Labor (A2016)

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Last Updated:

Oct. 15, 2013

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_______________________________________________________________LABOR STANDARDS and SOCIAL LEGISLATION Reviewer|| Prof. P. R. P. Salvador-Daway 2

I. Labor: Concept

- Labor is a physical toil, though it does not necessarily include the

application of skill, thus there is skilled and unskilled labor- Rendition of services and production of good

- Through mental / physical effort

- Skill= The familiar knowledge of any art or science, united withreadiness and dexterity in execution or performance or in theapplication of the art or science to practical purposes

(ART. 13(A))

- Labor includes all members of the labor force, employed andunemployed, as well as professionals

- Workers = Refers to self-employed people and those working inthe service and under the control of another, regardless of rank,title, or nature of work

- Employee= A salaried person working for another who controlsor supervises the means, manner and method of doing the work

Who are part of the Labor force?

- ILO: Persons 15 yrs. old and above

- PH: Persons 18 yrs. old and above, 15-17 yrs. old are coveredby special laws

II. Labor Law

- Pieces of legislation which govern the relationship between capitaland labor

- It includes (1) Labor standards, (2) institutional mechanisms and (3)welfare legislations

- Neither communism, nor despotism, nor atomism not anarchy butthe humanization of laws and the equalization of social andeconomic forces by the State so that justice in its rational andobjectively secular conception may at least be approximated

- Means the promotion of the welfare of all the people, the adoptionby the Government of measures calculated to insure economicstability of all the competent elements of society, through themaintenance of a proper economic and social equilibrium in theinterrelations of the members of the community, constitutionally,through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying theexistence of all governments on the time-honored principle of

salus populi est suprema lex.

-Must be founded on the recognition of the necessity ofinterdependence among divers and diverse units of a society and ofthe protection that should be equally and evenly extended to allgroups as a combined force in our social and economic life,consistent with the fundamental and paramount objective of thestate of promoting the health, comfort, and quiet of all persons,and of bringing about the greatest good to the greatest number.

1

Calalang v. Williams (1940)

Constitutional MandateArt. II. Sec. 10, Art. XIII, Secs. 1-3

- To promote Social Justice in all phases of national development

- Congress to give highest priority to the enactment of measuresthat protect and enhance the right of all the people to humandignity, reduce social, economic, and political inequalities, andremove cultural inequities by equitably diffusing wealth andpolitical power for the common good

- State shall regulate the acquisition, ownership, use, and dispositionof property and its increments.

- State to create economic opportunities based on freedom of

initiative and self-reliance.

- State shall afford full protection to labor, local and overseas,organized and unorganized, and promote full employment andequality of employment opportunities for all.

- State shall guarantee the rights of all workers to self-organizationcollective bargaining and negotiations.

7 Cardinal Rights1.

Self-Organization2.

Collective Bargaining + Negotiations3.

Peaceful and Lawful Collective Action (Right to Strike)4. Security of Tenure5.

Humane conditions of work6.

Living Wage7.

Participation in relevant Policy & Decision Making Processes

Rights granted in other provisions in the Constitution1.

Right to form unions, associations, societies for purposes notcontrary to law.

2.

Right to self-organization shall not be denied to governmentemployees.

3. Regular farmworkers shall have the right to own directly or

collectively the lands they till.4.

The State shall by law and for common good, undertake incooperation with the private sector a continuing program of urbanland reform and housing.

5. The State shall protect working women by providing safe andhealthful working conditions taking into account their maternalfunctions.

6. Labor is entitled to seats allotted to party-list representatives

7. The State shall promote industrialization and full employment

based on sound agricultural development and agrarian reform.8.

Congress shall create an agency to promote the viability andgrowth of cooperatives.

9. The Government shall increase salary scales of the other officials

and employees of the National Government.10.

Career civil service employees shall be entitled to appropriateseparation pay and to retirement and other benefits under existinglaws.

- The power of the government to enact laws within theconstitutional limits, to promote order, safety, health, morals andgeneral welfare of society

- The power inherent in government to protect itself and all its

constituents, and for this purpose, to hold the governmentimmune, as far as necessary from any limitations imposed in thepast

- Right of every person to pursue a business, occupation, orprofession is subject to the paramount right of the government as apart of its police power to impose such restrictions and regulationsas the protection of the public may require.

- The exercise of the police power must not violate the safeguards ofconstitutional rights only insofar as is necessary to accomplishpurposes justified by the public evil to be removed or the publicgood achieved

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Consti., Art XIII, Sec III, Par 3

- The Constitution commands the State to promote the principle ofshared responsibility between workers and employees and thepreferential use of voluntary models of settling disputes to fosterIndustrial peace

- The Industrial peace Act was patterned after the US laws, and thusdecisions interpreting those laws may be useful in interpreting ourlabor laws

Consti., Art. II, Sec. 20; Art. XIII, Sec. 3, pars. 3 and 4

- Right by the owner of the company

- An employer is free to regulate, according to his own discretion andjudgment, all aspects of employment, including hiring, workassignments, working methods, time, place and manner of work,tools to be used, processes to be followed, supervision of workers,working regulations, transfer of employees, work supervision, lay-off of workers and the discipline, dismissal and recall of workers

- As long as the companys exercise of the same is exercised in goodfaith for the advancement of the employers interest, and not forthe purpose of defeating or circumventing the rights of theemployees under special laws or valid agreements, the courts will

uphold them.- But this right can be regulated by the state

- The exercise of management prerogatives is not unlimited. A linemust be drawn between management prerogatives regardingbusiness operations per se and those which affect the rights ofemployees. In treating the latter, management should see to it thatits employees are at least properly informed of its decisions andmodes of action.

- While the Constitution is committed to the policy of socialjustice and the protection of the working class, it should not be

expected that every labor dispute will be automatically decided infavor of labor. Management also has its own rights which, as such,are entitled to respect and enforcement in the interest of simplefair play.2

Consti., Art XIII, Sec III, Par 3 and 4

- The state is mandated to regulate the relations of labor and capitalbalancing the rights of the workers to a just share in the fruits ofproduction and the right of the employer to a reasonable return onits investment

III. Classification1. Labor Standards2.

Labor Relations3.

Welfare Legislation

Labor standards which sets out the

- Minimum terms

-Conditions

- Benefits of employment that employers must provide or complywith and to which employees are entitled as a matter of legal right.

Labor relations law which defines the

- Status

- Rights

- Duties

- Institutional mechanisms that govern the individual and collective

interactions of employers, employees or their representatives.

Social Legislation vis--vis Labor Laws

- Social legislation provides particular kinds of protection or benefitsto society or segments thereof in furtherance of social justice.

- Labor laws are necessarily social legislation. But to differentiate,labor laws directly affect employment while social legislationgoverns effects of employment.

- Labor laws are social legislation but not all social legislation arelabor laws.

2

Coca-Cola v. Gacayna

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Control Test

- For purposes of the test, Control refers to:a.

Control as to the MEANSb.

Control as to the RESULTS.- Under this test an employer-employee relationship exist where the

person for whom the services are performed reserves the right tocontrol not only the end to be achieved, but also the manner andmeans to be used in reaching the end.

- This is to be distinguished from the control used in IndependentContractor (IC). In IC, control is used not to test ER-EE relationship,but WON theres control (as to the means only) as would warrant a

relationship with an IC.- One need not actually exercise direct control, provided the ER

reserves the right to control. It also need not be done personally orphysically because it may be done through an intermediary(supervisor or manager, etc.)

- Control may be used as [a]guideline or [b] regulation.

Economic Reality Test8

- Measure: Economic dependence of the worker on his employer.- The economic realities prevailing within the activity or between the

parties are examined, taking into consideration the totality ofcircumstances surrounding the true nature of the relationshipbetween the parties.

- This is especially appropriate when there is no written agreementor contract on which to base the relationship.

PROVING BURDEN QUANTUM OFEVIDENCE

ER-EE RELATIONSHIP The party trying toestablish thepresence of therelationship

Substantial Evidence

ILLEGAL DISMISSAL Employee

Substantial Evidence = That amount of relevant evidence which a reasonablemind might accept as adequate to justify a conclusion as sufficient

- Piercing the corporate mask is only done when the corporation isjust an alter ego of a person or of another corporation.

- For reasons of public policy and in the interest of justice, thecorporate veil will justifiably be impaled only when it becomes ashield for fraud, illegality or inequity committed against thirdpersons.

