority under 2005 Revised Rules of Procedure of the NLRC
Power of labor arbiter to set aside execution of FINAL AND EXECUTORY JUDGMENT if there is supervening events making the execution unjust, inequitable, etc. held in 1990 Pacific Mills; also execution of decision of labor arbiter when it involves property of a third person, still within the jurisdiction of labor arbiter
NLRC has jurisdiction over petition for injunction to enjoin final and executor judgment e.g. erroneous computation of backwages, as held in National Federation of Labor
Order of execution issued by the labor arbiter is not subject to appeal, held in 2003 King Integrated Security case; it cannot also be subject of certiorari directly to Court of Appeals as held in 2006 Triad Security and Allied Services; likewise, order of labor arbiter denying motion to dismiss is not appealable to NLRC, and cannot also be subject of certiorari directly to Court of Appeals, held in 2005 Metro Drug Distribution
NLRC has power to entertain motion for reduction of bond, and if granted, to give extension to file bond as held in 1998 Alcosero; however, once bond is ordered reduced by NLRC, appellant cannot file motion for reconsideration as it will extend period to appeals as held in 1998 Mers Shoes Mfg.; see requisites when motion to reduce bond before the NLRC shall stop running of the period to perfect an appeal
Art. 223 on “immediately executory” is for the benefit of employee and not employer, and thus, employee who was ordered reinstated pending appeal must be given “reasonable time” to comply therewith as held in 2002 Buenviaje where five day period to comply was not sufficient
Deletion of award of reinstatement NOT proper as position of route salesman is not confidential, held in 2009 Reyes and there being no proof of strained relations
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An appeal to the NLRC that was filed 3 days late violates the Art. 223 of the Code, and the NLRC rules, thus rendering the decision of the labor arbiter final and executor, held in 2008 Nationwide Security and Allied Service
If not motion for reconsideration is filed with NLRC, its decision becomes final and executory, consequently, certiorari under Rule 65 is not available as held in 1998 Zapanta; see also 2005 Lopez Dela Rosa Development Corp. where filing of motion for reconsideration with NLRC is a mandatory requirement to forestall the finality of the NLRC’s decision under Art. 223 and Sec. 14, Rule VII; it is precondition to certiorari, jurisdictional and not mere technicality, otherwise, decision becomes final after 10 calendar days; see also 2008 Pasiona Jr., where doctrine of finality of judgment was affirmed especially since there was no denial of due process despite the claim that employee’s counsel was grossly negligent in failing to elevate case to the Supreme Court; remedy from Court of Appeals to Supreme Court is Rule 45 and not Rule 65
For a settlement of a dispute, whether in whole or in part, to be valid, it must be in writing and signed by the parties and their counsels before the labor arbiter, held in 2008 Ilagan; compromise of claims even after final judgment of Supreme Court is valid and has effect of novation, held in 2005 Magbanua; and waiver considered valid despite absence of lawyer as this is not required for validity; NLRC rules on approval of compromise also applicable to compromise after final judgment and during pre-execution stage, although law is silent on the latter procedure
J-Phil Marine, Inc vs. NLRC That respondent was not assisted by his counsel when he entered into the compromise does not render it null and void. Eurotech Hair Systems, Inc. v. Go so enlightens: A compromise agreement is valid as long as the consideration is reasonable and the employee signed the waiver voluntarily, with a full understanding of what he was entering into. All that is required for the compromise to be deemed voluntarily entered into is personal and specific individual consent. Thus, contrary to respondent’s contention, the employee’s counsel need not be present at the time of the signing of the compromise agreement.
Zamboanga Barter Traders vs. Plagata - A judgment may be executed on motion within five (5) years from the date of its entry or from the date it becomes final and executory. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The purpose of the law (or rule) in prescribing time limitations for enforcing judgments or actions is to prevent obligors from sleeping on their rights. These exceptions have one common denominator, and that is: the delay is caused or occasioned by actions of the judgment debtor and/or is incurred for his benefit or advantage.
PCI Travel Corp. vs. NLRC – The following officials or employees of the company can sign the verification and certification without need of a board resolution: (1) the Chairperson of the Board of Directors, (2) the President of a corporation, (3) the General Manager or Acting General Manager, (4) Personnel Officer, and (5) an Employment Specialist in a labor case.
Ilagan vs. CA Should the parties arrive at any agreement as to the whole or any part of the dispute, the same shall be reduced to writing and signed by the parties and their respective counsels, if any[,] before the Labor Arbiter. In order to be valid, any agreement arrived at in the course of the mandatory conciliation and mediation conference should be in writing and signed by the parties, or their counsel, before the Labor Arbiter.
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TOPIC 14: OTHER IMPORTANT LABOR PROVISIONS CONTRACTING ARRANGEMENT The Labor Code Art. 106. Contractor or subcontractor. Whenever an employer enters into a contract with another person for the performance of the former’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this Code. In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. Art. 107. Indirect employer. The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project. Art. 108. Posting of bond. An employer or indirect employer may require the contractor or subcontractor to furnish a bond equal to the cost of labor under contract, on condition that the bond will answer for the wages due the employees should the contractor or subcontractor, as the case may be, fail to pay the same. Art. 109. Solidary liability. The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers.
Labor Contracting Labor Contracting is the completion or performance of a job, work, or service within a given period. It could be either a job contracting or labor only contracting. An independent contractor may be: a. an individual person or b. an organization which must be registered 1. Corporation SEC 2. Partnership SEC 3. Union DOLE 4. Cooperative CDA and DOLE If any of these organizations engages in labor contracting, it must comply with DO No. 18-A particularly its requirement of registration. Non-registration creates the presumption that the purported contractor is engaged in labor-only contracting.
TRILATERAL RELATIONSHIP Trilateral Relationship refers to the relationship in a contracting or subcontracting arrangement where there is a contract for a specific job, work or service between the principal and the contractor, and a contract of employment between the contractor and its workers. There are three (3) parties involved in these arrangements: the principal who decides to farm out a job, work or service to a contractor; the contractor who has the capacity to independently undertake the performance of the job, work or service; and the contractual workers engaged by the contractor to accomplish the job, work or service. Section 5. Trilateral relationship in contracting arrangements; Solidary liability. – In legitimate contracting or subcontracting arrangement there exists: (a) An employer-employee relationship between the contractor and the employees it engaged to perform the specific job, work or service being contracted; and (b) A contractual relationship between the principal and the contractor as governed by the provisions of the Civil Code.
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Societas Spectra Legis Labor Standards Compilation In the event of any violation of any provision of the Labor Code, including the failure to pay wages, there exists a solidary liability on the part of the principal and the contractor for purposes of enforcing the provisions of the Labor Code and other social legislation, to the extent of the work performed under the employment contract. However, the principal shall be deemed the direct employer of the contractor’s employee in cases where there is a finding by a competent authority of labor-only contracting, or commission of prohibited activities as provided in Section 7, or a violation of either Sections 8 or 9 hereof.
JOB CONTRACTING VS LABOR-ONLY CONTRACTING JOB CONTRACTING There is contracting or subcontracting when an employer, referred to as the principal, farms out the performance of a part of its business to another, referred to as the contractor or subcontractor. For the purpose of undertaking the principal's business that is farmed out, the contractor or subcontractor then employ sits own employees. Contracting and subcontracting are synonymous under Philippine labor law. The term that is more commonly used is subcontracting. In subcontracting, there are three parties involved: a. The principal which decides to farm out a job or service to a subcontractor; b. The subcontractor which has the capacity to independently undertake the performance of the job or service; and c. The employees engaged by the subcontractor to accomplish the job or service. In subcontracting, the four-fold test of employer-employee relationship should be satisfied by the subcontractor in relation to the employees it engages to accomplish the subcontracted job or service. In such cases, the subcontractor is also referred to as independent contractor. If the four-fold test is satisfied not by the subcontractor but by the principal, the principal then becomes the employer of the employees engaged to accomplish the job or service. What exists is not subcontracting but a direct employer-employee relationship between the principal and the employees.
Requisites of Legitimate Contracting or Subcontracting 1) The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility; according to its own manner and method, and free from the control and directions of the principal in all matters connected with the performance of the work, except as to the results thereof; (NO EE-ER relations exists) 2)
The contractor or subcontractor has substantial capital or investment. **shown by: Adequacy of resources actually and directly used May refer to subscribed capital stocks for corporations Tools, equipments, implements, machineries, uniforms, protective gear or safety devises Operating costs such as training and overhead costs
3)
The agreement between the principal and contractor or subcontractor assures the contractual employees to entitlement to all labor and occupational safety standards, free exercise of the right to self-organization, security of tenure, and social and welfare benefits.
LABOR ONLY CONTRACTING There is "labor-only" contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer. In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him. Requisites of Labor-Only Contracting Refers to an arrangement where the contractor or subcontractor merely recruits, supplies job, work or service for a principal, and any of the following elements are present:
or places workers to perform a
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Societas Spectra Legis Labor Standards Compilation The contractor or subcontractor does not have substantial capital or investment which relates to the job, work or service to be performed and the employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal; or The contractor does not exercise the right to control over the performance of the work of the contractual employee.
SCOPE AND NATURE OF LIABILITY OF PRINCIPAL AND CONTRACTOR In JOB CONTRACTING (first two paragraphs of Article 106) The contractor is the employer directly responsible to the employees The principal has limited liability. Should the contractor fail to pay the wages, the principal is liable only to the extent of the work performed and only with respect to the payment of wages. the principal is jointly and severally liable with the subcontractor for payment of the employees' wages to the extent of the work performed under the contract. The principal cannot be accused of illegal dismissal insofar as the contractual employees are concerned because there is no employee-employer relationship. rd th In LABOR-ONLY CONTRACTING (3 and 4 paragraphs of Art 106.) The contractor is merely an agent of the employer. The principal and contractor will be solidarily treated as the employer. The principal’s liability is comprehensive. The liability pertains not only to unpaid wages but extends to any and all liability under the Labor laws. The employer is deemed to have directly hired the contractual employees and is therefore liable for any and all violations of the Labor Code.
DUTIES AND OBLIGATIONS OF PRINCIPAL AND CONTRACTOR UNDER A LABOR-ONLY CONTRACTING ARRANGEMENT The following are the effects: a.
The subcontractor will be treated as the agent of the principal. Since the act of an agent is the act of the principal, representations made by the subcontractor to the employees will bind the principal.
b.
The principal will become the employer as if it directly employed the workers engaged to undertake the subcontracted job or service. It will be responsible to them for all their entitlements and benefits under the labor laws.
c.
The principal and the subcontractor will be solidarily treated as the employer.
d.
The employees will become employees of the principal, subject to the classifications of employees under Article 28 of the Labor Code.
If the labor-only contracting activity is undertaken by a legitimate labor organization, a petition for cancellation of union registration may be filed against it, pursuant to Article 239(e).
RIGHTS OF CONTRACTUAL EMPLOYEES The contractual employee shall be entitled to all the rights and privileges due a regular employee as provided for in the Labor Code, as amended, to include the following: (a) Safe and healthful working conditions; (b) Labor standards such as service incentive leave, rest days, overtime pay, holiday pay, 13th month pay and separation pay; (c) Social security and welfare benefits; (d) Self-organization, collective bargaining and peaceful concerted action; and (e) Security of tenure. The contractor’s employee’s tenure may end when the contract between the principal and the contractor ends. NOTE: Separation Pay – if the service contract is preterminated for the reason not the fault of the principal. INDIVIDUAL INDEPENDENT CONTRACTOR Individuals with special skills, expertise or talent enjoy the freedom to offer their services as independent contractors. The right to life and livelihood guarantees this freedom to contract as independent contractors. The right of labor to security of tenure cannot operate to deprive an individual to contract as an independent contractor. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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OMNIBUS RULES, as amended by DO No. 18-A, Series of 2011 Section 1. Guiding principles. – Contracting and subcontracting arrangements are expressly allowed by law and are subject to regulations for the promotion of employment and the observance of the rights of workers to just and humane conditions of work, security of tenure, self-organization and collective bargaining. Labor-only contracting as defined herein shall be prohibited. Section 2. Coverage. – These Rules shall apply to all parties of contracting and subcontracting arrangements where employer-employee relationships exist. It shall also apply to cooperatives engaging in contracting or subcontracting arrangements. Contractors and subcontractors referred to in these Rules are prohibited from engaging in recruitment and placement activities as defined in Article 13(b) of the Labor Code, whether for local or overseas employment. Section 3. Definition of terms. – The following terms as used in these Rules, shall mean: (c) “Bond/s” refers to the bond under Article 108 of the Labor Code that the principal may require from the contractor to be posted equal to the cost of labor under contract. The same may also refer to the security or guarantee posted by the principal for the payment of the services of the contractors under the Service Agreement. (d)
“Cabo” refers to a person or group of persons or to a labor group which, in the guise of a labor organization, cooperative or any entity, supplies workers to an employer, with or without any monetary or other consideration, whether in the capacity of an agent of the employer or as an ostensible independent contractor.
(e)
“Contracting” or “Subcontracting” refers to an arrangement whereby a principal agrees to put out or farm out with a contractor 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.
(f)
“Contractor” refers to any person or entity, including a cooperative, engaged in a legitimate contracting or subcontracting arrangement providing either services, skilled workers, temporary workers, or a combination of services to a principal under a Service Agreement.
(g)
“Contractor’s employee” includes one employed by a contractor to perform or complete a job, work, or service pursuant to a Service Agreement with a principal. It shall also refer to regular employees of the contractor whose functions are not dependent on the performance or completion of a specific job, work or service within a definite period of time, i.e., administrative staff.
(h)
“In-house agency” refers to a contractor which is owned, managed, or controlled directly or indirectly by the principal or one where the principal owns/represents any share of stock, and which operates solely or mainly for the principal.
(i)
“Net Financial Contracting Capacity (NFCC)” refers to the formula to determine the financial capacity of the contractor to carry out the job, work or services sought to be undertaken under a Service Agreement. NFCC is current assets minus current liabilities multiplied by K, which stands for contract duration equivalent to: 10 for one year or less; 15 for more than one (1) year up to two (2) years; and 20 for more than two (2) years, minus the value of all outstanding or ongoing projects including contracts to be started.
(j)
“Principal” refers to any employer, whether a person or entity, including government agencies and government-owned and controlled-corporations, who/which puts out or farms out a job, service or work to a contractor.
(k)
“Right to control” refers to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end.
(l)
“Service Agreement” refers to the contract between the principal and contractor containing the terms and conditions governing the performance or completion of a specific job, work or service being farmed out for a definite or predetermined period.
(m)
“Solidary liability” refers to the liability of the principal, pursuant to the provision of Article 109 of the Labor Code, as direct employer together with the contractor for any violation of any provision of the Labor Code. It also refers to the liability of the principal, in the same manner and extent that he/she is liable to his/her direct employees, to the extent of the work performed under the contract when the contractor fails to pay the wages of his/her employees, as provided in Article 106 of the Labor Code, as amended.
(n)
”Substantial capital” refers to paid-up capital stocks/shares of at least Three Million Pesos (P3,000,000.00) in the case of corporations, partnerships and cooperatives; in the case of single proprietorship, a net worth of at least Three Million Pesos (P3,000,000.00).
Section 6. Prohibition against labor-only contracting. – Labor-only contracting is hereby declared prohibited. For this purpose, labor only contracting shall refer to an arrangement where: (a) The contractor does not have substantial capital or investments in the form of tools, equipment, machineries, work premises, among others, and the employees recruited and placed are performing activities which are usually necessaryor desirable to the operation of the company, or directly related to the main business of the principal 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; or (b)
The contractor does not exercise the right to control over the performance of the work of the employee.
Section 7. Other Prohibitions. – Notwithstanding Section 6 of these Rules, the following are hereby declared prohibited for being contrary to law or public policy: A. Contracting out of jobs, works or services when not done in good faith and not justified by the exigencies of the business such as the following: (1)
Contracting out of jobs, works or services when the same results in the termination or reduction of regular employees and reduction of work hours or reduction or splitting of the bargaining unit.
(2)
Contracting out of work with a “Cabo”.
(3)
Taking undue advantage of the economic situation or lack of bargaining strength of the contractor’s employees, or undermining their security of tenure or basic rights, or circumventing the provisions of regular employment, in any of the following instances: i.
Requiring them to perform functions which are currently being performed by the regular employees of the principal; and
ii.
Requiring them to sign, as a precondition to employment or continued employment, an antedated resignation letter; a blank payroll; a waiver of labor standards including minimum wages and social or welfare benefits; or a quitclaim releasing the principal, contractor or from any liability as to payment of future claims.
(4)
Contracting out of a job, work or service through an in-house agency.
(5)
Contracting out of a job, work or service that is necessary or desirable or directly related to the business or operation of the principal by reason of a strike or lockout whether actual or imminent.
(6)
Contracting out of a job, work or service being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization as provided in Art. 248 (c) of the Labor Code, as amended.
(7)
Repeated hiring of employees under an employment contract of short duration or under a Service Agreement of short duration with the same or different contractors, which circumvents the Labor Code provisions on Security of Tenure.
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B.
(8)
Requiring employees under a subcontracting arrangement to sign a contract fixing the period of employment to a term shorter than the term of the Service Agreement, unless the contract is divisible into phases for which substantially different skills are required and this is made known to the employee at the time of engagement.
(9)
Refusal to provide a copy of the Service Agreement and the employment contracts between the contractor and the employees deployed to work in the bargaining unit of the principal’s certified bargaining agent to the sole and exclusive bargaining agent (SEBA).
(10)
Engaging or maintaining by the principal of subcontracted employees in excess of those provided for in the applicable Collective Bargaining Agreement (CBA) or as set by the Industry Tripartite Council (ITC).
Contracting out of jobs, works or services analogous to the above when not done in good faith and not justified by the exigencies of the business.
Section 8. Rights of contractor’s employees. – All contractor’s employees, whether deployed or assigned as reliever, seasonal, week-ender, temporary, or promo jobbers, shall be entitled to all the rights and privileges as provided for in the Labor Code, as amended, to include the following: (a) Safe and healthful working conditions; (b)
Labor standards such as but not limited to service incentive leave, rest days, overtime pay, holiday pay, 13 th month pay, and separation pay as may be provided in the Service Agreement or under the Labor Code;
(c)
Retirement benefits under the SSS or retirement plans of the contractor, if there is any;
(d)
Social security and welfare benefits;
(e)
Self-organization, collective bargaining and peaceful concerted activities; and
(f)
Security of tenure.
Section 9. Required contracts under these Rules. – (a)
Employment contract between the contractor and its employee. Notwithstanding any oral or written stipulations to the contrary, the contract between the contractor and its employee shall be governed by the provisions of Articles 279 and 280 of the Labor Code, as amended. It shall include the following terms and conditions: i.
The specific description of the job, work or service to be performed by the employee;
ii.
The place of work and terms and conditions of employment, including a statement of the wage rate applicable to the individual employee; and
iii.
The term or duration of employment that must be co-extensive with the Service Agreement or with the specific phase of work for which the employee is engaged.
The contractor shall inform the employee of the foregoing terms and conditions of employment in writing on or before the first day of his/her employment. (b)
Service Agreement between the principal and the contractor. The Service Agreement shall include the following: i.
The specific description of the job, work or service being subcontracted.
ii.
The place of work and terms and conditions governing the contracting arrangement, to include the agreed amount of the services to be rendered, the standard administrative fee of not less than ten percent (10%) of the total contract cost.
iii.
Provisions ensuring compliance with all the rights and benefits of the employees under the Labor Code and these Rules on: provision for safe and healthful working conditions; labor standards such as, service incentive leave, rest days, overtime pay, 13th month pay and separation pay; retirement benefits; contributions and remittance of SSS, Philhealth, PagIbig Fund, and other welfare benefits; the right to self-organization, collective bargaining and peaceful concerted action; and the right to security of tenure.
iv.
A provision on the Net Financial Contracting Capacity of the contractor,which must be equal to the total contract cost.
v.
A provision on the issuance of the bond/s as defined in Section 3(m) renewable every year.
vi.
The contractor or subcontractor shall directly remit monthly the employers’ share and employees’ contribution to the SSS, ECC, Philhealth and Pagibig.
vii.
The term or duration of engagement.
The Service Agreement must conform to the DOLE Standard Computation and Standard Service Agreement, which form part of these Rules as Annexes “A” and “B”. Section 10. Duties of the principal. – Pursuant to the authority of the Secretary of Labor and Employment to restrict or prohibit the contracting of labor to protect the rights of the workers and to ensure compliance with the provisions of the Labor Code, as amended, the principal, as the indirect employer or the user of the services of the contractor, is hereby required to observe the provisions of these Rules. Section 11. Security of tenure of contractor’s employees. – It is understood that all contractor’s employees enjoy security of tenure regardless of whether the contract of employment is co-terminus with the service agreement, or for a specific job, work or service, or phase thereof. Section 14. Mandatory Registration and Registry of Legitimate Contractors. – Consistent with the authority of the Secretary of Labor and Employment to restrict or prohibit the contracting out of labor to protect the rights of workers, it shall be mandatory for all persons or entities, including cooperatives, acting as contractors, to register with the Regional Office of the Department of Labor and Employment (DOLE) where it principally operates. Section 15. Requirements for registration. – The application for registration as a contractor shall be filed at the DOLE Regional Office in the region where it seeks to principally operate. The applicant shall provide in the application form the following information: (a) The name and business address of the applicant and the areas where it seeks to operate; (b)
The names and addresses of officers, if the applicant is a corporation, partnership, cooperative or a labor organization;
(c)
The nature of the applicant’s business and the industry or industries where the applicant seeks to operate;
(d)
The number of regular workers and the total workforce;
(e)
The list of clients, if any, the number of personnel assigned to each client, if any, and the services provided to the client;
(f)
The description of the phases of the contract, including the number of employees covered in each phase, where appropriate; and
(g)
Proof of compliance with substantial capital requirement as defined in Section 3(l) of these Rules.
The application shall be supported by: (a)
A certified true copy of a certificate of registration of firm or business name from the Securities and Exchange Commission (SEC), Department of Trade and Industry (DTI), Cooperative Development Authority (CDA), or from the DOLE if the applicant is a labor organization;
(b)
A certified true copy of the license or business permit issued by the local government unit or units where the contractor operates;
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A certified listing, with proof of ownership or lease contract, of facilities, tools, equipment, premises implements, machineries and work premises, that are actually and directly used by the contractor in the performance or completion of the job, work or service contracted out. In addition, the applicant shall submit a photo of the office building and premises where it holds office;
(d)
A copy of audited financial statements if the applicant is a corporation, partnership, cooperative or a labor organization, or copy of the latest ITR if the applicant is a sole proprietorship; and
(e)
A sworn disclosure that the registrant, its officers and owners or principal stockholders or any one of them, has not been operating or previously operating as a contractor under a different business name or entity or with pending cases of violations of these Rules and/or labor standards, or with a cancelled registration. In case any of the foregoing has a pending case, a copy of the complaint and the latest status of the case shall be attached.
The application shall be verified. It shall include a DOLE certification of attendance to orientation seminar on these Rules and an undertaking that the contractor shall abide by all applicable labor laws and regulations.
Section 16. Filing and processing of application. – The application with all supporting documents shall be filed in triplicate in the Regional Office where the applicant principally operates. No application for registration shall be accepted unless all the requirements in the preceding Section are complied with.
Section 17. Verification inspection. – Within two (2) working days upon receipt of the application with complete supporting documents, the authorized representative of the Regional Director shall conduct a verification inspection of the facilities, tools, equipment, and work premises of the applicant.
Section 18. Approval or denial of the application. – The Regional Office shall deny or approve the application within one (1) working day after the verification inspection. Applications that fail to meet the requirements set forth in Section 15 of these Rules shall be denied.
Section 19. Registration fee. Payment of registration fee of Twenty-Five Thousand Pesos (P25,000.00) shall be required upon approval of the application. Upon registration, the Regional Office shall return one set of the duly-stamped application documents to the applicant, retain one set for its file, and transmit the remaining set to the Bureau of Working Conditions (BWC) within five (5) days from registration.
Section 20. Validity of certificate of registration of contractors. – The contractor shall be deemed registered only on the date of issuance of its Certificate of Registration. The Certificate of Registration shall be effective for three (3) years, unless cancelled after due process. The same shall be valid in the region where it is registered.
In case the contractor has Service Agreements or operates outside the region where it is registered, it shall request a duly authenticated copy of its Certificate of Registration from the registering Regional Office and submit the same to the DOLE Regional Office where it seeks to operate, together with a copy of its Service Agreement/s in the area, for purposes of monitoring compliance with these Rules.
Section 23. Grounds for cancellation of registration. – The Regional Directorshall, upon a verified complaint, cancel or revoke the registration of a contractor after due process, based on any of the following grounds:
(a)
Misrepresentation of facts in the application;
(b)
Submission of a falsified or tampered application or supporting documentsto the application for registration;
(c)
Non-submission of Service Agreement between the principal and the contractor when required to do so;
(d)
Non-submission of the required semi-annual report as provided in Section 22 (Semi-annual reporting) hereof;
(e)
Findings through arbitration that the contractor has engaged in labor-only contracting and/or the prohibited activities as provided in Section 7 (Other Prohibitions) hereof;
(f)
Non-compliance with labor standards and working conditions;
(g)
Findings of violation of Section 8 (Rights of contractor’s employees) orSection 9 (Required contracts) of these Rules;
(h)
Non-compliance with SSS, the HDMF, Pag-Ibig, Philhealth, and ECC laws; and
(i)
Collecting any fees not authorized by law and other applicable rules and regulations.
Section 24. Due process in cancellation of registration. – Complaint/s based on any of the grounds enumerated in the preceding Section against the contractor shall be filed in writing and under oath with the Regional Office which issued the Certificate of Registration.
The complaint/s shall state the following:
(a)
The name/s and address/es of the complainant/s;
(b)
Name and address of the contractor;
(c)
The ground/s for cancellation;
(d)
When and where the action complained of happened;
(e)
The amount of money claim, if any; and
(f)
The relief/s sought.
Upon receipt of the complaint, the Regional Director shall direct the contractor, with notice to the complainant, to file a verified answer/counter affidavit within ten (10) calendar days without extension, incorporating therein all pertinent documents in support of his/her defenses, with proof of service of a copy to the complainant. Failure to file an answer/counter affidavit shall constitute a waiver on the part of the respondent. No motion to dismiss shall be entertained. The Regional Director or his duly authorized representative may conduct a clarificatory hearing within the prescribed ten (10) calendar days within which to file a verified answer/counter affidavit. Within the said ten (10) calendar days period, the contractor shall make the necessary corrections/rectifications on the violations that are immediately rectifiable upon its own initiative in order to be fully compliant. The Regional Director may avail himself of all reasonable means to ascertain the facts of the case, including conduct of inspection, where appropriate, and examination of informed persons.
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Societas Spectra Legis Labor Standards Compilation The proceedings before the Regional Office shall be summary in nature. The conduct of hearings shall be terminated within fifteen (15) calendar days from the first scheduled clarificatory hearing. The Regional Director shall resolve the case within ten (10) working days from the date of the last hearing. If there is no necessity to conduct a hearing, the case shall be resolved within ten (10) working days from receipt of the verified answer/counter affidavit. Any motion for reconsideration from the Order of the Regional Director shall be treated as an appeal.
Section 25. Appeal. – The Order of the Regional Director is appealable to the Secretary within ten (10) working days from receipt of the copy of the Order. The appeal shall be filed with the Regional Office which issued the cancellation Order. The Office of the Secretary shall have thirty (30) working days from receipt of the records of the case to resolve the appeal. The Decision of the Secretary shall become final and executory after ten (10) days from receipt thereof by the parties. No motion for reconsideration of the Decision shall be entertained.
Section 26. Effects of cancellation of registration. – A final Order of cancellation shall divest the contractor of its legitimate status to engage in contracting/subcontracting. Such Order of cancellation shall be a ground to deny an application for renewal of registration to a contractor under the Rules. The cancellation of the registration of the contractor for engaging in labor-only contracting or for violation of any of the provisions of these Rules involving a particular Service Agreement will not, however, impair the validity of existing legitimate job contracting arrangements the contractor may have entered into with other principals prior to the cancellation of its registration. Any valid and subsisting Service Agreement shall be respected until its expiration; thereafter, contracting with a delisted contractor shall make the principal direct employer of all employees under the Service Agreement pursuant to Articles 106 and 109 of the Labor Code.
WAGE INCREASES; LEGISLATED & CONTRACTUAL; EFFECT ON PRINCIPAL & CONTRACTOR’S LIABILITY RA 6727 Section 6. In the case of contracts for construction projects and for security, janitorial and similar services, the prescribed increases in the wage rates of the workers shall be borne by the principals or clients of the construction/service contractors and the contract shall be deemed amended accordingly. In the event, however, that the principal or client fails to pay the prescribed wage rates, the construction/service contractor shall be jointly and severally liable with his principal or client.
Note: Valid Area of Contracting Arrangement: 1. Janitor 2. Construction 3. Security
EMPLOYMENT & WORKING CONDITIONS OF SECURITY GUARDS (Department Order No. 14, series of 2001) Section 8. Liability and responsibilities of contractors and clients/principals. – 8.1 Joint and several liability. – When the security service contractor fails to pay the wages of its security guards/personnel, the principal shall be jointly and severally liable with the security service contractor to the extent of the work performed by such em-ployees under the contract, in the same manner and extent that the principal is liable to its direct employees. If there are wage increases or adjustments after the execution of the service contract, the prescribed increases in the wage rates of guards shall be borne by the principal and the service contract shall be deemed amended accordingly. In the event that the principal fails to pay the prescribed increases, the security service contractor shall be jointly and severally liable with the principal. The security guards' contractual relationship is with their employer, the security ser-vice contractor. Thus, their immediate recourse for payment of wage increase before litigation is with their direct employer, the security service contractor. In order for the security service contractor to comply with the new rates, the consideration paid by the principal for the security guards' wages has to be adjusted in conformity with the mandated wage increase. In case of finding of violations on wages and other labor standards due the security guards, the DOLE Regional Director shall serve summons to both the security service con-tractor and the principal to determine the extent of liability of the parties. 8.2 Solidary liability. – For purposes of immediate relief, the principal shall be deemed as the direct employer of the security guard/personnel in any of the following cases, and therefore shall be solidarily liable for whatever monetary claims the security guard/personnel may have against his employer: a. When the security service contractor is found to be engaged in labor-only contract-ing; contracting out of work which will either displace its employees or reduce their regular work hours or any other prohibited activity; b.
When the security service contractor is declared guilty of unfair labor practice, i.e., contracting out of a job, work or service being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization; or
c.
When a violation of the relevant provisions of the Labor Code has been established by the Regional Director in the exercise of his/her enforcement powers.
The principal shall also be deemed solidarily liable with the security service contractor to the extent of accrued claims and benefits that the latter may owe to its security guards/personnel in the following instances: a. When the license or business permit of the security service contractor is cancelled, revoked or not renewed by the competent authority, or b.
When the contract between the principal and the security service contractor is preterminated for reasons not attributable to the fault of the latter.