- Any application of the doctrine of piercing the corporate veil shouldbe done with caution. A court should be mindful of the milieu whereit is to be applied. It must be certain that the corporate fiction wasmisused to such an extent that injustice, fraud, or crime wascommitted against another, in disregard of rights.

- The wrongdoing must be clearly and convincingly established; itcannot be presumed.9

8

Orozco v. CA (2008)

Arts. 106, 107, 108, 109; OR: Book III, Rule VIII-A

INDEPENDENT CONTRACTOR LABOR-ONLY CONTRACTOR

Has sufficient substantial capitalOR investment in machinery, toolsor equipment directly or intended

to be related to the job contracted

Has NO substantial capital NORinvestment in the form ofmachinery, tools or equipment

Carries an independent businessdifferent from the employers

Has no independent business

Undertakes to perform the jobunder its own account and

responsibility, FREE from theprincipals control

Performs activities directly relatedto the main business of theprincipal

NO ER-EE Relationship exceptwhen the contractor or

subcontractor fails to pay theemployees wages.

Principal treated as direct employerof the person recruited in allinstances (contractor is deemedagent of the principal)

LIMITED liability(Principal solidarily liable with

contractor or subcontractor onlywhen latter fails to comply with

requirements as to unpaid wagesand other labor standards

violations.)

Principals liability extends to allrights, duties and liabilities underlabor standard laws including theright to self-organization

Permissible Prohibited

D.O. 18-A-11, Sec. 3(m), Sec. 5

- Refers to the relationship in a contracting or subcontractingarrangement where there is a contract for a specific

job/work/service between the principal and the contractor, and acontract of employment between the contractor and its workers.

1. The contractor or subcontractor does not have substantial capital

or investment which relates to the job, work or service to beperformed

2. 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; or3.

The contractor does not exercise the right to control over theperformance of the work of the contractual employee.

1. Registered in accordance with rules

2. Distinct and independent business

3. Sufficient Capital

4. Service Agreement

D.O. 18-A-11, Secs. 14, 15

- The registration of contractors and subcontractors shall benecessary for purposes of establishing an effective labor marketinformation and monitoring.

-Failure to register shall give rise to the presumption that thecontractor is engaged in labor-only contracting.

9

Sarona v. NLRC (2012)

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D.O. 18-A-11, Sec. 27

- The Indirect Employer is only liable if there exists a Labor-OnlyContracting relationship between an Indirect and Direct Employer,which is determined only by a competent authority

o In these cases, the indirect employer is ultimately liableto the employee

- The joint and several liability of the employer or principal wasenacted to ensure compliance with the provisions of the Code,principally those on statutory minimum wage.

o

The contractor or subcontractor is made liable by virtueof his or her status as a direct employer, and theprincipal as the indirect employer of the contractor'semployees.

o This liability facilitates, if not guarantees, payment of

the workers' compensation, thus, giving the workersample protection as mandated by the 1987 Constitution.This is not unduly burdensome to the employer.

o Should the indirect employer be constrained to pay theworkers, it can recover whatever amount it had paid inaccordance with the terms of the service contractbetween itself and the contractor.

- The indirect employer's liability to the contractor's employeesextends only to the period during which they were working for thepetitioner, and the fact that they were reassigned to another

principal necessarily ends such responsibility.

VII.EMPLOYMENTCONTRACT- In case of conflict between the text of the contract and the intent

of the parties, it is the latter that prevails, and not the wordingwhich is prone to mistakes, inadequacies and ambiguities. To holdotherwise would give life, validity and precedence to mere typoerrors and defeat the very purpose of agreements.10

10

GROW v. Velasco (2012)

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I. Employment Policies, Recruitment and Placement

of Workers and Agencies

Arts. 3, 12 (a), (f); Consti., Art. II, Sec. 9; RA 8042, Secs. 2 (a), (b), in relation to (g), (c); 4, 5

- To promote and maintain a state of full employment throughimproved manpower training, allocation and utilization

o

BUT the State does not promote overseas employmentas a means to sustain economic growth and achievenational development.

- To strengthen the network of public employment offices andrationalize the participation of the private sector in therecruitment and placement of workers, locally and overseas, toserve national development objectives

- The State shall promote a just and dynamic social order that willensure the prosperity and independence of the nation and free thepeople from poverty through policies that provide adequate socialservices, promote full employment, a rising standard of living, andan improved quality of life for all.

-The State recognizes that the ultimate protection to all migrantworkers is the possession of skills. Pursuant to this and as soon aspracticable, the government shall deploy and/or allow thedeployment only to skilled Filipino workers.

1. PartiesWorker

- Any member of the labor force, whether employed or unemployed.

Private Employment Agency

- Means any person or entity engaged in recruitment and placement(R&P) of workers for a fee which is charged, directly or indirectly,from the workers or employers or both.

Private Recruitment Entity

- Means any person or association engaged in the R&P of workers,locally or overseas, without charging, directly or indirectly, any feefrom the workers or employers.

2. Recruitment and PlacementLocal Employment

Art. 13 (b)

- Refers to any act of canvassing, enlisting, contracting, transporting,utilizing, hiring or procuring workers, and includes referrals,contract services, promising or advertising for employment, locallyor 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 inrecruitment and placement.

Overseas Employment

RA 8042, Sec. 6

- Means any act of canvassing, enlisting, contracting, transporting,utilizing, hiring, procuring workers and includes referring, contactservices, promising or advertising for employment abroad, whetherfor profit or not,

Allowed Private Agencies and EntitiesArts. 12 (f), 16, 18, 25

1. Public employment offices2.

Private recruitment entities3.

Private employment agencies4.

Shipping or manning agents or representatives5.

The POEA6. Construction contractors if authorized to operate by DOLE and the

Construction Industry Authority7.

Members of the diplomatic corps although hirings done by themhave to be processed through the POEA

8. Other persons or entities as may be authorized by the DOLE

secretary

Prohibited Business Agencies and EntitiesArts. 16, 18, 25, 26; IRR of RA 8042, Rule II, Sec. 1 (i)

- Travel Agencies and Sales Agencies of Airlineso by companies without approval from SOL

- Direct hiring

Exceptions to Direct Hiring (as allowed by SOL):

- Those hired by international organizations- Those hired by diplomatic corps- Name hires / workers who are able to secure oversees employment

opportunities with employers without support from an agency

1. Licensing / Qualifications of Applicants

2.

Workers Fees, Filing Fees and License Fees3.

Reports / Employment Information4.

Regulations for illegal recruitment5.

Enforcement Powers6.

POEA Standard Employment Contract

Licensing Requirements:1.

Citizenship (Filipino)2.

Capitalization (P 3M)3.

Validity of License (4 years; 1 year provisional)4.

Non-Transferability5.

Registration / License Fees

6.

Bonds (100k)7.

Placement / Documentation Fees

Workers FeesArt. 32; Part II, Rule V, Sec. 3

- Shall not be charged until worker has obtained employmentthrough agencysefforts or has actually commenced employment.

Reports/Employment InformationArts. 33, 14 (d), 34 (h); RA 8042, Sec. 6 (h)

- SOL may direct all persons or entities within the coverage of thisTitle to submit a report on the status of employment, including jobvacancies, details of job requisitions, separation from jobs, wages,other terms and conditions and other employment data.

- Failure to do so = illegal recruitment

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Illegal RecruitmentArts. 34, 38 (a) (b), RA 8042, Secs. 6, 7, 8, 9, 10, 11, 12

The following are acts of illegal recruitment, done by a non-license or non-holder of authority:

(a)

To charge or accept directly or indirectly any amount greater thanthe specified in the schedule of allowable fees prescribed by theSOL, or to make a worker pay any amount greater than thatactually 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 alicense or authority under the Labor Code;

(d)

To induce or attempt to induce a worker already employed to quithis employment in order to offer him another unless the transfer isdesigned to liberate a worker from oppressive terms and conditionsof employment;

(e) To influence or attempt to influence any persons or entity not to

employ any worker who has not applied for employment throughhis agency;

(f)

To engage in the recruitment of placement of workers in jobsharmful to public health or morality or to dignity of the Republic ofthe Philippines;

(g) To obstruct or attempt to obstruct inspection by the SOL or by hisduly authorized representative;

(h)

To fail to submit reports on the status of employment, placementvacancies, remittances of foreign exchange earnings, separationsfrom jobs, departures and such other matters or information asmay be required by the SOL;

(i) To substitute or alter to the prejudice of the worker, employment

contracts approved and verified by the DOLE from the time ofactual signing thereof by the parties up to and including the periodof the expiration of the same without the approval of the DOLE;

(j) For an officer or agent of a recruitment or placement agency to

become an officer or member of the Board of any corporationengaged in travel agency or to be engaged directly or indirectly inthe management of a travel agency;

(k) To withhold or deny travel documents from applicant workers

before departure for monetary or financial considerations otherthan those authorized under the Labor Code and its implementingrules and regulations;

(l) Failure to actually deploy without valid reasons as determined by

the DOLE; and(m)

Failure to reimburse expenses incurred by the workers inconnection with his documentation and processing for purposes ofdeployment, in cases where the deployment does not actually takeplace without the worker's fault. Illegal recruitment whencommitted by a syndicate or in large scale shall be considered asoffense involving economic sabotage.

Qualified/Syndicated Illegal Recruitment

- This is carried out by a group of three (3) or more personsconspiring or confederating with one another.

- It is deemed committed in large scale if committed against three (3)or more persons individually or as a group.

Sanctions

-Venue: RTC of place of commission / residence of offended party

- MoneyClaims: LA have original and exclusive jurisdiction

Enforcement PowersRule Making Power

Art. 36

- SOL is authorized to issue orders and promulgate rules andregulations to carry out the objectives and implement theprovisions of this Title.

Regulatory Power

Art. 35, 36

- SOL shall have the power to restrict and regulate the recruitmentand placement activities of all agencies within the coverage of this

Title- SOL shall have the power to suspend or cancel any license or

authority to recruit employees for overseas employment forviolation of rules and regulations.

Visitorial Power

Art. 37

- SOL or his duly authorized representatives may, at any time,inspect the premises, books of accounts and records of any personor entity

POEA Standard Employment Contract- To be integrated in every seafarers contract- Liberal Construction- Terms and Conditions shall include disability benefits

Joint and Several Liability of Recruitment/Placement Agency andPrincipal/Employer

- Requires that a PEA submit a verified undertaking stating that itshall assume joint and solidary liability with employer for all claimsand liabilities which may arise in connection with theimplementation of the contract, including but not limited topayment of wages, death and disability compensation andrepatriations

Effect of Termination of Agency Agreement between Principal andManning Agent

- The performance bond to be filed by the recruitment/placementagency, as provided by law, shall be answerable for all moneyclaims or damages that may be awarded to the workers.

-Such liabilities shall continue during the entire period or duration ofthe employment contract and shall not be affected by anysubstitution, amendment or modification of the contract madelocally or in a foreign country.

- For immediate and sufficient payment of claims

Responsibilities of local recruitment agencies / liability for damages andattorneys feesRA 8042, Sec. 10

- In case of termination of overseas employment without just, validor authorized cause as defined by law or contract, the workers shalbe entitled to the full reimbursement of his placement fee withinterest of twelve percent (12%) per annum, plus his salaries for theunexpired portion of his employment contract or for three (3)months for every year of the unexpired term, whichever is less.

RTC for Criminal Action arising from illegal recruitment

LA for money claims

POEA over administrative cases

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- Licensee Violator: 2 5 years OR P10k P50k OR BOTH- Non- Licensee Violator: 4 8 years OR P20k P100k OR BOTH- Automatic revocation of license and forfeiture of cash and surety

bonds

- Suspension and/or Cancellation of authority- Illegal recruitment Penalty: 6 years, 1 day 12 yearsAND P200k

P500ko

Life ImprisonmentAND P500k P1M if there iseconomic sabotage

o Maximum penalty if person recruited is a minor

- Prescription: 5 years, 20 years if with economic sabotage

II. Alien Employment Registration

Art. 40, Book I, Rule XIV, Sec. 1; DO 97-09, Sec. 1 as amended by DO 120-12; Rule I.1

- Any alien seeking admission to the Philippines for employmentpurposes

- Any domestic/foreign employer who desires to engage an alien foremployment in the Philippines

- All foreign nationals who intend to engage in gainful employment- Missionaries or religious workers who intend to engage in gainful

employment- Holders of special investors resident visa, special retirees resident

visa, treaty traders visa, or special non-immigrant visa, who occupyany executive, advisory, supervisory, or technical position in anyestablishment

-Agencies, organizations or individuals whether public or private,who secure the services of foreign professionals to practice theirprofessions in the Philippines under reciprocity and otherinternational agreements

- Non-Indo Chinese refugees who are asylum seekers and givenrefugee status by the United Nations High Commissioner onRefugees or the Department of Justice under DOJ DepartmentOrder No. 94, series of 1998

- Resident foreign nationals seeking employment in the Philippines

1. All members of the diplomatic services and foreign government

officials accredited by the Philippine government2.

Officers and staff of international organizations of which thePhilippine government is a cooperating member, and their

legitimate spouses desiring to work in the Philippines3.

Foreign nationals elected as members of the Governing Board whodo not occupy any other position, but have only one voting right inthe corporation; and

4.

All foreign nationals granted exemption by special laws and allother laws that may be promulgated by the Congress

5. Owners and representatives of foreign principals whose companies

are accredited by the PEA, who come to the Philippines for a limitedperiod and solely for the purpose of interviewing Filipino applicantsfor employment abroad;

6. Foreign nationals who come to the Philippines to teach, present

and/or conduct research studies in universities and colleges asvisiting, exchange or adjunct professors under formal agreementsbetween the universities or colleges in the Philippines and foreignuniversities or colleges; or between the Philippine government andforeign government; provided that the exemption is on a reciprocal

basis; and7.

Permanent resident foreign nationals, probationary or temporaryresident visa holders

Book I, Rule XIV, Secs. 5, 6

- Requirements:o

CV of applicanto Contract of Employmento

Designation by employer of at least 2 understudies peralien worker

- Report of the Bureau Director as to the availability or non-availability of any person in the Philippines who is competent, able,and willing to do the job for which the services of the applicant aredesired

- BDs assessment asto whether or not the employment of theapplicant will redound to the national interest;

-Admissibility of the alien as certified by the Commission onImmigration and Deportation

- The recommendation of the Board of Investments or otherappropriate government agencies if the applicant will be employedin preferred areas of investments or in accordance with imperativeof economic developments

- Payment of a P100.00 fee

Book I, Rule XIV, Sec. 7; DO 97-09, Sec. 11

- Minimum 1 year, Maximum of 5 years

DO 97-09, Sec. 13

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 of information against the employment ofthe foreign national

e. The foreign national has been convicted of a criminal offense or a

fugitive from justice; orf.

Employer terminated the employment of the foreign national

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III. Development of Human Resources

Art. 44 (a); RA 7796, Sec. 4 (b), (c), (e)

Manpower

- Means that portion of the nations population which has actual orpotential capability to contribute directly to the production of

goods and services

Skills Development

- Means the process through which learners and workers aresystematically provided with learning opportunities to acquire orupgrade, or both, their ability, knowledge and behavior patternrequired as qualifications for a job or range of jobs in a givenoccupational area

Technical Education

- Refers to the education process designed at post-secondary andlower tertiary levels, officially recognized as non-degree programsaimed at preparing technicians, para-professionals and othercategories of middle-level workers by providing them with a broadrange of general education, theoretical, scientific and technological

studies, and related job skills training

Middle-Level Manpower

- Refers to thoseo Who have acquired practical skills and knowledge

through formal or non-formal education and trainingequivalent to at least a secondary education butpreferably a post-secondary education with acorresponding degree or diploma; or

o Skilled workers who have become highly competent in

their trade or craft as attested by industry.

RA 7796, Sec. 2

- To provide relevant, accessible, high quality and efficient technical

education and skills development in support of the development ofhigh quality Filipino middle-level manpower responsive to and inaccordance with Philippine development goals and priorities.

- The State shall encourage active participation of various concernedsectors in providing technical education and skills developmentopportunities.

RA 7796, Sec. 3

- Promote and strengthen the quality of technical educationandskills development programs to attain internationalcompetitiveness.

- Focus technical education and skills development on meeting thechanging demands for quality middle-level manpower;

- Encourage critical and creative thinkingby disseminating the

scientific and technical knowledge base of middle-level manpowerdevelopment programs;- Recognize and encourage the complementary roles of public and

private institutions in technical education and skills developmentand training systems; and

- Inculcate desirable valuesthrough the development of moralcharacter with emphasis on work ethic, self-discipline, self-reliance and nationalism

Art. 57

1. To help meet the demand of the economy for trained manpower;

2. To establish a national apprenticeship program through theparticipation of employers, workers and government and non-government agencies; and

3.To establish apprenticeship standards for the protection ofapprentices.