8.3. Responsibilities and Obligations of Security Service Contractors and Principals in the Execution of Service Contracts. – The service contracts or agreements between a security service contractor and its principal/s shall ensure compliance with the minimum wage and other labor standards under the laws, including the mandatory coverage by the SSS, EC, Philhealth and HDMF. Government agencies or instrumentalities engaging security services from private security agencies shall likewise observe compliance with all labor laws and shall require the security service contractor to submit, among others requirements and as part of their bid, an under-taking to pay their workers the above benefits. 8.4. Keeping of records. – The principals as indirect employers shall keep and maintain their own separate records or files on the assignment of security guards in their premises during the period of the service contract, which shall be open for inspection and verification by this Department. The security agency, however, as the direct employer shall observe the rule on general record keeping under the Labor Code, as amended.
PRIVATE SECURITY AGENCY LAW (RA 5487 Section 4. Who May Organize a Security or Watchman Agency. Any Filipino citizen or a corporation, partnership, or association, with a minimum capital of five thousand pesos, one hundred per cent of which is owned and controlled by Filipino citizens may organize a security or watchman agency: Provided, That no person shall organize or
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Societas Spectra Legis Labor Standards Compilation have an interest in, more than one such agency except those which are already existing at the promulgation of this Decree: Provided, further, That the operator or manager of said agency must be at least 25 years of age, a college graduate and/or a commissioned officer in the inactive service of the Armed Forces of the Philippines; of good moral character; having no previous record of any conviction of any crime or offense involving moral turpitude and not suffering from any of the following disqualifications: (1) Having been dishonorably discharged or separated from the Armed Forces of the Philippines; (2) Being a mental incompetent; (3) Being addicted to the use of narcotic drug or drugs; and (4) Being a habitual drunkard. For purposes of this Act, elective or appointive government employees who may be called upon on account of the functions of t heir respective offices in the implementation and enforcement of the provisions of this Act and any person related to such government employees by affinity or consanguinity in the third civil degree shall not hold any interest, directly or indirectly in any security guard or watchman agency. (As amended by Pres. Decree No. 11.) Section 5. Qualifications Required. No person shall be employed as security guard or watchman or private detective unless he is: (a) a Filipino citizen; (b) a high school graduate; (c) physically and mentally fit; (d) not less than 21 nor more than 50 years of age; (e) at least 5 feet and 4 inches in height; and (f) suffering none of the disqualifications provided for in the preceding section: Provided, That foreigners who are already employed as watchmen or security guards prior to the approval of this Act shall not be subject to the above-mentioned requirements: Provided, further, That veterans shall be given priority in employment as security guard, watchman or private detective: And provided, finally, That person convicted of any crime involving moral turpitude shall not be employed as security guard, watchman or private detective. Section 6. License Necessary. No person shall engage in the business of, or act either as a private detective, or detective agency; and either engage in the occupation, calling or employment of watchman or in the business of watchman's agency without first having obtained the necessary permit from the Chief, Philippine Constabulary which permit as approved is prerequisite in obtaining a license or license certificate: Provided, That all existing private detective or watchman or security guard agencies shall have a period of one (1) year from the approval of this Act to secure the said license: Provided, further, That existing agencies, and any new agency which may hereafter apply for a license, certify under oath that their private detectives, watchmen or security guards, have received the appropriate training from either the Philippine Constabulary, the National Bureau of Investigation, any local police department, or any other public institution duly recognized by the government to conduct police training. Section 7. Application for License. The application shall be made in writing and shall be filed with the Chief, Philippine Constabulary. It shall contain the full name of the applicant, his age, civil status, his residence, and location of business. If the applicant is a corporation, association or partnership, a copy of the certificate of registration with the Securities and Exchange Commission together with its by-laws and articles of incorporation, with the Bureau of Commerce. Section 8. Fees to be Paid and Bonds. When all requisites for the issuance of the license have been complied with, the Chief of the Philippine Constabulary or his duly authorized representative shall issue a permit for the issuance of such license and register the same in his office, upon payment by the applicant of the fee in accordance with the following schedule: (a) the sum of one hundred pesos per annum as national license; (b) the sum of fifty pesos per annum as municipal license fee in any city where it may operate, the said fee to be payable to the city treasurer concerned; (c) the sum of twenty-five pesos per annum as municipal license fee for any municipality where it may operate, the said fee to be payable to the municipal treasurer concerned; (d) the private Detective and Watchman Agency shall in addition to the above pay a fixed Internal Revenue Tax of one hundred pesos per annum in lieu of percentage taxes; (e) the individual private detective and/or watchman shall pay for Mayor's Permit, Health and/or Sanitary fee an amount not exceeding three pesos per annum and the agency shall pay the sum not exceeding ten pesos for the Mayor's Permit and Health and/or Sanitary fees; and (f) the Chief of the Philippine Constabulary or his duly authorized representative shall issue an appointment over his signature and affix the seal of his office, to each license and for each such appointment, the sum of one peso shall be paid. The application shall further be accompanied by a bond issued by any competent or reputable surety or fidelity or insurance company duly accredited by the office of the Insurance Commissioner in the sum of not less than five thousand pesos nor more than ten thousand pesos in the discretion of the Chief, Philippine Constabulary, which bond shall answer for any valid and legal claim against the agency by its clients or employees: Provided, That licenses issued in the province of an authorized representative of the Chief of Constabulary is subject to review by the Chief of Constabulary. Any provision of this or other law to the contrary notwithstanding, the Chief of Constabulary may, at any time suspend or cancel the licenses of private watchman or security guard agency found violating any of the provisions of this Act or of the rules and regulations promulgated by the Chief of Constabulary pursuant thereto. (This paragraph was inserted by Sec. 3, Pres. Decree No. 11.) Other provisions of Pres. Decree No. 11 Any person who commit any act in violation of Republic Act No. 5487 and of this Decree, and the implementing rules and regulations already promulgated which are not in conflict herewith, and those to be promulgated by the Chief of Constabulary pursuant hereto, shall, on conviction thereof, suffer imprisonment of from ten to fifteen years and a fine of not less than ten thousand pesos nor more than fifteen thousand pesos as a military court/tribunal or commission may direct. The Chief of Constabulary shall promulgate the necessary rules and regulations to carry out the provisions of this Decree. Section 9. Employees Need Not be Licensed. Every person operating, managing, directing or conducting a licensed private detective or watchmen agency shall also be considered licensed private detective, or watchman and no person shall be employed or used in a private detective work unless he be a licensed private detective or watchman: Provided, That nothing in this section shall be construed as requiring detective license for persons employed solely for clerical or manual work. Section 10. Display of License. The license shall be displayed at all times in a conspicuous and suitable place in the agency office or headquarters of the agency and shall be exhibited at the request of any person whose jurisdiction is in relation with the business of the agency or the employees thereof, or of the Chief of the Philippine Constabulary or his duly authorized representative or any peace officer. Section 18. Penal Provisions. Any violation of this Act or the rule or regulation issued hereunder shall be punished by suspension, or fine not exceeding P200.00 or cancellation of his or its licenses to operate, conduct, direct or manage a private detective, watchman or security guard agency and all its members in the discretion of the court together with the forfeiture of its bond filed with the Philippine Constabulary. If the violation is committed by those persons mentioned under paragraph two, section four of this Act the penalty shall be imprisonment ranging from one to four years and fine ranging from one to four thousand pesos in the discretion of the court.
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Societas Spectra Legis Labor Standards Compilation Under the Cooperative Code, labor laws shall apply to cooperatives. Hence, Articles 106 to 109 on regulation of contracting and subcontracting, as well as the rules implementing Articles 106 to 109 (Department Order No. 18-02), apply to manpower cooperatives. In this regard, Department Circular No. 1 mandates as follows: Manpower cooperatives should register as a contracting or subcontracting entity pursuant to D.O. 18-02. The venue for registration shall be the DOLE regional office having jurisidiction over the manpower cooperative. There shall be a 30-day period within which to register, to be counted from the circular's date of effectivity (i.e., immediately after publication). Manpower cooperatives that fail to register within the said period shall be presumed to be engaged in labor-only contracting. All DOLE regional offices shall continue to enforce and monitor compliance with D.O. 18-02 insofar as manpower cooperatives are concerned. Members of cooperatives as owners and not employees Cooperatives organized under RA 6938, otherwise known as “The Cooperative Code of the Philippines” are composed of members. Members of cooperatives are not employees. As such, issues on termination of their membership with the cooperative do not fall within the jurisdiction of the Labor Arbiter.
CLARIFYING THE APPLICABILITY OF DO 18-A TO BPO, KPO & CONSTRUCTION INDUSTRY Applicability of DO 18-A, Series of 2011 to BPO DO 18-A, Series of 2011, clearly speaks of a trilateral relationship that characterizes the covered contracting/subcontracting arrangement. Thus, vendor-vendee relationship for entire business processes covered by the applicable provisions of the Civil Code on Contracts is excluded. DO 18-A, Series of 2011, contemplates generic or focused singular activity in one contract between the principal and the contractor (for example, janitorial, security, merchandising, specific production work) and does not contemplate information technology-enabled services involving an entire business processes (for example, business process outsourcing, knowledge process outsourcing, legal process outsourcing, hardware and/or software support, medical transcription, animation services, back office operations/support). These companies engaged in business processes may hire employees in accordance with applicable laws, and maintain these employees based on business requirements, which may or may not be for different clients of the BPOs at different periods of the employees’ employment. Applicability of DO 18-A, Series of 2011 to the Construction Industry: Coordination with PCAB-CIAP. Licensing and the exercise of regulatory powers over the construction industry is lodge with the Philippine Contractors Accreditation Board (PCAB), which is under the Construction Industry Authority of the Philippines (CIAP), pursuant to the provisions of Presidential Decree No. 1746, Series of 1980, and not with the DOLE or any of its regional offices. PCAB registers all contractors, whether general or subcontractors, in the Construction Industry and regulates the same including ensuring compliance with DOLE Dept. Order No. 13, Series of 1998 (Guidelines Governing the Occupational Safety and Health in the Construction Industry); and DOLEDPWH-DILG-DTI and PCAB Memorandum of Agreement-Joint Administrative Order No. 1, Series of 2011 (on coordination and harmonization of policies and programs on occupational safety and health in the construction industry). Thus, the DOLE, through its regional offices, shall not require contractors licensed by PCAB in the Construction Industry to register under DO 18-A, Series of 2011. Moreover, findings of violation/s on labor standards and occupational health and safety standards shall be coordinated with PCAB for its appropriate action, including the possible cancellation/suspension of the contractor’s license.
REVIEW QUESTIONS EXAMPLE: IF USC HIRED SERVICES OF A SECURITY AGENCY TO PROVIDE SECURITY GUARDS FOR THE SCHOOL, IS THAT A CONTRACTING ARRANGEMENT? YES. BECAUSE USC DECIDED NOT TO HIRE SECURITY GUARDS DIRECTLY, INSTEAD, THEY HIRED THE SERVICES OF AN AGENCY TO PROVIDE SECURITY GUARDS FOR THE SCHOOL. WHY IS IT THAT EMPLOYERS ENGAGE IN CONTRACTING ARRANGEMENT RATHER THAN DIRECT HIRING? ANS: BECAUSE OF THE EXPERTISE & EXPERIENCE OF THE AGENCIES & ALSO FOR REASONS OF ECONOMY ( REDUCING COST FOR TRAININGS ETC). IS A CONTRACTING ARRANGEMENT THE SAME AS RECRUITMENT & PLACEMENT? ANS: NO. THE RULES IN CONTRACTING ARRANGEMENT EXCLUDE RECRUITMENT & PLACEMENT. WHO MAY APPLY/REGISTER AS A CONTRACTOR? ANS: ANY PERSON (WHETHER NATURAL OR JURIDICAL INCLUDING UNIONS) AS LONG AS IT COMPLIES WITH THE REQUIREMENTS. WHAT IF USC DEFAULTS THE PAYMENT OF SERVICES OF SECURITY AGENCY, IS THERE A CAUSE OF ACTION. ANS: YES DUE TO BREACH OF DUTY. WHAT IS THE ACTION? ANS: FILE A CIVIL DISPUTE (NOTE: IT MUST BE RAISED IN A REGULAR COURT) WHAT IS THE OBLIGATION OF USC TO THE SECURITY GUARDS? 1. AS AN INDIRECT EMPLOYER - THERE IS A LIABLITY OF USC IF THE SECURITY AGENCY DEFAULTS ITS PAYMENT OF WAGES ONLY TO THE EXTENT OF WORK PERFORMED BY THE SECURITY GUARDS.
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AS A PRINCIPAL – AS A RULE, USC AS AN INDIRECT EMPLOYER OF SECURITY GUARDS HAS NO OBLIGATION TO THEM. BUT, IN CASE THE SECURITY AGENCY DEFAULTED PAYMENT OF SALARY OF THE SECURITY GUARDS, THEN, THE PRINCIPAL(USC) HAS THE OBLIGATION TO PAY THE WAGES BEC HE BECOMES A DIRECT EMPLOYER ONLY FOR A LIMITED PURPOSE OF PAYING WAGES AS IF THE PRINCIPAL(USC) EMPLOYED THE GUARDS HIMSELF.
WHAT IS THE CONSTITUTIONAL BASIS FOR THIS RULE OF HOLDING THE PRINCIPAL JOINTLY & SEVERALLY LIABLE WITH THE CONTRACTOR? ANS: THE PROTECTION TO LABOR CLAUSE. IS IT UNFAIR THAT THE PRINCIPAL WILL ALSO BE HELD LIABLE FOR DEFAULTS IMPUTABLE TO THE CONTRACTOR? ANS: NO, IT IS NOT BECAUSE THE PRINCIPAL IS ALLOWED REIMBURSEMENT WITH WHATEVER HE HAS PAID TO THE SECURITY GUARDS. WHO ARE THE TWO (2) TYPES OF EMPLOYERS IN CONTRACTING ARRANGEMENT? 1. DIRECT EMPLOYER – E.G. SECURITY AGENCY OF SECUIRTY GUARDS OR ANY PERSON WHO HAVE PERSONS IN ITS EMPLOY. USC IS A DIRECT EMPLOYER REGARDING ITS TEACHERS. 2. INDIRECT EMPLOYER – KNOWN AS STATUTORY EMPLOYER. USC AS TO SEC GUARDS OF SECURITY AGENCY. IF JOHN HAS NO EMPLOYEES & HIRES SERVICES OF A BLDG CONTRACTOR AND THE BLDG CONTRACTOR ALSO HIRES CONSTRUCTION WORKERS. IS JOHN A DIRECT EMPLOYER? ANS: NO, BECAUSE HE HAS NO EMPLOYEES OF HIS OWN. WHAT IS JOHN’S RELATION TO THE CONSTRUCTION WORKERS? HE IS AN INDIRECT EMPLOYER. WHAT IF THE CONTRUCTION WORKERS HIRED BY THE BLDG CONTRACTOR WERE NOT PAID THEIR WAGES? ANS: JOHN’S LIABILITY IS THAT OF A DIRECT EMPLOYER. HE IS JOINTLY AND SEVERALLY LIABLE WITH THE CONTRACTOR. The principal has limited liability. Should the contractor fail to pay the wages, the principal is liable only to the extent of the work performed and only with respect to the payment of wages The principal is jointly and severally liable with the subcontractor for payment of all employees’ wages to the extent of the work performed under the contract IS LABOR CONTRACTING ILLEGAL PER SE? ANS: LABOR CONTRACTING IS NOT ILLEGAL PER SE ONLY WHEN IT IS LABOR ONLY CONTRACTING THAT IT BECOMES ILLEGAL. WHO IS AN INDIVIDUAL INDEPENDENT CONTRACTOR? ANS: INDIVIDUALS WITH SPECIAL SKILLS, EXPERTISE OR TALENT ENJOY THE FREEDOM TO OFFER THEIR SERVICES AS INDEPENDENT CONTRACTORS. WHAT IS THE MEANING OF WAGES IN CONTRACTING AGREEMENT? ANS: IT IS NOT LIMITED TO A MINIMUM WAGE BUT IT ALSO COVERS LABOR STANDARD BENEFITS (HOLIDAY, 13TH MONTH, PREMIUM PAY). DOES IT INCLUDE RETIREMENT PAY? ANS: NO. DOES IT INCLUDE SEPARATION PAY? ANS: NO, IT IS THE SOLE OBLIGATION OF THE CONTRACTOR. IT IS NOT FOUND IN LABOR CODE. WHAT IS THE LIABILITY OF AN INDIRECT EMPLOYER IF THERE IS AN INCREASE IN WAGE RATES? ANS: THE CONTRACT IS DEEMED AMENDED; THEREFORE USC WILL AUTOMATICALLY INCLUDE THE INCREMENT ON THE MINIMUM WAGE. WHO SHOULD PAY THE INCREASE IN WAGE RATES? ANS: SEC AGENCY SHOULD PAY THE SEC GUARDS AS THEIR EMPLOYER. THE GUARDS SHOULD NOT GO AFTER UNLESS THE CONTRACTOR REFUSES TO PAY. WHAT IF CONTRACTOR REFUSES TO PAY THE EE’S ON THE INCREASE WAGE RATE? ANS: EMPLOYEES CAN DEMAND FROM THE PRINCIPAL. WHAT IF THE PRINCIPAL REFUSES TO PAY THE EMPLOYEES ON THE INCREASE WAGE RATE, IS THE PRINCIPAL JUSTIFIED? ANS: IT IS NOT ALLOWED BEC HE IS JOINTLY & SEVERALLY LIABLE W/ THE CONTRACTOR. IF THE PRINCIPAL PAYS, IS HE ENTITLED TO REIMBURSEMENT BY THE CONTRACTOR? ANS: NO. THE LAW IS CLEAR THAT IF THERE IS AN INCREASE IN WAGE RATE IT SHALL BE BORNE BY THE PRINCIPAL. Note: This is a different liability of the principal from the unpayment of wages of the employees by the contractor because in the latter the principal is entitled to reimbursement.
UPDATES
General Santos Coca-Cola Plant Free Workers Union-TUPAS vs. Coca-Cola Bottler’s Phils, Inc., (Gen. Santos City) et al., G.R. No. 178647, Feb. 13, 2009 – decision to freeze hire due to decease in sales and tougher competition, and to hire services of contractor to perform jobs in the production to meet business exigencies considered valid, and does not constitute unfair labor practice as it was not directed at the members’ right to self-organization
2006 Aboitiz Haulers, Inc., “ labor –only “contracting exists when the following criteria are present: (a) where the person supplying workers to an employer does not have substantial capital or investment , (b) the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer; and (c) the contractor does not exercise the right of control the performance of the work of the contractual employee. All three aforementioned criteria need not to be present. If the contractor enters into an arrangement characterized by any one of the criteria provided, this is “labor-only” contracting.; see also 2007 Government Service & Insurance System , where the GSIS cannot evade liability by claiming it had fully paid the workers’ salaries by incorporating in the security service contract the salary increases mandated by the wage orders by increasing the contract price of per guard . There is no do uble burden of paying twice for the worker’s services, since under Art. 1217 of the Civil Code, if the GSIS should pay the monetary claims, it has the right to recover from the contractor whatever amount it has paid , citing 1998 case of Rosewood Processing , Inc;
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Illegal contracting out of job of salesmen , the contractor having no substantial capital, only P625th paid up, held in 2009 CCBPI; the sales job is indispensable to business of CCBPI ; contractor is merely recruiter and supplier of workers ; DOLE registration as contractor not conclusive since registration of for janitorial service and not for selling ; contract failed to state what specific job subject of contracting ; CCBPI prescribed the criteria that contractor needs to follow ; workers used the tools of CCBPI ; contractor did not exercise control , and element of control is exercised by CCBPI based on the terms of the contract.
GSIS vs NLRC, LSWA et. Al o In the event that the contractor or subcontractor fails to pay the wage of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him. o Indirect employer.– The provisions of the immediately preceding Article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project.
Republic vs Asiapro Cooperative o An employee therefore of such a cooperative who is a member and co-owner thereof cannot invoke the right to collective bargaining for certainly an owner cannot bargain with himself or his co-owners. o An owner-member cannot bargain collectively with the cooperative of which he is also the owner because an owner cannot bargain with himself. In the instant case, there is no issue regarding an owner-members right to bargain collectively with the cooperative. The question involved here is whether an employeremployee relationship can exist between the cooperative and an owner-member. In fact, a closer look at Cooperative Rural Bank of Davao City, Inc. will show that it actually recognized that an owner-member of a cooperative can be its own employee. o Clearly then, the management of the affairs of the respondent cooperative is vested in its Board of Directors and not in its owners-members as a whole. Therefore, it is completely logical that the respondent cooperative, as a juridical person represented by its Board of Directors, can enter into an employment with its owners-members.
ROLANDO SASAN, SR., et. al., vs. NLRC, E-PCI BANK and HELPMATE, INC. o The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal. o While these services rendered by the petitioners as janitors, messengers and drivers are considered directly related to the principal business of a bank, in this case E-PCIBank, nevertheless, they are not necessary in the conduct of its (E-PCIBANK’s) principal business.
WORKER’S PREFERENCE Article 110. Worker preference in case of bankruptcy. – In the event of bankruptcy or liquidation of an employer’s business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid. (As amended by Section 1, Republic Act No. 6715, March 21, 1989) Scope Workers preference covers both unpaid wages and monetary claims Worker preference in case of bankruptcy In the event of bankruptcy or liquidation of an employer’s business, his workers shall enjoy first preference as regards their wages and other monetary claims, any provisions of law to the contrary notwithstanding. Such unpaid wages and monetary claims shall be paid in full before claims of the government and other creditors may be paid. Distinction between a preference of credit and a lien A preference applies only to claims which do not attach to specific properties. A lien creates a charge on a particular property. The right of first preference as regards unpaid wages recognized by Article 110 does not constitute a lien on the property of the insolvent debtor in favor of workers. It is but a preference of credit in their favor, a preference in application. It is a method adopted to determine and specify the order in which credits should be paid in the final distribution of the proceeds of the insolvent's assets. It is a right to a first preference in the discharge of the funds of the judgment debtor. (DBP vs. NLRC) Effect of CORPORATE REHABILITATION on pending actions Upon appointment of a management committee, the rehabilitation receiver, board or body, pursuant to this Decree, all actions for claims against corporations, partnerships or associations under management or receivership pending before any court, tribunal, board or body shall be suspended accordingly. (Section 6(c) of PD 902-A) PAL vs. Zamora GR. No. 166996, Feb. 6, 2007 HELD: Petitioners PAL, et al. are of the view that the proceedings in the instant case should have been suspended on account of the appointment of its permanent rehabilitation receiver. They posit that "the suspension automatically applies on all stages of the proceedings including enforcement of final and executory judgments. The proceedings shall remain suspended until the receivership shall have been ordered lifted by the Securities and Exchange Commission. To date, (petitioner) PAL is still under permanent Rehabilitation Receiver." The relevant law dealing with the suspension of actions for claims against corporations is Presidential Decree No. 902-A, as amended. Particularly, Section 5 (d) which reads: SECTION 5. In addition to the regulatory adjudicative functions of the Securities and Exchange Commission over corporations, partnerships and other forms of associations registered with it as expressly granted under existing laws and decrees, it shall have original and exclusive jurisdiction to hear and decide cases involving: xxx xxx xxx
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Societas Spectra Legis Labor Standards Compilation d)Petitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership or association possesses property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership or association has no sufficient assets to cover its liabilities, but is under the [management of a rehabilitation receiver or] management committee created pursuant to this Decree.
and Section 6 (c), to wit: SECTION 6. In order to effectively exercise such jurisdiction, the Commission shall possess the following: xxx xxx xxx c)To appoint one or more receivers of the property, real or personal, which is the subject of the action pending before the Commission in accordance with the pertinent provisions of the Rules of Court in such other cases whenever necessary in order to preserve the rights of the parties-litigants and/or protect the interest of the investing public and creditors: . . . Provided, finally, That upon appointment of a management committee, the rehabilitation receiver, board or body, pursuant to this Decree, all actions for claims against corporations, partnerships or associations under management or receivership pending before any court, tribunal, board or body shall be suspended accordingly. (Emphasis supplied.)
The term "claim," as contemplated in Sec. 6 (c) of Presidential Decree No. 902-A, refers "to debts or demands of a pecuniary nature. It means 'the assertion of a right to have money paid.'" Obviously, the real justification is to enable the management committee or rehabilitation receiver to effectively exercise its/his powers free from any judicial or extra-judicial interference that might unduly hinder or prevent the "rescue" of the debtor company. To allow such other action to continue would only add to the burden of the management committee or rehabilitation receiver, whose time, effort and resources would be wasted in defending claims against the corporation instead of being directed toward its restructuring and rehabilitation. Otherwise stated, no other action may be taken in, including the rendition of judgment during the state of suspension — what are automatically stayed or suspended are the proceedings of an action or suit and not just the payment of claims during the execution stage after the case had become final and executory. The suspension of action for claims against a corporation under rehabilitation receiver or management committee embraces all phases of the suit, be it before the trial court or any tribunal or before this Court. Furthermore, the actions that are suspended cover all claims against a distressed corporation whether for damages founded on a breach of contract of carriage, labor cases, collection suits or any other claims of a pecuniary nature. In the case at bar, the appellate court's pronouncement that in "disallowing the enforcement to the claim . . . it would unnecessarily add to the burden of management, does not justify the aggravation caused in the delay in execution of the judgment in favor of Zamora," is quite myopic. In actual fact, allowing such actions to proceed would only increase the work-load of the management committee or the rehabilitation receiver, whose precious time and effort would be dissipated and waste d in defending suits against the corporation, instead of being channeled toward restructuring and rehabilitation. As to the appellate court's amended directive that "the monetary claims of petitioner Zamora must be presented to the PAL Rehabilitation Receiver, subject to the rules on preference of credits," the same is erroneous for there has been no declaration of bankruptcy or judicial liquidation. Thus, the rules on preference of credits do not apply.
Art. 1707. Worker’s Lien: The laborer's wages shall be a lien on the goods manufactured or the work done. DBP vs. NLRC: Notably, the terms "declaration" of bankruptcy or "judicial" liquidation have been eliminated. Does this mean then that liquidation proceedings have been done away with? We opine in the negative upon the following considerations: 1. Because of its impact on the entire system of credit, Article 110 of the labor Code cannot be viewed in isolation but must be read in relation to the Civil Code scheme on classification and preference of credits. 2. In the same way that the Civil Code provisions on classification of credits and the Insolvency Law have been brought into harmony, so also must the kindered provisions of the Labor Law be made to harmonize with those laws. 3. In the event of insolvency, a principal objective should be to effect an equitable distribution of the insolvent's property among his creditors. To accomplish this there must first be some proceeding where notice to all of the insolvent's creditors may be given and where the claims of preferred creditors may be bindingly adjudicated (De Baretto vs. Villanueva, No. L-14938, December 29, 1962, 6 SCRA 928). The rationale therefore has been expressed in the recent case of DBP vs. Secretary of Labor (G.R. No. 79351, 28 November 1989),
REVIEW QUESTIONS EXAMPLE: I OWN A COMPANY ENGAGED IN MANUFACTURING BUSINESS. I AM THE PRES & YOU ARE ALL MY EMPLOYEES & MS. AGOT IS MY GEN MANAGER WHO OVERSEES MY EMPLOYEES & I PAY HER 500K A MONTH. I GET WATER FROM MAYNILAD & ELECTRIC FROM VECO. I WANTED TO BORROW MONEY FROM A BANK, BUT THE BANK ASKED FOR A COLLATERAL, I GUARANTEED MY PROPERTY. BANK AGREED FOR A REAL ESTATE MORTGAGE. AFTER RELEASE OF MONEY, I WENT TO CASINO & LOST SUBSTANTIAL MONEY. I HAVE NO MORE MONEY TO PAY THE EMPLOYEES. WORSE, BANK NOTIFIED FORECLOSURE OF THE MORTGAGE. I FAILED TO REDEEM & I WAS EVICTED & WAS FORCED TO CLOSE MY BUSINESS. I OWE VECO, I OWE MAYNILAD, I OWE THE GOVERNMENT, AND I OWE MY EMPLOYEES. WOULD YOU CONSIDER YOURSELF AS WORKERS UNDER ART 110? YES, ART. 110 DO YOU HAVE WORKER’S PREFERENCE IN THIS CASE? YES. IS YOUR WORKER’S PREFERENCE LIMITED TO UNPAID WAGES? ANS: NO. IT ALSO INCLUDES OTHER MONETARY CLAIMS. CAN YOU SUE YOUR EMPLOYER IN THE LABOR ARBITER? ANS: YES, BECAUSE I HAVE A CAUSE OF ACTION. WHAT WILL YOU DO IN ORDER TO ASSERT YOUR WORKER’S PREFERENCE? ANS: I WILL FILE A PETITION TO DECLARE MY COMPANY BANKCRUPT IN THE REGULAR COURT. ONCE THE COURT HAS DECLARED THE COMPANY BANKCRUPT THAT IS THE TIME I CAN EXERCISE MY PREFERENCE. I WILL FILE IN REGULAR COURTS. WHY DOES THE LAW REQUIRE JUDICIAL DECLARATION OF BANKRUPTCY OR LIQUIDATION? ANS: INORDER TO GIVE CREDITORS THE OPPORTUNITY TO PRESENT THEIR CLAIMS. WOULD THE WORKER’S PREFERENCE BE SUPERIOR AGAINST BANK MORTGAGE CREDIT?
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Societas Spectra Legis Labor Standards Compilation ANS: NO. BEC THE MORTGAGE IN THE BANK IS A SPECIAL PREFERENCE CREDIT WHILE THE WORKERS PREFERENCE IS AN ORDINARY PREFERENCE CREDIT. HOW ABOUT BETWEEN THE OTHER CREDITORS (VECO,MAYNILAD) AND WORKER’S PREFERENCE, WHICH ONE WILL ENJOY FIRST PREFERENCE? ANS: WORKERS’ PREFERENCE PREVAILS, PROVIDED THERE HAS BEEN A JUDICIAL DECLARATION OF BANKCRUTCY. WHAT IS THE LAW GOVERNING BANKCRUPTCY? ANS: FRIA – FINANCIAL REHABILITATION & INSOVENCY ACT
UPDATES
2005 Barrayoga , where workers preference under Art.110 is considered an ordinary preferred credit ; it is first priority in order of preference under Art. 2244 of Civil Code but not over special preferred credits under Art. 2241 & 2242 , like mortgage credit . It cannot apply outside a bankruptcy or judicial liquidation proceeding.
Garcia vs. PAL o Employee is not obliged to refund the employer for the wages paid should the case be reversed on appeal by the higher court. The refund doctrine mentioned in Genuino case is abandoned. Social justice principles outweigh the civil principle of unjust enrichment. o An employer is justified in refusing to comply with the reinstatement order. In effect, worker's preference is subject to valid restraints, i.e. corporate rehabilitation which partakes of an injunction. o The test is two-fold: (1) there must be actual delay or the fact that the order of reinstatement pending appeal was not executed prior to its reversal; and (2) the delay must not be due to the employer’s unjustified act or omission. If the delay is due to the employer’s unjustified refusal, the employer may still be required to pay the salaries notwithstanding the reversal of the Labor Arbiter’s decision.