Art. 58 (b); RA 7796, Sec. 4 (j), (k), (l), (m), (n)

Apprentice

- A person undergoing training for an approved apprenticeableoccupation during an established period assured by anapprenticeship agreement

- They train in a highly skilled job or in a job found only in a highlytechnical industry that is why training period exceeds three months

- An apprentice is also a learner

Learner

- Persons hired as trainees in semi-skilled and other industrial

occupations which are non-apprenticeable and which may belearned through practical training on the job in a relatively shortperiod of time which shall not exceed three (3) months.

- Learners are immediately hired after the training period ascompared to an apprentice

- Learnership is allowed even for non-technical jobs

LEARNER APPRENTICE

QUALIFICATIONS No qualificationsneeded

Qualifications may beset

BUSINESSENTERPRISE

Semi-Skilled business Highly TechnicalIndustries

PERIOD 3 mos. 6 mos.AGREEMENT Learnership ApprenticeshipREGULATIONS Approval of TESDA Approval of TESDA,

Endorsed by a tripartitebodyCOMPENSATION Must not be lower than 75% of minimum wage

Arts. 60, 74; RA 7796, Sec. 4 (m)

Apprenticeable Occupation

- An occupation officially endorsed by a tripartite body- Approved for apprenticeship by the Authority;- Only employers in the highly technical industries may employ

apprentices

Learners may be hired when:

- No experienced workers are available- The employment of learners is necessary to prevent curtailment of

employment opportunities- The employment does not create unfair competition in terms of

labor costs or impair or lower working standards.

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Arts. 61, 72, 281, 75, 76; WO NCR-16, Sec. 6

- Apprenticeship agreements, including the wage rates ofapprentices, shall conform to the rules issued by the SOL

- The period of apprenticeship shall not exceed 6 months.- Apprenticeship agreements providing for wage rates below the

legal minimum wage, which in no case shall start below 75% of theapplicable minimum wage, may be entered into only in accordancewith apprenticeship programs duly approved by the SOL

- The Department shall develop standard model programs ofapprenticeship.

-Hiring of apprenticeship without compensation may be authorizedby SOL if the job is required by the school or training programcurriculum or as requisite for graduation or board examination

- Probationary employment shall not exceed six (6) months from thedate the employee started working, unless it is covered by anapprenticeship agreement stipulating a longer period.

o May be terminated for just cause or if the employee failsto qualify as a regular employee in accordance withreasonable standards

o An employee who is allowed to work after a

probationary period shall be considered a regularemployee.

Arts. 65, 66, 67

-

Investigation of violation of apprenticeship agreement.o Upon complaint of any interested person or upon its

own initiativeo Shall investigate any violation of an apprenticeship

agreement pursuant to such rules and regulations asmay be prescribed by SOL

- Appeals to the SOLo The decision of the authorized agency of the DOLE may

be appealed by any aggrieved person to the SOL within 5days from receipt of the decision.

o The decision of the SOL shall be final and executory.

- Exhaustion of administrative remedieso

No person shall institute any action for the enforcementof any apprenticeship agreement or damages for breachof any such agreement, unless he has exhausted allavailable administrative remedies.

RA 7277, Sec. 4 (a), (b), (c), (d)

Persons with Disabilities (PWDs)

- Are those suffering from restriction of different abilities, as a resultof a mental, physical or sensory impairment, to perform an activityin the manner or within the range considered normal for a humanbeing

Impairment

- Is any loss, diminution or aberration of psychological, physiological,or anatomical structure of function

Disability

- Shall mean:(1)

A physical or mental impairment that substantially limits oneor more psychological, physiological or anatomical functionof an individual or activities of such individual;

(2) A record of such an impairment; or

(3)

Being regarded as having such an impairment

Handicap

- Refers to a disadvantage for a given individual resulting from animpairment or a disability, that limits or prevents the functions oractivity, that is considered normal given the age and sex of theindividual

RA 7277, Sec. 2

- Senate shall give full support to the improvement of the total well-being of PWDs and their integration into the mainstream of society

- State shall adopt policies ensuring the rehabilitation, self-development and self-reliance of PWDs.

- It shall develop their skills and potentials to enable them tocompete favorably for available opportunities.

- They should be able to live freely and as independently as possible.- PWDs rights must never be perceived as welfare services by the

Government.

-The rehabilitation of the PWDs shall be the concern of theGovernment in order to foster their capability to attain a moremeaningful, productive and satisfying life.

- Ensure full participation of different sectors as supported bynational and local government agencies

- The State also recognizes the role of the private sector inpromoting the welfare of PWDs and shall encourage partnership inprograms that address their needs and concerns.

- The State shall advocate for and encourage respect for PWDs. TheState shall exert all efforts to remove all social, cultural, economic,environmental and attitudinal barriers that are prejudicial to PWDs

RA 7277, Sec. 3

- This Act shall cover all PWDs and, to the extend herein provided,

departments, offices and agencies of the National Government ornon-government organization involved in the attainment of theobjectives of this Act.

Art. 81; RA 7277, Secs. 4 (i), 5, 6, 7

- PWDs may be hired as apprentices/learners if their handicap is notsuch as to effectively impede the performance of job operations inthe particular occupations for which they are hired.

- Equal Opportunity for Employmento No PWDs shall be denied access to opportunities for

suitable employment.o

A qualified PWD employee shall be subject to the sameterms and conditions of employment and the same

compensation and benefits as a qualified able-bodiedperson.o

5% of all casual, emergency and contractual positions ingovernment agencies, offices or corporations engaged insocial development shall be reserved for PWDs.

- Sheltered Employmento

The provision of productive work for PWDs throughworkshop providing special facilities, income producingprojects or homework schemes with a view to give themthe opportunity to earn a living thus enabling them toacquire a working capacity required in open industry.

o If suitable employment for PWDs cannot be foundthrough open employment, the State shall endeavor toprovide it by means of sheltered employment.

o In the placement of PWDs in sheltered employment, it

shall accord due regard to the individual qualities,vocational goals and inclinations to ensure a goodworking atmosphere and efficient production.

- Apprenticeshipo PWDs shall be eligible as apprentices or learners;o

Provided, That their handicap is not much as toeffectively impede the performance of job operations inthe particular occupation for which they are hired;

o

Provided, further, that after the lapse of the period ofapprenticeship if found satisfactory in the jobperformance, they shall be eligible for employment.

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RA 7277, Secs. 32, 33

The following constitute acts of discrimination:

(a)

Limiting, segregating or classifyinga PWD job applicant insuch a manner that adversely affects his work opportunities;

(b)

Using qualification standards, employment tests or otherselection criteria that screen out or tend to screen out a PWDunless such standards, tests or other selection criteria areshown to be job related for the position on question and areconsistent with business necessity;

(c) Utilizing standards, criteria, or methods of administration

that:1.

Have the effect of discrimination on the basis ofdisability; or

2.

Perpetuate the discriminationof others who aresubject to common administrative control;

(d)

Providing less compensationto a qualified PWD employee,by reason of his disability, than the amount to which a non-PWD performing the same work is entitled;

(e)

Favoring a non-PWDover a qualified PWD employee withrespect to promotion, training opportunities, study andscholarship grants, solely on account of the latters disability;

(f) Re-assigning or transferring a PWDemployee to a job orposition he cannot perform by reason of his disability;

(g)

Dismissing or terminating the servicesof a PWD employee byreason of his disability unless the employer can prove that he

impairs the satisfactory performance of the work involve tothe prejudice of the business entities; Provided, however, thatthe employer first sought provide reasonableaccommodations for PWDs;

(h)

Failing to select or administer in the effective manneremployment tests which accurately reflect the skills, aptitudeor other factor of the PWD applicant or employee that suchtest purports to measure, rather than the impaired sensory,manual or speaking skills of such applicant or employee, ifany; and

(i)

Excluding PWDs from membershipin labor unions or similarorganization.

Upon an offer of employment, a PWD applicant may be subjected tomedical examination, on the following occasions:

(a)

All entering employees are subjected to such an examinationregardless of disability;

(b) Information obtained during the medical condition or history

of the applicant is collected and maintained on separateforms and in separate medical files and is treated as aconfidential medical record, Provided, however, That:

1. Supervisors and managers may be informed regarding necessary

restrictions on the work or duties of the employees and necessaryaccommodations;

2.

First aid and safety personnel may be informed, when appropriate,if the disability might require emergency treatment;

3. Government officials investigating compliance with this Act shall

be provided relevant information on request; and4.

The results of such examination are used only accordance with thisAct.

RA 7277, Secs. 44, 45, 46

Enforcement by the Secretary of Justice.

(a) Denial of Right

1. The Sec. of Justice shall investigate alleged violations of this

Act2.

Shall also undertake periodic reviews of compliance ofcovered entities under this Act.

(b)

Potential Violations- The Sec. of Justice may commence a legal

action in any appropriate court if he has reasonable cause tobelieve that:1.

Any person or group of persons is engaged in a pattern ofpractice of discrimination under this Act; or

2. Any person or group of persons has been discriminated

against under this Act and such discrimination raises andissue of general public importance

Authority of Court

- The court may grant any equitable relief that such courtconsiders to be appropriate, including, to the extent requiredby this Act:(a)

Granting temporary, preliminary or permanent relief;(b)

Providing an auxiliary aid or service, modification ofpolicy, practice or procedure, or alternative method; and

(c)

Making facilities readily accessible to and usable byindividuals with disabilities.

Penal Clause

1. 1stviolation, P50k P100k OR6 mos. - 2 years ORBOTH

2. Subsequent violation, P100k P200k OR2 years - 6

years ORBOTH- Any person who abuses the privileges granted herein:

o 6 months ORP5k P50k ORboth

IV. Conditions of Employment

-The Eight-Hour Labor Law was designed not only to safeguard thehealth and welfare of the laborer or employee, but in a way tominimize unemployment by forcing employers, in cases wheremore than 8-hour operation is necessary, to utilize different shiftsof laborers or employees working only for eight hours each.11

Art. 82, 276; Book III, Rule I, Secs . 1, 2

- Shall apply to employees in all establishments and undertakingswhether for profit or not,

11

Manila Terminal v. CIR (1952)

Exceptions to the General Rule1.

Government Employees

2.

Managerial Employees3.

Officers of Management Staff4.

Field Personnel5.

Family members6.

Domestic Workers7.

Persons in the personal service of another8.

Workers paid by results

Exception to the Exception

- Employees of GOCCs under the Corp Code

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"Managerial employees"

- Those whose primary duty consists of the management of theestablishment in which they are employed

- One who is vested with the powers or prerogatives to lay down andexecute management policies

- Supervisory employees are those who, in the interest of theemployer, effectively recommend such managerial actions if theexercise of such authority is not merely routinary or clerical innature but requires the use of independent judgment.

- An employee is a Manager if meet all of the following conditionsare met:

1.

Their primary dutyconsists of the management of theestablishment in which they are employed or of a department orsubdivision thereof.

2. They customarily and regularlydirect the work of two or more

employees therein.3.

They have the authorityto hire or fire employees of lower rank; ortheir suggestions and recommendationsas to hiring and firing andas to the promotion or any other change of status of otheremployees, are given particular weight.

Member of the managerial staff

- An employee is an Officer or Member of a Managerial Staff if heperforms the following duties and responsibilities:1.

The primary dutyconsists of the performance of work

directly related to management policies of their employer;2.

Customarily and regularlyexercise discretion andindependent judgment; and

3.

(i)Regularly and directly assist a proprietoror a managerialemployee whose primary duty consists of the management ofthe establishment in which he is employed or subdivisionthereof; or (ii)execute under general supervision workalongspecialized or technical lines requiring special training,experience, or knowledge; or (iii)execute, under generalsupervision, special assignmentsand tasks; and

4. Who do not devote more than 20 percentof their hours

worked in a work week to activities which are not directly andclosely related to the performance of the work described inparagraphs (1), (2) and (3) above.

Field Personnel- Refers to non-agricultural employees who regularly perform their

duties away from the principal place of business or branch office ofthe employer and whose actual hours of work in the field cannot bedetermined with reasonable certainty

- Test:(a)

Regularly performs work outside the work premises(b)

Actual hours of work in the field cannot be determined withreasonable certainty

o WON employees time and performance are constantly

supervised by the employer 12

12Far East Agricultural Supply, Inc. v. Lebatique (2007)13

Labor Congress v. NLRC (1998)

Domestic Workers

- Refers to any person engaged in domestic work within anemployment relationship

- Domestic Work = service in the employers home which is usuallynecessary or desirable for the maintenance and enjoyment thereofand includes ministering to the personal comfort and convenienceof the members of the employers household, including services offamily drivers

Exception/Exclusions:- Any person who performs domestic work only occasionally or

sporadically and not on an occupational basis.- The term shall not include children who are under foster family

arrangement, and are provided access to education and given anallowance incidental to education

- Assignment to non-household work.o No DW shall be assigned to work in a commercial,

industrial or agricultural enterprise at a wage or salaryrate lower than that provided for agricultural or non-agricultural workers as prescribed herein.

Persons in the Personal Service of Another

- Domestic servants and persons in the personal service of another ifthey perform such services in the employer's home which areusually necessary or desirable for the maintenance and enjoymentthereof, or minister to the personal comfort, convenience, or safety

of the employer as well as the members of his employer'shousehold.

Piece-rate Workers

- Workers who are paid by results, including those who are paid onpiece-work, "takay," "pakiao" or task basis, and other non-timework if their output rates are in accordance with the standardsprescribed under Section 8, Rule VII, Book Three of theseregulations, or where such rates have been fixed by the SOL inaccordance with the aforesaid Section.

- Those who are paid a standard amount for every piece or unit ofwork produced that is more or less regularly replicated, withoutregard to the time spent in producing the same13

- Workers under piece-rate employment have no fixed salaries andtheir compensation is computed on the basis of accomplishedtasks14

14Best Wear v. De Lemos (2012)

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Working while On Call (compensable)Book III, Rule I, Sec 5(b)

- An employee who is required to remain on call in the employer'spremises or so close thereto that he cannot use the time effectivelyand gainfully for his own purpose

Not working while On Call (not compensable)Book III, Rule I, Sec 5(b)

- An employee who is not required to leave word at his home or with

company officials where he may be reached

Notes:

- Although the laborers can rest completely and may not be actuallyat work, if they are required to be in their place of work before orafter the regular working hours and within the call of hisemployers, the time they stay in the place of work should not bediscounted from their working hours

Book III, Rule I, Sec 4(d)

- Inactivity is by reason of interruptions in his work beyond hiscontrol shall be considered working time either if:

o Imminence of the resumption of work requires the

employee's presence at the place of work

o

If the interval is too brief to be utilized effectively andgainfully in the employee's own interest.

- Semestral breaks are in the nature of work interruptions beyondthe employees' control. They cannot be considered as "absences"for which deductions may be made from monthly allowances.

o Thus, the "No work, no pay" principle does NOT apply.o

Such hours are considered as hours worked15

Book III, Rule I, Sec. 4(c)

- If the work was with the knowledge of his employer or immediatesupervisor, any of the following are compensable:

1.

If the work performed was necessary2.

It benefited the employer3.

The employee could not abandon his work at the end ofhis normal working hours because he had noreplacement

Book III, Rule I, Sec. 6

G.R.:Lectures, meetings and trainings are compensable

E: (not compensable):

- It shall not be compensable if the following conditions are met:(a)

Attendance is outside of the employee's regular workinghours;

(b) Attendance is in fact voluntary; and

(c) The employee does not perform any productive work during

such attendance.

G.R.: May not constitute working time- Travel from home to work normal incident of employment

regardless if he works at different jobsitesE: (compensable):

o When an employee receives an emergency calloutside of hisregular working hours and is required to travel to his regularplace of business or some other work site

o Whether the employee is bound to travelin a conveyance

furnished by the employer or is free to choose his conveyance,whether or not during the travel he is subject to theemployers supervision and control, and whether or not thetravel takes place under vexing and dangerous conditions

o

Travel that is all in the days work travel as part of hisprincipal activity

15

Univ. of Pangasinan Faculty Union v Univ. of Pangasinan (1984)

Arts. 87, 88, 89, 90; Book III, Rule I, Sec. 8

- Regular base pay =Excludes the money received by an employeein different concepts

- The right to overtime pay cannot be waived- OT pay in arrears retroacts to the date when services were actually

rendered

Overtime in Ordinary Day- 25% of regular hourly pay- Rationale: He is made to work longer than what is commensurate

with his agreed compensation for the statutorily fixed orvoluntarily agreed hours of labor he is supposed to do

Emergency/Compulsory overtime work:a.