ATTORNEY’S FEES & APPEARANCE OF LAWYERS UNLAWFUL AND LAWFUL WITHHOLDING OF WAGES; CONCEPT Withholding, in general, usually refers to a deduction of money (as 'withholding tax') from an employee's wages or salary by an employer (Wikipedia) ART. 111. Attorney’s fees. - (a) In cases of unlawful withholding of wages, the culpable party may be assessed attorney’s fees equivalent to ten percent of the amount of wages recovered. (b) It shall be unlawful for any person to demand or accept, in any judicial or administrative proceedings for the recovery of wages, attorney’s fees which exceed ten percent of the amount of wages recovered. (Labor Code) ART. 1706. Withholding of the wages, except for a debt due, shall not be made by the employer. (Civil Code)
ATTORNEY’S FEES; 2 CONCEPTS Attorney fees are the costs of legal representation that an attorney's client or a party to a lawsuit incurs (Wikipedia) 2 CONCEPTS: There are two commonly accepted concepts of attorney’s fee, the so – called ordinary and extraordinary. In its ordinary concept, an attorney’s fee is the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to the latter. The basis of this compensation is the fact of his employment by and his agreement with his client. In its extraordinary concept, an attorney’s fee is an indemnity for damages ordered by the court to be paid by the losing party in litigation. The basis of this is any of the cases provided by law where such award can be made, such as those authorized under Article 2208, Civil Code, and is payable not to the lawyer but to the client, unless they have agreed that the award shall pertain to the lawyer as additional compensation or as part thereof. (TRADERS ROYAL BANK EMPLOYEES UNION-INDEPENDENT, vs. NATIONAL LABOR RELATIONS COMMISSION and EMMANUEL NOEL A. CRUZ) NOTE: Attorneys fees contemplated in Art. 111 is the extraordinary concept
APPEARANCE OF LAWYERS AND NON-LAWYERS (ART. 222); REVISED RULES OF NLRC LABOR CODE Article 222. Appearances and Fees. – Non-lawyers may appear before the Commission or any Labor Arbiter only:
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Societas Spectra Legis Labor Standards Compilation If they represent themselves; or If they represent their organization or members thereof. No attorney’s fees, negotiation fees or similar charges of any kind arising from any collective bargaining agreement shall be imposed on any individual member of the contracting union: Provided, However, that attorney’s fees may be charged against union funds in an amount to be agreed upon by the parties. Any contract, agreement or arrangement of any sort to the contrary shall be null and void. (As amended by Presidential Decree No. 1691, May 1, 1980)
RULE III, 2011 NLRC RULES OF PROCEDURE SECTION 6. Appearances. — g) A lawyer appearing for a party is presumed to be properly authorized for that purpose. In every case, he/she shall indicate in his/her pleadings and motions his/her Attorney's Roll Number, as well as his/her PTR3 and IBP numbers for the current year and MCLE compliance. h)
A non-lawyer may appear in any of the proceedings before the Labor Arbiter or Commission only under the following conditions: (6)
he/she represents himself/herself as party to the case;
(7)
he/she represents a legitimate labor organization, as defined under Article 212 and 242 of the Labor Code, as amended, which is a party to the case: Provided, that he/she presents to the Commission or Labor Arbiter during the mandatory conference or initial hearing 1. a certification from the Bureau of Labor Relations (BLR) or Regional Office of the Department of Labor and Employment attesting that the organization he/she represents is duly registered and listed in the roster of legitimate labor organizations; 2. a verified certification issued by the secretary and attested to by the president of the said organization stating that he/she is authorized to represent the said organization in the said case; and 3. a copy of the resolution of the board of directors of the said organization granting him such authority;
(8)
he/she represents a member or members of a legitimate labor organization that is existing within the employer's establishment, who are parties to the case: Provided, that he/she presents; 4. a verified certification attesting that he/she is authorized by such member or members to represent them in the case; and 5. a verified certification issued by the secretary and attested to by the president of the said organization stating that the person or persons he/she is representing are members of their organization which is existing in the employer's establishment;
(9)
he/she is a duly-accredited member of any legal aid office recognized by the Department of Justice or Integrated Bar of the Philippines: Provided, that he/she: 6. presents proof of his/her accreditation; and 7. represents a party to the case;
(10) he/she is the owner or president of a corporation or establishment which is a party to the case: Provided, that he/she presents: 8. a verified certification attesting that he/she is authorized to represent said corporation or establishment; and 9. a copy of the resolution of the board of directors of said corporation, or other similar resolution or instrument issued by said establishment, granting him/her such authority. i)
Appearances of a non-lawyer in contravention of this section shall not be recognized in any proceedings before the Labor Arbiter or the Commission.
j)
Appearances may be made orally or in writing. In both cases, the complete name and office address of counsel or authorized representative shall be made of record and the adverse party or his counsel or authorized representative properly notified.
k)
In case of change of address, the counsel or representative shall file a notice of such change, copy furnished the adverse party and counsel or representative, if any.
l)
Any change or withdrawal of counsel or authorized representative shall be made in accordance with the Rules of Court. (8a)
A lawyer must indicate in his/her pleadings and motions his/her: Attorney’s Roll Number; Professional Tax Receipt; IBP numbers for the current year; and
3
Professional Tax Receipt
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MCLE compliance
AWARD OF ATTORNEY’S FEES: LIMITATIONS (ART. 2208, CIVIL CODE) Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: (7) In actions for the recovery of wages of household helpers, laborers and skilled workers; UPDATES
2008 Atty. Ortiz , involving a petition with the Supreme Court to recover attorney’s fees from the employer bases on NLRC’s decision after the lawyer’s clients agreed to accept settlement of their cases without the lawyer’s conformity; since award pertains to the employees and not to the lawyer as indemnity for damages, the former can waive the same and the lawyer has no legal standing (not the real party in interest) to prosecute the same against the employer; even if the lawyer’s clients agreed to treat the award of attorney’s fees as lawyer’s fees, the 10 % should be based on the amount that his clients have agreed to accept as settlement , as this is considered the “amount of wages recovered”; remedy of lawyer who is aggrieved is to sue his clients; quit claim executed by client does not require conformity of his counsel to be valid , citing 2005 Danzas Intercontinental , Inc.; award of attorney’s fees under Art. 111 does not require proof that employer acted maliciously or in bad faith
Motion to enforce attorney’s lien filed with labor arbiter during execution stage , to recover contingent fee as agreed in writing with client is valid , held in 2009 Masmud; Art. 111 on 10 % limitation applies only to extraordinary attorney’s fees and to ordinary attorney’s fees
MIRAVAL TRADING VS. NLRC o The award of attorney’s fees, though not prayed for, is sanctioned by law and must be upheld. o In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except: Xxx (7) In actions for the recovery of wages of household helpers, laborers and skilled workers; x x x.
FLIGHT ATTENDANTS AND STEWARD ASSO. o The award of attorney’s fees equivalent to 10% of the total monetary award should be tempered, considering the number of flight attendants who stand to receive monetary awards and the totality of all amounts due to them. Court reduced the amount of attorney’s fees which it ruled to be iniquitous and unconscionable after finding that the lawyer did not encounter difficulty in representing his client.
Loy et al. vs. SMC Employees Union o Notwithstanding the absence of an express authority from the board, a lawyer who represented the union with the knowledge and acquiescence of the board, and the acceptance of benefits arising from the service rendered, is entitled to a reasonable value of his professional services on a quantum meruit basis. o The imposition of any interest, as prayed for in this instant petition, on any amount payable to petitioners is, however, unwarranted. Contracts for attorney’s services are unlike any other contracts for the payment of compensation for any other services which allow the imposition of interest in case of delay under the provisions of the Civil Code. The practice of law is a profession, not a moneymaking venture.
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TOPIC 15: MISCELLANEOUS PROVISIONS SPECIAL TYPES OF WORKERS APPRENTICES Apprenticeship means practical training on the job supplemented by related theoretical instruction. Apprentice is a worker who is covered by a written apprenticeship agreement with an individual employer or any of the entities recognized under this Chapter. 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. 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. 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. Apprenticeable Occupation – an occupation officially approved for apprenticeship by TESDA. (DEPARTMENT ORDER NO. 68-04) COVERAGE: 1. Any enterprise duly registered with the appropriate government authorities with ten (10) or more regular workers is qualified to join the program. The number of apprentices for each participating enterprise shall not be more than 20 percent of its total regular workforce. 2. Any unemployed person 15 years old and above may apply for apprenticeship with any participating enterprise. Note: No enterprise shall be allowed to hire apprenticeship unless its apprenticeship program is registered and approved by TESDA. Q: WHAT AGENCY APPROVES APPRENTICESHIP PROGRAM? A: TESDA (Technical Education Skills Development Center) in order to remove an apprentice from the provisions of the labor code, the industry must be registered w/ TESDA. Otherwise, they will be considered regular employees. QUALIFICATIONS Labor Code Article 59. Qualifications of apprentice. To qualify as an apprentice, a person shall: Be at least fourteen (14) years of age; Possess vocational aptitude and capacity for appropriate tests; and 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.
Omnibus Rules Section 11. Qualifications of apprentices. - To qualify as apprentice, an applicant shall: (a) Be at least fifteen years of age; provided those who are at least fifteen years of age but less than eighteen may be eligible for apprenticeship only in non-hazardous occupations; (b)
Be physically fit for the occupation in which he desires to be trained;
(c)
Possess vocational aptitude and capacity for the particular occupation as established through appropriate tests; and
(d)
Possess the ability to comprehend and follow oral and written instructions.
Trade and industry associations may, however, recommend to the Secretary of Labor and Employment appropriate educational qualifications for apprentices in certain occupations. Such qualifications, if approved, shall be the educational requirements for apprenticeship in such occupations unless waived by an employer in favor of an applicant who has demonstrated exceptional ability. A certification explaining briefly the ground for such waiver, and signed by the person in charge of the program, shall be attached to the apprenticeship agreement of the applicant concerned.
IMPORTANCE Article 57. Statement of objectives. This Title aims:
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Societas Spectra Legis Labor Standards Compilation To help meet the demand of the economy for trained manpower; To establish a national apprenticeship program through the participation of employers, workers and government and non-government agencies; and To establish apprenticeship standards for the protection of apprentices.
NATURE Omnibus Rules Section 3. Voluntary nature of apprenticeship program. - The organization of apprenticeship program shall be primarily a voluntary undertaking of employers, except as otherwise provided. Article 70. Voluntary organization of apprenticeship programs; exemptions. The organization of apprenticeship program shall be primarily a voluntary undertaking by employers; When national security or particular requirements of economic development so demand, the President of the Philippines may require compulsory training of apprentices in certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical as determined by the Secretary of Labor and Employment. Appropriate rules in this connection shall be promulgated by the Secretary of Labor and Employment as the need arises; and Where services of foreign technicians are utilized by private companies in apprenticeable trades, said companies are required to set up appropriate apprenticeship programs. Section 41. Compulsory apprenticeship. (a) When grave national emergencies, particularly those involving the security of the state, arise or particular requirements of economic development so demand, the Secretary of Labor and Employment may recommend to the President of the Philippines the compulsory training of apprentices required in a certain trades, occupations, jobs or employment levels where shortage of trained manpower is deemed critical; (b)
Where services of foreign technicians are utilized by private companies in apprenticeable trades said companies are required to set up appropriate apprenticeship programs.
QUALIFIED EMPLOYERS Article 60. Employment of 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) Section 8. Trades to be included in apprenticeship programs. - Only trades and occupations declared apprenticeable by the Secretary of Labor and Employment may be included in apprenticeship programs. Section 9. Who may establish programs. - Any entity, whether or not organized for profit may establish or sponsor apprenticeship programs and employ apprentices. Section 15. Apprenticeable trades. - The Bureau shall evaluate crafts and operative, technical, nautical, commercial, clerical, technological, supervisory, service and managerial activities which may be declared apprenticeable by the Secretary of Labor and Employment and shall have exclusive jurisdiction to formulate model national apprenticeship standards therefor.
APPROVAL OF DOLE 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.
INCENTIVES OF EMPLOYER Article 71. Deductibility of training costs. An additional deduction from taxable income of one-half (1/2) of the value of labor training expenses incurred for developing the productivity and efficiency of apprentices shall be granted to the person or enterprise organizing an apprenticeship program: Provided, That such program is duly recognized by the Department of Labor and Employment: Provided, further, That such deduction shall not exceed ten (10%) percent of direct labor wage: and Provided, finally, That the person or enterprise who wishes to avail himself or itself of this incentive should pay his apprentices the minimum wage. 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. Section 42. Certification from Apprenticeship Division. - An employer desiring to avail of the tax deduction provided under the Code shall secure from the Apprenticeship Division a certification that his apprenticeship program was operational during the taxable year concerned. Such certification shall be attached to the employer's income tax returns for the particular year. Guidelines for the issuance of such certification shall be prepared by the Bureau and approved by the Secretary of Labor and Employment.
DURATION Section 19. Apprenticeship period. - The period of apprenticeship shall not exceed six (6) months.
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Societas Spectra Legis Labor Standards Compilation WAGES Section 29. Wages. — The wage rate of the apprentice shall start at seventy five (75%) per cent of the statutory minimum wage for the first six (6) months; thereafter, he shall be paid the full minimum wage, including the full cost of living allowance. SECTION 40. Apprenticeship without compensation. — The Secretary of Labor and Employment through the Apprenticeship Division, may authorize the hiring of apprentices without compensation whose training on the job is required by the school curriculum as a prerequisite for graduation or for taking a government board examination.
HOURS OF WORK SECTION 20. Hours of work. — Hours of work of the apprentice shall not exceed the maximum number of hours of work prescribed by law, if any, for a worker of his age and sex. Time spent in related theoretical instructions shall be considered as hours of work and shall be reckoned jointly with onthe-job training time in computing in the agreement the appropriate periods for giving wage increases to the apprentice. An apprentice not otherwise barred by law from working eight hours a day may be requested by his employer to work overtime and paid accordingly, provided there are no available regular workers to do the job, and the overtime work thus rendered is duly credited toward his training time.
ENFORCEMENT OF AGREEMENT 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 67. 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. SECTION 24. Enforcement of agreement. — No person shall institute any action for the enforcement of any apprenticeship agreement or for damages for breach thereof, unless he has exhausted all available administrative remedies. The plant apprenticeship committee shall have initial responsibility for settling differences arising out of apprenticeship agreements.
TERMINATION OF APPRENTICESHIP SECTION 25. Valid cause to terminate agreement. — Either party to an agreement may terminate the same after the probationary period only for a valid cause. The following are valid causes for termination: By the employer — (a) Habitual absenteeism in on-the-job training and related theoretical instructions; (b)
Willful disobedience of company rules or insubordination to lawful order of a superior;
(c)
Poor physical condition, permanent disability or prolonged illness which incapacitates the apprentice from working;
(d)
Theft or malicious destruction of company property and/or equipment;
(e)
Poor efficiency or performance on the job or in the classroom for a prolonged period despite warnings duly given to the apprentice; and
(f)
Engaging in violence or other forms of gross misconduct inside the employer's premises.
By the apprentice — (a) Substandard or deleterious working conditions within the employer's premises; (b)
Repeated violations by the employer of the terms of the apprenticeship agreement;
(c)
Cruel or inhuman treatment by the employer or his subordinates;
(d)
Personal problems which in the opinion of the apprentice shall prevent him from a satisfactory performance of his job; and
(e)
Bad health or continuing illness.
SUPPLEMENTAL NOTES ON APPRENTICESHIP
They are trainees No ER-EE relationship – no right to labor standards (SPECIAL TYPES OF WORKERS) Benefits derived by an employer for apprenticeship programs: ▪ Entitled to apply for tax deduction ▪ Employer can pay substandard rates ▪ No commitment to hire after termination of apprenticeship program
LEARNERS 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.
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Societas Spectra Legis Labor Standards Compilation Article 74. When learners may be hired. Learners may be employed when no experienced workers are available, the employment of learners is necessary to prevent curtailment of employment opportunities, and the employment does not create unfair competition in terms of labor costs or impair or lower working standards.
WHEN LEARNERS MAY BE HIRED 1. When no experienced workers are available, 2. The employment of learners 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. APPROVAL FROM DOLE SECTION 3. Approval of learnership program. — Any employer who intends to employ learners shall submit in writing to the Apprenticeship Division of the Regional Office concerned, copy furnished the Bureau, his learnership program, which the Division shall evaluate to determine if the occupation involved is learnable and the program is sufficient for the purpose of training. Within five (5) working days from receipt of the program, the Division shall make known its decision to the employer concerned. A learnership program shall be subject to periodic inspection by the Secretary of Labor and Employment or his duly authorized representative.
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. ART. 76. Learners in piecework. - Learners employed in piece or incentive-rate jobs during the training period shall be paid in full for the work done. Article 77. Penalty clause. Any violation of this Chapter or its implementing rules and regulations shall be subject to the general penalty clause provided for in this Code.
HANDICAPPED WORKERS Article 78. Definition. Handicapped workers are those whose earning capacity is impaired by age or physical or mental deficiency or injury. Article 79. When employable. Handicapped workers may be employed when their employment is necessary to prevent curtailment of employment opportunities and when it does not create unfair competition in labor costs or impair or lower working standards.
When employable? 1. Employment is necessary to prevent curtailment of employment opportunities 2. When 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: The names and addresses of the handicapped workers to be employed; The rate to be paid the handicapped workers which shall not be less than seventy five (75%) percent of the applicable legal minimum wage; The duration of employment period; and The work to be performed by handicapped workers. The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representative. 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.
MAGNA CARTA FOR DISABLED PERSONS (RA 7277, as amended) SECTION 5. Equal Opportunity for Employment. — 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, fringe benefits, incentives or allowances as a qualified able bodied person.
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Societas Spectra Legis Labor Standards Compilation Five percent (5%) of all casual emergency and contractual positions in the Departments of Social Welfare and Development; Health; Education, Culture and Sports; and other government agencies, offices or corporations engaged in social development shall be reserved for disabled persons. SECTION 6. Sheltered Employment — If suitable employment for disabled persons cannot be found through open employment as provided in the immediately preceding Section, the State shall endeavor to provide it by means of sheltered employment. In the placement of disabled persons in sheltered employment, it shall accord due regard to the individual qualities, vocational goals and inclinations to ensure a good working atmosphere and efficient production. SECTION 7. Apprenticeship. — Subject to the provisions of the Labor Code as amended, disabled persons shall be eligible as apprentices or learners:Provided, That their handicap is not much as to effectively impede the performance of job operations in the particular occupation for which they are hired:Provided, further, That after the lapse of the period of apprenticeship, if found satisfactory in the job performance, they shall be eligible for employment. SECTION 8. Incentives for Employers. — a) To encourage the active participation of the private sector in promoting the welfare of disabled persons and to ensure gainful employment for qualified disabled persons, adequate incentives shall be provided to private entities which employ disabled persons. b)
Private entities that employ disabled persons who meet the required skills or qualifications, either as regular employee, apprentice or learner, shall be entitled to an additional deduction, from their gross income, equivalent to twenty-five percent (25%) of the total amount paid as salaries and wages to disabled persons: Provided, however, That such entities present proof as certified by the Department of Labor and Employment that disabled persons are under their employ: Provided, further, That the disabled employee is accredited with the Department of Labor and Employment and the Department of Health as to his disability, skills and qualifications.
c)
Private entities that improve or modify their physical facilities in order to provide reasonable accommodation for disabled persons shall also be entitled to an additional deduction from their net taxable income, equivalent to fifty percent (50%) of the direct costs of the improvements or modifications. This Section, however, does not apply to improvements or modifications of facilities required under Batas Pambansa Bilang 344.
SECTION. 32. Persons with disability shall be entitled to the following: (a) At least twenty percent (20%) discount from all establishments relative to the utilization of all services in hotels and similar lodging establishments; restaurants and recreation centers for the exclusive use or enjoyment of persons with disability; (b)
A minimum of twenty percent (20%) discount on admission fees charged by theaters, cinema houses, concert halls, circuses, carnivals and other similar places of culture, leisure and amusement for the exclusive use or enjoyment of persons with disability;
(c)
At least twenty percent (20%) discount for the purchase of medicines in all drugstores for the exclusive use or enjoyment of persons with disability;
(d)
At least twenty percent (20%) discount on medical and dental services including diagnostic and laboratory fees such as, but not limited to, x-rays, computerized tomography scans and blood tests, in all government facilities, subject to guidelines to be issued by the Department of Health (DOH), in coordination with the Philippine Health Insurance Corporation (PHILHEALTH);
(e)
At least twenty percent (20%) discount on medical and dental services including diagnostic and laboratory fees, and professional fees of attending doctors in all private hospitals and medical facilities, in accordance with the rules and regulations to be issued by the DOH, in coordination with the PHILHEALTH;
(f)
At least twenty percent (20%) discount on fare for domestic air and sea travel for the exclusive use or enjoyment of persons with disability;
(g)
At least twenty percent (20%) discount in public railways, skyways and bus fare for the exclusive use and enjoyment of persons with disability;
(h)
Educational assistance to persons with disability, for them to pursue primary, secondary, tertiary, post tertiary, as well as vocational or technical education, in both public and private schools, through the provision of scholarships, grants, financial aids, subsidies and other incentives to qualified persons with disability, including support for books, learning materials, and uniform allowance to the extent feasible: Provided, That persons with disability shall meet minimum admission requirements;
(i)
To the extent practicable and feasible, the continuance of the same benefits and privileges given by the Government Service Insurance System (GSIS), Social Security System (SSS), and PAG-IBIG, as the case may be, as are enjoyed by those in actual service;
(j)
To the extent possible, the government may grant special discounts in special programs for persons with disability on purchase of basic commodities, subject to guidelines to be issued for the purpose by the Department of Trade and Industry (DTI) and the Department of Agriculture (DA); and
(k)
Provision of express lanes for persons with disability in all commercial and government establishments; in the absence thereof, priority shall be given to them.
The abovementioned privileges are available only to persons with disability who are Filipino citizens upon submission of any of the following as proof of his/her entitlement thereto: (I) An identification card issued by the city or municipal mayor or the barangay captain of the place where the persons with disability resides; (II)
The passport of the persons with disability concerned; or
(III)
Transportation discount fare Identification Card (ID) issued by the National Council for the Welfare of Disabled Persons (NCWDP).
The privileges may not be claimed if the persons with disability claims a higher discount as may be granted by the commercial establishment and/or under other existing laws or in combination with other discount program/s. The establishments may claim the discounts granted in sub-sections (a), (b), (c), (e), (f) and (g) as tax deductions based on the net cost of the goods sold or services rendered: Provided, however, That the cost of the discount shall be allowed as deduction from gross income for the same taxable year that the discount is granted: Provided, further, That the total amount of the claimed tax deduction net of value-added tax if applicable, shall be included in their gross sales receipts for tax purposes and shall be subject to proper documentation and to the provisions of the National Internal Revenue Code (NIRC), as amended.
REVIEW POINTS QUALIFICATIONS A. Apprentices: (1) Must be fifteen (15) years old or above; University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation (2) Be physically fit for the occupation in which he desires to be trained; (3) Possess vocational aptitude and capacity for appropriate tests; (4) With the ability to comprehend and follow oral and written instructions; B. Learners: (1) May be employed when no experienced workers are available; (2) When the employment of learners is necessary to prevent curtailment of employment opportunities; (3) When the employment of learners does not create unfair competition in terms of labor costs or impair or lower working Standards C. Handicapped Workers: (1) May be employed when their employment is necessary to prevent curtailment of employment opportunities. (2) When it does not create unfair competition in labor costs or impair or lower working standards. NATURE A. Apprentices: trains highly-skilled job; voluntary B. Learners: trains in semi-skilled job or in industrial occupations that requires training. C. Handicapped Workers: Contractual type of employment. QUALIFIED EMPLOYERS Apprentices: Employers in the highly technical industries and only in apprenticeable occupation approved by the minister of Labor and Employment. APPROVAL OF DOLE A. Apprentices: It needs prior approval of DOLE through the TESDA. Absence of the approval considers the hired apprentice as an employee. B. Learners: Do not need prior approval by DOLE but subject to DOLE’s inspection ER’s COMMITMENT TO HIRE A. Apprentices: No commitment to hire B. Learners: With commitment to employ the learner as regular employee if he desires upon completion of learnership. EFFECT OF PRETERMINATION A. Apprentices: worker is not considered as employee B. Learners: Learner is considered as employee after 2 months of training and dismissal is without fault of learner EXHAUSTION OF ADM. REMEDIES IN CASE OF BREACH OF CONTRACT A. Apprentices: condition for filing action B. Learners: not required INCENTIVES OF EMPLOYER A. Apprentices: 1. 75 % payment of the minimum wage to apprentices. 2. deduction from taxable income of ½ of the value of labor training expenses. 3.Technical and other assistance from DOLE and other government agencies. 4. Employers are assured of regular employees after six (6) months of apprenticeship. B. Handicapped Workers: 1. Entitled to an additional deduction from their gross income of 25% of the total amount paid to disabled. 2. Deduction from their taxable income of 50% of the direct costs of the improvements or modifications. DURATION A. Apprentices : Not less than four (3) months nor more than six (6) months. B. Learners : less than three (3) months. C. Handicapped: No fixed duration as to hiring so that the employer may fix the duration. WAGES A. Apprentice: Gen. Rule- employer must pay at least 75% of the minimum wage. Exceptions: 1. Training on the job is required by the school or training program curriculum; or 2. It is a requisite for graduation or board examination. B. Learners: Must be paid not less than 75% of the minimum wage if the agreement is silent on the wage rate or if employed in piecerate jobs or incentive-rate jobs during the training period, must be paid in full for the work done. C. Handicapped Workers: Payment shall not be less than 75% of the minimum wage. University of San Carlos – School of Law and Governance | Based on the Outline of JMM
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Societas Spectra Legis Labor Standards Compilation HOURS OF WORK/OVERTIME Apprentices: Hours of work shall not exceed the minimum number of hours of work prescribed by law. Can work overtime provided there are no regular workers to do the job, is paid overtime pay accordingly and the time spent on overtime work is duly credited to his training hours. ENFORCEMENT OF AGREEMENT Apprentices: No person shall institute any action for the enforcement of any apprenticeship agreement or for damages for breach thereof, unless he has exhausted all available administrative remedies. The plant apprenticeship committee shall have initial responsibility for settling differences arising out of apprenticeship agreements.
RA 7796 (TESDA ACT of 1994) Technical Education shall refer to the education process designed at post-secondary and lower tertiary levels, officially recognized as non-degree programs aimed at preparing technicians, para-professionals and other categories of middle-level workers by providing them with a broad range of general education, theoretical, scientific and technological studies, and related job skills training; User-Led" or "Market-Driven Strategy refers to a strategy which promotes strengthened linkages between educational/training institutions and industry to ensure that appropriate skills and knowledge are provided by the educational system; Dual System/Training refers to a delivery system of quality technical and vocational education which requires training to be carried out alternately in two venues: in-school and in the production plant. In- school training provides the trainee the theoretical foundation, basic training, guidance and human formation, while in-plant training develops his skills and proficiency in actual work conditions as it continues to inculcate personal discipline and work values; Levy Grant System refers to a legal contribution from participating employers who would be beneficiaries of the program (often as a percentage of the payroll) which is subsequently turned over or rebated to enterprises offering employee training programs. Technical Education and Skills Development Authority; - To implement the policy declared in this Act, there is hereby created a Technical Education and Skills Development Authority (TESDA), hereinafter referred to as the Authority, which shall replace and absorb the National Manpower and Youth Council (NMYC), the Bureau of Technical and Vocational Education (BTVE) and the personnel and functions pertaining to technical-vocational education in the regional offices of the Department of Education, Culture and Sports (DECS) and the apprenticeship program of the Bureau of Local Employment of the Department of Labor and Employment. Transfer of the Apprenticeship Program. - The Apprenticeship Program of the Bureau of Local Employment of the Department of Labor and Employment shall be transferred to the Authority which shall implement and administer said program in accordance with existing laws, rules and regulations.
EMPLOYMENT OF WOMEN SEC. 14, ART II, CONSTITUTION & SEC. 14, ART. XIII Art. II, Section 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men. Art. XIII, Section 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.
NOTE: Women belong to a vulnerable type of workers. That’s why there is a special law for employment of women. Q: What specific provision in the Constitution protects women in the workplace? A: The role of women in nation building (A2S21987Consti) NOTE: Men and women are equal before the law. If women’s rights are violated it is against equal protection clause. Q: What is the treaty against discrimination of women? A: The CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION OF WOMEN (1979)
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Societas Spectra Legis Labor Standards Compilation FACILITIES FOR WOMEN ART. 132. Facilities for women. – The Secretary of Labor and Employment shall establish standards that will ensure the safety and health of women employees. In appropriate cases, he shall, by regulations, require any employer 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.
Q: What are the facilities for women in the workplace? Answer: 2. PROVIDE SEATS 3. SEPARATE TOILET ROOMS 4. DRESSING ROOM 5. NURSERY ROOM 6. DETERMINE STANDARDS FOR MINIMUM AGE
MATERNITY LEAVE BENEFITS ART. 133. Maternity leave benefits. – (a) Every employer shall grant to any pregnant woman employee who has rendered an aggregate service of at least six (6) months for the last twelve (12) months, maternity leave of at least two (2) weeks prior to the expected date of delivery and another four (4) weeks after normal delivery or abortion with full pay based on her regular or average weekly wages. The employer may require from any woman employee applying for maternity leave the production of a medical certificate stating that delivery will probably take place within two weeks. (b)
The maternity leave shall be extended without pay on account of illness medically certified to arise out of the pregnancy, delivery, abortion or miscarriage, which renders the woman unfit for work, unless she has earned unused leave credits from which such extended leave may be charged.
(c)
The maternity leave provided in this Article shall be paid by the employer only for the first four (4) deliveries by a woman employee after the effectivity of this Code.
SOCIAL SECURITY ACT OF 1997 (RA 8282) SEC. 14-A. Maternity Leave Benefit. - A female member who has paid at least three (3) monthly contributions in the twelve-month period immediately preceding the semester of her childbirth or miscarriage shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her average daily salary credit for sixty (60) days or seventy-eight (78) days in case of caesarean delivery, 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)
The full payment shall be advanced by the employer within thirty (30) days from the filing of the maternity leave application;
(c)
That payment of daily maternity benefits shall be a bar to the recovery of sickness benefits provided by this Act for the same period for which daily maternity benefits have been received;
(d)
That the maternity benefits provided under this section shall be paid only for the first four (4) deliveries or miscarriages;
(e)
That the SSS shall immediately reimburse the employer of one hundred percent (100%) 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
(f)
That if an employee member should give birth or suffer 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 the time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which said employee member would otherwise have been entitled to.
A covered female employee shall be paid a daily maternity benefits equivalent to 100% of her present BASIC SALARY, ALLOWANCE, & OTHER BENEFITS or the cash equivalent of such benefits for: 7. 60 days – normal delivery 8. 78 days – caesarian delivery, PROVIDED she: a. has paid at least 3 monthly maternity contributions in the 12 month period preceding the semester of her childbirth or miscarriage; AND b. is currently employed. Not Part of 13th-Month Pay
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Societas Spectra Legis Labor Standards Compilation Maternity benefits, like other benefits granted by the SSS, are granted to employees in lieu of wages and, therefore, may not be included in computing the employee’s 13th-month pay for the calendar year. Q: Is maternity leave benefit only available to lawfully married women? A: NO, any pregnant woman employee whether married or not is eligible under this provision.
FAMILY PLANNING SERVICES ART. 134. Family planning services; incentives for family planning. – (a) Establishments which are required by law to maintain a clinic or infirmary shall provide free family planning services to their employees which shall include, but not be limited to, the application or use of contraceptive pills and intrauterine devices. (b)
In coordination with other agencies of the government engaged in the promotion of family planning, the Department of Labor and Employment shall develop and prescribe incentive bonus schemes to encourage family planning among female workers in any establishment or enterprise.
Q: What type of employer would need to provide family planning services in the workplace? A: Nightclubs, Karaoke, Sauna Bath Parlors, etc.
PROHIBITED DISCRIMINATION ART. 135. Discrimination prohibited. – It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. The following are acts of discrimination: (a) Payment of a lesser compensation, including wage, salary or other form of remuneration and fringe benefits, to a female employees as against a male employee, for work of equal value; and (b)
Favoring a male employee over a female employee with respect to promotion, training opportunities, study and scholarship grants solely on account of their sexes. xxxxx
ART. 248. Unfair labor practices of employers. – It shall be unlawful for an employer to commit any of the following unfair labor practice: (e) To discriminate in regard to wages, hours of work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, that the individual authorization required under Article 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;
NOTE: A homosexual cannot claim the privileges under art 135 because the law is only applied for women. There is no law in protection against discrimination of one’s gender (gay, lesbian, male, female); only discrimination between sexes (male & female) Q: Can an employer dismiss an employee on account of pregnancy? A: No, because pregnancy is a maternal function of women.
CRIMINAL LIABILITY ART. 135. Discrimination prohibited. – It shall be unlawful for any employer to discriminate against any woman employee with respect to terms and conditions of employment solely on account of her sex. xxxxx Criminal liability for the willful commission of any unlawful act as provided in this Article or any violation of the rules and regulations issued pursuant to Section 2 hereof shall be penalized as provided in Articles 288 and 289 of this Code: Provided, That the institution of any criminal action under this provision shall not bar the aggrieved employee from filing an entirely separate and distinct action for money claims, which may include claims for damages and other affirmative reliefs. The actions hereby authorized shall proceed independently of each other. (As amended by Republic Act No. 6725, May 12, 1989).
PROHIBITED ACTS ART. 137. Prohibited acts. – (a) It shall be unlawful for any employer:
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Societas Spectra Legis Labor Standards Compilation (1)
To deny any woman employee the benefits provided for in this Chapter or to discharge any woman employed by him for the purpose of preventing her from enjoying any of the benefits provided under this Code.
(2)
To discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy;
(3)
To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.
WOMEN WORKING IN NIGHTCLUBS ART. 138. Classification of certain women workers. – Any woman who is permitted or suffered to work, with or without compensation, in any night club, cocktail lounge, massage clinic, bar or similar establishments under the effective control or supervision of the employer for a substantial period of time as determined by the Secretary of Labor and Employment, shall be considered as an employee of such establishment for purposes of labor and social legislation.
Illustration: I AM A WOMAN AND YOU ARE AN OWNER OF A BAR. MY COMPENSATION IS BASED ON PURCHASE OF LADY’S DRINKS. Q: Am I an employee? A: No, maybe an independent contractor. Q: So, what will make me an employee then? A: Your employer should have supervision & control over the means, manner, and method of your work and as to the results thereof. NOTE: IN THE CASE OF A MAN WORKING IN A BAR, THERE IS NO PROTECTION UNDER THIS CLASSIFICATION BECAUSE THE PROTECTION ONLY APPLIES TO WOMEN WORKING IN NIGHTCLUBS.
ANTI-VIOLENCE AGAINST WOMEN & THEIR CHILDREN’S ACT OF 2004 (RA 9262) SEC. 43. Entitled to Leave. – Victims under this Act shall be entitled to take a paid leave of absence up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order. Any employer who shall prejudice the right of the person under this section shall be penalized in accordance with the provisions of the Labor Code and Civil Service Rules and Regulations. Likewise, an employer who shall prejudice any person for assisting a co-employee who is a victim under this Act shall likewise be liable for discrimination.
OTHER SPECIAL LAWS RA 6955 AN ACT TO DECLARE UNLAWFUL THE PRACTICE OF MATCHING FILIPINO WOMEN FOR MARRIAGE TO FOREIGN NATIONALS ON A MAIL ORDER BASIS AND OTHER SIMILAR PRACTICES, INCLUDING THE ADVERTISEMENT, PUBLICATION, PRINTING OR DISTRIBUTION OF BROCHURES, FLIERS AND OTHER PROPAGANDA MATERIALS IN FURTHERANCE THEREOF AND PROVIDING PENALTY THEREFORE Section 1. It is the policy of the State to ensure and guarantee the enjoyment of the people of a decent standard of living. Towards this end, the State shall take measures to protect Filipino women from being exploited in utter disregard of human dignity in their pursuit of economic upliftment. Section 2. Pursuant thereto, it is hereby declared unlawful: (a) For a person, natural or juridical, association, club or any other entity to commit, directly or indirectly, any of the following acts:
(b)
(1)
To establish or carry on a business which has for its purpose the matching of Filipino women for marriage to foreign national s either on a mailorder basis or through personal introduction;
(2)
To advertise, publish, print or distribute or cause the advertisement, publication, printing or distribution of any brochure, flier, or any propaganda material calculated to promote the prohibited acts in the preceding subparagraph;
(3)
To solicit, enlist or in any manner attract or induce any Filipino woman to become a member in any club or association whose objective is to match women for marriage to foreign nationals either on a mail-order basis or through personal introduction for a fee;
(4)
To use the postal service to promote the prohibited acts in subparagraph 1 hereof.
For the manager or officer-in-charge or advertising manager of any newspaper, magazine, television or radio station, or other media, or of an advertising agency, printing company or other similar entities, to knowingly allow, or consent to, the acts prohibited in the preceding paragraph.
Section 3. In case of violation of this Act by an association, club, partnership, corporation, or any other entity, the incumbent officers thereof who have knowingly participated in the violation of this Act shall be held liable. Section 4. Any person found guilty by the court to have violated any of the acts herein prohibited shall suffer an imprisonment of not less than six (6) years and one (1) day but not more than eight (8) years, and a fine of not less than Eight thousand pesos (P8,000) but not more than Twenty thousand pesos (P20,000): Provided, That if the offender is a foreigner, he shall be immediately deported and barred forever from entering the country after serving his sentence and payment of fine.
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Societas Spectra Legis Labor Standards Compilation WOMEN IN DEVELOPMENT AND NATION BUILDING ACT (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 provided women rights and opportunities equal to that of men. Sec. 5. Equality in Capacity to Act. — Women of legal age, regardless of civil status, shall have the capacity to act and enter into contracts which shall in every respect be equal to that of men under similar circumstances. In all contractual situations where married men have the capacity to act, married women shall have equal rights. To this end: (1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangement under the same conditions as men; (2)
Women shall have equal access to all government and private sector programs granting agricultural credit, loans and non-material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs;
(3)
Women shall have equal rights to act as incorporators and enter into insurance contracts; and
(4)
Married women shall have rights equal to those of married men in applying for passport, secure visas and other travel documents, without need to secure the consent of their spouses.
In all other similar contractual relations, women shall enjoy equal rights and shall have the capacity to act which shall in every respect be equal to those of men under similar circumstances. Sec. 8. Voluntary Pag-IBIG, GSIS and SSS Coverage. — Married persons who devote full time to managing the household and family affairs shall, upon the working spouse's consent, be entitled to voluntary Pag-IBIG (Pagtutulungan — Ikaw, Bangko, Industriya at Gobyerno), Government Service Insurance System (GSIS) or Social Security System (SSS) coverage to the extent of one-half (1/2) of the salary and compensation of the working spouse. The contributions due thereon shall be deducted from the salary of the working spouse. The GSIS or the SSS, as the case may be, shall issue rules and regulations necessary to effectively implement the provisions of this section.
AN ACT INCREASING MATERNITY BENEFITS IN FAVOR OF WOMEN WORKERS IN THE PRIVATE SECTOR (RA 7322) SEC. 14-A. Maternity Leave Benefit. – A covered female employee who has paid at least three monthly maternity contributions in the twelve-month period preceding the semester of her childbirth, abortion or miscarriage and who is currently employed shall be paid a daily maternity benefit equivalent to one hundred percent (100%) of her present basic salary, allowances and other benefits or the cash equivalent of such benefits for sixty (60) days subject to the following conditions: (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 (30) days from the filing of the maternity leave application:
(c)
That in case of caesarian delivery, the employee shall be paid the daily maternity benefit for seventy-eight (78) 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 (60) 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 percent (100%) 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 the time of the pregnancy, the employer shall pay to the SSS damages equivalent to the benefits which said employee would otherwise have been entitled to, and the SSS shall in turn pay such amount to the employee concerned."
SEC. 2. Nothing in this Act shall be construed as to diminish existing maternity benefits under present laws and collective bargaining agreements.
REPUBLIC ACT NO. 7877: ANTI SEXUAL HARASSMENT ACT SECTION 3. Work, Education or Training -Related, Sexual Harassment Defined. - Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a)
In a work-related or employment environment, sexual harassment is committed when: (1)
The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive ordiminish employment opportunities or otherwise adversely affect said employee;
(2)
The above acts would impair the employee's rights or privileges under existing labor laws; or
(3)
The above acts would result in an intimidating, hostile, or offensive environment for the employee.
SECTION 4. Duty of the Employer or Head of Office in a Work-related, Education or Training Environment. – It shall be the duty of the employer or the head of the workrelated, educational or training environment or institution, to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment. Towards this end, the employer or head of office shall:
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Societas Spectra Legis Labor Standards Compilation (a)
Promulgate appropriate rules and regulations in consultation with and joint1y approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedure for the investigation of sexual harassment cases and the administrative sanctions therefor. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment. The said rules and regulations issued pursuant to this subsection (a) shall include, among others, guidelines on proper decorum in the workplace and educational or training institutions.
(b)
Create a committee on decorum and investigation of cases on sexual harassment. The committee shall conduct meetings, as the case may be, with officers and employees, teachers, instructors, professors, coaches, trainors, and students or trainees to increase understanding and prevent incidents of sexual harassment. It shall also conduct the investigation of alleged cases constituting sexual harassment.
In the case of a work-related environment, the committee shall be composed of at least one (1) representative each from the management, the union, if any, the employees from the supervisory rank, and from the rank and file employees. in the case of the educational or training institution, the committee shall be composed of at least one (1) representative from the administration, the trainors, instructors, professors or coaches and students or trainees, as the case may be. The employer or head of office, educational or training institution shall disseminate or post a copy of this Act for the information of all concerned. SECTION 5. Liability of the Employer, Head of Office, Educational or Training Institution. – The employer or head of office, educational or training institution shall be solidarily liable for damages arising from the acts of sexual harassment committed in the employment, education or training environment if the employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken.
REPUBLIC ACT NO. 8042: MIGRANT WORKERS AND OVERSEAS FILIPINOS ACT OF 1995 (b)
The State affirms the fundamental equality before the law of women and men and the significant role of women in nation-building. Recognizing the contribution of overseas migrant women workers and their particular vulnerabilities, the State shall apply gender sensitive criteria in the formulation and implementation of policies and programs affecting migrant workers and the composition of bodies tasked for the welfare of migrant workers. xxxxx
(d)
Gender-sensitivity shall mean cognizance of the inequalities and inequities prevalent in society between women and men and a commitment to address issues with concern for the respective interests of the sexes. Gender sensitive program and activities to assist particular needs of women migrant workers;
SEC. 32. POEA AND OWWA BOARD; ADDITIONAL MEMBERSHIPS. – Notwithstanding any provision of law to the contrary, the respective Boards of the POEA and the OWWA shall, in addition to their present composition, have three (3) members each who shall come from the women, sea-based and land-based sectors, respectively, to be appointed by the President in the same manner as the other members.
MAGNA CARTA OF WOMEN (RA 9710) Section 18. Special Leave Benefits for Women. - A woman employee having rendered continuous aggregate employment service of at least six (6) months for the last twelve (12) months shall be entitled to a special leave benefit of two (2) months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders.
Q: What is the objective of the Magna Carta of Women Law? A: The Magna Carta of Women ensures the equitable participation and representation of women in government, political parties, the civil service and the private sector.
IMPLEMENTING RULES AND REGULATIONS OF RA 9710 (Philippine Commission on Women Board Resolution No. 1, S. 2010) SECTION 21. Special Leave Benefits for Women – A.
B.
Any female employee in the public and private sector regardless of age and civil status shall be entitled to a special leave of two (2) months with full pay based on her gross monthly compensation subject to existing laws, rules and regulations due to surgery caused by gynecological disorders under such terms and conditions: 1.
She has rendered at least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery;
2.
In the event that an extended leave is necessary, the female employee may use her earned leave credits; and
3.
This special leave shall be non-cumulative and non-convertible to cash.
The Civil Service Commission (CSC), in the case of the public sector including LGUs and other State agencies, and the DOLE, in the case of the private sector, shall issue further guidelines and appropriate memorandum circulars within sixty (60) days from the adoption of these Rules and Regulations to operationalize said policy, and monitor its implementation and act on any violations thereof.
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Societas Spectra Legis Labor Standards Compilation GUIDELINES GOVERNING THE IMPLEMENTATION OF SPECIAL LEAVE BENEFITS FOR WOMEN EMPLOYEES IN THE PRIVATE SECTOR (DOLE Department Order No. 112-11, as amended by DOLE Department Order No. 112-A, Series of 2012) Section 1. Definition of terms. – As used in these Rules, the following terms shall mean: i.
Special leave benefits for women means a female employee’s leave entitlement of two (2) months with full pay from her employer based on her gross monthly compensation following surgery caused by gynecological disorders, provided that she has rendered continuous aggregate employment service of at least six (6) months for the last 12 months.
ii.
Gynecological disorders refers to disorders that would require surgical procedures such as, but not limited to, dilatation and curettage and those involving female reproductive organs such as the vagina, cervix, uterus, fallopian tubes, ovaries, breast, adnexa and pelvic floor, as certified by a competent physician. For purposes of the Act and the Rules and Regulations of this Act, gynecological surgeries shall also include hysterectomy, ovariectomy, and mastectomy.
iii.
Gross monthly compensation means the monthly basic pay plus mandatory allowances fixed by the regional wage boards.
iv.
Two (2) months means sixty (6) calendar days pursuant to Article 13 of the NCC
v.
At least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery means that the woman employee should have been with the company for twelve (12) months, prior to surgery. An aggregate service of at least six (6) months within the said 12-month period is sufficient to entitle her to avail of the special leave benefit (SLB).
vi.
Employment service includes absences with pay such as use of other mandated leaves, company granted leaves and maternity leave.
vii.
Competent physician means a medical doctor preferably specializing in gynecological disorders or is in the position to determine the period of recuperation of the woman employee.
Section 2. Conditions to entitlement of special leave benefits. – Any female employee, regardless of age and civil status, shall be entitled to a special leave, provided she has complied with the following conditions: (a)
She has rendered at least six (6) months continuous aggregate employment service for the last twelve (12) months prior to surgery.
(b)
She has filed an application for special leave in accordance with Section 3 hereof.
(c)
She has undergone surgery due to gynecological disorders as certified by a competent physician.
Section 3. Application for special leave. – The employee shall file her application for leave with her employer within a reasonable period of time from the expected date of surgery, or within such period as may be provided by company rules and regulations or by collective bargaining agreement. Prior application for leave shall not be necessary in cases requiring emergency surgical procedure, provided that the employer shall be notified verbally or in written form within a reasonable period of time and provided further that after the surgery or appropriate recuperating period, the female employee shall immediately file her application using the prescribed form. Section 4. The special leave benefit. – The two (2) months special leave is the maximum period of leave with pay that a woman employee may avail of under RA 9710. For purposes of determining the period of leave with pay that will be allowed to a woman employee, the certification of a competent physician as to the required period of recuperation shall be controlling. Section 5. Availment. – The special leave shall be granted to the qualified employee after she has undergone surgery. Section 6. Frequency of availment. – A woman employee can avail of the special leave benefit for every instance of surgery due to gynecological disorder for a maximum total period of two (2) months per year. Section 7. Special leave benefit vis-à-vis SSS sickness benefit. – The special leave benefit is different from the SSS sickness benefit. The former is granted by the employer in accordance with RA 9170, as implemented under this Rules. It is granted to a woman employee who has undergone surgery due to gynecological disorder. The SSS sickness benefit, on the other hand, is administered and given by the SSS in accordance with the SSS law or RA1161 as amended by RA 8282. Section 8. Special leave benefit vis-à-vis existing statutory leaves. – The special leave benefit cannot be taken from existing statutory leaves (i.e. 5-day Service Incentive Leave, Leave for victims of VAWC, Parental Leave for Solo Parents). The grant of the special leave benefit under the law is in recognition of the fact that patients with gynecological disorder needing surgery require a longer period for recovery. The benefit is considered an addition to the leave benefits granted under existing laws and should be added on top of said statutory leave entitlements. If the special leave benefit has already been exhausted, the company leave and other mandated leave benefits may be availed of by the woman employee. Section 9. Special leave benefit vis-à-vis maternity leave benefit. – Where the woman employee had undergone surgery due to gynecological disorder during her maternity leave, she is entitled only to the difference between the SLB and maternity leave benefit. Section 10. Crediting of existing or similar benefits. – If there are existing or similar benefits under a company policy, practice or collective bargaining agreement (CBA) providing similar or equal benefits to what is mandated by law, the same shall be considered as compliance, unless the company policy, practice or CBA provides otherwise. In the event the company policy, practice or CBA provides lesser benefits, the company shall grant the difference. More liberal existing or similar benefits cannot be withdrawn or reduced by reason of the mandate of RA 9710. The term “similar or equal benefits” refers to leave benefits which are of the same nature and purpose as that of the SLB. Section 11. Mode of payment. – The special leave benefit is a leave privilege. The woman employee shall not report for work for the duration of the leave but she will still receive her salary covering said period. The employer, in its discretion, may allow said employee to receive her pay for the period covered by the approved leave before or during the surgery. The computation of her “pay” shall be based on her prevailing salary at the time of the surgery.
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Societas Spectra Legis Labor Standards Compilation Section 12. Non-commutation of the benefit. – The special leave shall be non-cumulative and non-covertible to cash unless otherwise provided by a collective bargaining agreement (CBA). Section 14. Monitoring of compliance. – The DOLE-Regional Office shall be responsible for monitoring compliance as provided herein and related rules and issuances. It shall submit a separate quarterly monitoring report to the Bureau of Working Conditions (BWC), copy furnished the tripartite Industrial Peace Council (TIPC), for purposes of evalutation.
THE EXPANDED BREASTFEEDING PROMOTION ACT OF 2009 Sec. 12. Lactation Periods. - Nursing employees shall granted break intervals in addition to the regular time-off for meals to breastfeed or express milk. These intervals, which shall include the time it takes an employee to get to and from the workplace lactation station, shall be counted as compensable hours worked. The Department of Labor and Employment (DOLE) may adjust the same:Provided, That such intervals shall not be less than a total of forty (40) minutes for every eight (8)-hour working period.
EMPLOYMENT OF NIGHT WORKERS RA 10151: AN ACT ALLOWING THE EMPLOYMENT OF NIGHT WORKERS, THEREBY REPEALING ARTICLES 130 AND 131 OF PRESIDENTIAL DECREE NUMBER FOUR HUNDRED FORTY-TWO, AS AMENDED, OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES Chapter V Employment of Night Workers Art. 154. Coverage. — This chapter shall apply to all persons, who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation, during a period of not less than seven (7) consecutive hours, including the interval from midnight to five o’clock in the morning, to be determined by the Secretary of Labor and Employment, after consulting the workers’ representatives/labor organizations and employers. ‘Night worker’ means any employed person whose work requires performance of a substantial number of hours of night work which exceeds a specified limit. This limit shall be fixed by the Secretary of Labor after consulting the workers’ representatives/labor organizations and employers. Art. 155. Health Assessment. – At their request, workers shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work: (a)
Before taking up an assignment as a night worker;
(b)
At regular intervals during such an assignment; and
(c)
If they experience health problems during such an assignment which are not caused by factors other than the performance of night work.
With the exception of a finding of unfitness for night work, the findings of such assessments shall not be transmitted to others without the workers’ consent and shall not be used to their detriment. Art. 156. Mandatory Facilities. — Suitable first-aid facilities shall be made available for workers performing night work, including arrangements where such workers, where necessary, can be taken immediately to a place for appropriate treatment. The employers are likewise required to provide safe and healthful working conditions and adequate or reasonable facilities such as sleeping or resting quarters in the establishment and transportation from the work premises to the nearest point of their residence subject to exceptions and guidelines to be provided by the DOLE. Art. 157. Transfer. — Night workers who are certified as unfit for night work, due to health reasons, shall be transferred, whenever practicable, to a similar job for which they are fit to work. If such transfer to a similar job is not practicable, these workers shall be granted the same benefits as other workers who are unable to work, or to secure employment during such period. A night worker certified as temporarily unfit for night work shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for reasons of health. Art. 158. Women Night Workers. — Measures shall be taken to ensure that an alternative to night work is available to women workers who would otherwise be called upon to perform such work: (a)
Before and after childbirth, for a period of at least sixteen (16) weeks, which shall be divided between the time before and after childbirth;
(b)
For additional periods, in respect of which a medical certificate is produced stating that said additional periods are necessary for the health of the mother or child: (1)
During pregnancy;
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During a specified time beyond the period, after childbirth is fixed pursuant to subparagraph (a) above, the length of which shall be determined by the DOLE after consulting the labor organizations and employers.
During the periods referred to in this article: i.
A woman worker shall not be dismissed or given notice of dismissal, except for just or authorised causes provided for in this Code that are not connected with pregnancy, childbirth and childcare responsibilities.
ii.
A woman worker shall not lose the benefits regarding her status, seniority, and access to promotion which may attach to her regular night work position.
Pregnant women and nursing mothers may he allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the ease of pregnant employees, the period of the pregnancy that they can safely work. The measures referred to in this article may include transfer to day work where this is possible, the provision of social security benefits or an extension of maternity leave. The provisions of this article shall not have the effect of reducing the protection and benefits connected with maternity leave under existing laws. Art. 159. Compensation. — The compensation for night workers in the form of working time, pay or similar benefits shall recognize the exceptional nature of night work. Art. 160. Social Services.—Appropriate social services shall be provided for night workers and, where necessary, for workers performing night work. Art. 161. Night Work Schedules. — Before introducing work schedules requiring the services of night workers, the employer shall consult the workers’ representatives/labor organizations concerned on the details of such schedules and the forms of organization of night work that are best adapted to the establishment and its personnel, as well as on the occupational health measures and social services which are required. In establishments employing night workers, consultation shall take place regularly.
IMPLEMENTING RULES AND REGULATIONS OF RA 10151 (DOLE Department Order No. 119-12, Series of 2012, January 20, 2012) Rule XV EMPLOYMENT OF NIGHT WORKERS Section 1. Coverage. – This Rule shall apply to all persons who shall be employed or permitted or suffered to work at night, except those employed in agriculture, stock raising, fishing, maritime transport and inland navigation. Section 2. Definition. – As used herein, “night worker” means any employed person whose work covers the period from 10 o’clock in the evening to 6 o’clock the following morning provided that the worker performs no less than seven (7) consecutive hours of work. Section 3. Health assessment. – At their request, workers shall have the right to undergo a health assessment without charge and to receive advice on how to reduce or avoid health problems associated with their work: (a)
Before taking up an assignment as a night worker;
(b)
At regular intervals during such an assignment;
(c)
If they experience health problems during such an assignment.
With the exception of a finding of unfitness for night work, the findings of such assessments shall be confidential and shall not be used to their detriment, subject however to applicable company policies. Section 4. Mandatory facilities. – Mandatory facilities shall be made available for workers performing night work which include the following: (a)
Suitable first-aid and emergency facilities as provided for under Rule 1960 (Occupational Health Services) of the Occupational Safety and Health Standards (OSHS);
(b)
Lactation station in required companies pursuant to RA 10028
(c)
Separate toilet facilities for men and women;
(d)
Facility for eating with potable drinking water; and
(e)
Facilities for transportation and/or properly ventilated temporary sleeping or resting quarters, separate for male and female works, shall be provided except where any of the following circumstances is present: i.
Where there is an existing company guideline, practice or policy, CBA or any similar agreement between management and workers providing for an equivalent or superior benefit; or
ii.
Where the start or end of the night work does not fall within 12 midnight to 5 o’clock in the morning; or
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Societas Spectra Legis Labor Standards Compilation iii.
Where the workplace is located in an area that is accessible twenty-four (24) hours to public transportation;
iv.
Where the number of employees does not exceed a specified number as may be provided for by the SOLE in subsequent issuances.
Section 5. Transfer. – Night workers who are certified by competent physician, as unfit to render night work, due to health reasons, shall be transferred to a job for which they are fit to work whenever practicable. The transfer of the employee must be to a similar or equivalent position and in good faith. If such transfer is not practicable or the workers are unable to render night work for a continuous period of not less than six (6) months upon the certification of a competent public health authority, these workers shall be granted the same company benefits as other workers who are unable to work due to illness. A night worker certified as temporarily unfit for night work for a period of less than six (6) months shall be given the same protection against dismissal or notice of dismissal as other workers who are prevented from working for health reasons. Section 9. Compensation. – The night workers’ compensation shall include but not limited to working time, pay and benefits under the Labor Code, as amended and under existing laws, such as service incentive leave, rest day, night differential pay, 13th month pay, and other benefits as provided for by law, company policy or CBA. Section 10. Night work schedules. – The employer shall at its own initiative, consult the recognized workers’ representatives or union in the establishment on the details of the night work schedules. In establishments employing night works, consultation shall take place regularly and appropriate changes of work schedule shall be agreed upon before it is implemented. Section 11. Penalties. – Any violation of this Rule shall be punishable with a fine of not less than Thirty Thousand Pesos (P30,000.00) nor more than Fifty Thousand Pesos (P50,000.00) or imprisonment of not less than six (6) months or both, at the discretion of the court. If the offense is committed by a corporation, trust, firm, partnership or association or other entity, the penalty shall be imposed upon the guilty officer or officers of such corporation, trust, firm, partnership or association, or entity.
WOMEN NIGHT WORKERS GUIDELINES ON THE IMPLEMENTATION OF FLEXIBLE WORK ARRANGEMENTS AND THE EXEMPTION FROM THE NIGHTWORK PROHIBITION FOR WOMEN EMPLOYEES IN THE BUSINESS PROCESS OUTSOURCING INDUSTRY EXEMPTION FROM THE NIGHTWORK PROHIBITON FOR WOMEN EMPLOYEES UNDER ARTICLE 130 OF THE LABOR CODE, AS AMENDED Women employees may be allowed to work during nighttime in accordance with A131 of the LC, subject to the limitation that the female employees should not be below 18 years of age. Employers are likewise required, among others, to provide safe and healthful working conditions, and adequate/reasonable facilities such as sleeping/resting quarters in the establishment. Pregnant women and nursing mothers may be allowed to work at night only if a competent physician, other than the company physician, shall certify their fitness to render night work, and specify, in the case of pregnant employees, the period of pregnancy that they can safely work. Any deviation from the limitations stated above and those provided for under the LC and Dept Circular No. 1, Series of 2008 shall be a ground for revocation of the exemption granted herein.
EMPLOYMENT OF NURSING EMPLOYEES EXPANDED BREASTFEEDING PROMOTION ACT OF 2009 (RA 10028) Sec. 2. Declaration of Policy. - The State adopts rooming-in as a national policy to encourage, protect and support the practice of breastfeeding. It shall create an environment where basic physical, emotional, and psychological needs of mothers and infants are fulfilled through the practice of roomingin and breastfeeding. The State shall likewise 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. This is consistent with international treaties and conventions to which the Philippines is a signatory such as the Convention on the Elimination of Discrimination Against Women (CEDAW), which emphasizes provision of necessary supporting social services to enable parents to combine family obligations with work responsibilities; the Beijing Platform for Action and Strategic Objective, which promotes harmonization of work and family responsibilities for women and men; and the Convention on the Rights of the Child, which recognizes a child's inherent right to life and the State's obligations to ensure the child's survival and development.
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Societas Spectra Legis Labor Standards Compilation Breastfeeding has distinct advantages which benefit the infant and the mother, including the hospital and the country that adopt its practice. It is the first preventive health measure that can be given to the child at birth. It also enhances mother-infant relationship. Furthermore, the practice of breastfeeding could save the country valuable foreign exchange that may otherwise be used for milk importation. Breastmilk is the best food since it contains essential nutrients completely suitable for the infant's needs. It is also nature's first immunization, enabling the infant to fight potential serious infection. It contains growth factors that enhance the maturation of an infant's organ systems. Towards this end, the State shall promote and encourage breastfeeding and provide the specific measures that would present opportunities for mothers to continue expressing their milk and/or breastfeeding their infant or young child.