When the country is at waror when any other national or localemergency has been declared by the National Assembly or theChief Executive;

b. When it is necessary to prevent loss of life or propertyor in case

of imminent danger to public safety due to an actual or impendingemergency in the locality caused by serious accidents, fire, flood,typhoon, earthquake, epidemic, or other disaster or calamity;

c. When there is urgent workto be performed on machines,installations, or equipment, in order to avoid serious loss ordamageto the employer or some other cause of similar nature;

d. When the work is necessary to prevent loss or damage to

perishable goods; ande.

Where the completion or continuation of the work started beforethe 8thhouris necessary to prevent serious obstruction orprejudice to the business or operations of the employer.

f. When overtime work is necessary to avail of favorable weatheror

environmental conditions where performance or quality of work isdependent thereon.

Undertime work/pay- Shall not be offset by overtime work on any other day- Permission given to the EE to go on leave on some other day of the

week shall not exempt the ER from paying the required additionalcompensation.

Additional Compensation- If working on a special holiday/rest day:

o First 8 hrs. is +30% of regular pay

- OT on special holiday/rest day:

o

30% of the hourly rate of the 1st 8 hours- If working on a regular holiday:

o

First 8 hrs. is 200% of regular pay- OT on regular holiday:

o

+30% of the 1st 8 hours

- If working on a regular holiday falling on rest day:o First 8 hrs. is 200% of regular pay + 30% (260%)

Art. 86; Book III, Rule II, Secs. 1, 2, 3, 4, 5, 6; RA 10151

Coverage- Applies to all employees

Exclusions:- Government + GOCCs- Retail and service establishments regularly employing not more

than 5 workers- DW and persons in the personal service- Managerial employees- Field personnel and performance based employees

"Retail Establishment" = One principally engaged in the sale of goods to end-users for personal or household use;

"Service Establishment" = One principally engaged in the sale of service toindividuals for their own or household use and is generally recognized as such;

Additional Compensation- Working time for Night differential time

o 10pm 6am

- Night differential Pay:o +10% on hourly rate falling under the Night Differential

Time

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RA 8187, Secs. 1, 2, 3, 4, 5, 6; Implementing Rules

- The State recognizes the Filipino family as the foundation of thenation. Accordingly, it shall strengthen its solidarity and activelypromote its total development.

- Every married male- Either in private or public sector

a. He is an employee at the time of delivery

b. He has notified his employer of the pregnancy of his wife and her

expected date of deliveryc.

Spouse either has given birth, suffers a miscarriage or an abortion- He is cohabiting with his spouse at the time she gives birth / suffers

a miscarriage- As soon as the married male employee learns that his spouse is

pregnant, he shall inform his employer of such pregnancy and theexpected date of delivery within a reasonable period of time. Theemployee shall accomplish a Paternity Notification Formto beprovided for by the employer and submit the same to the latter,together with a copy of his marriage contract, or where notapplicable, any proof of marriage. Provided, that this notificationrequirement shall not apply in cases of miscarriage or abortion.

- Any employee who has availed of the paternity benefits shall,within a reasonable period of time, submit a copy of the birthcertificate of the newly born child, death or medical certificate incase of miscarriage or abortion, duly signed by the attendingphysician or midwife showing actual date of childbirth, miscarriageor abortion, as the case may be.

- Before, during, or after, max 7 days per delivery

- Entitled to full pay for the 7 days absence for the 1 st4 deliveries,miscarriage or abortion

- Pay should not be below minimum wage

- Leave is not convertible to cash

- Penalty: P25k OR30 days 6 months.

RA 8972

Consti., Art. XV, Sec. 1

- It is the policy of the State to promote the family as the foundationof the nation, strengthen its solidarity and ensure its totaldevelopment. Towards this end, it shall develop a comprehensive

program of services for solo parents and their children to be carriedout by the different agencies of government

"Solo parent"

(a) A woman who gives birthas a result of rape and other crimes

against chastity even without a final conviction of the offender:Provided, That the mother keeps and raises the child;

(b) Parent left solo or alonewith the responsibility of parenthood dueto death of spouse;

(c)

Parent left solo or alone with the responsibility of parenthoodwhile the spouse is detained or is serving sentence for a criminalconviction for at least one (1) year;

(d) Parent left solo or alone with the responsibility of parenthood due

to physical and/or mental incapacity of spouse as certified by apublic medical practitioner;

(e) Parent left solo or alone with the responsibility of parenthood due

to legal separation or de facto separation from spouse for at leastone (1) year, as long as he/she is entrusted with the custody of thechildren;

(f) Parent left solo or alone with the responsibility of parenthood due

to declaration of nullity or annulment of marriage as decreed by acourt or by a church as long as he/she is entrusted with the custodyof the children;

(g) Parent left solo or alone with the responsibility of parenthood due

to abandonment of spouse for at least one (1) year;(h)

Unmarried mother/fatherwho has preferred to keep and rear

her/his child/children instead of having others care for them orgive them up to a welfare institution;

(i) Any other person who solely provides parental care and support

to a child or children;(j)

Any family member who assumes the responsibilityof head offamily as a result of the death, abandonment, disappearance orprolonged absence of the parents or solo parent.

- A change in the status or circumstance of the parent claimingbenefits under this Act shall terminate his/her eligibility for thesebenefits.

- Employee has rendered service of at least 1 year- Employee has notified employer of the availment of the leave

within a reasonable time

-Employee has presented a Solo Parent Identification Card to theemployer

- A resident of the area where the assistance is sought, as certifiedby the barangay captain; Provided, that if the solo parent is atransferee from another barangay, he/she is required to secure aclearance from his/her previous barangay, indicating whether ornot he/she has availed of any benefits for solo parents, and thenature of such benefits.

Flexible work schedule- The flexi-schedule shall not affect individual and company

productivity- Any employer may request exemption from the above

requirements from the DOLE on certain meritorious grounds.- In the case of employees in the government service, flexible

working hours will be subject to the discretion of the head of theagency.

o

Weekly working hours shall not be reduced in the eventthe agency adopts the flexible working hours scheduleformat (flexi-time).

Discrimination- No employer shall discriminate against any solo parent employee

with respect to terms and conditions of employment on account ofhis/her status.

Leave- 7 working days every year- Granted to any solo parent employee who has rendered service of

at least 1 year.- The seven-day parental leave shall be non-cumulative.

RA 9262, Sec. 43; IRR, Rule VI, Sec. 42

- Against a woman who is his wife, former wife, or against a womanwith whom the person has or had a sexual or dating relationship, orwith whom he has a common child, or against her child whetherlegitimate or illegitimate, within or without the family abode, whichresult in or is likely to result in physical, sexual, psychologicalharm or suffering, or economicabuse including threats of suchacts, battery, assault, coercion, harassment or arbitrary deprivationof liberty.

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- Paid leave up to 10 days- At any time during the application of any protection order,

investigation, prosecution and/or trial of the criminal case.

- This period is extendible when the necessity arises as specified inthe protection order.

- The availment of the ten day-leave shall be at the option of thewoman employee, which shall cover the days that she has to attendto medical and legal concerns.

- Non-cumulative and non-convertible

Requirements- The Punong Barangay/kagawad or prosecutor or the Clerk of Court,

as the case may be, shall issue a certification at no cost to thewoman that such an action is pending, and this is all that is requiredfor the employer to comply with the 10-day paid leave.

- For government employees, in addition to the aforementionedcertification, the employee concerned must file an application forleave citing as basis R.A. 9262.

RA 9710

- A woman employee having rendered continuous aggregateemployment service of at least 6 months for the last 12 months

- Special Leave Benefit of 2 months with full pay based on her gross

monthly compensation following surgery caused by gynaecologicaldisorders.

Art. 96; Book III, Rule VI, Secs. 1, 2, 3, 4, 5

- Establishments collecting service charges such as hotels,restaurants, lodging houses, night clubs, cocktail lounge, massageclinics, bars, casinos and gambling houses, and similar enterprises,including those entities operating primarily as private subsidiariesof the Government.

- All employees regardless of position, designation, or employmentstatus, and irrespective of method of payment of wages EXCEPT tomanagerial employees

- "Managerial employee" = One who is vested with powers orprerogatives to lay down and execute management policies and/orto hire, transfer, suspend, lay-off, recall, discharge, assign, ordiscipline employees or to effectively recommend such managerialactions.

- 85% employees, 15% management- 85% distributed equally- 15% shall be for the disposition by management to answer for

losses and breakages and distribution to managerial employees atthe discretion of the management in the latter case

- Not less than once every 2 weeks or 2x a month at intervals notexceeding 16 days

- The share of covered employees shall be considered integrated intheir wages.

- The basis of the amount to be integrated shall be the average

monthly share of each employee for the past 12 monthsimmediately preceding the abolition of withdrawal of such charges

Art. 100

- Nothing in this Book shall be construed to eliminate or in any waydiminish supplements, or other employee benefits being enjoyed atthe time of promulgation of this Code.

V. Minimum Wages and Wage Fixing Machinery

Right to a living wageConsti. Art. XIII, Sec. 3

- Must be fair and just- Some margin or leeway must be provided, over and above the

minimum, to take care of contingencies, such as increase of pricesof commodities and increase in wants, and to provide means for adesirable improvement in his mode of living

No work, No pay / A fair days wage for a far day labor\

Equal pay for work of equal valueArt. 135 (a), 248 (e)

- Unlawful for women to receive lesser salary or wage for work of

equal value- ULP: To discriminate in regard to wages, hours of work, and other

terms and conditions of employment

Form: Agreement for compensation of servicesArt. 97(f)

"Wage"

- Means the remuneration or earnings, however designated, capableof being expressed in terms of money,

- Whether fixed or ascertained on a time, task, piece, or commissionbasis, or other method of calculating the same,

- Payable by an employer to an employee under a written orunwritten contract of employment for work done or to be done, orfor services rendered or to be rendered

- Includes the fair and reasonable value, as determined by the SOL,of board, lodging, or other facilities customarily furnished by theemployer to the employee.

"Fair and reasonable value"

- Shall not include any profit to the employer, or to any personaffiliated with the employer.

Exemption from income tax of Minimum Wage EarnersRA 9504, Sec. 2

- Minimum wage earners shall be exempt from the payment ofincome tax on their taxable income: Provided, further, That theholiday pay, overtime pay, night shift differential pay and hazardpayreceived by such minimum wage earners shall likewise beexempt from income tax.

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Rates of Tax on Taxable Income of Individuals

"Not over P10,000 ........ 5%

"Over P10,000 but not over P30,000 ........ P500+10% of the excessover P10,000

"Over P30,000 but not over P70,000 ........ P2,500+15% of the excessover P30,000

"Over P70,000 but not over P140,000 ........ P8,500+20% of the excessover P70,000

"Over P140,000 but not over P250,000 ........ P22,500+25% of theexcess over P140,000

"Over P250,000 but not over P500,000 ........ P50,000+30% of theexcess over P250,000

"Over P5000,000 ........ P125,000+32% of theexcess over P500,000

Arts. 97 (b), (c), (e), 98

- Employers = No one is exempted- Employees = All employed by employers, except to farm

tenants/lessees, DW engaged in needle work or in any cottageindustry

Coverage/Exclusions

Art. 98; Wage Order No. NCR-18, Sec. 2, 7; RA 9504

- Applicable to all minimum wage earners in the private sectorin theRegion

- Regardless of position, designation or status of employment andirrespective of the method by which they are paid.

- BUT does not cover:o

DW, Personal services, workers of duly registeredBMBEs, homeworkers engaged in needlework, farmtenancy or leaseholds

- Learners, Apprentices, PWDs: Shall have at least 75% of minimumwage

- Public Employees = Covered by the Salary Standardization Law

ExemptionsSec. 7

- Distressed Establishments;

-Retail/Service Establishments regularly employing not more than10 workers;

- Establishments whose Total Assets including those arising fromloans but exclusive of the land on which the particular businessentity's office, plant and equipment are situated, are not more thanP3 M

- Establishments Adversely Affected by Natural Calamities.- Micro and small indigenous exporters as certified by the Export

Development Council, subject to the criteria and requirements tobe provided for in its Implementing Rules.

Determination of compliance with minimum wage- Nature of work for a salesman and the reason for such type of

remuneration for services rendered demonstrate clearly thatcommissions are part of salesmans wage/salary

- When commissions equal to or even exceed the minimum wage, the

employer need not pay, in addition, the basic minimum payprescribed by law. It follows then that commissions are included indetermining compliance with minimum wage requirements.18

18Iran v. NLRC (1998)19SLL v. NLRC (2011)20

Cebu Institute of Technology vs. Ople

Facilities and Supplements/AllowancesBook III, Rule VIII A, Secs. 4, 5, 6, 7

"Facilities"

- Include articles or services for the benefit of the employee or hisfamily

- Does not include tools of the trade or articles or service primarilyfor the benefit of the employer

- Value of Facilities= cost of operation and maintenance, +adequate depreciation + reasonable allowance (not more than 5 % interest)

- If the fair rental value is lower than the computed value, fair rental

value will be used"Supplements"

- Extra remuneration or special privileges or benefits given to orreceived by the laborers over and above their ordinary earningsorwages.

FACILITIES SUPPLEMENTS

Forms part of the wages Over and above the actual wageFor the employee For the employer

Deductible from Wage Non-Deductible from WageNecessary for the laborer and his

familys existence and subsistenceGiven through the employersliberality or own benefit

What are the requirements for deducting value of facilities fromemployees wages?

1.

Proof must be shown that such facilities are customarily furnishedby the trade2.

The provision of deductible facilities must be voluntarily acceptedin writing by the employee.

3. Facilities must be charged at fair and reasonable value.19

Does Salary include allowances?

- No. Existing laws exclude allowances from the basic salary or wagein the computation of the amount of retirement and other benefitspayable to an employee.20

Cash Wages / CommissionArt. 97(f); Book III, Rule VII-A, Sec. 4

"Wage"

- Paid to any employee shall mean the remuneration or earnings,however designated, capable of being expressed in terms of money

whether fixed or ascertained on a time, task, piece.Commissions

- Are intimately related to or directly proportional to the extent orenergy of an employee's endeavors21

Gratuity and Salary/Wages, Difference22SALARY GRATUITY

Given as a form of compensation Freely given, or withoutrecompense

Linked to actual services performedor to be performed

Not intended for actual services

Mandatory Not mandatory

- What other non-wage payments can therefore be made aside fromGratuity?

o

Emergency Allowance: But receipt of ECOLA isdependent on whether or not you are also entitled tobasic if you get no basic pay for that day, you also get noECOLA.

o

Representation/Transportation Allowance: Thiscontemplates payment for expenses.

o

Per diem: This is actually allowance for each day that anofficer or employee is out of the home. It answers forboard, lodging, transportation and other relatedexpenses.

21Phil. Duplicators Inc v NLRC (1995)22Plastic Town Center vs. NLRC (1989)

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Effect on BenefitsArt. 100

- So that the rule against diminution of supplements or benefits mayapply it must be shown that:

o The grant of the benefit is founded on a policy or has

ripened into a practice over a long periodo The practice is consistent and deliberateo

The practice is not due to error in the construction orapplication of a doubtful or difficult question of law

o The diminution or discontinuance is done unilaterally by

the employer

-Exceptions:

o

Not established practiceo

Mistake in the application of lawo

Negotiated benefits contained in a CBA as these arebilateral

The giving of salary increase across-the-board to comply with a CBA provision cannotbe said to have ripened into a companypractice

o Reimbursement benefits

There can be an elimination of an existingbenefit in exchange for an equal or betterone

o

Reclassification of position; promotion However, this must be done in good faith. The

personnel movement should not be intended

to circumvent the law to deprive employeesof the benefits they used to receive

o Contingent or conditional benefits such as a bonus

RA 6727, Sec. 2;

Policies of State:

- To rationalize the fixing of minimum wages and to promoteproductivity-improvement and gain-sharing measures to ensure adecent standard of living for the workers and their families

- To guarantee the rights of labor to its just share in the fruits ofproduction; to enhance employment generation in the countrysidethrough industry dispersal

- To allow business and industry reasonable returns on investment,

expansion and growth.