Sec. 3. Definition of Terms. - For purposes of this Act, the following definitions are adopted: a)
Age of gestation - the length of time the fetus is inside the mother's womb.
b)
Bottlefeeding - the method of feeding an infant using a bottle with artificial nipples, the contents of which can be any type of fluid.
c)
Breastfeeding - the method of feeding an infant directly from the human breast.
d)
Breastmilk - the human milk from a mother.
e)
Breastmilk substitute - any food being marketed or otherwise represented as partial or total replacement of breastmilk whether or not suitable for that purpose.
f)
Donor milk - the human milk from a non-biological mother.
g)
Expressed breastmilk - the human milk which has been extracted from the breast by hand or by breast pump. It can be fed to an infant using a dropper, a nasogastric tube, a cup and spoon, or a bottle.
h)
Expressing milk - the act of extracting human milk from the breast by hand or by pump into a container.
i)
Formula feeding - the feeding of a newborn with infant formula usually by bottle feeding. It is also called artificial feeding.
j)
Health institutions - are hospitals, health infirmaries, health centers, lying-in centers, or puericulture centers with obstetrical and pediatric services.
k)
Health personnel - are professionals and workers who manage and/or administer the entire operations of health institutions and/or who are involved in providing maternal and child health services.
l)
Health workers - all persons who are engaged in health and health-related work, and all persons employed in all hospitals, sanitaria, health infirmaries, health centers, rural health units, barangay health stations, clinics and other health-related establishments, whether government or private, and shall include medical, allied health professional, administrative and support personnel employed regardless of their employment status.
m)
Infant - a child within zero (0) to twelve (12) months of age.
n)
Infant formula - the breastmilk substitute formulated industrially in accordance with applicable Codex Alimentarius standards, to satisfy the normal nutritional requirements of infants up to six (6) months of age, and adopted to their physiological characteristics.
o)
Lactation management - the general care of a mother-infant nursing couple during the mother's prenatal, immediate postpartum and postnatal periods. It deals with educating and providing knowledge and information to pregnant and lactating mothers on the advantages of breastfeeding, the risks associated with breastmilk substitutes and milk products not suitable as breastmilk substitutes such as, but not limited to, condensed milk and evaporated milk, the monitoring of breastfeeding mothers by health workers and breastfeeding peer counselors for service patients to ensure compliance with the Department of Health, World Health Organization (WHO) and the United Nations Children's Fund (UNICEF) on the implementation of breastfeeding policies, the physiology of lactation, the establishment and maintenance of lactation, the proper care of the breasts and nipples, and such other matters that would contribute to successful breastfeeding.
p)
Lactation stations - private, clean, sanitary, and well-ventilated rooms or areas in the workplace or public places where nursing mothers can wash up, breastfeed or express their milk comfortably and store this afterward.
q)
Low birth weight infant - a newborn weighing less than two thousand five hundred (2,500) grams at birth.
r)
Nursing employee - any female worker, regardless of employment status, who is breastfeeding her infant and/or young child.
s)
Mother's milk - the breastmilk from the newborn's own mother.
t)
Non-health facilities, establishment or institution - public places and working places, as defined in subparagraphs (u) and (y), respectively.
u)
Public place - enclosed or confined areas such as schools, public transportation terminals, shopping malls, and the like.
v)
Rooming-in - the practice of placing the newborn in the same room as the mother right after delivery up to discharge to facilitate motherinfant bonding and to initiate breastfeeding. The infant may either share the mother's bed or be placed in a crib beside the mother.
w)
Seriously ill mothers - are those who are: with severe infections; in shock, in severe cardiac or respiratory distress; or dying; or those with other conditions that may be determined by the attending physician as serious.
x)
Wet-nursing - the feeding of a newborn from another mother's breast when his/her own mother cannot breastfeed.
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Societas Spectra Legis Labor Standards Compilation y)
Workplace - work premises, whether private enterprises or government agencies, including their subdivisions, instrumentalities and government-owned and -controlled corporations.
z)
Young child - a child from the age of twelve (12) months and one (1) day up to thirty-six (36) months.
Sec. 4. Applicability. - The provisions in this Chapter shall apply to all private enterprises as well as government agencies, including their subdivisions and instrumentalities, and government-owned and -controlled corporations. Upon application to, and determination by, the Secretary of the Department of Labor and Employment for the private sector, and the Chairperson of the Civil Service Commission for the public sector, all health and non-health facilities, establishments and institutions may be exempted for a renewable period of two (2) years from Section 6 of this Act where the establishment of lactation stations is not feasible or necessary due to the peculiar circumstances of the workplace or public place taking into consideration, among others, number of women employees, physical size of the establishment, and the average number of women who visit. All health and non-health facilities, establishments or institutions which are exempted in complying with the provisions of this Act but nevertheless opted to comply are entitled to the benefits herein stated: Provided, That they give their employees the privilege of using the same.
Sec. 10. Provision of Facilities for Breastmilk Collection and Storage for Health Institutions. - The health institution adopting rooming-in and breastfeeding shall provide equipment, facilities, and supplies for breastmilk collection, storage and utilization, the standards of which shall be defined by the Department of Health. Health institutions are likewise encouraged to set up milk banks for storage of breastmilk donated by mothers and which have undergone pasteurization. The stored breastmilk will primarily be given to children in the neonatal intensive care unit whose own mothers are seriously ill.
Sec. 11. Establishment of Lactation Stations. - It is hereby mandated that all health and non-health facilities, establishments or institutions shall establish lactation stations. The lactation stations shall be adequately provided with the necessary equipment and facilities, such as: lavatory for handwashing, unless there is an easily-accessible lavatory nearby; refrigeration or appropriate cooling facilities for storing expressed breastmilk; electrical outlets for breast pumps; a small table; comfortable seats; and other items, the standards of which shall be defined by the Department of Health. The lactation station shall not be located in the toilet. In addition, all health and non-health facilities, establishments or institutions shall take strict measures to prevent any direct or indirect form of promotion, marketing, and/or sales of infant formula and/or breastmilk substitutes within the lactation stations, or in any event or circumstances which may be conducive to the same. Apart from the said minimum requirements, all health and non-health facilities, establishments or institutions may provide other suitable facilities or services within the lactation station, all of which, upon due substantiation, shall be considered eligible for purposes of Section 14 of this Act.
Sec. 18. Department of Health Certification. - Any health and non-health facility, establishment or institution satisfying the requirements of Sections 6 and 7 herein relative to a proper lactation station may apply with the local Department of Health office for a 'working mother-baby friendly' certification. The Department of Health shall promulgate guidelines to determine eligibility for such certification, which shall include an annual Department of Health inspection to confirm the continued compliance with its standards. The Department of Health shall maintain a list of 'mother-baby-friendly' establishments, which it shall make available to the public.
Sec. 19. Incentives. - The expenses incurred by a private health and non-health facility, establishment or institution, in complying with the provisions of this Act, shall be deductible expenses for income tax purposes up to twice the actual amount incurred: Provided, That the deduction shall apply for the taxable period when the expenses were incurred: Provided, further, That all health and non-health facilities, establishments and institutions shall comply with the provisions of this Act within six (6) months after its approval: Provided, finally, That such facilities, establishments or institutions shall secure a "Working Mother-Baby-Friendly Certificate" from the Department of Health to be filed with the Bureau of Internal Revenue, before they can avail of the incentive. Government facilities, establishments or institutions shall receive an additional appropriation equivalent to the savings they may derive as a result of complying with the provisions of this Act. The additional appropriation shall be included in their budget for the next fiscal year.
Sec. 20. Implementing Agency. - The Department of Health shall be principally responsible for the implementation and enforcement of the provisions of this Act.
Sec. 21. Sanctions. - Any private non-health facility, establishment and institution which unjustifiably refuses or fails to comply with Sections 6 and 7 of this Act shall be imposed a fine of not less than Fifty thousand pesos (Php50,000.00) but not more than Two hundred thousand pesos (Php200,000.00) on the first offense. On the second offense, a fine of not less than Two hundred thousand pesos (Php200,000.00) but not more than Five hundred thousand pesos (Php500,000.00).
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Societas Spectra Legis Labor Standards Compilation On the third offense, a fine of not less than Five hundred thousand pesos (Php500,000.00) but not more than One million pesos (Php1,000,000.00) and the cancellation or revocation of the business permits or licenses to operate. In all cases, the fine imposed should take into consideration, among others, number of women employees, physical size of the establishment, and the average number of women who visit. In addition, the Secretary of Health is hereby empowered to impose sanctions on health institution for the violation of this Act and the rules issued thereunder. Such sanctions may be in the form of reprimand or censure and in case of repeated willful violations, suspension of the permit to operate of the erring health institution. Heads, officials and employees of government health and non-health facilities, establishments and institutions who violate this Act shall further be subject to the following administrative penalties: First offense - Reprimand; Second offense - Suspension for one (1) to thirty (30) days; and Third offense - Dismissal. This shall be without prejudice to other liabilities applicable under civil service law and rules.
EMPLOYMENT OF CHILDREN LABOR CODE PROVISIONS ART. 139. Minimum employable age. – (a) No child below fifteen (15) years of age shall be employed, except when he works directly under the sole responsibility of his parents or guardian, and his employment does not in any way interfere with his schooling. (b)
Any person between fifteen (15) and eighteen (18) years of age may be employed for such number of hours and such periods of the day as determined by the Secretary of Labor and Employment in appropriate regulations.
(c)
The foregoing provisions shall in no case allow the employment of a person below eighteen (18) years of age in an undertaking which is hazardous or deleterious in nature as determined by the Secretary of Labor and Employment.
ART. 140. Prohibition against child discrimination. – No employer shall discriminate against any person in respect to terms and conditions of employment on account of his age.
SPECIAL LAWS REPUBLIC ACT NO. 9231: THE ELIMINATION OF THE WORST FORMS OF CHILD LABOR AND AFFORDING STRONGER PROTECTION FOR THE WORKING CHILD Sec. 12. Employment of Children. — Children below fifteen (15) years of age shall not be employed except: 3)
When a child works directly under the sole responsibility of his/her parents or legal guardian and where only members of his/her family are employed: provided, however, that his/her employment neither endangers his/her life, safety, health, and morals, nor impairs his/her normal development: provided, further, that the parent or legal guardian shall provide the said child with the prescribed primary and/or secondary education; or
4)
Where a child's employment or participation in public entertainment or information through cinema, theater, radio, television or other forms of media is essential: provided, that the employment contract is concluded by the child's parents or legal guardian, with the express agreement of the child concerned, if possible, and the approval of the Department of Labor and Employment: provided, further, that the following requirements in all instances are strictly complied with: (a)
The employer shall ensure the protection, health, safety, morals and normal development of the child;
(b)
The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration, and the duration and arrangement of working time; and
(c)
The employer shall formulate and implement, subject to the approval and supervision of competent authorities, a continuing program for training and skills acquisition of the child.
In the above-exceptional cases where any such child may be employed, the employer shall first secure, before engaging such child, a work permit from the Department of Labor and Employment which shall ensure observance of the above requirements. For purposes of this Article, the term "child" shall apply to all persons under eighteen (18) years of age.
Sec. 12-A. Hours of Work of a Working Child. — Under the exceptions provided in Sec. 12 of this Act, as amended:
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A child below fifteen (15) years of age may be allowed to work for not more than twenty (20) hours a week: provided, that the work shall not be more than four (4) hours at any given day;
(5)
A child fifteen (15) years of age but below eighteen (18) shall not be allowed to work for more than eight (8) hours a day, and in no case beyond forty (40) hours a week;
(6)
No child below fifteen (15) years of age shall be allowed to work between eight o'clock in the evening and six o'clock in the morning of the following day and no child fifteen (15) years of age but below eighteen (18) shall be allowed to work between ten o'clock in the evening and six o'clock in the morning of the following day.
Sec. 12-B. Ownership, Usage and Administration of the Working Child's Income. — The wages, salaries, earnings and other income of the working child shall belong to him/her in ownership and shall be set aside primarily for his/her support, education or skills acquisition and secondarily to the collective needs of the family: provided, that not more than twenty percent (20%) of the child's income may be used for the collective needs of the family. The income of the working child and/or the property acquired through the work of the child shall be administered by both parents. In the absence or incapacity of either of the parents, the other parent shall administer the same. In case both parents are absent or incapacitated, the order of preference on parental authority as provided for under the Family Code shall apply.
Sec. 12-C. Trust Fund to Preserve Part of the Working Child's Income. — The parent or legal guardian of a working child below eighteen (18) years of age shall set up a trust fund for at least thirty percent (30%) of the earnings of the child whose wages and salaries from work and other income amount to at least two hundred thousand pesos (P200,000.00) annually, for which he/she shall render a semi-annual accounting of the fund to the Department of Labor and Employment, in compliance with the provisions of this Act. The child shall have full control over the trust fund upon reaching the age of majority.
Sec. 12-D. Prohibition Against Worst Forms of Child Labor. — No child shall be engaged in the worst forms of child labor. The phrase "worst forms of child labor" shall refer to any of the following: (5)
All forms of slavery, as defined under the "Anti-trafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or
(6)
The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or
(7)
The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or
(8)
Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it: (a)
Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
(b)
Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or
(c)
Is performed underground, underwater or at dangerous heights; or
(d)
Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive power-actuated tools; or
(e)
Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or
(f)
Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels, or vibrations; or
(g)
Is performed under particularly difficult conditions; or
(h)
Exposes the child to biological agents such as bacteria, fungi, viruses, protozoans, nematodes and other parasites; or
(i)
Involves the manufacture or handling of explosives and other pyrotechnic products.
Sec. 14. Prohibition on the Employment of Children in Certain Advertisements. — No child shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography.
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RULES AND REGULATIONS IMPLEMENTING RA 9231, AMENDING R.A. 7610, AS AMENDED (DO NO. 65-04, SERIES OF 2004) SECTION 3. Definition of Terms – As used in these Rules, the term: (a)
“Child” refers to any person under 18 years of age.
(b)
“Child labor” refers to any work or economic activity performed by a child that subjects him/her to any form of exploitation or is harmful to his/her health and safety or physical, mental or psychosocial development.
(c)
“Working Child” refers to any child engaged as follows: i.
when the child is below eighteen (18) years of age, in work or economic activity that is not child labor as defined in the immediately preceding sub-paragraph, and
ii.
when the child below fifteen (15) years of age, (i) in work where he/she is directly under the responsibility of his/her parents or legal guardian and where only members of the child’s family are employed; or (ii)in public entertainment or information. xxxxxx
(h)
“Employer” refers to any person, whether natural or juridical who, whether for valuable consideration or not, directly or indirectly procures, uses, avails itself of, contracts out or otherwise derives benefit from the work or services of a child in any occupation, undertaking, project or activity, whether for profit or not. It includes any person acting in the interest of the employer. xxxxxx
(n)
“Work permit” refers to the permit secured by the employer, parent or guardian from the Department for any child below 15 years of age in any work allowed under Republic Act No. 9231.
(o)
“Hours of work” include (1) all time during which a child is required to be at a prescribed workplace, and (2) all time during which a child is suffered or permitted to work. Rest periods of short duration during working hours shall be counted as hours worked.
(p)
“Workplace” refers to the office, premises or worksite where a child is temporarily or habitually assigned. Where there is no fixed or definite workplace, the term shall include the place where the child actually performs work to render service or to take an assignment, to include households employing children.
(q)
“Public entertainment or information” refers to artistic, literary, and cultural performances for television show, radio program, cinema or film, theater, commercial advertisement, public relations activities or campaigns, print materials, internet, and other media.
(d)
“Forced labor and slavery” refers to the extraction of work or services from any person by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt bondage or deception.
(e)
“Child pornography” refers to any representation of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.
Chapter 2 – Prohibition on the Employment of Children SECTION 4. General Prohibition – Except as otherwise provided in these Rules, no child below 15 years of age shall be employed, permitted or suffered to work, in any public or private establishment. SECTION 5. Prohibition on the Employment of Children in Worst Forms of Child Labor – No child shall be engaged in the worst forms of child labor. The phrase “worst forms of child labor” shall refer to any of the following: (e)
All forms of slavery, as defined under the “Anti-trafficking in Persons Act of 2003”, or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment children for use in armed conflict.
(f)
The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances;
(g)
The use, procuring or offering of a child for illegal or illicit activities, including the production or trafficking of dangerous drugs or volatile substances prohibited under existing laws; or
(h)
Work which, by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children, such that it: i.
Debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; or
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Exposes the child to physical, emotional or sexual abuse, or is found to be highly stressful psychologically or may prejudice morals; or
iii.
Is performed underground, underwater or at dangerous heights; or
iv.
Involves the use of dangerous machinery, equipment and tools such as power-driven or explosive poweractuated tools; or
v.
Exposes the child to physical danger such as, but not limited to the dangerous feats of balancing, physical strength or contortion, or which requires the manual transport of heavy loads; or
vi.
Is performed in an unhealthy environment exposing the child to hazardous working conditions, elements, substances, co-agents or processes involving ionizing, radiation, fire, flammable substances, noxious components and the like, or to extreme temperatures, noise levels or vibrations; or
vii.
Is performed under particularly difficult conditions; or
viii.
Exposes the child to biological agents such as bacteria, fungi, viruses, protozoa, nematodes and other parasites; or
ix.
Involves the manufacture or handling of explosives and other pyrotechnic products.
SECTION 6. Prohibition on the Employment of Children in Certain Advertisements – No child below 18 years of age shall be employed as a model in any advertisement directly or indirectly promoting alcoholic beverages, intoxicating drinks, tobacco and its byproducts, gambling or any form of violence or pornography.
Chapter 3 – Exceptions to the Prohibition SECTION 7. Exceptions and Conditions – The following shall be the only exceptions to the prohibition on the employment of a child below 15 year of age: (c)
When the child works under the sole responsibility of his/her parents or guardian, provided that only members of the child’s family are employed.
(d)
When the child’s employment or participation in public entertainment or information is essential, regardless of the extent of the child’s role.
Such employment shall be strictly under the following conditions: i.
The total number of hours worked shall be in accordance with Section 15 of these Rules;
ii.
The employment does not endanger the child’s life, safety, health and morals, nor impair the child’s normal development;
iii.
The child is provided with at least the mandatory elementary or secondary education; and
iv.
The employer secures a work permit for the child in accordance with Section 8-12 of these Rules.
Chapter 4 – Requirements to Avail of Exception To Employment Prohibition SECTION 8. Work Permit – Except as provided is Section 13, no child below 15 years of age shall be allowed to commence work without a work permit. An employer must first secure a work permit from the Regional Office of the Department having jurisdiction over the workplace of the child. In cases where the work is done in more than one workplace falling under the jurisdiction of more than one Regional Office, the application shall be made with the Regional Office having jurisdiction over the principal office of the employer. However, at least two days prior to the performance of the work, the employer shall inform the Regional Office having jurisdiction over the workplace of the activities to be under taken involving the child.
Chapter 6 – Working Child’s Income SECTION 16. Ownership and Use of the Working Child’s Income – The wages, salaries, earnings and other income of the working child belong to him/her in ownership and shall be set aside primarily for his/her support, education, or skills acquisition and secondarily to the collective needs of the family: Provided, That not more than twenty percent (20%) of the child’s income may be used for the collective needs of the family.
SECTION 22. Grounds for Suspension and Cancellation of Work Permit – The Regional Director shall suspend or cancel the work permit issued to a working child under the following instances: (f)
If there is fraud or misrepresentation in the application for work permit or any of its supporting documents;
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If the terms and conditions set forth in the child’s employment contract and/or employer’s undertaking have been violated;
(h)
If the employer fails to institute measures to ensure the protection, health, safety, morals, and normal development of the child as required in Section 7 (b) ii;
(i)
If the employer fails to formulate and implement a program for the education, training and skills acquisition of the child; or
(j)
If a child has been deprived access to formal, non-formal or alternative learning systems of education.
RA 9208 (ANTI-TRAFFICKING IN PERSONS ACT OF 2003; FORCED LABOR) Forced Labor and Slavery - refer to the extraction of work or services from any person by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt-bondage or deception.
Sec. 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (c)
To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
(d)
To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage
REVISED PENAL CODE Art. 272. Slavery. — The penalty of prision mayor and a fine of not exceeding 10,000 pesos shall be imposed upon anyone who shall purchase, sell, kidnap or detain a human being for the purpose of enslaving him. If the crime be committed for the purpose of assigning the offended party to some immoral traffic, the penalty shall be imposed in its maximum period. Art. 273. Exploitation of child labor. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon anyone who, under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall, against the latter's will, retain him in his service. Art. 274. Services rendered under compulsion in payment of debt. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer. Art. 278. Exploitation of minors. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon:
Any person who shall cause any boy or girl under sixteen years of age to perform any dangerous feat of balancing, physical strength, or contortion;
Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or engaged in a similar calling, shall employ in exhibitions of these kinds children under sixteen years of age who are not his children or descendants;
Any person engaged in any of the callings enumerated in the next paragraph preceding who shall employ any descendant of his under twelve years of age in such dangerous exhibitions;
Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar. If the delivery shall have been made in consideration of any price, compensation, or promise, the penalty shall in every case be imposed in its maximum period. In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority.
Any person who shall induce any child under sixteen years of age to abandon the home of its ascendants, guardians, curators, or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 hereof, or to accompany any habitual vagrant or beggar.
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EMPLOYMENT OF HOUSEHELPER SALIENT FEATURES Q: What are the three distinct features of a househelper? 1. The Employer is the head of the family; 2.
Services are performed in and about employer’s home;
3.
Services are exclusively rendered for the personal comfort and convenience of the employer and members of his family. COVERAGE
LABOR CODE ART. 141. Coverage. – This Chapter shall apply to all persons rendering services in households for compensation. "Domestic or household service" shall mean service in the employer’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employer’s household, including services of family drivers.
EMPLOYMENT CONTRACT/DURATION LABOR CODE ART. 142. Contract of domestic service. – The original contract of domestic service shall not last for more than two (2) years but it may be renewed for such periods as may be agreed upon by the parties. CIVIL CODE Art. 1692. No contract for household service shall last for more than two years. However, such contract may be renewed from year to year.
WAGE RATES LABOR CODE ART. 143. Minimum wage. – (a)
Househelpers shall be paid the following minimum wage rates: (1)
Eight hundred pesos (P800.00) a month for househelpers in Manila, Quezon, Pasay, and Caloocan cities and municipalities of Makati, San Juan, Mandaluyong, Muntinlupa, Navotas, Malabon, Parañaque, Las Piñas, Pasig, Marikina, Valenzuela, Taguig and Pateros in Metro Manila and in highly urbanized cities;
(2)
Six hundred fifty pesos (P650.00) a month for those in other chartered cities and first-class municipalities; and
(3)
Five hundred fifty pesos (P550.00) a month for those in other municipalities.
Provided, That the employers shall review the employment contracts of their househelpers every three (3) years with the end in view of improving the terms and conditions thereof. Provided, further, That those househelpers who are receiving at least One thousand pesos (P1,000.00) shall be covered by the Social Security System (SSS) and be entitled to all the benefits provided thereunder. NOTE: THIS IS EXCLUDING LODGING FOODS, & MEDICAL ATTENDANCE W/C SHALL BE PAID BY THE EMPLOYER. THESE ADDITIONAL BENEFITS CANNOT BE DEDUCTED FROM THE HOUSEHELPER’S WAGES. ART. 144. Minimum cash wage. – The minimum wage rates prescribed under this Chapter shall be the basic cash wages which shall be paid to the househelpers in addition to lodging, food and medical attendance. RA 7655 Sec. 2. Any violation of any provision of this Act shall be punished with an imprisonment of not more than three (3) months or a fine of not more than Two thousand pesos (P2,000.00) or both, at the discretion of the court. CIVIL CODE Art. 1689. Household service shall always be reasonably compensated. Any stipulation that household service is without compensation shall be void. Such compensation shall be in addition to the house helper's lodging, food, and medical attendance.
HOURS OF WORK Art. 1695. House helper shall not be required to work more than ten hours a day. Every house helper shall be allowed four days' vacation each month, with pay. NOTE: THE VACATION LEAVE MAY BE ENJOYED AT ANY DAY BECAUSE THERE IS NO SPECIFIC DAY PROVIDED BY LAW.
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Societas Spectra Legis Labor Standards Compilation Q: ARE HOUSEHELPERS ENTITLED TO SICKLEAVE? A: NO. THERE IS NO SICK LEAVE.
OVERTIME Househelpers are excluded from the coverage of the law on working conditions if they perform such services in the employer’s home which are usually necessary or desirable for the maintenance or the enjoyment thereof, or minister to the personal comfort, convenience or safety of the employer, as well as the members of the employer’s houshould However, house personnel hired by a ranking company official, a foreigner, but paid for by the company itself, to maintain a staff house provided for the official, are not the latter’s domestic helpers but regular employees of the company. Since the rules require that domestic servants must perform their services in the employer’s home, a family cook, who is later assigned to work as a watcher and cleaner of the employer’s business establishment, becomes an industrial worker entitled to receive the wages and benefits flowing from such status. Waiters of a hotel do not fall under the term “domestic servants and persons in the personal service of another,” nor under the terms “farm laborers,” “laborers who prefer to be paid on piece work basis,” and “members of the family of the employer working for him;” therefore, they do not fall within any of the exceptions and their work is within the scope of the Eight-hour Labor Law. (Azucena) Apex Mining Co., Inc vs. NLRC GR. No. 94951, April 22, 1991 The term “househelper” as used herein is synonymous to the term “domestic servant” and shall refer to any person, whether male or female, who renders services in and about the employer’s home and which services are usually necessary or desirable for the maintenance and enjoyment thereof, and ministers exclusively to the personal comfort and enjoyment of the employer’s family. The foregoing definition contemplates such househelper or domestic servant who is employed in the employer’s home to minister exclusively to the personal comfort and enjoyment of the employer’s family. Such definition covers family drivers, domestic servants, laundry women, yayas, gardeners, houseboys and other similar househelps. The definition cannot be interpreted to include househelper or laundry woman working in staffhouses of a company who attends to the needs of the company’s guests and other persons availing of said facilities. By the same token, it cannot be considered to extend to the driver, houseboy, or gardener exclusively working in the company, the staffhouses and its premises. They may not be considered as within the meaning of a “househelper” or “domestic servant” as defined by law. The criterion is the personal comfort and enjoyment of the family of the employer in the home of said employer. While the nature of the work of a househelper, domestic servant or laundry woman in a home or in a company staffhouse may be similar in nature, the difference in their circumstances is that in the former instance they are actually serving the family while in the latter case, whether it is a corporation or a single proprietorship engaged in business or industry or any other agricultural or similar pursuit, service is being rendered in the staffhouses or within the premises of the business of the employer. In such instances, they are employees of the company or employer in the business concerned entitled to the privileges of a regular employee. The mere fact that the househelper or domestic servant is working within the premises of the business of the employer and in relation to or in connection with its business, as in the staff houses for its guests or even for its officers and employers, warrants the conclusion that such househelper or domestic servant is and should be considered as a regular employee of the employer and not as a mere family househelper or domestic servant.
Ultra Villa Food Haus vs. Geniston 309 SCRA 17 We find that private respondent was indeed the personal driver of petitioner, and not an employee of the Ultra Villa Food Haus. There is substantial evidence to support such conclusion, namely: (1) Private respondent's admission during the mandatory conference that he was petitioner's personal driver. (2) Copies of the Ultra Villa Food Haus payroll which do not contain private respondent's name. (3) Affidavits of Ultra Villa Food Haus employees attesting that private respondent was never an employee of said establishment. (4) Petitioner Tio's undisputed allegation that she works as the branch manager of the CFC Corporation whose office is located in Mandaue City. This would support the Labor Arbiter's observation that private respondents' position as driver would be "incongruous" with his functions as a waiter of Ultra Villa Food Haus. (5) The Joint Affidavit of the warehouseman and warehouse checker of the CFC Corporation stating that: Renato Geniston usually drive[s] Mrs. Tio from her residence to the office. Thereafter, Mr. Geniston will wait for Mrs. Tio in her car. Most of the time, Renato Geniston slept in the car of Mrs. Tio and will be awakened only when the latter will leave the office for lunch. Mr. Geniston will again drive Mrs. Tio to the office at around 2:00 o'clock in the afternoon and thereafter the former will again wait for Mrs. Tio at the latter's car until Mrs. Tio will again leave the office to make her rounds at our branch office at the downtown area. In contrast, private respondent has not presented any evidence other than his self-serving allegation to show that he was employed in the Ultra Villa Food Haus. On this issue, therefore, the evidence weighs heavily in petitioner's favor. The Labor Arbiter thus correctly ruled that private respondent was petitioner's personal driver and not an employee of the subject establishment. Accordingly, the terms and conditions of private respondent's employment are governed by Chapter III, Title III, Book III of the Labor Code as well as by the pertinent provisions of the Civil Code. AS SUCH, PETITIONER IS NOT OBLIGED UNDER THE LAW TO GRANT PRIVATE RESPONDENT OVERTIME PAY, HOLIDAY PAY, PREMIUM PAY AND SERVICE INCENTIVE LEAVE. — Chapter III, Title III, Book III, however, is silent on the grant of overtime pay, holiday pay, premium pay and service incentive leave to those engaged in the domestic or household service. Moreover, the specific provisions mandating these benefits are found in Book III, Title I of the Labor Code, and Article 82, which defines the scope of the application of these provisions, expressly excludes domestic helpers from its coverage: Art. 82. Coverage. — The provision of this title shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, managerial employees, field perso nnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. The limitations set out in the above article are echoed in Book III of the Omnibus Rules Implementing the Labor Code. Clearly then, petitioner is not obliged by law to grant private respondent any of these benefits. Employing the same line of analysis, it would seem that private respondent is not entitled to 13th month pay. The Revised Guidelines on the Implementation of the 13th Month Pay Law also excludes employers of household helpers from the coverage of Presidential Decree No. 851, thus: 2.Exempted Employers The following employers are still not covered by P.D. No. 851: xxxx
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Remington Industrial Sales Corp. vs. Castaneda GR. No. 169295-96, November 20, 2006 In the case at bar, the petitioner itself admits in its position paper that respondent worked at the company premises and her duty was to cook and prepare its employees' lunch and merienda. Clearly, the situs, as well as the nature of respondent's work as a cook, who caters not only to the needs of Mr. Tan and his family but also to that of the petitioner's employees, makes her fall squarely within the definition of a regular employee under the doctrine enunciated in the Apex Mining case. That she works within company premises, and that she does not cater exclusively to the personal comfort of Mr. Tan and his family, is reflective of the existence of the petitioner's right of control over her functions, which is the primary indicator of the existence of an employer-employee relationship. Moreover, it is wrong to say that if the work is not directly related to the employer's business, then the person performing such work could not be considered an employee of the latter. The determination of the existence of an employer-employee relationship is defined by law according to the facts of each case, regardless of the nature of the activities involved. Indeed, it would be the height of injustice if we were to hold that despite the fact that respondent was made to cook lunch and merienda for the petitioner's employees, which work ultimately redounded to the benefit of the petitioner corporation, she was merely a domestic worker of the family of Mr. Tan. We note the findings of the NLRC, affirmed by the Court of Appeals, that no less than the company's corporate secretary has certified that respondent is a bonafidecompany employee; she had a fixed schedule and routine of work and was paid a monthly salary of P4,000.00; she served with the company for 15 years starting in 1983, buying and cooking food served to company employees at lunch and merienda, and that this service was a regular feature of employment with the company. Indubitably, the Court of Appeals, as well as the NLRC, correctly held that based on the given circumstances, the respondent is a regular employee of the petitioner.
Co vs. Vargas GR. No. 195167, November 16, 2011 It is clear that petitioner [Lina B. Vargas] is not a househelper or domestic servant of private respondents [Nathaniel Bakeshop and Fernando Co]. The evidence shows that petitioner is working within the premises of the business of private respondent Co and in relation to or in connection with such business. In the Memorandum of Appeal filed by private respondents before the NLRC, the place of business of respondent Co and his residence is located in the same place, Brgy. Juliana, San Fernando, Pampanga. Thus, respondent Co exercised control and supervision over petitioner's functions. Respondent Co's averment that petitioner had the simple task of cleaning the house and cooking at times and was not involved in the business was negated by the fact that petitioner likewise takes the orders of private respondents' customers. Even if petitioner was actually working as domestic servant in private respondent's residence, her act of taking orders, whic h was ratiocinated by the NLRC as not leading to the conclusion that petitioner in fact took the orders, would warrant the conclusion that petitioner should be considered as a regular employee and not as a mere family househelper or domestic servant of respondent Co.
RIGHTS OF A HOUSEHELPER LABOR CODE ART. 145. Assignment to non-household work. – No househelper shall be assigned to work in a commercial, industrial or agricultural enterprise at a wage or salary rate lower than that provided for agricultural or non-agricultural workers as prescribed herein. ART. 146. Opportunity for education. – If the househelper is under the age of eighteen (18) years, the employer shall give him or her an opportunity for at least elementary education. The cost of education shall be part of the househelper’s compensation, unless there is a stipulation to the contrary. ART. 147. Treatment of househelpers. – The employer shall treat the househelper in a just and humane manner. In no case shall physical violence be used upon the househelper. ART. 148. Board, lodging, and medical attendance. – The employer shall furnish the househelper, free of charge, suitable and sanitary living quarters as well as adequate food and medical attendance. NOTE: HOUSEHELPERS HAVE THE RIGHT TO ADEQUATE FOODS, NOT JUST FOODS. THEY MUST ALSO BE TREATED IN JUST & HUMANE MANNER WITHOUT PHYSICAL VIOLENCE.
CIVIL CODE Art. 1690. The head of the family shall furnish, free of charge, to the house helper, suitable and sanitary quarters as well as adequate food and medical attendance. Art. 1691. If the house helper is under the age of eighteen years, the head of the family shall give an opportunity to the house helper for at least elementary education. The cost of such education shall be a part of the house helper's compensation, unless there is a stipulation to the contrary. Art. 1693. The house helper's clothes shall be subject to stipulation. However, any contract for household service shall be void if thereby the house helper cannot afford to acquire suitable clothing. Art. 1694. The head of the family shall treat the house helper in a just and humane manner. In no case shall physical violence be used upon the house helper. Art. 1696. In case of death of the house helper, the head of the family shall bear the funeral expenses if the house helper has no relatives in the place where the head of the family lives, with sufficient means therefor.
TERMINATION OF CONTRACT LABOR CODE
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Societas Spectra Legis Labor Standards Compilation ART. 149. Indemnity for unjust termination of services. – If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity. If the househelper leaves without justifiable reason, he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days. ART. 150. Service of termination notice. – If the duration of the household service is not determined either in stipulation or by the nature of the service, the employer or the househelper may give notice to put an end to the relationship five (5) days before the intended termination of the service. ART. 151. Employment certification. – Upon the severance of the household service relation, the employer shall give the househelper a written statement of the nature and duration of the service and his or her efficiency and conduct as househelper. ART. 152. Employment record. – The employer may keep such records as he may deem necessary to reflect the actual terms and conditions of employment of his househelper, which the latter shall authenticate by signature or thumbmark upon request of the employer. CIVIL CODE Art. 1697. If the period for household service is fixed neither the head of the family nor the house helper may terminate the contract before the expiration of the term, except for a just cause. If the house helper is unjustly dismissed, he shall be paid the compensation already earned plus that for fifteen days by way of indemnity. If the house helper leaves without justifiable reason, he shall forfeit any salary due him and unpaid, for not exceeding fifteen days. Art. 1698. If the duration of the household service is not determined either by stipulation or by the nature of the service, the head of the family or the house helper may give notice to put an end to the service relation, according to the following rules: (1)
If the compensation is paid by the day, notice may be given on any day that the service shall end at the close of the following day;
(2)
If the compensation is paid by the week, notice may be given, at the latest on the first business day of the week, that the service shall be terminated at the end of the seventh day from the beginning of the week;
(3)
If the compensation is paid by the month, notice may be given, at the latest, on the fifth day of the month, that the service shall cease at the end of the month.
Art. 1699. Upon the extinguishment of the service relation, the house helper may demand from the head of the family a written statement on the nature and duration of the service and the efficiency and conduct of the house helper.
EMPLOYMENT IN DELETERIOUS JOBS OF PERSONS BELOW 18 DOLE Department Order No. 04, Series of 1999 HAZARDOUS WORKS AND ACTIVITIES TO PERSONS BELOW 18 SECTION 3. Coverage. – The following work and activities are hereby declared hazardous to persons below 18 years of age without prejudice to Section 14, Article VIII of Republic Act No. 7610; to DOLE Memorandum Circular No. 2, Series of 1998 (Technical Guidelines for Classifying Hazardous and Non-Hazardous Establishments, Workplaces and Work Processes) and to other work and activities that may subsequently be declared as such: 1.
2.
3.
Work which exposes children to physical, psychological or sexual abuse, such as in: lewd shows (stripteasers, burlesque dancers, and the like) cabarets bars (KTV, karaoke bars) dance halls bath houses and massage clinics escort service gambling halls and places Work underground, under water, at dangerous heights or at unguarded heights of two meters and above, or in confined places, such as in: mining deep sea fishing/diving installing and repairing of telephone, telegraph and electrical lines; cable fitters painting buildings window cleaning fruit picking involving climbing Work with dangerous machinery, equipment and tools, or which involves manual handling or transport of heavy loads, such as in: logging construction quarrying operating agricultural machinery in mechanized farming metal work and welding driving or operating havy equipment such as payloaders, backhoes, bulldozers, cranes, pile driving equipment, trailers, road rollers, tractor lifting appliances scaffold winches, hoists, excavators and loading machines operating or setting motor-driven machines such as saws, presses, and wood -working machines operating power-driven tools such as drills and jack hammers stevedoring
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4.
5.
working in airport hangars working in warehouses working in docks Work in unhealthy environment which may expose children to hazardous processes, to temperatures, noise levels or vibrations damaging to their health, to toxic, corrosive, poisonous, noxious, explosive, flammable and combustible substances or composites, to harmful biological agents, or to other dangerous chemicals including pharmaceuticals, such as in: manufacture or handling of pyrotechnics tanning pesticide spraying blacksmithing, hammersmiths, forging extracting lard and oil tiling and greasing of heavy machinery fiber and plastic preparing bleaching, dyeing, and finishing of textiles using chemicals embalming and as undertakers painting and as finishers in metal craft industries applying of adhesive/solvent in footwear, handicraft, and woodwork industries brewing and distilling of alcoholic beverages recycling of batteries and containers or materials used or contaminated with chemicals working in abattoirs or slaughterhouses garbage collecting handling of animal manure in poultry houses or as fertilizers (compost and other decaying matter included) in farming working in hospitals or other health care facilities assisting in laboratories and x-ray work welding working in furnaces and kilns working in discotheques working in video arcades Work under particularly difficult conditions such as work for long hours or during the night, or work where the child is unreasonably confined to the premises of the employer.
SECTION 4. Applicability of this Guideline to Domestic or Household Service. – Persons between 15 and 18 years of age may be allowed to engage in domestic or household service, subject in all cases to the limitations prescribed in Nos. 1 to 5 of Section 3 herein.
REVIEW QUESTIONS Q: DO HOUSEHELPERS HAVE THE RIGHT TO EDUCATION? A: NO, THEY ONLY HAVE THE RIGHT TO THE OPPORTUNITY TO ELEMENTARY EDUCATION TO THOSE BELOW 18 Y/O. Q: IF A HOUSEHELPER REACHES THE AGE OF 62 AND HE IS EARNING 1OOO A MONTH, IS HIS EMPLOYER REQUIRED TO REPORT TO THE SSS FOR COVERAGE? A: NO. HE WILL NOT BE COVERED WITH SSS BECAUSE SSS COVERAGE APPLIES ONLY TO THOSE BELOW 60 Y/O. Q: IF A HOUSEHELPER REACHES THE RETIREMENT AGE, IS HE ENTITLED TO RETIREMENT BENEFITS? A: YES, BECAUSE THEY ARE NOT EXCLUDED IN ART 82. IN CASE OF DEATH OF THE HOUSHELPER, WHO BEARS THE EXPENSES FOR THE FUNERAL? A: THE EMPLOYER BEARS THE EXPENSES OF THE FUNERAL IF THE HOUSEHELPER HAS NO RELATIVES WITHIN THE PLACE. HOWEVER, IF THERE ARE RELATIVES, THEY WILL BEAR THE EXPENSES OF FUNERAL. Q: IF THE HOUSEHELPER RESIGNS, DOES SHE HAVE THE RIGHT TO CERTIFICATE OF EMPLOYMENT? A: YES.
EMPLOYMENT OF HOMEWORKERS Q: ARE HOUSEHELPERS THE SAME AS HOMEWORKERS? A: NO. A HOUSEHELPER WORKS AT ER’S HOME WHILE HOMEWORKERS WORK AT EE’S HOME; HOMEWORKER IS ENGAGED IN INDUSTRIAL WORK, THE MATERIALS ARE GIVEN BY THE ER WHILE HOUSEHELPER RENDERS SERVICES PERSONALLY IN THE HOUSE OF THE ER.
LABOR CODE Art. 153. Regulation of industrial homeworkers. The employment of industrial homeworkers and field personnel shall be regulated by the government through the appropriate regulations issued by the Secretary of Labor and Employment to ensure the general welfare and protection of homeworkers and field personnel and the industries employing them.
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Societas Spectra Legis Labor Standards Compilation Art. 154. Regulations of Secretary of Labor. The regulations or orders to be issued pursuant to this Chapter shall be designed to assure the minimum terms and conditions of employment applicable to the industrial homeworkers or field personnel involved. Art. 155. Distribution of homework. For purposes of this Chapter, the "employer" of homeworkers includes any person, natural or artificial who, for his account or benefit, or on behalf of any person residing outside the country, directly or indirectly, or through an employee, agent contractor, subcontractor or any other person: (1)
Delivers, or causes to be delivered, any goods, articles or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his directions; or
(2)
Sells any goods, articles or materials to be processed or fabricated in or about a home and then rebuys them after such processing or fabrication, either by himself or through some other person.
Art. 98. Exemption of Minimum Wage. This Title shall not apply to farm tenancy or leasehold, domestic service and persons working in their respective homes in needle work or in any cottage industry duly registered in accordance with law.
DO. NO. 5 SERIES 1992 (REGULATIONS ON EMPLOYMENT OF HOMEWORKERS) DO. No. 5 dated Feb. 4, 1992 has replaced Rule XIV of the Rules Implementing Book III of the Code. The new Rule XIV, among other things, authorizes the formation and registration of labor organization of industrial homeworkers. (a)
Industrial Homewok – is a system of production under which work or an employer or contractor is carried out by a homeworker at his/her home. Materials may or may not be furnished by the employer or contractor. It differs from regular factory production principally in that, it is a decentralization form of production where there is ordinary very little supervision or regulation of methods of work.
(b)
Industrial Homeworker – means a worker who is engage in industrial homework.
(c)
Home means any room, house, apartment or other premises used regularly, in whole or in part, as dwelling place, except those situated within the premises or compound of an employer, contractor or subcontractor and the work performed therein is under the active or personal supervision by or for the latter.
(d)
Employer means any natural or artificial person who, for his own account or benefit, or on behalf of any person residing outside the Philippines, directly or indirectly, or through any employee, agent, contractor, subcontractor or any other person: (1)
Delivers or causes to be delivered any goods, articles, or materials to be processed or fabricated in or about a home and thereafter to be returned or to be disposed of or distributed in accordance with his discretion; or
(2)
Sells any goods, articles or materials for the purpose of having such goods or articles processed in or about a home and then repurchases them himself or through another after such processing. xxxxxxx
(f)
Processing means manufacturing, fabricating, finishing, repairing, altering, packing, wrapping or handling in any way connected with the production or preparation of an article or material.
SECTION 3. Self-Organization. – Homeworkers shall have the right to form, join or assist organizations of their own choosing, in accordance with law. SECTION 6. Payment for homework. – Immediately upon receipt of the finished goods or articles, the employer shall pay the homeworker or the contractor or subcontractor, as the case may be, for the work performed less corresponding homeworker’s share of SSS, MEDICARE and ECC premium contributions which shall be remitted by the contractor/subcontractor or employer to the SSS with the employer’s share. However, where payment is made to a contractor or subcontractor, the homeworker shall likewise be paid immediately after the goods or articles have been collected from the workers. SECTION 7. Standard rates. – At the initiative of the Department or upon petition of any interested party, the Secretary of Labor and Employment or his authorized representative shall establish the standard output rate or standard minimum rate in appropriate orders for the particular work or processing to be performed by the homeworkers. The standard output rates or piece rates shall be determined through any of the following procedures: (a)
Time and motion studies;
(b)
An individual/collective agreement between the employer and its workers as approved by the Secretary or his authorized representative;
(c)
Consultation with representatives of employers and workers organizations in a tripartite conference called by the Secretary.
The time and motion studies shall be undertaken by the Regional Office having jurisdiction over the location of the premis/s used regularly by the homeworker/s. However, where the job operation or activity is being likewise performed by regular factory workers at the factory or premises if the employer, the time and motion studies shall be conducted by the Regional Office having jurisdiction over the location of the main undertaking or business of the employer. Piece rates established through time and motion studies conducted at the factory or main undertaking of the employer shall
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Societas Spectra Legis Labor Standards Compilation be applicable to the homeworkers performing the same job activity. The standard piece rate shall be issued by the Regional Office within one month after a request has been made at said office. Upon request of the Regional Office, the Bureau of Working Conditions shall provide assistance in the conduct of such studies. Non-compliance with the established standard rates can be the subject of complaint which shall be filed at the Regional Office. SECTION 8. Deductions. – No employer, contractor, or subcontractor shall make any deduction from the homeworker’s earnings for the value of materials which have been lost, destroyed, soiled or otherwise damaged unless the following conditions are met: (a)
The homeworker concerned is clearly shown to be responsible for the loss or damage;
(b)
The homeworker is given reasonable opportunity to show cause why deductions should not be made;
(c)
The amount of such deduction is fair and reasonable and shall not exceed the actual loss or damage; and
(d)
The deduction is made at such rate that the amount deducted does not exceed 20% of the homeworker’s earnings in a week.
SECTION 9. Conditions for payment of work. – (a)
The employer may require the homeworker to redo the work which has been improperly executed without having to pay the stipulated rate again.
(b)
An employer, contractor, or subcontractor need not pay the homeworker for any work which has been done on goods and articles which have been returned for reasons attributable to the fault of the homeworker.
SECTION 10. Enforcement Power. – The Regional Director shall have the power to order and administer compliance with the provisions of the law and regulations affecting the terms and conditions of employment of homeworkers and shall have the jurisdiction in cases involving violations of this Rule. Complaints for violations of labor standards and the terms and conditions of employment involving money claims of homeworkers in an amount of not more than P5,000 per homeworker shall be heard and decided by the Regional Director. He shall have the power to order and administer; after due notice and hearing, compliance with the provisions of this Rule. In cases where the findings of the Regional Office show that the money claims due a homeworker exceed P5,000, the same shall be endorsed to the appropriate Regional Arbitration Branch of the National Labor Relations Commission. Non-compliance with the order issued by the Regional Director can be the subject of prosecution in accordance with the penal provisions of the Labor Code. In cases of disagreement between the homeworker and the employer, contractor, or subcontractor on a matter falling under this Rule, either party may refer the case to the Regional Office having jurisdiction over the workplace of the homeworker. The Regional Office shall decide the case within ten (10) working days from receipt of the case. Its decision shall be final and executor. SECTION 11. Duties of employer, contractor and subcontractor. – Whenever an employer shall contract with another for the performance of the employer’s work, it shall be the duty of such employer to provide in such contract that the employees or homeworkers of the contractor and the latter’s subcontractor shall be paid in accordance with the provisions of this Rule. In the event that such contractor or subcontractor fails to pay the wages or earnings of his employees or homeworkers as specified in this Rule, such employer shall be jointly and severally liable with the contractor or subcontractor to the workers of the latter, to the extent that such work is performed under such contract, in the same manner as if the employees or homeworkers were directly engaged by the employer. The employer, contractor or subcontractor shall assist the homeworkers in the maintenance of basic safe and healthful working conditions at the homeworkers’ place of work. SECTION 13. Prohibitions for homework. – No homework shall be performed on the following: (1)
Explosives, fireworks and articles of like character;
(2)
Drugs and poisons, and
(3)
Other articles, the processing of which requires exposure to toxic substances.
EMPLOYMENT OF NON-RESIDENT ALIENS LABOR CODE ART. 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 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. For an enterprise registered in preferred areas of investments, said employment permit may be issued upon recommendation of the government agency charged with the supervision of said registered enterprise.
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Societas Spectra Legis Labor Standards Compilation ART. 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. ART. 42. Submission of list. – Any employer employing non-resident foreign nationals on the effective date of this Code shall submit a list of such nationals to the Secretary of Labor within thirty (30) days after such date indicating their names, citizenship, foreign and local addresses, nature of employment and status of stay in the country. The Secretary of Labor shall then determine if they are entitled to an employment permit. ART. 269. Prohibition against aliens; exceptions. – All aliens, natural or juridical, as well as foreign organizations are strictly prohibited from engaging directly or indirectly in all forms of trade union activities without prejudice to normal contacts between Philippine labor unions and recognized international labor centers: Provided, however, That aliens working in the country with valid permits issued by the Department of Labor and Employment, may exercise the right to self-organization and join or assist labor organizations of their own choosing for purposes of collective bargaining: Provided, further, That said aliens are nationals of a country which grants the same or similar rights to Filipino workers. (As amended by Section 29, Republic Act No. 6715, March 21, 1989). Article 270. Regulation of foreign assistance. – No foreign individual, organization or entity may give any donations, grants or other forms of assistance, in cash or in kind, directly or indirectly, to any labor organization, group of workers or any auxiliary thereof, such as cooperatives, credit unions and institutions engaged in research, education or communication, in relation to trade union activities, without prior permission by the Secretary of Labor. "Trade union activities" shall mean: organization, formation and administration of labor organization; negotiation and administration of collective bargaining agreements; all forms of concerted union action; organizing, managing, or assisting union conventions, meetings, rallies, referenda, teach-ins, seminars, conferences and institutes; any form of participation or involvement in representation proceedings, representation elections, consent elections, union elections; and other activities or actions analogous to the foregoing. This prohibition shall equally apply to foreign donations, grants or other forms of assistance, in cash or in kind, given directly or indirectly to any employer or employer’s organization to support any activity or activities affecting trade unions. The Secretary of Labor shall promulgate rules and regulations to regulate and control the giving and receiving of such donations, grants, or other forms of assistance, including the mandatory reporting of the amounts of the donations or grants, the specific recipients thereof, the projects or activities proposed to be supported, and their duration.
EMPLOYMENT OF ALIENS Article 40 requires only non-resident aliens to secure employment permit. Resident aliens are not so required. For immigrants and resident aliens what is required is an Alien Employment Registration Certificate (AERC). Foreigners may not be employed in certain “nationalized” business. 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. Authority to operate a public utility or to develop, exploit, and utilize natural resources can be granted only to Philippine citizens or to corporations or associations at least 60% of the capital of which is owned by such citizens. The same 60% requirement applies to financing companies. Under the Philippine Constitution, Article XVI, Section 11, mass media enterprises can be owned or managed only by Filipinos or by corporations or associations wholly owned or managed by them. The Secretary of Justice has rendered an Opinion, however, that aliens may be employed in entities engaged in nationalized activities: (a) where the Secretary of Justice specifically authorizes the employment of foreign technical personnel; or (b) where the aliens are elected members of the board of directors or governing body of corporations or associations in proportion to their allowable participation in the capital of such entities. Enterprises registered under the Omnibus Investments Code (EO No. 226) may, for a limited period, employ foreign nationals in technical, supervisory, or advisory positions. (Azucena)
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Societas Spectra Legis Labor Standards Compilation REVISED RULES FOR ISSUANCE OF EMPLOYMENT PERMITS TO FOREIGN NATIONALS (DOLE DO No. 97-09, Series of 2009, as amended by DOLE DO No. 120-12, Series of 2012) Section 1. Coverage. – All foreign nationals who intend to engage in gainful employment in the Philippines shall apply for Alien Employment Permit (AEP). Section 2. Exemption. – The following categories of foreign nationals are exempt from securing employment permit: a.
All members of the diplomatic service and foreign government officials accredited by and with reciprocity arrangement with the Philippine government;
b.
Officers and staff of international organizations of which the Philippine government is a member, and their legitimate spouses desiring to work in the Philippines;
c.
Foreign nationals elected as members of the Governing Board who do not occupy any other position, but have only voting rights in the corporation;
d.
All foreign nationals granted exemption by law;
e.
Owners and representatives of foreign principals whose companies are accredited by the Philippine Overseas Employment Administration (POEA), who come to the Philippines for a limited period and solely for the purpose of interviewing Filipino applicants for employment abroad;
f.
Foreign nationals who come to the Philippines to teach, present and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government; provided that the exemption is on a reciprocal basis; and
g.
Permanent resident foreign nationals, probationary or temporary resident visa holder.
Section 3. Procedure in the Processing of Applications for AEP. – a.
All applications for AEP shall be filed and processed at the DOLE Regional Office or Field Office having jurisdiction over the intended place of work. Only applications with the following complete documentary requirements shall be received and acted upon by the Regional Office: 1.
Duly accomplished Application Form;
2.
Photocopy of passport with visa, or Certificate of Recognition for Refugees or Stateless Persons
3.
Contract of Employment/Appointment or Board Secretary’s Certificate of Election; and
4.
Photocopy of Mayor’s Permit to operate business or in case of locators in economic zones, Certification from the PEZA or the Ecozone Authority that the company is located and operating within the ecozone.
b.
In the case of foreign nationals to be assigned in related companies, they may file their application with the Regional Office having jurisdiction over any of the applicant’s intended places of work.
c.
Additional position of the foreign national in the same company or subsequent assignment in related companies during the validity or renewal of the AEP will be subject for publication requirement and payment of publication fee. A change of position or employer shall require an application for new AEP.
Section 4. Fees. – Upon filing of application, the applicant shall pay a fee of P8000 for an AEP with a validity of one year. In case the period of employment is more than 1 year, an additional P3000 shall be charged for every additional year or fraction thereof. In case of renewal, the applicant shall pay a fee of P3000 for each year of validity or fraction thereof. A courier free of P200 shall be charged to the foreign national upon the implementation of the AEP online application system. Any change of information or entries in the AEP shall be subject to payment of P750 for AEP replacement. In case of loss of AEP, request for replacement shall be supported by an Affidavit of Loss. All fees covered by official receipt issued by the Regional Office are non-refundable. Section 5. Publication. – The Regional Office shall publish all applications for new AEP, additional position in the same company or subsequent assignment in related companies within two working days upon receipt of application. Any objection or information against the employment of the foreign national may be filed with the Regional Office within thirty (30) days after publication. Section 6. Processing period. – Applications for new AEP shall be processed and an AEP shall be issued within twenty-four (24) hours after publication and payment of required fees and fines, if there is nay. Applications for renewal of AEP shall be processed within twenty-four (24) hours after receipt. Section 8. Effect of denial/cancellation or recovation of AEP. – A foreign national whose AEP has been denied/cancelled/revoked shall not be allowed to reapply in any of the DOLE Regional Offices, unless said foreign national has provided proof that the ground for denial/cancellation/revocation has been corrected. Section 9. Renewal of AEP – An application for renewal of AEP shall be filed before its expiration. In case of corporate officers, whose election or appointment takes place before expiration of AEP, the application shall be filed not later than fifteen (15) working days after election or appointment or before expiration of the AEP. In case the election or appointment will take place after the expiration of the AEP, the application for renewal shall be filed before the expiration of the AEP, and shall be renewed for one year. In case the foreign national is not re-elected or re-appointed, the AEP shall be automatically revoked.
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Societas Spectra Legis Labor Standards Compilation Within fifteen (15) working days after the date of election or appointment, the foreign national shall submit to the issuing Regional Office the Board Secretary’s Certification of Election or Appointment. Section 10. Denial of application. – An application for AEP may be denied by the Regional Director based on any of the following grounds: a.
Misrepresentation of facts in the application;
b.
Submission of falsified documents;
c.
the foreign national has been convicted of a criminal offense or a fugitive from justice; or
d.
availability of a Filipino who is competent, able and willing to do the job intended for the foreign national
Denial of application for AEP shall cause the forfeiture of the fees paid by the applicant. Section 11. Validity of AEP. – The AEP shall be valid for the position and the company for which it was issued for a period of one year, unless the employment contract, consultancy services, or other modes of engagement provides otherwise, which in no case shall exceed five years. Section 12. Suspension of AEP. – The AEP may be suspended by the issuing Regional Director, based on any of the following grounds, and after due process: a.
The continued stay of the foreign national may result in damage to the interest of the industry or the country;
b.
The employment of the foreign national is suspended by the employer or by order of the Court.
Petitions for suspension of AEP issued shall be resolved within thirty (30) days from receipt thereof. Section 13. Cancellation/revocation of AEP. – The Regional Director may, motu proprio or upon petition, cancel or revoke an AEP after due process, based on any of the following grounds: a.
Non-compliance with any of the requirements or conditions for which the AEP was issued;
b.
Misrepresentation of facts in the application;
c.
Submission of falsified or tampered documents;
d.
Meritorious objection or information against the employment of the foreign national;
e.
The foreign national has been convicted of a criminal offense or a fugitive from justice; or
f.
Employer terminated the employment of the foreign national.
Section 14. Appeal. – Any aggrieved party may file an appeal with the Secretary within ten (10) days after receipt of the copy of denial/suspension/cancellation/revocation order. The decision of the Secretary shall be final and executor unless a motion for reconsideration is filed within ten (10) days after receipt of the decision of the Secretary. No second motion for reconsideration shall be entertained. Section 15. Fines for working without AEP. – The Regional Director shall be impose a fine of Ten Thousand Pesos (P10,000.00) for every year or a fraction thereof on foreign nationals found working without an AEP or with an expired AEP. Newly hired, elected or appointed officers may file application for new AEP without penalty within fifteen (15) working days after signing of contract, election or appointment, or before the start of actual term of office.
RULES GOVERNING THE ISSUANCE OF SPECIAL WORK PERMIT (SWP); PROVISIONAL PERMIT TO WORK (PPW), and PRE-ARRANGED EMPLOYMENT VISA UNDER SECTION 9(G) Section 1. Coverage. – The following provisions and rules on SWP shall apply to non-resident aliens who will be employed in the Philippines for less than six (6) months and who are not performing artists or journalists. The provisions and rules on PPW shall apply to non-resident aliens who intend to work in the country for a period of more than six (6) months but not more than one (1)year. The provisions and rules on the approval and issuance of 9(g) visa shall apply to all non-resident aliens who intend to work as pre-arranged employees in the country and comply with the requisites stated in Section 20(a) of the Philippine Immigration Act, as amended. Section 2. Validity of the Special Work Permit. – The maximum period of validity for a SWP is six (6) months. Qualified applicants shall be granted SWP for an initial validity of three (3)months. Those who intend to work for a longer period shall be given a final extension of another (3) months. Section 3. Who may avail of the Provisional Permit to Work; Validity. – Holders of SWP who intend to work in the country for a longer period than six (6) months shall apply for a PPW with the Bureau of Immigration. Non-holders of SWP who intend to work in the country for a period of more than six months shall likewise apply for a PPW. Applicants for a 9(g) working visa who commence employment while their applications are still pending must secure a PPW. A PPW shall be valid for a maximum period of one (1) year. Section 4. Alien Employment Permit not a requirement for Provisional Permit to Work. – An AEP shall not be required for the issuance of a PPW. In lieu thereof, proof of application for an AEP shall suffice. Section 5. Requirements for the 9(g) working visa. – A working visa application under Section 9(g) of the Philippine Immigration Act shall be accepted upon submission of the minimum requirements, as follows: a)
duly accomplished and notarized general application form showing that applicant has no derogatory record with the Bureau;
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petition or application letter signed by the authorized representative of the petitioning company or entity;
c)
a valid contract of employment and;
d)
AEP together with the documents submitted to DOLE for the issuance thereof. All applications shall be subject to the evaluation and verification of the assigned Legal Officer. Additional documents may be required of the applicant if the need therefor arises.
Section 6. Validity of the 9(g) working visa. – An approved application for a 9(g) working visa shall be Valid for a period of three (3) years or for a period co-terminus with the AEP issued by the DOLE, whichever is shorter.
SPECIAL VISA FOR EMPLOYMENT EO 758 SECTION 1. Special Visa for Employment Generation (SVEG) – The SVEG is a special visa issued to a qualified non-immigrant foreigner who shall actually employ at least ten (10) Filipinos in a lawful and sustainable enterprise, trade, or industry. Qualified foreigners who are granted the SVEG shall be considered special non-immigrants with multiple entry privileges and conditional extended stay, without need of prior departure from the Philippines. The privileges of this Executive Order may extend to the qualified foreigner’s spouse and dependent unmarried child/children below eighteen (18) years of age whether legitimate, illegitimate or adopted. SECTION 2. Who may avail – Non-immigrant foreigners who wish to avail of the SVEG should comply with the following conditions: a.
The foreigner shall actually, directly or exclusively engage in a viable and sustainablecommercial investment/enterprise in the Philippines, exercises/performs management acts or has the authority to hire, promote and dismiss employees;
b.
He evinces a genuine intention to indefinitely remain in the Philippines;
c.
He is not a risk to national security; and
d.
The foreigner’s commercial investment/enterprise must provide actual employment to at least ten (10) Filipinos in accordance with Philippine labor laws and other applicable special laws.
The above mentioned requirements must be continually satisfied by the foreigner for him/her to continue to be a holder of the SVEG.
DOLE Memorandum Circular No. 04, Series of 2009 Procedures in the Issuance of Certificate that the Entity, Firm, Partnership or Corporation where the Applicant Foreigner has Controlling Interest Employs at Least Ten (10) Full-Time/Regular Filipino Workers on a Long Term Basis Pursuant to EO 758 Section 2. Coverage. – All foreign nationals with controlling interests in an entity, firm, partnership or corporation that establishes, expands or rehabilitates a business activity, investment, enterprise or industry who are applying for Special Visa for Employment Generation (SVEG) and employ at least ten (10) full-time/regular Filipino workers on a long-term basis in the Philippines are covered by this Memorandum Circular. Section 3. Filing of request and issuance of Certificate of Employment. – All foreign nationals who are applying for SVEG with the Bureau of Immigration shall file with the nearest DOLE Regional Office, a request for the issuance of a Certificate of Employment. The request shall be supported by a true photocopy of payroll indicating the name, position, duration of employment, nature of appointment of the Filipino workers, or a notarized affidavit, attesting that the entity, firm, partnership or corporation where the applicant foreign national has controlling interest employs at least ten (10) full-time/regular Filipino workers on a long-term basis in the Philippines. Within twenty four (24) hours after receipt of request with the supporting document and if the request is found in order, the Regional Office shall issue the Certificate of Employment (Annex A) or inform the applicant in writing if there is any discrepancy in the documents submitted The Certificate of Employment shall attest that the entity, firm, partnership or corporation where the applicant foreign national has controlling interest employs at least ten (1) full-time/regular Filipino workers on a long-term basis in the Philippines for purposes of the issuance of SVEG. The entity, firm, partnership or corporation shall be subject to inspection by the DOLE Field Office when deemed necessary.