- Currently, we have 1 Commission and 17 Regional Boards

National Wages and Productivity Commission (NWPC)RA 6727, Sec. 3; Art. 120, 121 and 126

- Attached to DOLE for policy and program coordination- Powers and functions:

o Consultative and advisory body to the President and

Congresso

Policy and guideline formulation for wageso Minimum wage and productivity measures creationo

Review of regional wageso Undertake studies, researches and surveys necessary for

the attainment of its functions and objectives

o

Review plans and programs of the Regional TripartiteWages and Productivity Boards

o Technical and administrative supervision over the

Regional Tripartite Wages and Productivity Boardso

To call, from time to time, a national tripartiteconference of representatives of government, workersand employers for the consideration of measures topromote wage rationalization and productivity

o Other powers and functions necessary to implementobjectives and goals

- SOL as ex-officio chair, Director General of NEDA as ex-officiovice-chair, 2 members each from workers and employers sector(appointed by President), 5 year terms

23

Metrobank v. NWPC (2007)

Regional Tripartite Wages and Productivity BoardRA 6727, Sec. 3; Art. 122, 126

- Powers and Functionso

Develop plans, programs and projects relative to wages,incomes and productivity improvement

o Determine and fix minimum wage rates applicable in

their regiono

To undertake studies, researches and surveys necessaryfor the attainment of their functions, objectives andprograms

o To coordinate with the other Regional Boards

o

To receive, process and act on applications forexemption from prescribed wage rates

o To exercise such other powers and functions as may benecessary

- Regional Director of DOLE as chair, Regional Director of NEDA andDTI as vice chairs and 2 members each from workers and employerssector (appointed by President), 5 year terms

- No preliminary or permanent injunction or temporary restrainingordermay be issued by any court, tribunal or other entity againstany proceedings before the Commission or the Regional Boards.

RA 6727, Sec. 3; Art. 124

- The demand for living wages;- Wage adjustment vis--vis the consumer price index;- The cost of living and changes or increases therein;

- The needs of workers and their families;- The need to induce industries to invest in the countryside;- Improvements in standards of living;- The prevailing wage levels;- Fair return of the capital invested and capacity to pay of

employers;- Effects on employment generation and family income; and- The equitable distribution of income and wealth along the

imperatives of economic and social development.

RA 6727, Sec. 3; Art. 123, 124

- Within 30 days of the conclusion of the last hearing, Board shalldecide and issue a WO

- Will last for 12 months and no petition for wage increase shall be

entertained within this 12 months- WO shall take effect 15 days after its publication in at least 1

newspaper of general circulation- Board shall prepare the IRR not later than 10 days of WO's issuance

This shall be approved by the Sec. of Labor and Employment- Appeals for review of WO

o Non-conformity with prescribed guidelines and/or

procedureo

Questions of lawo

Grave abuse of discretion

Methods of FixingFloor Wage Method

- The fixing of a determinate amount that would be added to theprevailing statutory minimum wage

Salary Ceiling Method

- Wage adjustment is applied to employees receiving a certaindenominated salary ceiling

Validity- The issue of the validity of the wage order subsists even after its

implementation23

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Wage DistortionRA 6727, Sec. 3; Art. 124

- Wage Distortion = A situation where an increase in the wage rateswill eliminate or severely diminish the differences between andamong wage groups in an establishment

- Four elements of wage distortion:241.

An existing hierarchy of positions with correspondingsalary 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 one3.

The elimination of the distinction between the twolevels

4. The existence of the distortion in the same region of the

country.

- For Organized Establishments, steps for fixing wage distortion:1.

Bargaining/Negotiations2. Grievance Machineries3.

Voluntary Arbitration

- For Unorganized Establishments, steps for fixing wage distortion:1.

Endeavor to negotiate2. National Conciliation and Mediation Board3.

NLRC

Art. 125; RA 6727, Sec. 2, 2ndpar.

- WO cannot limit the freedom to bargain

Art. 127

- WO must provide wage rates higher than the statutory minimumwage prescribed by Congress

RA 8188, Sec. 12

- P25k P100k OR2 years 4 years ORBOTH

Art. 102; Art. 1705 (NCC); Book III, Rule VII, Secs. 1, 2

G.R.: Legal Tender only

E: Check/Money Order if customary OR necessary because of specialcircumstances, as specified by SOL or the CBA

- Not allowed: Promissory notes, vouchers, coupons, tokens, tickets,chits, or any object other than legal tender, even when expresslyrequested by the employee

- Conditions for payment through checko Bank/Facility for encashment within 1km radius from

workplaceo Employer did not receive any pecuniary benefit because

of said arrangemento

The employees are given reasonable time duringbanking hours to withdraw their wages (compensablehours, if during working hours)

o

The payment by check is with the written consent of theemployees concerned, in the absence of a CBA

Art. 103; Book III, Rule VII, Sec. 3

- At least once every 2 weeks/2x per montho

Intervals must not be more than 16 days- Force majeure = valid excuse for delayed payment

o But must pay immediately after cessation of such

- For tasks which cannot be completed in 2 weeks:o

Payments should be made with intervals not more than16 days, in proportion to work completed

o Final settlement is made upon completion of the work.

24

Prubankers v. Prudential Bank (1999)

Art. 104; Book III, Rule VII, Sec. 4; Labor Advisory on Payment of Salaries thru ATM

G.R.: Shall be made at or near the place of undertaking

E: Following circumstances:

- Payment cannot be made because of deterioration of peaceand order conditions, or by reason of actual or impendingemergencies (fire, flood, epidemic)

- Employer provides free transportation to the employees backand forth

-

Under any other analogous circumstances; Provided, That thetime spent by the employees in collecting their wages shall beconsidered as compensable hours worked

- NO PAYMENT in any bar, night or day club, drinking establishment,massage clinic, dance hall, or other similar places or in placeswhere games are played with stakes of money or thingsrepresenting money except in the case of persons employed insaid places.

Conditions for payment thru ATM:

- ATM system of payment is with the written consent of theemployees

- The employees are given reasonable time to withdraw their wagesfrom the banking facility (compensable hours, if during workinghours)

- System shall allow workers to receive their wages within theperiod/frequency provided by law

- There is a bank/ATM facility within 1km radius from place of work- Upon request of the concerned employee/s, the employer shall

issue a record of payment of wages, benefits and deductions for aparticular period

- There shall be no additional expenses and no diminution of benefitsand privileges

- The employer shall assume responsibility in case the wageprotection provisions of law and regulations are not complied withunder the arrangement.

Art. 105; Book III, Rule VII, Secs. 5, 6

G.R.: Directly to the employee

E: Following circumstances:

- Authorized member of the family- A third person authorized by law (e.g. insurance companies

for premiums)- Force majeure, then to authorized person- Worker has died, then to heirs, the latter executing an

affidavit regarding their relationship

Art. 112; Book III, Rule VIII, Sec. 9

- No limitation/interference with the freedom of any employee todispose of his wages.

- Employer shall not in any manner force, compel, or oblige hisemployees to purchase merchandise, commodities or other

property from any other person, or otherwise make use of anystore or services of such employer or any other person.

Art. 113; Book III, Rule VIII, Sec. 10

G.R.: Employer cannot make any deduction from the wages of hisemployee

E: Insurance premiums; Union Dues; Authorized by law / by SOL

- In case of Bankruptcy: Unpaid wages before declaration ofsuch shall have first preference over creditors

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Arts. 114, 115; Book III, Rule VIII, Sec. 11

G.R.: No deposits where deductions shall be made for thereimbursement of loss of or damage to tools, materials, orequipment supplied by the employer

E: Employer engaged in such trades, occupations or business with thepractice of making deductions is a recognized one, or is necessaryor desirable as determined by the SOL in appropriate rules andregulations.

- No deductionfrom the deposits of an employee for the actualamount of the loss or damage shall be made unless:

o The employee has been heardo His responsibility has been clearly shown.o

Amount of the deduction is fair and reasonable and shallnot exceed the actual loss of damage

o Must not exceed 20% of weekly pay

- Attorney's fees in any judicial or administrative proceedings for therecovery of wages shall not exceed 10% of the amount awarded.

Art. 113, 116; Art. 1706 (CC)

G.R.: Prohibition from withholding of wages and kickbacks

E: Special circumstances:- Deduction is for insurance premiums- For Union dues- Authorized by law / by SOL- Due and Demandable debt to employer

Art. 117

- No deduction from the wages for the benefit of the employer,representative or intermediary as consideration of a

Labor (A2016)

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