DOJ Memorandum Circular No. RAD-JR-11-007 Revised Implementing Rules and Regulations for EO 758, Prescribing Guidelines for Issuance of Special Visa to Non-Immigrants for Employment Generation Section 2. SVEG, To Whom Issued. – Subject to the restrictions imposed by the Constitution and existing laws, the SVEG shall be issued to a foreign national who shall employ at least ten (10) Filipinos in a lawful and sustainable enterprise, trade or industry in the Philippines. The foreign national shall actually, directly and exclusively engage in a viable and sustainable investment in the Philippines and perform management acts or the authority to hire, promote and dismiss employees therein. The foreign national must show proof that the has substantial investment in an entity, firm, partnership or corporation that establishes, expands or rehabilitates a business activity, investment, enterprise or industry and that said investment enables the initial or additional employment of at least ten (10) Filipino workers on a regular basis, provided that the foreign equity participation is consistent with the Constitution, the Foreign Investment Act and other special laws.
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Societas Spectra Legis Labor Standards Compilation In case said investment is for rehabilitation of business, enterprise or industry, the foreign national must show satisfactory proof that said investment enabled the retention of at least ten (10) Filipino workers or employees on a regular basis, and without said investment, existing Filipino workers or employees would suffer loss of employment. Section 3. Definition of Terms – For purpose of these Rules, the terms hereunder shall be construed as follows: a.
Substantial Investment is an amount of investment which is sufficient to maintain at least ten (10) full-time Filipino workers or employees on a regular basis, taking into consideration the amount of wages or salary and duration of work as reflected in their employment contacts.
b.
Viable and sustainable investment is any business activity, investment, enterprise or industry in the Philippines, not prohibited to foreign nationals by any law, rules and regulations, and which provides employment to at least (10) full-time Filipino workers or employees on a regular basis.
c.
Household workers are those who render services in the foreign national’s home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the household of the foreign national.
d.
Rehabilitation of a business, enterprise or industry is any act by a foreign national of infusing substantial investment that enabled a business, enterprise or industry in financial distress to continue its business activities.
Section 4. Nature of Employment of Filipino Workers. – Under these Rules, the employment of at least ten (10) Filipino workers shall be for managerial, executive, professional, technical, skilled or unskilled positions in a business activity, investment, enterprise or industry in the Philippines, excluding personal employees of the foreign national such as household workers and the like.
OTHER SPECIAL LAWS: SPECIAL ECONOMIC ZONE ACT OF 1995 (RA 7916) RA 7916 SECTION 40. Percentage of Foreign Nationals. - Employment of foreign nationals hired by ECOZONE enterprises in a supervisory, technical or advisory capacity shall not exceed five percent (5%) of its workforce without the express authorization of the Secretary of Labor and Employment.
Implementing Rules and Regulations of RA7916 Rule XVIII - Employment of Foreign Nationals SECTION 1. Entitlement – Pursuant to Section 10 of the Act, ECOZONE Enterprises may employ foreign nationals in executive, supervisory, technical and advisory positions: Provided, That executive positions shall pertain only to the president, vice-president, treasurer and general manager, or their equivalents: Provided, further, That the total number of foreign nationals employed by an ECOZONE Enterprise in supervisory, technical or advisory positions shall not at any time exceed five percent (5%) of its workforce unless expressly authorized by the Secretary of Labor and Employment: Provided, That foreign nationals may be employed in supervisory, technical or advisory positions only if it is certified by the Department of Labor and Employment that no Filipino within the ECOZONE possesses the technical skills required therefor. SECTION 2. Length of Employment – An ECOZONE Enterprise may employ foreign nationals for a period not exceeding five (5) years from its registration, extending within limited periods depending upon the need of the ECOZONE Enterprise as determined by PEZA: Provided, That the ECOZONE Enterprise seeking such extension must have satisfactorily complied with the training program required under this section: Provided, however, That when the majority of the capital stock of an ECOZONE Enterprise is owned by foreign nationals, the positions of president, treasurer and general manager or their equivalents may be retained by foreign nationals. SECTION 3. Training Program and Annual Reports – An ECOZONE Enterprise employing foreign national exercising supervisory, technical or advisory functions shall provide a training program for Filipinos to be conducted by said foreign nationals each in his own specialized line: Provided, That every foreign nationals shall have at least two (2) Filipino understudies and such training shall be done regularly during regular office hours: Provided, further, That the ECOZONE Enterprise shall submit its program for training Filipinos in the functions of the foreign national within thirty (0) calendar days from arrival of said foreign national or from the day he reports for duty, or from the date of registration in case the foreign national was employed before registration: Provided, finally, That the ECOZONE Enterprise shall submit an annual progress report to PEZA on such training program within the month of June each year containing the following data: a.
Name of the foreign national and his field of specialization as prescribed in the program;
b.
Names and address of Filipinos understudies under him;
c.
Number of hours of actual training for each understudy and specific subject(s) d. Reasons why Filipino understudies cannot yet take over the work of the foreign national, if such be the case.
covered;
and
SECTION 4. Spouse and Unmarried Minor Children – The spouse and unmarried children under twenty one (21) years of age of the foreign nationals employed under the provisions of the Act shall be permitted to enter and reside in the Philippines during the period of employment of such foreign national in the ECOZONE Enterprise.
Foreign Investments Act & Discussions There are industries that can be the subject of investment of full equity for foreign nationals. There are certain activities where foreign companies can invest on. Thus, the employer may be foreigner. In other words, there are corporations that are fully owned by
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Societas Spectra Legis Labor Standards Compilation foreigners of which is limited to a certain percentage, like 60-40. Please take note of the constitutional limitations on Foreign investments in the Philippines. If they want to employ an alien to be their employee in the Philippines, the law requires that such domestic or foreign companies should obtain a permit from the DOLE. Here is a company fully owned by foreigners in an area permissible for full ownership by foreign entities. It may hire a person who is not a Filipino as its employee. It may happen that a domestic corporation decides to hire an alien. Example: Hotels that wish to hire chefs. Articles 40-42 of the Labor Code shall govern. Such that the employer must obtain a work permit from the DOLE (nearest regional office that covers the particular place). This work permit is what is called the ALIEN EMPLOYMENT PERMIT (AEP). The process is that the employer (domestic or foreign), before admitting this alien to be its employee, will have to file an application with DOLE for the issuance of AEP, submitting therein certain documents to justify that there is a need for the employment of such alien. Q: Is there any other requirement? A: Yes. There must be 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. Purpose: To protect the Filipinos. The employer has to justify to the DOLE that it needs this person (alien) because he has special expertise in this particular field that no other Filipino in the country is able and competent to discharge. The employer has the burden of proving with the DOLE. Failure to do so warrants the denial of the application for AEP. If the employer employs an alien without complying with the above requirement, then a case may be filed against it for violation of the Labor Code. ILLUSTRATION: Foreigner who wished to be employed in a hotel establishment as a cook or chef. He can enter the Philippines if he has a VISA (as to what kind of VISA, check Philippine Immigration Act of 1940) but usually, it is a 9-G VISA or a PRE-ARRANGED VISA together with such requirement under the Philippine Immigration Act, because different laws provide for different requirements. The BI, according to the labor and employment secretary, issued Memorandum Order-AFFJr. No. 05-009 based on discussions with the DOLE. The memorandum provided for the following: 1. Foreign nationals who will work in the Philippines for a period not exceeding six months shall apply for SWP with the BI. The SWP shall be non-extendible, thus, if there is extension of employment, the foreign national shall apply for an AEP with DOLE not later than 21 working days before expiration of SWP. 2. Foreign nationals who will work for more than six months shall apply for AEP with DOLE. 3. After issuance of AEP, they shall apply for Working Visa with BI.
EMPLOYMENT OF STUDENTS AND WORKING SCHOLAR WORKING SCHOLAR UNDER OMNIBUS RULE Definition Working scholars are students who work for the school in exchange for the privilege to study free of charge provided they are given the reasonable opportunity to finish the course. General Rule SECTION 14. Working scholars. — There is no employer-employee relationship between students on one hand, and schools, colleges or universities on the other, where there is written agreement between them under which the former agree to work for the latter in exchange for the privilege to study free of charge, provided the students are given real opportunities, including such facilities as may be reasonable and necessary to finish their chosen courses under such agreement.
Exception However, for the purposes of torts and damages employer-employee relationship exists.
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Societas Spectra Legis Labor Standards Compilation AN ACT TO HELP POOR BUT DESERVING STUDENTS PURSUE THEIR EDUCATION BY ENCOURAGING THEIR EMPLOYMENT DURING SUMMER AND/OR CHRISTMAS VACATIONS, THROUGH INCENTIVES GRANTED TO EMPLOYERS, ALLOWING THEM TO PAY ONLY SIXTY PER CENTUM OF THEIR SALARIES OR WAGES AND THE FORTY PER CENTUM THROUGH EDUCATION VOUCHERS TO BE PAID BY THE GOVERNMENT, PROHIBITING AND PENALIZING THE FILING OF FRAUDULENT OR FICTITIOUS CLAIMS, AND FOR OTHER PURPOSES. SECTION 1. Any provision of law to the contrary notwithstanding, any person or entity employing at least ten (10) persons may employ poor but deserving students fifteen (15) years of age but not more than twenty-five (25) years old, paying them a salary or wage not lower than the minimum wage for private employers and the applicable hiring rate for the national and local government agencies: Provided, that student enrolled in the secondary level shall only be employed during summer and/or christmas vacations, while those enrolled in the tertiary, vocational or technical education may be employed at any time of the year: Provided, further, That their period of employment shall be from twenty (20) to fifty-two (52) working days only, except that during Christmas vacation, employment shall be from ten (10) to fifteen (15) days which may be counted as part of the students' probationary period should they apply in the same company or agency after graduation: Provided, finally, That students employed in activities related to their course may earn equivalent academic credits as may be determined by the appropriate government agencies. For purposes of this Act, poor but deserving students refer to those whose parents' combined income, together with their own, if any, does not exceed the annual regional poverty threshold level for a family of six (6) for the preceding year as may be determined by the National Economic and Development Authority (NEDA). Employment facilitation services for applicants to the program shall be done by the Public Employment Service Office (PESO). Participating employers in coordination with the PESO, must inform their SPES employees of their rights, benefits, and privileges under existing laws, company policies, and employment contracts. SEC. 2. Sixty per centum (60%) of the said salary or wage shall be paid by the employers in cash and forty per centum (40%) by the government in the form of a voucher which shall be applicable in the payment for the students' tuition fees and books in any educational institution for secondary, tertiary, vocational or technical education: Provided, That local government units (LGUs) may assume responsibility for paying in full his salary or wages. The amount of the education vouchers shall be paid by the government to the educational institutions concerned within thirty (30) days from its presentation to the officer or agency designated by the Secretary of Finance. The vouchers shall not be transferable except when the payees thereof dies or for a justifiable cause stops in his duties, in which case it can be transferred to his brothers or sisters. If there be none, the amount thereof shall be paid his heirs or to the payee himself, as the case may be. SEC. 4. Any persons or entity who refuses to honor education vouchers or makes any fraudulent or fictitious claim under this Act, regardless of whether payment has been made, shall upon conviction be punished with imprisonment of not less than six (6) months and not more than one (1) year and a fine of not less than Ten thousand pesos (P10,000.00), without prejudice to their prosecution and punishment for any other offense punishable under the Revised Penal Code or any other penal statute. In case of partnerships or corporations, the managing partner, general manager, or chief executive officer, as the case may be, shall be criminally liable.
WORK APPRECIATION PROGRAM / YOUTH TRAINEE, STUDENT TRAINEE (EO 139) Sec. 4. Program Components. KABATAAN: 2000 shall have two (2) program components. The President's Youth Work Program (PYWP) and the Weekend Youth Brigades (WYB). 4.1 The President's Youth Work Program (PYWP) - The PYWP is the year-round implementation of the component programs of the President's Summer Youth Work Program (PSWYP). The program shall have eight (8) components, as follows: xxxxxx a.
Work Appreciation Program (WAP) The WAP shall develop the values of work appreciation and ethics among college and high school students by providing them with apprenticeship and actual work opportunities in private establishments. The Program shall involve various private sector groups and employers federations and shall be coordinated by the Department of Labor and Employment (DOLE);
b.
Special Program for Employment of Students (SPES). The objective of SPES is to develop the intellectual capacities of children of poor families and harness their potentials for the country's development. Specifically, the Program aims to help poor but deserving students pursue their education by providing income or augment their income by encouraging their employment during summer and/or Christmas vacations; xxxxxx
REPUBLIC ACT NO. 7686: DUAL TRAINING SYSTEM ACT OF 1994 (b) "Dual training system" refers to an instructional delivery system of technical and vocational education and training that combines in-plant training and in-school training based on a training plan collaboratively designed and implemented by an accredited dual system educational institution/training centre and accredited dual system agricultural, industrial and business establishments with prior notice and advice to the local government unit concerned. Under this system, said establishments and the educational institution share the responsibility of providing the trainee with the best possible job qualifications, the former essentially through practical training and the latter by securing an adequate level of specific, general and occupation-related theoretical instruction. The word "dual" refers to the two parties providing instruction: the concept "system" means that the two instructing parties do not operate independently of one another, but rather coordinate their efforts;
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Societas Spectra Legis Labor Standards Compilation REVIEW QUESTIONS Q: ARE YOU ALSO ENTITLED TO COMPENSATION AS A WORKING SCHOLAR? A: NO. IT IS ONLY THE PRIVILEGE TO STUDY THAT I AM ENTITLED TO. Q: IF YOU WORK FOR THE SCHOOL FROM 8AM - 8PM W/ THE OPPORTUNITY TO FINISH YOUR COURSE IN NURSING AT 5 UNITS PER SEM, ARE YOU A WORKING SCHOLAR? A: NO. I AM A REGULAR WORKER. I CAN SUE MY SCHOOL & CLAIM BENEFITS THAT I AM ENTITLED TO. Q: WHAT TYPE OF ESTABLISHMENTS ARE QUALIFIED TO HIRE UNDER SPECIALPROGRAM FOR EMPLOYMENT OF STUDENTS (SPES)? A: THE ESTABLISHMENT MUST BE EMPLOYING 10 OR MORE WORKERS. Q: WHAT IS THE AGE QUALIFICATION OF A STUDENT TO BE HIRED UNDER THE LAW? A: THE STUDENT MUST NOT BE BELOW 15Y/O NOR MORE THAN 25Y/O. Q: WHO AMONG THE WORKING STUDENTS MAY BE HIRED DURING SUMMER OR XMAS VACATION ONLY? A: SECONDARY STUDENTS. DURING CHRISTMAS THEY ARE ONLY ALLOWED TO WORK FOR 10-15 DAYS. Q: HOW ABOUT THE TERTIARY SUDENTS? A: THEY MAY BE HIRED ANYTIME.
EMPLOYMENT OF ACADEMIC / NON-ACADEMIC PERSONNEL IN PRIVATE EDUCATIONAL INSTITUTION 2010 REVISED MANUAL OF REGULATIONS FOR PRIVATE SCHOOLS IN BASIC EDUCATION (DepEd Order No. 88, Series of 2010) “Academic personnel” includes all school personnel who are formally engaged in actual teaching service or in research assignments, either in full time or part time basis, as well as those who possess certain prescribed academic functions directly supportive of teaching such as registrars, librarians, guidance counselors, researchers and other similar persons. They may include school officials responsible for academic matters and other school officials. “Non-academic personnel” means school personnel usually engaged in administrative functions that are not covered under the definition of academic personnel. They may include school officials.
2008 MANUAL OF REGULATIONS FOR PRIVATE HIGHER EDUCATION (CHED Memorandum Circular No. 40, Series of 2008) “Academic personnel” includes all school personnel who are formally engaged in actual teaching service or in research assignments, either in full time or part time basis. “Academic support personnel” are those who perform certain prescribed academic functions directly supportive of teaching such as registrars, librarians, guidance counselors, researchers and other persons performing similar functions including institution officials responsible for academic matters and affairs. “Non-academic personnel” means the rank-and-file employees of the institution engaged in administrative functions and maintenance of higher education institution. NOTE: In any case, Academic personnel are governed by the Manual of Regulations while Non-academic personnel are governed by the Labor Code.
FULL TIME AND PART TIME TEACHING CHED MO. 40, s. 2008 Section 36. Full-time and Part-time Faculty. – As a general rule, all private higher education institutions shall employ full-time faculty or academic personnel consistent with the levels of instruction. A full-time faculty or academic personnel is one who meets all the following requirements: 1)
Who possesses at least the minimum academic qualifications prescribed under this Manual for all academic personnel;
2)
Who is paid monthly or hourly, based on the regular teaching loads as provided for in the policies, rules and standards of the Commission and the institution;
3)
Who devotes not less than eight (8) hours of work a day to the school;
4)
Who have no other remunerative occupation elsewhere requiring regular hours of work, except when permitted by the higher education institution; and
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Who is not teaching full-time in any other higher education institution.
All faculty or academic personnel who do not meet the foregoing qualifications are considered part-time. Except when permitted by the higher education institution, all faculty or academic personnel who are at the same time holding positions in the government, whether appointive or elective, shall also be considered part-time.
Computation of minimum wage: In recognition of the peculiarities of the teaching profession, existing DECS and school policies and regulations prescribe a regular teaching load, the actual teaching or classroom hours of which a teacher can generally perform in less than eight hours per working day. This is because teaching may also require the teacher to do additional work such as handling an advisory class, preparation of lesson plans and other related activities. Such additional work is referred to as overload work. The said overload work shall be considered PART OF THE BASIC PAY. For further reference please read the Book of ATTY SARMIENTO on Manual of Regulations for Private Schools. Note: It’s thicker than our labor standards book.
EMPLOYMENT OF SENIOR CITIZENS EXPANDED SENIOR CITIZENS ACT OF 2010 (RA 9994) Senior citizen or elderly refers to any resident citizen of the Philippines at least sixty (60) years old; SEC. 5. Government Assistance. - The government shall provide the following: (a)
Employment Senior citizens who have the capacity and desire to work, or be re-employed, shall be provided information and matching services to enable them to be productive members of society. Terms of employment shall conform with the provisions of the Labor Code, as amended, and other laws, rules and regulations. Private entities that will employ senior citizens as employees, upon the effectivity of this Act, shall be entitled to an additional deduction from their gross income, equivalent to fifteen percent (15%) of the total amount paid as salaries and wages to senior citizens, subject to the provision of Section 34 of the NIRC, as amended: Provided, however, That such employment shall continue for a period of at least six (6) months: Provided, further, That the annual income of the senior citizen does not exceed the latest poverty threshold as determined by the National Statistical Coordination Board (NSCB) of the National Economic and Development Authority (NEDA) for that year. The Department of Labor and Employment (DOLE), in coordination with other government agencies such as, but not limited to, the Technology and Livelihood Resource Center (TLRC) and the Department of Trade and Industry (DTI), shall assess, design and implement training programs that will provide skills and welfare or livelihood support for senior citizens.
IMPLEMENTING RULES AND REGULATIONS OF RA 9994 RULE V GOVERNMENT ASSISTANCE Article 13. EMPLOYMENT Section 1. Senior citizens, who have the capacity and desire to work, or to be re-employed, shall be provided by the DOLE, in coordination with other government agencies including local government units, with information and matching services to enable them to be productive members of society. Terms of employment shall conform to the provisions of the Labor Code, as amended, Civil Service Laws and other laws, rules and regulations. Section 2. Private entities that shall employ senior citizens as employees upon effectivity of the Act, shall be entitled to an additional deduction from their gross Income, equivalent to fifteen percent (15%) of the total amount paid as salaries and wages to senior citizens subject to the provision of Section 34 of the National Internal Revenue Code (NIRC), as amended and the Revenue Regulations to be issued by the BIR and approved by the DOF; Provided, however, That such employment shall continue for a period of at least six (6) months; Provided, further, That the net annual income of the senior citizen does not exceed the poverty level for that year as determined by NEDA thru the NSCB. Section 3. The DOLE, in coordination with other government agencies, such as, but not limited to, the DOST-Technology Resource Center (DOST-TRC) and the DTI, shall assess, design and implement training programs that will provide free of charge to senior citizens the appropriate skills development, livelihood training programs, and welfare or livelihood support.
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EMPLOYMENT OF DRIVERS AND CONDUCTORS IN THE PUBLIC UTILITY BUS TRANSPORT INDUSTRY DOLE DO No. 118-12, Series of 2012 Definition of Terms “Public utility bus driver” refers to a professional-licensed driver hired or paid to drive a public utility bus. “Public utility bus conductor” refers to a person hired or paid to serve as conductor in a public utility bus. “Public utility bus operator” refers to a person issued a Certificate of Public Convenience to operate a public utility bus by the Land Transportation Franchising and Regulatory Board. “Fixed and Performance-based Compensation Scheme” refers to compensation scheme for bus drivers and conductors wherein the fixed component shall be based on an amount mutually agreed upon by the owner/operator and the driver/conductor, which shall in no case be lower than the applicable minimum wage. The performance based component shall be based on safety performance, business performance and other related parameters. RULE II TERMS AND CONDITIONS OF EMPLOYMENT SECTION 1. Employment Agreement for Drivers and Conductors. – There shall be an agreement in writing between the public utility bus owner/operator and the public utility bus driver and/or conductor which shall include the following terms: a)
Driver or conductor’s full name, date of birth or age, address, civil status, and SSS ID no.;
b)
Public Utility Bus owner’s/operator’s name and address;
c)
Place where and date when the employment agreement is entered into;
d)
Amount of the driver’s or conductor’s fixed wage and formula used for calculating the performance based compensation in accordance with Rule III;
e)
Hours of work;
f)
Wages and wage-related benefits such as overtime pay, holiday pay, premium pay, 13th month pay and leaves;
g)
Social security and welfare benefits;
h)
Separation or retirement pay; and
i)
Other benefits under existing laws.
The public utility bus owner/operator shall provide the public utility bus driver/conductor the signed and notarized original copy of the agreement. SECTION 3. Hours of Work and Hours of Rest. – The normal hours of work of a driver and conductor shall not exceed eight (8) hours a day. If the driver/conductor is required to work overtime, the maximum hours of work shall not exceed twelve (12) hours in any 24-hour period, subject to the overriding safety and operational conditions of the public utility bus. Drivers and conductors shall be entitled to rest periods of at least one (1) hour, exclusive of meal breaks, within a 12-hour shift.
RULE III COMPENSATION SECTION 1. Fixed and Performance Based Compensation Scheme. – Bus owners and/or operators shall adopt a mutually-agreed upon “part-fixed, partperformance” based compensation scheme for their bus drivers and conductors. SECTION 2. Method of Determining Compensation. – Bus owners and/or operators, in consultation with their drivers and conductors shall determine the following: a)
The fixed component shall be based on an amount mutually agreed upon by the owner/operator and the driver/conductor, which shall take into account minimum ridership requirement and in no case be lower than the applicable minimum wage for work during normal hours/days. They shall also be entitled to wage related benefits such as overtime pay, premium pay, and holiday pay, among others.
b)
The performance-based component shall be based on safety performance and business performance such as ridership, revenues/profitability, and other related parameters.
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MEDICAL, DENTAL AND OCCUPATIONAL SAFETY MEDICAL AND DENTAL SERVICES COVERAGE Art. 156. First-aid treatment Every employer shall keep in his establishment such first-aid medicines, and equipment as the nature and conditions of work may require, in accordance with such regulations as the Department of Labor shall prescribe. The employer shall take steps for the training of a sufficient number of employees in first-aid treatment. SECTION 1. Coverage. — This Rule shall apply to all employers, whether operating for profit or not, including the Government and any of its political subdivisions and government-owned or controlled corporations, which employs in any workplace one or more workers. The development and enforcement of dental standards shall continue to be under the responsibility of the Bureau of Dental Health Services of the Department of Health. DEFINITION OF TERMS SECTION 2. Definitions. — As used in this Rule, the following terms shall have the meanings indicated hereunder unless the context clearly indicates otherwise: (a) "First-aid treatment" means adequate, immediate and necessary medical and dental attention or remedy given in case of injury or sudden illness suffered by a worker during employment, irrespective of whether or not such injury or illness is work-connected, before more extensive medical and/or dental treatment can be secured. It does not include continued treatment or follow-up treatment for an injury or illness. (b)
"Work place" means the office, premises or work site where the workers are habitually employed and shall include the office or place where the workers who have no fixed or definite work site regularly report for assignment in the course of their employment.
(c)
"First-aider" means any person trained and duly certified as qualified to administer first aid by the Philippine National Red Cross or by any other organization accredited by the former.
EMERGENCY MEDICAL AND DENTAL SERVICES Article 157. Emergency medical and dental services. It shall be the duty of every employer to furnish his employees in any locality with free medical and dental attendance and facilities consisting of: The services of a full-time registered nurse when the number of employees exceeds fifty (50) but not more than two hundred (200) except when the employer does not maintain hazardous workplaces, in which case, the services of a graduate first-aider shall be provided for the protection of workers, where no registered nurse is available. The Secretary of Labor and Employment shall provide by appropriate regulations, the services that shall be required where the number of employees does not exceed fifty (50) and shall determine by appropriate order, hazardous workplaces for purposes of this Article; The services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic, when the number of employees exceeds two hundred (200) but not more than three hundred (300); and The services of a full-time physician, dentist and a full-time registered nurse as well as a dental clinic and an infirmary or emergency hospital with one bed capacity for every one hundred (100) employees when the number of employees exceeds three hundred (300). In cases of hazardous workplaces, no employer shall engage the services of a physician or a dentist who cannot stay in the premises of the establishment for at least two (2) hours, in the case of those engaged on part-time basis, and not less than eight (8) hours, in the case of those employed on full-time basis. Where the undertaking is non-hazardous in nature, the physician and dentist may be engaged on retainer basis, subject to such regulations as the Secretary of Labor and Employment may prescribe to insure immediate availability of medical and dental treatment and attendance in case of emergency. (As amended by Presidential Decree NO. 570-A, Section 26)
MEDICAL AND DENTAL SERVICES MATRIX No. of Employees
Nature of Undertaking
1.) From 10 to 50 2.) More than 50 but not more than 200
3.) More than 200 but not more than 300
Requirement
* Hazardous
- a graduate first-aider who may be one of the workers in the workplace and who has immediate access to the first-aid medicines in the workplace (Rule 1, Sec. 4(a), Bk IV, IRR) - Full-time registered nurse
* Non-hazardous
Graduate first-aider, if no registered nurse available
* Hazardous and Non-hazardous
a. Full-time registered nurse b. Part-time physician and part-time dentist. *Hazardous workplace-should stay in the premises for at least two (2) hours. *Non-hazardous workplace = physician and dentist may be engaged on retained basis subject to regulations by the SOLE.(Art. 157, LC) *Additional requirements under the Implementing Rules for Workplaces with more than one workshift a day: - The physician and dentist shall be at the workplace during the workshift which has
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Societas Spectra Legis Labor Standards Compilation the biggest number of workers and shall be subject to call at anytime during the other workshifts to attend to emergency cases. - A full-time first-aider must be provided for each workshift. (Sec. 4, (d) & (e), Bk IV, Rule 1, IRR)
4.)More than 300
* Hazardous and Non-hazardous
c. An emergency clinic a. Full-time physician and full-time dentist *Hazardous workplace = Full-time physician and full-time dentist should stay in the premises for at least eight (8) hours. *Non-hazardous workplace = physician and dentist may be engaged on retained basis subject to regulations by the SOLE. (Art. 157, LC) = employer may engage the services of a part-time physician and a part-time dentist who shall have the same responsibilities as those provided under number 3 (b) above. (Sec. 4 (d), Rule I, Bk IV, IRR) *Additional requirements under the Implementing Rules for Workplaces with more than one workshift a day: - The physician and dentist shall be at the workplace during the workshift which has the biggest number of workers and shall be subject to call at anytime during the other workshifts to attend to emergency cases. - A full-time first-aider must be provided for each workshift. (Sec. 4, (d) & (e), Bk IV, Rule 1, IRR) b. Full-time registered nurse c. Dental Clinic d. Infirmary or emergency hospital with one bed capacity for every 100 employees.Exceptions (IRR, Sec. 5, Bk IV, Rule 1.): In Urban Area: where there is a hospital or dental clinic which is not more than five (5) kilometers away from the workplace. In Rural Area: where a hospital or dental clinic can be reached by motor vehicle in twenty-five (25) minutes. In both cases, the employer should have readily available facilities for transporting a worker to the hospital or clinic in case of emergency. Provided, further, that the employer shall enter into a written contract with the hospital or dental clinic for the use thereof in the treatment of workers in case of emergency
PHYSICIAN OR DENTIST NOT NECESSARILY EMPLOYEES Article 157 clearly allows employers in non-hazardous establishments to engage “on retained basis” the services of a dentist or physician. Nowhere does the law provide that the physician or dentist so engaged thereby becomes a regular employee. The phrase “on retained basis” negates the idea that this engagement necessarily gives rise to an employer-employee relationship. (Azucena) Q: IS THE ER MANDATED TO HIRE & EMPLOY THESE MEDICAL PERSONNEL? ANS: NO. THE EMPLOYER JUST NEEDS TO FURNISH THEIR SERVICES. Case: As correctly observed by the petitioner, while it is true that the provision requires employers to engage the services of medical practitioners in certain establishments depending on the number of their employees, nothing is there in the law which says that medical practitioners so engaged be actually hired as employees, adding that the law, as written, only requires the employer "to retain", not employ, a part-time physician who needed to stay in the premises of the non-hazardous workplace for two (2) hours. WHEN EMERGENCY HOSPITAL NOT REQUIRED Article 158. When emergency hospital not required. The requirement for an emergency hospital or dental clinic shall not be applicable in case there is a hospital or dental clinic which is accessible from the employer’s establishment and he makes arrangement for the reservation therein of the necessary beds and dental facilities for the use of his employees. SECTION 5. Emergency hospital. — An employer need not put up an emergency hospital or dental clinic in the work place as required in these regulations where there is a hospital or dental clinic which is not more than five (5) kilometers away from the work place if situated in any urban area or which can be reached by motor vehicle in twenty-five (25) minutes of travel, if situated in a rural area and the employer has facilities readily available for transporting a worker to the hospital or clinic in case of emergency: Provided, That the employer shall enter into a written contract with the hospital or dental clinic for the use thereof in the treatment of workers in case of emergency.
DISSECTED: In Urban Area: where there is a hospital or dental clinic which is not more than five (5) kilometers away from the workplace. In Rural Area: where a hospital or dental clinic can be reached by motor vehicle in twenty-five (25) minutes. In both cases, the employer should have readily available facilities for transporting a worker to the hospital or clinic in case of emergency. ASSISTANCE OF EMPLOYER ART 161. Assistance of employer. — It shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee in case of emergency.
Q: How do you apply this rule? A: The case of Tolosa vs. NLRC.
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Societas Spectra Legis Labor Standards Compilation Tolosa vs. NLRC GR. No. 149578, April 10, 2003 The pivotal question is whether the Labor Code has any relevance to the relief sought by petitioner. From her paper, it is evident that the primary reliefs she seeks are as follows: (a) loss of earning capacity denominated therein as "actual damages" or "lost income" and (b) blacklisting. The loss she claims does not refer to the actual earnings of the deceased, but to his earning capacity based on a life expectancy of 65 years. This amount is recoverable if the action is based on a quasi delictas provided for in Article 2206 of the Civil Code, but not in the Labor Code. While it is true that labor arbiters and the NLRC have jurisdiction to award not only reliefs provided by labor laws, but also damages governed by the Civil Code, these reliefs must still be based on an action that has a reasonable causal connection with the Labor Code, other labor statutes, or collective bargaining agreements. The central issue is determined essentially from the relief sought in the complaint. In San Miguel Corporation v. NLRC, this Court held: "It is the character of the principal relief sought that appears essential in this connection. Where such principal relief is to be granted under labor legislation or a collective bargaining agreement, the case should fall within the jurisdiction of the Labor Arbiter and the NLRC, even though a claim for damages might be asserted as an incident to such claim. It must be noted that a worker's loss of earning capacity and blacklisting are not to be equated with wages, overtime compensation or separation pay, and other labor benefits that are generally cognized in labor disputes. The loss of earning capacity is a relief or claim resulting from a quasi delict or a similar cause within the realm of civil law. Claims for damages under paragraph 4 of Article 217 must have a reasonable causal connection with any of the claims provided for in the article in order to be cognizable by the labor arbiter. Only if there is such a connection with the other claims can the claim for damages be considered as arising from employer-employee relations. In the present case, petitioner's claim for damages is not related to any other claim under Article 217, other labor statutes, or collective bargaining agreements. Petitioner cannot anchor her claim for damages to Article 161 of the Labor Code, which does not grant or specify a claim or relief. This provision is only a safety and health standard under Book IV of the same Code. The enforcement of this labor standard rests with the labor secretary. Thus, claims for an employer's violation thereof are beyond the jurisdiction of the labor arbiter. In other words, petitioner cannot enforce the labor standard provided for in Article 161 by suing for damages before the labor arbiter. It is not the NLRC but the regular courts that have jurisdiction over actions for damages, in which the employer-employee relation is merely incidental, and in which the cause of action proceeds from a different source of obligation such as a tort. Since petitioner's claim for damages is predicated on a quasi delict or tort that has no reasonable causal connection with any of the claims provided for in Article 217, other labor statutes, or collective bargaining agreements, jurisdiction over the action lies with the regular courts — not with the NLRC or the labor arbiters. Q: IF DURING AN EMERGENCY AN EMPLOYEE WAS NOT GIVEN ADEQUATE & IMMEDIATE ASSISTANCE, CAN HE CLAIM AN ACTION UNDER ART 161? A: THERE WILL BE CIVIL LIABILITY UNDER TORTS & DAMAGES. IF UNDER LC THEN THE STATE INSURANCE FUND SHALL BE LIABLE.
EMPLOYEE’S COMPENSATION ACT ART. 166 (LC). POLICY. The State shall promote and develop a tax-exempt employee’s compensation program whereby employees and their dependents, in the event of work-connected diability or death, may promptly secure adequate income benefit, and medical or related benefits.
“Workmen’s Compensation” is a general and comprehensive term applied to those laws providing for compensation for loss resulting from the injury, disablement, or death of workmen through industrial accident, casualty, or disease. (Azucena) “Compensation,” under the workmen’s compensation statute, means the money relief afforded according to the scale established under the statute, as differentiated from “compensatory damages” recoverable in an action at law for breach of contract or for a tort. (Azucena) ECC RULES, Rule I. COVERAGE Sec. 1. Nature. – Coverage shall be compulsory. Sec. 2. Scope – (a) Every employer shall be covered. (b) Every employee not over 60 years of age shall be covered. (c) An employee who is coverable by both the GSIS and SSS shall be compulsorily covered by both Systems. ART. 167 (k), (LC). “Injury” means any harmful change in the human organism from any accident arising out of and in the course of employment. Under Bk IV, Rule III, Sec. 1 (a), Implementing Rules (a) For the injury and the resulting disability or death to be compensable, the injury must be the result of an employment accident satisfying all of the following grounds: 1.
The employee must have been injured at the place where his work requires him to be;
2.
The employee must have been performing his official functions; and
3.
If the injury is sustained elsewhere, the employee must have been executing an order for the employer.
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Societas Spectra Legis Labor Standards Compilation NOTE: ECC IS GIVEN ON TOP OF THE SSS BENEFITS. Q: WHAT AGENCY REGULATES ECC? A: SSS. Q: WHERE MUST AN EMPLOYEE GO IF DENIED CLAIMS FROM ECC? A: ECC COMMISSION
LIABILITY OF STATE INSURANCE FUND ART. 172 (LC). LIMITATIONS OF LIABILITY The State Insurance Fund shall be liable for compensation to the employee or his dependents, EXCEPT when the disability or death was occasioned by the employee’s a. intoxication b. willful intention to injure or kill himself or another, c. notorious negligence, or otherwise provided under this Title.
“Intoxication or Drunkenness” under this Article consists in being under the influence of intoxicating liquor to the extent that one is not entirely himself or so that his judgment is impaired and his act, words, or conduct is visibly impaired. “Self-inflicted Injuries” must be intentionally self-inflicted, that is, there must be a deliberate intent on the part of the employee, not a failure on his part to realize the probable consequences to himself of his foolish act. “Notorious Negligence” is something more than simple contributory negligence. It signifies a deliberate act of the employee to disregard his own personal safety. ART. 173 (LC). EXTENT OF LIABILITY. Unless otherwise provided, the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee, his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. The payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code, RA No. 1161, as amended, Commonwealth Act No. 186, as amended, Republic Act No. 610, as amended, and other laws whose benefits are administered by the System, or by other agencies of the government.
RULE AGAINST DOUBLE RECOVERY OPTIONS AVAILABLE: Benefits under the Compensation Law OR Under the Civil Code. Ysmael Maritime Corporation vs. Avelino G.R. No. 43674, June 30, 1987 HELD: The action is selective and the employee or his heirs have a choice of availing themselves of the benefits under the WCA or of suing in the regular courts under the Civil Code for higher damages from the employer by reason of his negligence. BUT once the election has been exercised, the employee or his heirs are no longer free to opt for the other remedy, i.e., THE EMPLOYEE CANNOT PURSUE BOTH ACTIONS SIMULTANEOUSLY. Thus, the employee’s parents cannot be allowed to maintain their present action to recover additional damages under the Civil Code. They had previously filed and had received the compensation payable to them under the WCA. They not only opted to recover under this Act but had also been duly paid. A sense of fair play demands that if a person entitled to a choice of remedies made a first selection and accepted the benefits thereof, he should no longer be allowed to exercise the second option.
CIVIL LIABILITY OF EMPLOYERS ART. 1711 (NCC). Owners of enterprises and other employers are obliged to pay compensation for the death of or injuries to their laborers, workmen, mechanics or other employees even though the event may have been purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of the employment. The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as the result of the nature of the employment. If the mishap was due to the employee’s own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for compensation. When the employee’s lack of due care contributed to his death or injury, the compensation shall be equitably reduced. ART. 1712 (NCC). If the death or injury is due to the negligence of a fellow-worker, the latterand the employer shall be solidarily liable for compensation. If a fellow-worker’s intentional or malicious act is the only cause of the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not exercise due diligence in the selection or supervision of the plaintiff’s fellow-worker.
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Employer LIABLE – if the cause of death or personal injury arose out of and in the course of Employment, even if the event was purely accidental or fortuitous.
b.
Employer NOT LIABLE – if the cause of death or personal injury was due to the employee’s own notorious negligence, or voluntary act or drunkenness.
c.
Compensation EQUITABLY REDUCED – if the cause was partly due to the employee’s lack of due care.
d.
Employer SOLIDARILY LIABLE with guilty fellow worker – if the cause was due to the negligence of a fellow worker
e.
Employer LIABLE - if the cause was due to the intentional or malicious act of a fellow worker, UNLESS the employer can prove that he exercised due diligence in selecting and supervising said fellow worker, in which case, only said fellow worker will be held liable.
NOTE: THERE SHOULD BE NO REDUCTION FROM EMPLOYEE’S WAGES AS HIS CONTRIBUTION FOR ECC ON ACCOUNT THAT THE CONTRIBUTION MUST BE GIVEN BY HIS EMPLOYER.
RA 7875 NATIONAL HEALTH INSURANCE ACT OF 1995 The Phil. Health Insurance Corporation (PHIC) created under this law took over the assets and functions of the Philippine Medical Care Commission (Art. 209, LC) which therefore rendered the latter inoperative. SEC. 6. Coverage. – All citizens of the Philippines shall be covered by the National Health Insurance Program. In accordance with the principles of universality and compulsory coverage enunciated in Section 2 (b) and 2 (1) hereof, implementation of the Program shall, furthermore, be gradual and phased in over a period of not more than fifteen (15) years: Provided, That the Program shall not be made compulsory in certain provinces and cities until the Corporation shall be able to ensure that members in such localities shall have reasonable access to adequate and acceptable health care services. SEC. 10. Benefit Package. – Subject to the limitations specified in this Act and as may be determined by the Corporation, the following categories of personal health services granted to the member or his dependents as medically necessary or appropriate, shall include: a)
b)
Inpatient hospital care: 1)
room and board;
2)
services of health care professionals;
3)
diagnostic, laboratory, and other medical examination services;
4)
use of surgical or medical equipment and facilities;
5)
prescription drugs and biologicals; subject to the limitations stated in Section 37 of this Act;
6)
inpatient education packages;
Outpatient care: 1)
services of health care professionals;
2)
diagnostic, laboratory, and other medical examination services;
3)
personal preventive services; and
4)
prescription drugs and biologicals, subject to the limitations described in Section 37 of this Act;
c)
Emergency and transfer services; and
d)
Such other health care services that the Corporation shall determine to be appropriate and cost-effective: Provided, That the Program, during its initial phase of implementation, which shall not be more than five (5) years, shall provide a basic minimum package of benefits which shall be defined according to the following guidelines: 1)
the cost of providing said packages is such that the available national and local government subsidies for premium payments of indigents are sufficient to extend coverage to the widest possible population.
2)
the initial set of services shall not be less than half of those provided under the current Medicare Program I in terms of overall average cost of claims paid per beneficiary household per year.
3)
the services included are prioritized, first, according to its cost-effectiveness and, second, according to its potential of providing maximum relief from the financial burden on the beneficiary: Provided, That, in addition to the basic minimum package, the Program shall provide supplemental health benefit coverage to beneficiaries of contributory funds, taking into consideration the availability of funds for the purpose from said contributory funds: Provided, further, That the Program progressively expand the basic minimum benefit package as the proportion of the population covered reaches targeted milestone so that the same benefits are extended to all members of the Program within five (5) years after the implementation of this Act. Such expansion will provide for the gradual incorporation of supplementary health benefits previously extended only to some beneficiaries into the basic minimum package extended to all beneficiaries: and Provided, finally, That in the phased implementation of this Act, there should be no reduction or interruption in the benefits currently enjoyed by present members of Medicare.
SEC. 11. Excluded Personal Health Service. – The benefits granted under this Act shall not cover expenses for the services enumerated hereunder except when the Corporation, after actuarial studies, recommend their inclusion subject to the approval of the Board: a)
non-prescription drugs and devices;
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out-patient psychotherapy and counseling for mental disorders;
c)
drug and alcohol abuse or dependency treatment;
d)
cosmetic surgery;
e)
home and rehabilitation services;
f)
optometric services;
g)
normal obstetrical delivery; and
h)
cost ineffective procedures which shall be defined by the Corporation.
SEC. 12. Entitlement to Benefits. – A member whose premium contributions for at least three (3) months have been paid within six (6) months prior to the first day of his or his availment, shall be entitled to the benefits of the Program: Provided, That such member can show that he contributes thereto with sufficient regularity, as evidenced in his health insurance ID card: and Provided, further, That he is not currently subject to legal penalties as provided for in Section 44 of this Act. The following need not pay the monthly contributions to be entitled to the Program’s benefits: a)
Retirees and pensioners of the SSS and GSIS prior to the effectivity of this Act;
b)
Members who reach the age of retirement as provided for by law and have paid at least one hundred twenty (120) contributions; and
c)
Enrolled indigents.
SEC. 13. Portability of Benefits. – The Corporation shall develop and enforce mechanisms and procedures to assure that benefits are portable across Offices. SEC. 17. Quasi-Judicial Powers. – The Corporation, to carry out its tasks more effectively, shall be vested with the following powers: a)
to conduct investigations for the determination of a question, controversy, complaint, or unresolved grievance brought to its attention, and render decisions, orders, or resolutions thereon. It shall proceed to hear and determine the case even in the absence of any party who has been properly served with notice to appear. It shall conduct its proceedings or any part thereof in public or in executive session; adjourn its hearings to any time and place; refer technical matters or accounts to an expert and to accept his reports as evidence; direct parties to be joined in or excluded from the proceedings; and give all such directions as it may deem necessary or expedient in the determination of the dispute before it;
b)
to summon the parties to a controversy, issue subpoenas requiring the attendance and testimony of witnesses or the production of documents and other materials necessary to a just determination of the case under investigation;
c)
to suspend temporarily, revoke permanently, or restore the accreditation of a health care provider or the right to benefits of a member and/or impose fines after due notice and hearing. The decision shall immediately be executory, even pending appeal, when the public interest so requires and as may be provided for in the implementing rules and regulations. Suspension of accreditation shall not exceed twenty-four (24) months. Suspension of the rights of the members shall not exceed six (6) months.
OCCUPATIONAL HEALTH AND SAFETY STANDARDS ART. 162. SAFETY AND HEALTH STANDARDS The Secretary of Labor shall, by appropriate orders, set and enforce mandatory occupational safety and health standards to eliminate or reduce occupational safety and health hazards in all workplaces and institute new, and update existing, programs to ensure safe and healthful working conditions in all places of employment. ART. 163. RESEARCH It shall be the responsibility of the Department of Labor to conduct continuing studies and research to develop innovative methods, techniques and approaches for dealing with occupational safety and health problems; to discover latent diseases by establishing causal connections between diseases and work in environmental conditions; and to develop medical criteria which will assure insofar as practicable that no employee will suffer impairment or diminution in health, functional capacity, or life expectancy as a result of his work and working conditions. ART. 164. TRAINING PROGRAMS The Department of Labor shall develop and implement training programs to increase the number and competence of personnel in the field of occupational and safety and industrial health. ART. 165. ADMINISTRATION OF SAFETY AND HEALTH LAW (a)
The Dept. of Labor shall be solely responsible for the administration and enforcement of occupational safety and health laws, regulations and standards in all establishments and workplaces wherever they may be located; however, chartered cities may be allowed to conduct industrial safety inspections of establishments within their respective jurisdictions where they have adequate facilities and competent personnel for the purpose as determined by the Department of labor and subject to national standards established by the latter
(b)
The Secretary of Labor may, through appropriate regulations, collect reasonable fees for the inspection of steam boilers, pressure vessels and pipings and electrical installations, and test and approval of plans for such materials, equipment and devices. The fee so collected shall be deposited in the national treasury to the credit of the occupational safety and health fund and shall be expended exclusively for the administration and enforcement of safety and other labor laws administered by the Department of Labor.
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COVERAGE OF RULES ON OCCUPATIONAL HEALTH AND SAFETY STANDARDS (Sec. 1, Rule II, Bk IV, IRR.) All establishments, workplaces, and other undertakings, including agricultural enterprises, whether operated for profit or not. EXCEPTIONS: 1. Those engaged in land, sea and air transportation; Provided, That their dry docks, garages, hangars, maintenance and repair shops and offices, shall be covered by this Rule; 2. Residential places exclusively devoted to dwelling purposes.
MIGRANT WORKER’S ACT/ RECRUITMENT AND PLACEMENT DEFINITIONS Contracted workers – refer to Filipino workers with employment contracts already processed by the POEA for overseas deployment. Name hires – workers who are able to secure overseas employment opportunity with an employer without the assistance or participation of any agency. Manning Agency – refers to any person, partnership or corporation duly licensed by the Secretary of Labor and Employment to engage in the recruitment and placement of seafarers for ships plying international waters and for related maritime activities. Placement Fees – refer to any and all amounts charged by a private recruitment agency from a worker for its recruitment and placement services as prescribed by the Secretary of Labor and Employment. Overseas Filipino Worker or Migrant Worker – refers to a person who is to be engaged, is engaged, or has been engaged in a remunerated activity in a state of which he or she is not a citizen or on board a vessel navigating the foreign seas other than a government ship used for military or non-commercial purposes, or on an installation located offshore or on the high seas. A "person to be engaged in a remunerated activity" refers to an applicant worker who has been promised or assured employment overseas. Authority – refers to a document issued by the Secretary of Labor and Employment authorizing the officers, personnel, agents or representatives of a licensed recruitment/manning agency to conduct recruitment and placement activities in a place stated in the license or in a specified place. License - refers to the document issued by the Secretary of Labor and Employment authorizing a person, partnership or corporation to operate a private recruitment/manning agency.
POLICIES ON OVERSEAS EMPLOYMENT SEC. 2. DECLARATION OF POLICIES – (a)
In the pursuit of an independent foreign policy and while considering national sovereignty, territorial integrity, national interest and the right to self-determination paramount in its relations with other states, the State shall, at all times, uphold the dignity of its citizens whether in country or overseas, in general, and Filipino migrant workers, in particular, continuously monitor international conventions, adopt/be signatory to and ratify those that guarantee protection to our migrant workers, and endeavor to enter into bilateral agreements with countries hosting overseas Filipino workers. (As amended by RA 10022)
(b)
While recognizing the significant contribution of Filipino migrant workers to the national economy through their foreign exchange remittances, the State does not promote overseas employment as a means to sustain economic growth and achieve national development. The existence of the overseas employment program rests solely on the assurance that the dignity and fundamental human rights and freedoms of the Filipino citizens shall not, at any time, be compromised or violated. The State, therefore, shall continuously create local employment opportunities and promote the equitable distribution of wealth and the benefits of development.
(c)
The State affirms the fundamental equality before the law of women and men and the significant role of women in nation-building. Recognizing the contribution of overseas migrant women workers and their particular vulnerabilities, the State shall apply gender sensitive criteria in the formulation and implementation of policies and programs affecting migrant workers and the composition of bodies tasked for the welfare of migrant workers.
(d)
Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any persons by reason of poverty. In this regard, it is imperative that an effective mechanism be instituted to ensure that the rights and interest of distressed overseas Filipinos, in general, and Filipino migrant workers, in particular, documented or undocumented, are adequately protected and safeguarded.
(e)
Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. In this regard, it is imperative that an effective mechanism be instituted to ensure that the rights and interest of distressed overseas Filipinos, in general, and Filipino migrant workers, in particular, whether regular/documented or irregular/undocumented, are adequately protected and safeguarded. (As amended by RA 10022)
(f)
The State recognizes that the ultimate protection to all migrant workers is the possession of skills. Pursuant to this and as soon as practicable, the government shall deploy and/or allow the deployment only to skilled Filipino workers.
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The State recognizes that the most effective tool for empowerment is the possession of skills by migrant workers. The government shall provide them free and accessible skills development and enhancement programs. Pursuant to this and as soon as practicable, the government shall deploy and/or allow the deployment only of skilled Filipino workers. (As amended by RA 10022)
(h)
The State recognizes non-governmental organizations, trade unions, workers associations, stakeholders and their similar entities duly recognized as legitimate, are partners of the State in the protection of Filipino migrant workers and in the promotion of their welfare. The State shall cooperate with them in a spirit of trust and mutual respect. The significant contribution of recruitment and manning agencies shall from part this partnership. (As amended by RA 10022)
Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-based by local service contractors and manning agencies employing them shall be encouraged. Appropriate incentives may be extended to them. Q: IS IT THE POLICY OF THE STATE TO PROMOTE EMPLOYMENT OVERSEAS? A: NO. THE LAW ONLY PROVIDES PROTECTION FOR THE EE’S OVERSEAS.
DEPLOYMENT BY LOCAL SERVICE CONTRACTOR AND MANNING AGENCIES SEC. 4. Deployment of Migrant Workers - The State shall deploy overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as guarantee on the part of the receiving country for the protection and the rights of overseas Filipino workers: (a)
It has existing labor and social laws protecting the rights of migrant workers;
(b)
It is a signatory to multilateral conventions, declaration or resolutions relating to the protection of migrant workers;
(c)
It has concluded a bilateral agreement or arrangement with the government protecting the rights of overseas Filipino workers; and
(d)
It is taking positive, concrete measures to protect the rights of migrant workers.
SEC. 5. Termination or ban on deployment - Notwithstanding the provisions of Section 4 hereof, the government, in pursuit of the national interest or when public welfare so requires, may, at any time, terminate or impose a ban on the deployment of migrant workers.
GOVERNMENT AGENCIES INVOLVED SEC. 23. ROLE OF GOVERNMENT AGENCIES. – The following government agencies shall perform the following to promote the welfare and protect the rights of migrant workers and, as far as applicable, all overseas Filipinos: (a) Department of Foreign Affairs. - The Department, through its home office or foreign posts, shall take priority action its home office or foreign posts, shall take priority action or make representation with the foreign authority concerned to protect the rights of migrant workers and other overseas Filipinos and extend immediate assistance including the repatriation of distressed or beleaguered migrant workers and other overseas Filipinos; (b) Department of Labor and Employment - The Department of Labor and Employment shall see to it that labor and social welfare laws in the foreign countries are fairly applied to migrant workers and whenever applicable, to other overseas Filipinos including the grant of legal assistance and the referral to proper medical centers or hospitals: (b.1) Philippine Overseas Employment Administration - The Administration shall regulate private sector participation in the recruitment and overseas placement of workers by setting up a licensing and registration system. It shall also formulate and implement, in coordination with appropriate entities concerned, when necessary, a system for promoting and monitoring the overseas employment of Filipino workers taking into consideration their welfare and the domestic manpower requirements. In addition to its powers and functions, the administration shall inform migrant workers not only of their rights as workers but also of their rights as human beings, instruct and guide the workers how to assert their rights and provide the available mechanism to redress violation of their rights." In the recruitment and placement of workers to service the requirements for trained and competent Filipino workers of foreign governments and their instrumentalies, and such other employers as public interests may require, the administration shall deploy only to countries where the Philippines has concluded bilateral labor agreements or arrangements: Provided, That such courtries shall guarantee to protect the rights of Filipino migrant workers; and: Provided, further, That such countries shall observe and/or comply with the international laws and standards for migrant workers. (As amended by RA 9422) (b.2) Overseas Workers Welfare Administration - The Welfare Officer or in his absence, the coordinating officer shall provide the Filipino migrant worker and his family all the assistance they may need in the enforcement of contractual obligations by agencies or entities and/or by their principals. In the performance of this functions, he shall make representation and may call on the agencies or entities concerned to conferences or conciliation meetings for the purpose of settling the complaints or problems brought to his attention.
RECRUITMENT AND PLACEMENT The term “recruitment and placement” is defined under Article 13(b) of the Labor Code of the Philippines as follows: (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.
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Societas Spectra Legis Labor Standards Compilation ILLEGAL RECRUITMENT SEC. 6. Definition. - For purposes of this Act, 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 non-licensee or non-holder of authority contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, 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 and Employment, or to make a worker pay or acknowledge any amount greater than that actually received by him as a loan or advance;
(b)
To furnish or publish any false notice or information or document in relation to recruitment or employment;
(c)
To give any false notice, testimony, information or document or commit any act of misrepresentation for the purpose of securing a license or authority under the Labor Code, or for the purpose of documenting hired workers with the POEA, which include the act of reprocessing workers through a job order that pertains to nonexistent work, work different from the actual overseas work, or work with a different employer whether registered or not with the POEA;
(d)
To include 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 or who has formed, joined or supported, or has contacted or is supported by any union or workers' organization;
(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;
(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;
(i)
To substitute or alter to the prejudice of the worker, employment contracts approved and verified by the Department of Labor and Employment 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 Department of Labor and Employment;
(j)
For an officer or agent of a recruitment or placement agency to become an officer or member of the Board of any corporation engaged in travel agency or to be engaged directly or indirectly in the management of travel agency;
(k)
To withhold or deny travel documents from applicant workers before departure for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code and its implementing rules and regulations;
(l)
Failure to actually deploy a contracted worker without valid reason as determined by the Department of Labor and Employment;
(m) Failure to reimburse expenses incurred by the worker in connection with his documentation and processing for purposes of deployment, in cases where the deployment does not actually take place without the worker's fault. Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage; and (n)
To allow a non-Filipino citizen to head or manage a licensed recruitment/manning agency.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. In addition to the acts enumerated above, it shall also be unlawful for any person or entity to commit the following prohibited acts: (1)
Grant a loan to an overseas Filipino worker with interest exceeding eight percent (8%) per annum, which will be used for payment of legal and allowable placement fees and make the migrant worker issue, either personally or through a guarantor or accommodation party, postdated checks in relation to the said loan;
(2)
Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to avail of a loan only from specifically designated institutions, entities or persons;
(3)
Refuse to condone or renegotiate a loan incurred by an overseas Filipino worker after the latter's employment contract has been prematurely terminated through no fault of his or her own;
(4)
Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo health examinations only from specifically designated medical clinics, institutions, entities or persons, except in the case of a seafarer whose medical examination cost is shouldered by the principal/shipowner;
(5)
Impose a compulsory and exclusive arrangement whereby an overseas Filipino worker is required to undergo training, seminar, instruction or schooling of any kind only from specifically designated institutions, entities or persons, except fpr recommendatory trainings mandated by principals/shipowners where the latter shoulder the cost of such trainings;
(6)
For a suspended recruitment/manning agency to engage in any kind of recruitment activity including the processing of pending workers' applications; and
(7)
For a recruitment/manning agency or a foreign principal/employer to pass on the overseas Filipino worker or deduct from his or her salary the payment of the cost of insurance fees, premium or other insurance related charges, as provided under the compulsory worker's insurance coverage.
The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having ownership, control, management or direction of their business who are responsible for the commission of the offense and the responsible employees/agents thereof shall be liable.
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Societas Spectra Legis Labor Standards Compilation In the filing of cases for illegal recruitment or any of the prohibited acts under this section, the Secretary of Labor and Employment, the POEA Administrator or their duly authorized representatives, or any aggrieved person may initiate the corresponding criminal action with the appropriate office. For this purpose, the affidavits and testimonies of operatives or personnel from the Department of Labor and Employment, POEA and other law enforcement agencies who witnessed the acts constituting the offense shall be sufficient to prosecute the accused. In the prosecution of offenses punishable under this section, the public prosecutors of the Department of Justice shall collaborate with the anti-illegal recruitment branch of the POEA and, in certain cases, allow the POEA lawyers to take the lead in the prosecution. The POEA lawyers who act as prosecutors in such cases shall be entitled to receive additional allowances as may be determined by the POEA Administrator. The filing of an offense punishable under this Act shall be without prejudice to the filing of cases punishable under other existing laws, rules or regulations.
Q: IS THERE A PROVISION OF LAW ON MANDATORY REMITTANCES OF FOREIGN EXCHANGE EARNINGS? ANS: YES. ART 22 OF LC Article 22. Mandatory remittance of foreign exchange earnings. 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.
Q: ARE TRAVEL AGENCIES QUALIFIED IN RECRUITMENT & PLACEMENT BUSINESS? A: NO. THEY ARE PRONE TO ABUSE BEC THEY TEND TO PROMISE EMPLOYMENT ABROAD. NOTE: PP vs. Domingo: That no receipt or document in which appellant acknowledged receipt of money for the promised jobs was adduced in evidence does not free him of liability. For even if at the time appellant was promising employment no cash was given to him, he is still considered as having been engaged in recruitment activities, since Article 13(b) of the Labor Code states that the act of recruitment may be for profit or not. It suffices that appellant promised or offered employment for a fee to the complaining witnesses to warrant his conviction for illegal recruitment.
BAN ON DIRECT HIRING 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. Direct-hiring 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.
Direct hiring of Filipino workers by a foreign employer is not allowed except direct hiring by members of the diplomatic corps and others mentioned in this Article. Also excepted are “name hires” or those individual workers who are able to secure contracts for overseas employment on their own efforts and representation without the assistance or participation of any agency. Their hiring, nonetheless, has to be processed through the POEA. (Azucena) ART. 26. Travel agencies prohibited to recruit. 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.
In addition to those mentioned in this article, the POEA Rules also disqualify 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. (Azucena) Q: IF THRU FACEBOOK A FRIEND OFFERED YOU A JOB IN CANADA, CAN YOU BE EMPLOYED THIS WAY? A: YES, AS A NAME HIRE. I AM NOT PROTECTED BY FOREIGN EMPLOYMENT LAW BECAUSE IT ONLY APPLIES TO EMPLOYMENT COURSED THROUGH POEA.
MONEY CLAIMS SEC. 10. MONEY CLAIMS. – Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the priginal and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provisions shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages.
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Societas Spectra Legis Labor Standards Compilation Such liabilities shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification made locally or in a foreign country of the said contract. Any compromise/amicable settlement or voluntary agreement on money claims inclusive of damages under this section shall be paid within four (4) months from the approval of the settlement by the appropriate authority. In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. Non-compliance with the mandatory periods for resolutions of cases provided under this section shall subject the responsible officials to any or all of the following penalties: (a)
The salary of any such official who fails to render his decision or resolutions within the prescribed period shall be, or caused to be, withheld until the said official complies therewith;
(b)
Suspension for not more than ninety (90) days; or
(c)
Dismissal from the service with disqualifications to hold any appointive public office for five (5) years.
Provided, however, that the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph. NOTE: Serrano vs. Gallant Maritime Services et al., G.R. No. 167614, March 24, 2009 – En Banc – Par 5, Sec. 10, RA 8042 declared unconstitutional insofar as it limits the award to “three months for every year of the unexpired term, whichever is less”, stating that an OFW who is unjustly dismissed is entitled to his salaries for the unexpired portion of his employment contract. It violates the equal protection clause: it creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: (i) those with less than one year left in their contracts -- entitled to their salaries for the entire unexpired portion, while (ii) those with one year or more remaining in their contracts -- their monetary benefits limited to their salaries for three months only (the three (3) months salary cap applies when the term of the contract is fixed at one (1) year or longer). Q: WHAT COULD BE A VALID REASON OF FAILURE TO DEPLOY AN APPLICANT? A: WAR Q: WHAT IS THE UNAUTHORIZED INTEREST ON LOANS? A: MORE THAN 8% Q: MR SAYSON WAS GIVEN 2YRS CONTRACT IN CANADA, AFTER 6 MOS THE ER TERMINATED HIS EMPLOYMENT. HE WAS REPATRIATED.WAS HE ILLEGALLY DIMISSED? YES. WHAT ARE HIS RELIEFS? A: MONEY CLAIMS REPRESENTING FULL REIMBURSEMENT OF PLACEMENT PAY AT 12% PER ANNUM, PLUS HIS SALARIES FOR THE UNEXPIRED PORTION OF HIS EMPLOYMENT CONTRACT. NOTE: The Overseas Workers Welfare Administration (OWWA), in coordination with appropriate international agencies, shall undertake the repatriation of workers in cases of war, epidemic, disaster or calamities, natural or man-made, and other similar events without prejudice to reimbursement by the responsible principal or agency. However, in cases where the principal or recruitment agency cannot be identified, all costs attendant to repatriation shall be borne by the OWWA.
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